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Military government and civil affairs

Military government and civil affairs

Army“and Nuvy E-Manud of MILITARY GOVERNMENT AND CIVIL AFFAIRS
,’ 22 December, 1943
i”’
22 December 1943.
This manual, War Department Field Manual 27-5 and Navy Department OpNav 50E-3, supersedes War Depart­ment Field Manual 27-5, 30 July 1940. .
G.      C. MARSHALL, E. J. KING,
 Chief of Stafl, U. S. Army. Commander in Chief,
 
U. S. Fleet, and Chief of Naval Ofierations.
OFFICIAL:
J. A. ULIO, By: W. S. FARBER,
Major General, Rear Admiral,
 Th,i” ‘b*r dent Gelaeral. Sub Chief of Naval Operations.
 
Table of Contents
 
XCCiiO,~ Pa?Y7Qw$lk      PtrYc
I.      GENERAL.
1: Definitions:      Military Government, Occupied Territory, and Civil Affairs ___- -_- __-____ –_ 1
2.
     Military Contra1 by Agreement or Convention-2

3.
     Occasion for Military Govcrnmcnt as a Right or Obligation in Enemy, Allied, Neutral, and Domestic Territories ___-__ -_____ – _________

4.
     Object of Control of Civilian Populations—,,

5.
     Degree of Control—————_-_-_____

6.
     Period of Control ____________ – _.__–_ –__-­

7.
     Authority for Control _____________________

8.
     Exercise of Control a Command Responsibility,

9.
     General Principles and Policies in Conduct of Civil Affairs—_____ – _______-____________

a.
     Military Necessity…—,——-__.—­

b.
     Supremacy of Commanding Of&r—,*

c.
     Civil ht%nirs Jurisdiction _____.__ –___

d.
     Economy of Personnel _–___ -__-_____

e.
     Plcxibility _____ –ll_-_l__._-l._—l__

f.
     Continuity of Policy——____._. I_.-__

g.
     Trcntrnent of Population l____l_____l

1)      Must bc just and rcasonnblc-­(2)      Will vary with conditions—, (a)
     Hostile or nonhostile populations -_ll-_l-___

(b)
     Hostngcs and reprisals to bc avoided _–_ – ___-_-_

(c)
     USC of farce against crime, violators cnti tlcd to trial ____-_I_-__._.__…_

( h.
     Retention of Bsisting Laws, Customs, and Political Subdivisions ———–­

i.
     Retention of Local Govcrnmcnt Dcpart­mcnts and Oficials, ___.-__-_.–______

(1)
     Abolition of unnccessnry gov­crr1111cnt ofices -I-^_ –,” —_

(2)
     Suspension Of Icgislativc bodir?)l———l—–_–­

Ill

1, GENERAL-Continued. CJ, ~~~~~~~ principles and Policies hl ~OrldUct of Civil Affairs-Continued.
is Retention of Loc>ll GC~VC~~IllllC!Ilt DallZrt”
mcnts and Oificials—Continued.
(3)
     Removal of high r:~nkilW of­ficials ______ –___-_—…–­

(4)
     Retention of subordinntc! Of­ficials _______ -___-_..—-.-­

(5)
     ‘rraining of inhnbitnrlts ior loen governmclnt——.—.-.

(6)
     Control of inhnbitants throUgh their own off&& _____.—-­

(7)
     Exclusion of local oficinis and orga.nizntions from any part in policy formation ___-_–.—­

(8)
     Civil affairs oirccrs to SupC~­vise, not operate ___cl-l _-_-­

(9)
     Protection for local ofliciids-­

(10)
     Relations of civil a&&s of­ficers with officials and orgnni- zntions _____ –_______ -____

j.
     Treatment of Political Pdsoncrs——­

k.
     Economics—_____——__-__—-~I_

(1)
     Immediate need for cquhnble distribution of dnily ncccs­sit&–____ – _____ – __-__lll

(2)
     Need for checking ccononlic pIans after occupntion—–­

(3)
     steps necessary far rapid executiofi of economic plnnal

1.      Health—-______I_ -_-_-_______–1
m.
Respect      for Religious Customs and Organizations _____-__.______ —_-.II

n.
     Annulment of Discriminatory LWS–.-.

o.
     Freedom of Speech and Press __-__,_. I.__

p.
     Preservation of Archives and Records-….

q.
     Mail and Documents—–_-______…­

r.
     Preservation of Shrines and Art _-__-_,,.

11. CIVIL      AFFAIRS RESPONSIBILITIES. lo. Army-Navy Division of Responsibility__–___
11.
Conditions      Likely to be Met itI Occupied ~~rh-ics —_–. –_-_-_-____________

12.
Functions      of Civil Affairs Oacers to ~<:~>,t These Conditions—–_________-__ L ____… ,I

a.      Political and Administrntivr –_.,, . .._-_.
W

9 9 9 10
III
10
10
::

13
14.
15 15
II.  CIVIL AlFAIRS RESPONSIBILITIES-Con, 12. Punctions of Civil Affairs Oficers io Meet  
These Conditions-Continued,  
b. Mnintcnnnce OF Law and Order—–…  15  
C. Supervision of Military and Civil  
Courts – _____ -___-­ 16  
d. Civilian Defcnsc – ___r_l__  16  
e. Civilian Supply __-.______ -__  16  
f. Public Hcnlth and Snnitntion——­
g, C:cnsorshipl—__–___­ :;  
11. C~onrlnlnnicntions-.. _______________­ 17  
i. T~~tlSpOfti~tiO~l -_-­_____________-_  17  
j. Port Duties _-__-_ –
k. Public Utilities ________­- _____ –__  :::  
1. Money and Bnnlh~g–l _–_ – ____ –_  18  
m. Public Finnncc – _________  18  
n. Commodity Control, Prices, and  
Rationing _________-___________  18  
” 0. Agriculture _—_—–_—-_______  18  
p. Industry and Mnnufacturc—____—  18  
q, Commcrcc and Tmclc—­
1’. L&or …—-.“ll-l—____ – –_____ -_  :8”  
s. Custody and Adnhistrntion of Prop-
CITY ———-_—I__cI——–­ 19  
t. Inforn~ation __-__ -__– __-________  19  
u. Disposition, or Relocation of Displaced  
Persons and Enemy Nntiotuh—–­ 19  
v. Education –_­______-___ – _-_____-  19  
. w. Public Wclfarc.. _______I__ -_-_-__­ 20  
x. Records ____.–____I_ – _LI__________  20  
y. Misc~lhncous r ._.__ -__  20  
III.  ORGANIZATION OP MILITARY GQVERN­
MENT.  
13. Gcncral Chntrol for the Army and for the  
Navy, Plnnning and Policic:s–­__.___I______  22  
a. Undnr Joint Chiefs of St& for Joint  
Milihry Govermnrnt _,_ll_l___l__ -__  22  
b. Under Corubiucd Chiefs of Staff for  
Conhincd Military Govr!rnnlent_—,  22  
14,. Plnnning xncl Poni~ulntion of Policy Within  
the War nnd Navy Dcl,nrt!Hcllts—~.-.–..I,,,  23  
n. J’hc! Civil hRilil*S Divisiuil in the Of-
Act of the Chief of Stnn’, War Dcpnrt­
mcnt –“_ ._..-____ _.-““l -__-_ -_-I._-I_  29  
b. The Oflicc! for Chxxpitrd Arcas, Un+r  
the Vicr Chic~f of Naval Opixxtiona,  
Navy Drpnrt~ncnt __I_ ai v.__…____..__-  23  
V  

MENT-Continued.  
15.      Theater Commander’s Responsibility for Final
 
and Detailed Planning and Operation of
 
Military Government Under General Direc-
 
tives from Higher Authority -I_-__-_ L– ___-  23
 
16.      Types of Civil Affairs Organizarion—-,____  24
 
a.      Operational ————-_________  
b.      Territorial—-L  5:  
17.      Advantages and Disadvantages of JZach Type-  24
 
18.      Organization of Military Government in Com-
 
bat Areas—————————–_  27
 
19.      Organization of Military Government in Rear
 
Areas———————————­ 28
 
20.      Organization of Military Government Within
 
a Task Force­–_-___ -______ -__­_-___  30
 
21.      Theater of Operations—– __l_____l______  30
 
a, During the Campaign —__-_ -__-__  30
 
b. After Cessation of Hostilities  30
 
22.      Civil Affairs Staff Sections -__-__  31
 
a.      Civil Affairs Staff Sections Created bi
 
Theater Commander—–­ 31
 
b.      Duties of Chief of Civil Affairs Staff  
Section …c-.———–_—  
23.      Organization of Civil Affairs Section——-­ 3”;  
a.      Magnitude and Character of Duties  
_      will Vary from One Territory to
 
Another —–_—____—_________  32
 
b.      Internal Organization to Perform
 
Duties will Include Provision for—-­ 32
 
(1)      Administrative officers—-­ ‘17  
(2)      Functional officers  35  ”  
(3)      Civil affairs officers from
 
other services in joint mili-
 
tary government-­__-_____  33
 
(4)      Civil affairs officers from
 
other nations in combined
 
military government  34,
 
24.      Civil Affairs Chain of Command  ,34  
25.      Personnel of Civil Affairs Group ______-____f  34.  
a, Number,      Rank, and Specialization of
 
Personnel in Various Areas _________  34
 
b.      Categories of Personnel Required—­ 34
 

Xcotiotb
III.      ORGANIZATION OF MILITARY GOVERN­MENT-Continued,
26.      Occupational Military Police, Marines, and Shore Patrol-___-________ -_-_____ -_-____
a.
     Provision, Organization and Equip­ment Similar to Those of Rear Area Military Police Units—–______ –_

b.
     Assignment and Command-.—_____

c.
     Authority to Make Arwsts ____ -___-­

IV.      PERSONNEL.
27. Planning and Procuremqnt of Personnel—-,
a.
     Theater Commander’s Responsibility for Estimates of Requirements and Requisitions for Civil Affairs Pcrson­nel—————————-­

b.
     Assignment of Civil Affairs OfIicers by Echelons-____-__ – ___I_L__ —-_

28.      Types and Qualifications of Civil Affairs Personncl_-_——-I_I——_-____-___­
a.
     General Types and Qualifications—­

b.
     Qualifications of Chief or Deputy of Large Staff Section or Field Grdup–­

c.
     Qualifications of Chiefs of Small Sec­

tions and Field Groups, and Executive \ Oficbrs ___-______ -___—_-_-___…
d.
     Qualifications of Staff Assistants-.—­

e.
     Qualifications of Administrative Serv­ices Personnel—-______ – __-___ –­

f.
     Qualifications of Functional Oficcrs-­

29.      Training l___l_______ L- _____-.______.___ -­
a.. Training      in the United Stntrs of Ad­ministrative and Specialist Pcrsomwl in Schools of Military Govcrnmcnt of the Army and Navy-Occupational Police r_lll____l_______l_l_—– –._
b.      Further Training Conducted in Theater as Function of Commnnd-…-..
V.      PLANNING.
30.
     Gcncral Planning for Control of Civil Afl$irs in Occupied Areas a Responsibility of Com­mnndcrs Assigned to the Planning of Mili­tary Qpcrations–____–_–____ – _____II-_

31.
     Sources of Information for Planning _._l.__-l-

PUf/O
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38 39
39 39 39
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39
4.0 40

V. PLANNING–Continued.
 
32, Responsibility for Plans __________ -____ -__-  – 42
 
a.      War and Navy Departments Respon­
sible for Integration of Plans Under  
Joint Chiefs of Staff and for Liaison  
with Federal Civilian Agencies—–­ 42  
b.      In Theater of Operations Each Officer  
Charged with Civil Affairs Control  
Responsible for Planning for his Area  
in Accordance with Directives, from  
his Commander—-­-___—__  42  
33. Form of Civil Affairs Orders————–­ 42  
a.      Of Theater and Task Force Com­
manders ———__–____-_—–­ 42  
b.      Of Military Administrative Area Com­
manders————————­ 4.3  
C. Of Operational Unit Commanders–­ 43  
d.      Of Chief Civil Affairs Officers——­ 43  
e. Distribution of Civil Affairs Orders–­ 43  
34.      Content of Civil Affairs Orders———–­ 4.3  
a.      General –_—–_–_–__——–­ 43  
b.      Detail—————­–__  43  
VI.      PROCLAMATIONS, ORDERS, ORDINANCES,  
AND INSTRUCTIONS.  
35.      Initial Proclamation———–~–~—–~.  45  
a.      Preparation in Advance——­ 45  
b.      Form, Character, and Language—-­ 45  
c.      Contents __- ___- ____ —___-___  46  
d. Publication -_——————__  4 7  
3G. Further Proclamations and Ordinances–…–­ 48  
a. .Issuance————————-      4,S  
b. Form, Character, and Language  48  
c. Contents ——————______  48  
d. Delegation of Authority  49  
e. Publication —–_-­____ —  49  
37. Orders and Instructions­______-___________  49  
VII.      MILITARY COMMISSIONS, PROVO ST  
COURTS, AND CLAIMS.  
38. Theater Commander Establishes All——-­ 50  
39, Types ———–___-­____ -_-_  50  
a, Customary-Military Commissions for  
Serious Cases and Provost Courts for  
Minor Cases——­ 50  
b. Special for Trial of Juveniles, Traflic  
Cases, and Other –_-____ – ___- —__  51  
40.      Composition of Commissions, Customary and  
Special      Courts – _______________-____  51  
VIII  

a

tYecliotb  Pwq71'apR  
VII.       MILITARY  COMMISSIONS,  PROVOST  
COURTS,  AND  CLAIMS-Continued.  

4.1. Appointing Alltllorities-__-_–_——L ____ 4a2.Jurisdiction of Commissions and Courts—–­
a.
     Gencml __-__-____ –_______ –____

b.
Over Persons ——–_—-__ —–­

C.
     Over Offenses Directly Affecting Mili­tary Govclnment—————–­

d.
     Over Offenses Against Local Criminal Laws ——————–1______

e.
     Over Civil Casts __________________

43. Bail n Matter of Discretion————–­
4.4,.Procedure———_——————-­General-Uniformity, Rules of Evi­dence, Witnesses ________I -_——­Commissions–Follow General Courts Martial -__—___-___-___________ Provost Courts-Follow S u m m a r y Courts Martial _____ -____ —–____ Specinl Courts ____–_.-______ –____ Trials-Necessity for Dispntch——­Counsel-Accused Allowed to Rctnin Counsel _-____________ -__—-___­Witnesses-Attcndancc Compelled–­Interpreters and Language——–­Court Reporters _________ – ______ -_ Previous Convictions of Accused—–
45. Scntcnccs and Penalties by Commissions and
Courts ——————————–­4,6. Records, Type for Commissions nnd Courts–­
47. Review Provided to Correct‘ Injustices——,
4.8. Clnims Commissions—-____ -_–_-_——_
a.
     General Appointed by Theater Com­mandcr _–___— _-______________

b.
     Investigntion &tics __–_ _–__-,-__ I._

c.
     Scttlcmcnt of Glnims-Army Pro­ccclurc _–l_——_-_–l——–­

d.
     Scttkmcnt of Claims-Navy Pro­

cedurc _I_._,__…______._I_l_l__l -_-_ INDEX _I.__ – _I_____ –_——_–_______–_—1111–~.–­
PUQ@
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Intentionally Left Blank
This mnnual supersedes FM 27-5, 30 July 1940, including Change No. 1, 22 December 1942.
SECTION I
GENERAL
1. MILITARY GOVERNMENT-CIVIL AFFAIRS.
,      a. Military Government. The term “military gov­ernment” is used in this manual to describe the supreme authority exercised by an armed force over the larids, property, and the inhabitants of enemy territory, or allied or domestic territory recovered from enemy occupation, or from rebels treated as belligerents. It is exercised when an armed force has occupied such territory, whether by force or by agreement, and has substituted its authority for that of the sovereign or a previous government. Sovereignty is not transferred by reason of occupation, but the right of control passes to the occupying force, limited only by inter- national law and custom. The theater commander bears full responsibility for military government. He iy, thcre­for?, usually designated as military governor, but may delegate both his authority and title to a subordinate commander.
b.
Occupied Territory. The term “occupied terri­tory” is used to mean any area in which military govern­ment is cxerciscd by an armed force. It does not include territory in which an armed force is located but has not assumed supreme authority.

c.
Civil Affairs. The term “civil aflairs” is used to describe the activities of the government of the occupied area and of the inhabitants of sucl~ an arca cxccpt those of an organized military character. “Civil affairs control” describes the supervision of the activities of civilians by an armed force, by military government, or otherwise. The term “civil affairs oflkers” designates the military officers, who, under the military govcmor, are engngcd in the con­trol of civilians.

1
2.
MILITARY CONTROL BY AGREEM.ENT OR CON. VENTION. An armed fo?ce may exercik control over civilians to a lesser degree than under military government through grant of, or agreement with, the recognized gov­crnment of the territory in which the force is located, usually made prior to entering the territory, but subject to modification by the government and the military com­mander as circumstances require. In such casts military necessity has not required the assumption of supreme authority by the armed forces, but limited control over civilians is exercised in accord with these grants, or agree­mcnts and the territory is not considered reoccupied.” While this manual is primarily intended as a guide to military government, some of the principles set forth may be applied in these other situations as circumstances indicate.

3.
OCCASION FOR MILITARY GOVERNMENT. Mili­tary government must be established either by reason of military ‘necessity as a right under international law, or as an obligation under international law. In this connection, attention should be given to the following considerations:

a.
Military necessity may require an armed force to establish military govcrnmcnt to assist in the accomplish­ment’ of its military objective. The right in such cases is rccognizcd by international law.

b.
As the military occupatibn of enemy territory suspends the operation 01 the enemy’s civil government, it is an obligation under international law for the occupying force to exorcise the functions of civil government in the restora­tion and maintcnancc of public order. Military govcm­ment is the organization which eserciscs these functions. An armed force in territory other than that of an enemy likewise has the duty of establishing military government when the government thereof is absent or unable to maintain order,

c.
These reasons, concurrently as well as singly, may dictate the establishment of military govcrnmcnt.

d.
Military govcrnmcnt is not confined to belligerent occupation. Military necessity may require its establish­

ment in such4 areas as the following, with or without the
 consent of the existing or a prior government:
 
(1)
Allied or neutral territory which has been dominntcd or occupied by the enemy.

(2)
Technically neutral or allied territory actually un­,friendly or hostile.

(3 ) Genuinely allied or neutral territory, the occupation of which is essential to a military operation.
(4) Domestic territory recovered from enemy OCCUR­tion or from rebels treated as belligcrcnts.
4.
OBJECT OF CONTROL. The object of civil nfI’airs control through military government is to assist military operations, to further national politics, and to fulfill the obligation of the occupying forces under intcrnntional law. This assistance is rendered by maintaining order, promoting security of ‘the occupying forces, prcvcnting intcrfcrcnce with military operations, reducing active or passive snbo­tage, relieving combat troops of civil administration, and mobilizing local resources in aid of military objectives and carrying out governmental policies of the ZJnitccl States which usually arc predetermined. Furlhcr, the cficicnt conduct of a military govcrnmcnt as a part of one militxry operation will promote -military and political objcctivos in connection with future operations.

5.
DEGREE OF CONTROL, The occupz~~~t may clclrwcl and enforce from the inhabitants of the occupied arca such obedience as may be necessary for the p~~rpos~~s of wr, the maintenance of law and order, and the prolxr :Iclnrin­istration of the area under the unusual circurnstnnccs of hostile occupation. In return for such obc~dkntx~, the *’ inhabitants should be granted freedom from all ~~tmo~w sary or unwarranted intcrfcxcncc with their individlr:\l liberty and property rights. Under military govrrn~lrt:nt the degree of control maintained by thr: occul)yin~ BREWS varies grcakly according to the rclatinns which l\;tv(! l>r(q*i­ously existed between the govermncnt of eho o(:(:ul)yillg forces and the government of the territory occul)ic:d, rhea

existing attitude of oflicials and inhabitants, the project&d military operations, and k~ent military, political, eco. nomic and other pertinent circumstances. In the territory of an enemy, rigid control of civil affairs is necessary if the bbjectives of military government are to be achieved. In neutral, allied, or domestic territory, sufficient cooperation from the officials and inhabitants may be obtained to permit greater latitude for action by local officials under broad policies and general supervision of the occupying forces, particularly in those governmental fields lcast im­
’      portant to the military forces in current or pending opera­tions! In any territory, as conditions approach normal, the control exercised by a military government will be relaxed, the supervision of the occupying force will become less direct, and supreme authority will finally be released to a recognized sovereign power.
I I 6. PERIOD OF CONTROL. The period of time during / which military government or civil affairs control is main- tained will vary, depending on whether military operations arc continuing, the USC or nonuse of the area as a base for future operations, whether the territory is bclligercnt or otherwise, the degree of cooperation of the inhabitants, the national policy regarding the futilre position of the terri­tory, and other military and political considerations. As long as military opcrntions continue, some degree of control will be ncccssary. Military govcrnmknt may etiend beyond such operations until it nchicves the ends of national policy toward which the operations arc directed.
7, AUTHORITY FOR CONTROL. Military government is exercised by virtue of and in accordance with rules of international, law. Authority for the exercise of such con­trol is derived from the mere fact of occupation or from some form of agreement such as an armistice, a convention,
, or a treaty. The more important of these rules are set 1 forth in the military’ manuals of the leading civilized 1 countries and ,in international treaties, such as the Hague i Convention No. IV, i907 (Annex Sec. III). The rules
I
/      4 Which govern the armed forces of the United States arc set forth in the War Department manual FM 27-10. While the Hcgue rules apply legally only to enemy tcrd­tory, as a matter of policy they arc gcncrally applied to other territories occupied by United States ~OIYXS.
8.
EXERCISE OF CONTROL A COMMAND RESPONSI­BILITY. The exercise of civil affairs control is a c~nmmnd responsibility. In occupied territory the commander, by virtue of his position, has supreme legislative, osccutivc, and judicial authoritjr, limited only by the laws and cus­toms of war and by directives from higher authority.

9.
     GENERAL PRINCIPLES AND POLICIES IN THE CONDUCT OF CIVIL AFFAIRS. *

a.
Military Necessity. The first consideration at all times is the prosecution of the military operation to a suc- cessful conclusion. Military necessity is the primary undcr­lying principle for the conduct of militq governmcnt. So long as the operation continues, it is the duty of thr commanding officer to exercise such control and to t&c. such steps in relation to the civil population as will attaiu the paramount objective.

b.
Supremacy of Commanding Officer. It follows from the basic principle of military necessity that tllc theater commander must always have full rcsponsibilit) for military government,

c.
Civil Affairs Jurisdiction. The paramount illtt:rrst of the combat ofker is in military operations. Thc: para­mount interest of the civil affairs of?iccr is in dealing \yitl] civilian relationships of concern to the co~nmancl~~~. sut+ interest will be expressed in restoring law and o&r :mcl in returning to the civilian population certain’ facilities ~)1: services and restoring living conditions to norm:ll, ins;crf:lr as SUCK activities will not tend to intcrfcrc with military operations. Whether intcrfcrcncc with military oprr:~.ti(>lls

will  result shall  bc dctcrmincd  by  the  couunanding  of&:(ar  
after  giving  consideration  to  the  rclcornnlcnd3tiolls  of  lljs  
combat  and  civil  affairs  oficcrs.  

s
\
d. Economy of Personnel. Since cficicnt control of the civilian population ancl mobilizntion Of local civiliall manp~wcr will lessen the need for garrison ~OPXS,adequate civil affairs personnel will in the hlg lWl prom an Won. omy. The stimulation and sUpCrViSi011 Of production and use of local resources will lilccwise make savings in Shippi~~g and q~ply. All plans and practices Of military govern. ment should be adopted with this in view 2nd at lcast the minimum necessary number of Amy and Navy personnel trained in civil affairs bc providccl., The duties of civil
e      affairs officers should bc conlincd whcrcvcr possible to supervision.
e.
Flexibility. The administration of civil aPTairs bvill vary widely in different arcas dcpcncling Up011 III:UIY hctoq including the nlilitary forces present and their disl>osition, the ‘structure of the native governmnt, the geography of the arca, ‘the economic instructions, tl~ chnractcristics of the pcoplc and their officials, the dcgrcc of control which may be necessary, the prcscncc or nbs~r~c of civilian of& cials, the dcgrce of destruction of 10~~1 resources, the pcrson- nel available, and the basic policies to be fdlow~d, includ­ing the contcmplatcd post-war position of the territory. It will probably vary widely everl in the ~nme territory from one’ tirnc to another as when the thrcnt of combat deklines or ceases. It follo\vs that the utmost flexibility must be provided in tlw l&ul~ and in the ccmduct of civil affairs.

f.
Continuity of Policy, Tllc ndministtxtion of civil affairs in occupied territory should bc so l~lnnncd and conducted that a rcasonnblc dcgrcc of continuity of policy and pcrsonncl will result. PrCqucllt clmngcs of policies and orders will injure the cflectivcncss and prcstigc of the administration, while frcqu&t chan~cs of pcrsonncl Will. dcprivc the occupying forces of the services of ofikcrs when they hnvc bccornc of grcatcst v&c.

g.
Treatment of Population. (11 Intrrnntinnnl law rcquircs and military ncccssity cliclntcs just and rcasonablc trcstnmt of the inhabitants of occupied territory to mini­mize their bclligcrcncy and obtain their coolxmtion. The

Cooperation of the inhabitants, where it can be sccurcd, is of direct advantage to the occupying forces in maintaining public order and accomplishing the objective of military government. While the welfare of the inhabitants ~110dd be considered also for humane reasons and should bc safc- guarded as far as military requirements permit, the primary purposes of just trentincnt are to fncilitatc the military operations and to meet obligations imposed by law, Proper treatment will be of direct benefit to the occupying forces in preventing chaos, promoting order, and in the procurc­ment of labor, services, and supplies. It will have 3 favorable influence upon the present and future attitude of the population toward the United States and its allies. It will provide incentive to populations of other tcrritorics to accept, our future occupation. Such a policy, liowcvcr, should not affect the imposition of such restrictive or punitive measures as may be necessary to accomplish the objectives of military government in any arca, but cspccially in one in which the population is aggrcsxivcly hostile and engages in active and passive sabotage.
(21 The treatment of the population of any occupied territory will vary, depending upon the nttitudcs of the people toward the occupying forces; their dcgrcc of coopcr- ation with these forces; the dcgrcc of their industrial, ec,onomic, political and moral deveIopment; and the political, diplomatic, and military policy of our govcrmncnt toward the government of the territory occupiccl. T’hc civil affairs officers should bccomc fully informed conccrl1­ing the local population and their customs, institutions and attitudes, and should direct military control in the light of the local situation and requircrncnts. Xn consid(*ring tll(: treatment of populations in occupied areas> tllc f&~ing factors should be taken into account:
Ia 1 Generally, Icss restrictive mcnsurcs wiII hc nrc(~ss:lq in dealing with nationals of friendly or nonllostilc countricbs than with nationals of enemy countries.
(b) The taking of hostages, the imposition of coIlectiv(: fines, or the carrying out of reprisals become military n~ccs­sities in some situatjons though such mcn~~res sh~~~~ld on13
5gll OF?“.- 48 .-^…… :< 7 be taken as an unavoidable last resort t0 illduCC a hostile population to desist from unlawful practices. Such actions are usually an indication of weakness of the occupying forces and of ineffective control of the inhabitants. Care­ful consideration should be given to the question of de­termining whether such devices will serve as a deterrent or aggravate an already difficult situation. (See FM 27-10.)
(c)
Force may be used to the extent ncccssary to subdue those who resist the authority of military government or to prevent the escape of prisoners OS ~WSO~XT suspected of crime. Persons accused are entitled to a fair trial before the imposition of punishment. The theater commander has the power to provide immediate trial, when an example is necessary. Sentences of military courts should be pro­portionate to the oflense and the need for a deterrent effect. The maximum punishment s110ul~l not be awarded automatically. The nature of sentences to be imposed and whether they should be carried out in public, depends in

h.
Retention of Existing LaHis, Cwstoms, and Politi. Cal Subdivisions. Local officials and inhabitants of an occupied territory are familiar with its laws, customs,’ and institutions. To avoid confusion and tb promote simplicity of administration, it is advisable that local laws, customs, and institutions of government be rctaincd, except where they conFlict with the aims of military govcmmcnt or are inimical to its best intcrcsts. In gcncral, it is unwise to impose upon occupied territory tha laws and customs of another people. Any ntecmptcd changes or rclorms con­trary to local custom may result in devclopmcnt of active or passive resistance ancl thckby handicq the operation of military government. For similar reasons it is advisable, if possible, to retain existing territorial divisions and sub­divisions. Laws and customs in one political division of a country may differ widely froln those in another and the inhabitants therefore may be accustomed to the dccentrali­

part  upon  the  customs  and  habits  of  the  population  and  
the  types  of  punishment  which  have  been  found  most  
effective  in  the  particular  locality.  

zation of governmental authority which UN~Y l~arallels
such divisions.
i. Retention of local Government Departments and
Officials. (1) Of3[ices which arc unnecessary or detri­
mental to military government will be temporarily discon­
tinued or suspended by the military commander as military
governor. 111 some areas this fixay bc the cast with entire
departments or bureaus of the government.

(2)
Such legislative bodies as are still in csistcncc will
usually be suspended. Supreme legislative power is vcstcd
in the commanding officer in the theater of opcratioqs.

(3)
Usually it will be necessary to remove high ranking political officials from office. This action will include the removal of the nominal and actual heads of the national government, cabinet ministers, and the heads of principal political divisions. No permanent appointments to SUCK positions should be made by the military governor without approval of higher authority ,becnuse of the political impli­cations of such appointments. Wliilc mcmbcrship in un­friendly partisan organizations or political parties may not by itself be cause for removal, such o&Gals as have b~cn active Ieadcrs of such organizations will ordinarily not lx retained in oflicc, nor will other officials who prove to bc unreliable or untrustworthy. Willful failure of retained local’ oficials to perform their duties satisfnctc~rily should be regarded as a. serious offcnsc against the nlilit:\rY

government.
’ (4) So far as practicable, subordinntc nflicials and (qn­
'      1doyCeS Of the lOCd govcrnmcnt should lx: rctainccl in tllcil offices and made responsible for the prqxr disc*llnrK(> trl their duties, subject to the direction and sl~l)(~rvisitru of civil affairs personnel.
(5) In some areas the native popu1~~tio1~ nl;t)+ have h:ul very limited participation in govcrnntcnl: ~x:~:;~~IsI: of 1~1~ domination of a foreign power. In such arcas civil &i&Is may have fled when invasion takes p~nct:, or it n,;ty I)(> inexpedient or unsafe for them to continua in oflice, (:voI, if they rem&n. In territories of this sort it nl;iy 1)(~(~01111~ necessary for military government t0 train nntivc personnel to -tal<e over certain positions.
(6)
Civil affairs pcrsonncl ~h0~1d CLS far L~S prnctical& deal with the inhabitants of occupied territory through such o~~ccrs aIld employc~ of the local ~o~rnrr~nt ‘~1s arc retained or appointed. FVhcn an of&in1 is rcmovcd, a replacement should be sought from among the inhabitants who by training and experience is qualified to take over the duties of the office. In the solcction of ofkinls, careful consideration should be given to their reliability, their willingness to cooperate with the military govcrnnrent, their positions in the community, as well as their other qunlifica­tions for the particular position. Appointments from a polkical faction or clique, regardless of their friendly sentiment, should be avoided, e?;ccpt in unusunl circum­stances. In some circumstances it may bc detcrmincd that the duties of the position cw bcttcr be pcrforrncd by a representative of the military ~ovcrmncnt.

(7)
Neither local political personalities nor organized political groups, howcvcr sound in scntimcnt, should have any part in determining the politics of the military ,govcrn­ment. Civil affairs ofhccrs should avoicl any cOuniiitmcnts to, or negotiations with, any local l~olitical clcmcnts cxccpt by directions from higher authority.

(8)
So far as possible, civil affairs oflicers should confine themsclvcs to supervision and avoid assumption of the duties of the operating head of a political subdivision or of a department of govcrnmcnt.

(9)
It may be advisable to provide protection for per­sons who continue in, or arc assigned to, local public ofice. They may bc accused of disloyalty by some inhnbitants of the area. Their persons and property may be thrcntcncd or endangcrecl.

( 10 1 Civil affairs ofllccrs and pcrsnnncl, as rcprcscnta- tives of the Unitccl States govcrnmcnt, sl~o~~lcl keep their relations with local oficinls and inhabitants ori a strictly official basis, avoiding unofficial social rclntionships. All personal favors or gifts which may bc on’cred .by civilians arc to be rcfuscd unless authorized by hi&r authority,
]. PeliQ;ical Prisoners. Persons imprisoned by tllc p”C­v&s government, for political or racial rcaSotXi only, should be released after investigation, unless directed othcrwisc by
higher  authority,  with  warning  that  political  activity  on  
their  part,  during  the  period  of  military  government,  will  
not  be tolerated.  
k.  Economics.  The  basic  economic  policy  of  Unitcrcl  

States military government is twofold: first, to revive cco­nomic life and stimulate production in order to reduce to a minimum the needs of the arca for United States and ‘allied assistance and to dcvclop the arcn as a source of supply for further operations, and second, to USC avnilnble goods and services as efficiently as possible for the satis­faction of military and civilian needs. Corollaries of this
basic policy include the following:
( 1 1 An equitable distribution of ncccssities, such as food, fuel, medicine, and clothing, should be instituted as quickly as possible. To this end it will be necessary to reestablish, to some degree at least, public utilities, transportation, communications, and trade. It will often bc ncccssnry to enforce controls, which may or may not be the same as those in effect belorc occupation, over various aslxcts of economic life, including prices; over marketing by ration­ing, by measures to bring hoarded goods out of hiding, and by suppression of black markets; over imports and czports; over money and banking. The reestablishment of corn-­munications $411 normally require the instituting of cxnsor­ship. At times military govermncnts will l;xvc to engage actively in some types of economic activitv in ot&r to assure that the armed forces and the populn~ion rcrcive at least a minimum of ndcessnry goods and scrviccxs.
(2) Such plans as may bc practicable should I~(> Inid in advance for the resumption of production, csl3rci:rlly in agriculture, fishing, and manufncturc, but also in mini~l~, forestry and the service traclcs. Prclilllirlilry decisions: niust: be reached as to which types of economic activity :\rc nlnsl important. Where military occulxl.tion is rf~~~:t.(~~l tll~~s~~ plans must bc carefully chcclcccl to dctcrmin(: wll:ll Il\()di{j­cations are necessary cspccinlly in view of d;un;~g(: dent: to
11
facilities. In most cases1 it will be IFX~SS~~~ to make rapid surveys of usable facilities and of undcvcloped resources &fore rehabilitation plans can be completed.
(3) Steps must be taken to put into immediate effect plans for the tehabilitation of production. In order to provide minimum military and civilian supplies it may be necessary to provide farmers and manufacturers with essen­tial equipment and materials. Labor SUPPLY rlmst bc pro- vided for necessary activities. It will be necessary to prevent abnormal wage increases, insure regular and adequate hours of work and control labor organizations. Steps should be taken to meet the most pressing needs, in some cases by making available United States or allied ma.terial immediately upon occupation. Priorities should be established for the use of scarce items, and in some cases to allocate particular material to specific uses. Most in­dustries will need supervision, and some may need assist­ance in management, especially in the early days. In enemy territory it may be advisable to provide skilled man­agers to replace those who may have fled or who do not cooperate sufficiently with the occupying forces.
1. Health. Protection of the health of the occupying foyces as well as humanitarian reasons determine the policy of safeguarding and improving the health of the population in occupied territory. Dead must be buried; sanitary dis­posal of sewage, garbage and rcfusc organized; water supply kept from pollution; food inspection established; necessary insect control “instituted and other steps tnkcn to provide precautions against the spread of disease. Such medical care for civilians as may be practicable should be provided.
m.
Respect for Religious Customs and Organiza­tions. International law requires that religious convictions and practices bc respected, Therefore, places of religious worship should not be closed unless necessary as a security or sanitary measure.

n.
‘biscriminatory Laws. Laws which cliscriminate on the basis of race, color, creed, or political opinions should be annulled as ihe situation permits. However, the prac­

12
tic& of such customs or the observance of such traditions as do not outrage civilized concepts may be permitted.
o.
Speech and Press. To the extent that military in­terests are not prejudiced, freedom of speech and press should be maintained or instituted.

p.
Archives and Records. Archives and records, both current and historical, of all branches of the government of the occupied territory are of immediate and continuing use to military government. It is therefore esscntinl to seize and protect such archives and records.

g.
Mail and Documents. Mail and documents in large quantities will often be found in post offices or other central communications points. As this represents a SOU~CC’ of valuable intelligence information it should be the policy to seize and protect such material as well as to expcditc its delivery to proper censorship examination stations.

rr Shrines and Art. It is the policy of the United States, except where military necessity makes it impossible, to preserve all historical and cultural monuments and works, religious shrines and objects of art.

SECTION II CIVIL AFFAIRS RESPONSIBILITIES
10. DIVISION Oi RESPONSIBILITY BETWEEN ARMY AND NAVY. Responsibility of the Army and Navy for the control of civil &airs in occupied arcas will bc dc­termined by, the Joint Chiefs of Staff of the United St&s Army and Navy or by the Combined Chiefs of Stnfl of thr United States and one or more of its allies, depending upon the nature of the operation. In general, it is expected that the responsibility in continental areas will bc with tlrc Army, while the control, of civil affairs in island areas and in some ports and other areas contiguous to the sea will be delegated to the Navy. This is not a fixed rule OI principle as it may be advisable to assign to the Army the control of certain island arcas and ports. In such areas naval civil affairs officers may be assigned to the stafls of army commanders, either to assist in civil affairs control or to act as liaison between the two branches of the service. The Navy may control, temporarily at least, iskind areas which present many of the complexities of the larger land areas, or it may participate in land occupations through its operations in ports or on inland waterways. Where there is naval control of civil aff;tirS, ZlrXll)' Officers may serve with naval commanders in order to facilitate an ultimate transfer of the area from the Navy to the Army. When available, rqualified naval civil affairs officers should be assigned to regular civil affairs duties with army civil affairs organizations.
11. CONDITIONS LIKELY TO BE MET IN OCCUPIED TERRITORIES. The many and varied tasks involved in civil affairs control may have to be performed under the most diflicult circumstances. In most occupied territories one or more of the following conditions may exist in varying degrees. Civil administration may have broken down wholly or in part, Oficinls may have fled or have been deposed or be unreliable. There may be rioting, looting, or other forms of disorder, particularly if the local police force , has disintegrated. Agriculture and industry may have been prostrated or wrcckcd. Economic life may have been reshaped to serve a “new order” or disrupted by the “scorched earth” policy of a retreating enemy. There may be serious shortages of foodstuG and other csscntial materials. ’ If the area has been fought over or bombed, widespread destruction of buildings and other installations, public utilities, transportation and comnnmicntion facilities, and harbors may bc nnticjpntcd. Lnrgc numbers of lxoplc may be homeless. Many will be unemployed and without means of support until orderly proccsscs are rcstorcd. The enemy may have brought in large numbers of forced labor­ers fram distant areas, who will clcspcratcly scclc rcpatria- &on. There may be acute shortngcs of professional pcr­sonnel, such as doctors, lawyers, engineers, and other Plies may have been polluted. Medical supplies may have
specialists.  Hospitals  and  other  institutions  may  have  been  
destroyed.  The  wounded  may  have  rcccivecl  little  or  no  
attention.  The  dead  may  remain  unburied.  Water  sup  

been reduced to the vanishing point. The health and
morale of the population may have been undermined.
There may be few facilities to prevent the spread of pesti­
lence from cities and concentration camps.
12. FUNCTIONS OF CiVlL AFFAIRS OFFICERS. The chief function of the civil affairs officers during hostilities is to further the mission of the combat forces in every way possible. As areas are successively occupiFd he will assist by controlling the civil population so that it will not inter­fere with military operations. I-Ie will help reconstitute civil administration SO that local rcsourccs in manpower and in strategic material may be utilized to further military operations as authorized by the laws of war. His task may embrace a wide variety of activities, since the responsi­bilities of his commanding oficcr may range all the way from controlling a few simple functions of government in a small isolated rural region or a primitive island or group of islands, to controlling the many and complex functions of government in a large, densely populated, industrialized, continental area. In the occupation of sucli territories for a considerable period of time, the civil aflairs oficcr will in most cases be concerned with the following and other activities :
a. Political Government and Administration. TllC supervision, or even, in rare instances, the actual adminis­tration of the chief political of&s of the govcrnmcnt, such as, for example, the offices of the chief exccutivc, ministers, cabinet oflicers, secretariats, and other high ranking cxccu­
j     tive or administrative oficials on the national, provincial, or municipal levels.
b. Maintenance of Law and Order. The prcpara­tion, issuance, and enforcement of proclamations and ordinances regulating the conduct of the inhabitants; rc­establishment of the old police force or the creation of a new one, sul~l~lcmcntccl by military police, marines or shorq patrol; prevention, detection and prosecution of crime; maintcnancc OS public order and security of persons and property; regulation of relations between our forces
im10&3”–48—–4 15
and the inhabitants; administratiOn Of prisons; control of liquor and narcotics,* control of traffic; and prevention and control of fire.
c, Courts and Law. The establishment and adminis. tration of military commissions and provost courts and the determination of their jurisdiction and procedure; SU. pervision and control, or closing, of lOCal Criminal and civil ,courts; supervision of the local bar; decisions as to mod& ,cation or suspension of local criminal and civil laws; acceptance, investigation, and reports of claims, and, in some cases, the operation of claims commissions; general legal a&ice on all aspects of civil aflkirs. Locql courts ,concerned with litigation and other lc@ matters among Civilians are under the supervision of civil nll’airs officers, Such matters involving civilians and mcmbcrs of the armed forces arc also of primary concern to the civil affairs ofi. cers. Matters within the jurisdiction of courts martial are of no concern to civil aflairs oflkers.
d.
Civilian Defense. The supervision and strengthen. ing of existing local organizations, or the creation of new ones, for civilian dcfcnse SO as to provide for air-raid warnings, blackouts, shelters, fire fighting, Casualty services, emergency medical cart for civilians, evacuation, dcmoli­tion, rehabilitation, and other nctivitics to rclicve the occu­pying forces of as much responsibility for Civilians as possible in thi: cvcnt of boinbing, shell fire, 01’ other military operations.

e.
Civilian Supply. Rrrangcmcnts for cmcrgcncy re­liCf, dircctcd through accepted channels, such as food, clothing, shelter, and medical aid, to moct mi~irnum sub­sistence standards, preserve order among the inhabitants, and enable them to carry on with their agricultural, indus­trial, commercial, and other activities whicly may be of direct benefit to the pccupying forces; establish local organi­zation to administer any Cniergency relief programs; provide for other esscntinl civililm goods which may bc necessary to the rccstablishmcnt of law and nrdrr.

f.
Public Health and Sanitation. Such activities concerning the control, prcvcntion, and trcntmcnt of dis­

16
.
ease; the supervision and rehabilitation of hospitals; the
rurnishing y 0;’ medical and sanitation supplies; the protcc­
tion of food and water supplies ; the disposal of SCW:I~(~
and waste; and the promulgation of such ‘other medical
an d sanitation mcasurcs, as will improve or ~JrC?x!rvC h!
statc of public health and protect the occupying fortrc~.
g.
Censorrhip. Censorship of Civilian co~mtiunicntiolls is cffcctcd in order to nccon~plisl~ two objcctks; the pro­tection of security, both military and civilian; :md the obtaining of intelligence information. It will norru:~lly bc established in the very earliest phnscs d c.ontinuc throughout the period of occupation. Thus, its operation by civil affairs will require close liaisoii with the milit:2ry intelligence staff for the area from whom ccnsorshil~ policic>s and directives emanate.

h.
Communications. Cooperation with sign:kl or corn-­rnunicntion officers in the use of civilian comnlunic:Ltiol1 systems by the occupying forces; rccst:lblislinlcnt, at tllc proper time, of civilian communication Ixiliticxs ; contrt)l, supervision of, all civilian radio, tclcpho~x, tclcgrq)h, cablo, and postal communication and activity. Although civil affairs agencies responsible for supervising coltlnlunic;ltitrlls will not operate censorship they will bc rcquirc~cl to co­operate with its cnforccnient.

i.
Transportation. C0opcmtion with alqxol~ri:~t(~ :uxns and services in connection with military USC of Iwiv;~cc! 01 state-owned railroads, trucks, busses, vchiclcs, roads, lv;itcr-

’     ways, and airfields; recutablisllllu~~~lt at tlx prq~~r tilltc: of all essential civilian transport facilities; control c)r sul”‘r- vision of all such facilities.
j.
Port Duties. Assistance to port dirctotors; ~ontroi OF civilian movcmcnts ih port arcas, inc:ludin.g civili:uls rvll~ Iivc in houseboats and smnll harbor cra[t; l)ro~ur(~111(~1lt and control of ncccssary lnl~or; h3ncllii~g antI ista&ng of supplies ashore and inland; liaison bctr\~(ql n;~v;ll ;lul]l(,)ri- tits afloat and ashore and civil allairs org:lllix:Ltic>lls ~lsl~~)rc~.

k.
Pubflic Utilities. ChpW:LCiO~l Ivitll :t~~~~ro~~ri;~l~~
 arms and services in procuring, rcstoritlg, rulrl colltr~~llillg
 public utilities for military and civilinn use.
 

17
/
1. Money and Banking. Closing, if lN!CCSSLLl‘y, and guarding of banks, baulc fulldS, Safe deposit bOsEi, SCcuri­ties and records; providing interim b:tnking and credit needs; liquidation, rcorganixntion, alld rcopcning of banks at appropriate tinlcs; regulation and supervision of credit cooperatives and other financial agencies lxld organjza. tions; esccution of politics on currency fiXC1 by higher authority, such as the designation of typc~ of currency to be used and rates of exCh.al?ge ; supervision of the issue and use of all types of lnoncy and credit; dcckuxtion of debt moratoria; prevention of financial transactions with enemy occupied or cncmy territory.
m.
Public Finance. Supervision and audit of the budget, revenues, and expenditures; supervision of tax collection, fines, asscssrnCrlts, alld the handling of public fu&, including rcvcnucs from govWnlTXXt monopolies alid investments; provision for neccssnry financial lacilitics for civil administration; levying of contributions.

n.
Commodity Control, Prices, and, Rationing. SU. pervision of the distribution of food and other supplies; control of prices; rationing; prevention of, hoarding and black markets ; regulation of esports and inllsorts; allocation of iniports for local distribution; regulation of military requisitions and purchase; cstnblishmcnt of politics to be followed in stimulating local production.

o.
Agriculture. Encourage agricultural production and the establishment and administration of programs for developing self-s&kicncy.

p, Industry and Manufacture. .Ikvcloprncnt and supervision of such industrial and Irl:unufncturinhr fncilitics, including lumbering, mining, pctrohu production, and fish&g as may bc inclicatcd to furth~ nllicd intcrcsts and satisfy the immediate needs of the civilian population.
q.
Commerce and Trade, Stimulation of wliolcsale and retail trade in order to rcstorc normal movcmcnt of csscntial civilian goods horn prod~ccr to cons~~~~r and thus further economic stabilizntion.

r.
labor. Procurcmcnt of labor to assist any scrvicc in the occupying forces, procurcmcnt of labor for rchabilita­

tion and reconstruction in the occupied territory, tllC pre­vention of abnormaI wage increases, insurance of regular and adquate hours of work, and other conditions of ml-, ployment; controI of Iabor organizations and the handling of other labor relations problems.
s.
Cusfody and Administra#ion of Property. Cus­tody and administration of all property and entcrpriscs owned wholIy or in part by an cncmy govcrmnc~nt, or enemy nationals of countries other than that occupied ; custody and administration of a11 property and cntcrpriscs owned wholly or in part by other govcrnmcnts, if taken over by the occupying forces; custody and administration of private property susceptible of direct military use and not in the custody of another branch of the nrmccl services such as transportation and c.ommunication facilities, arms, ammunition and .other implements of war; custody and administration of privately owned, abandoned or other property, if taken over by the military government.

t.
Information. Subject to the dircctivcs of the thcntcr commander, interpretation to inhabitants of occupied tttrr’i­tory of the purposes of the occupation, counter propaganda, preparation of press, radio, motion picture and other releases, both for intcrnnl and external consumption; ~CW­era1 advice and assistance in various matters involving the inhabitants in which carefully l~Iannccl action will either avoid offense or improve relations betwc~~n the ocqq’ing forces and the inhabitants and their nttiturlc tl>\\vi\rtl tllc-United States and its allies.

u.
Disposition, Repbtriation, or Relocation of Di$­

placed Persons and Enemy Nationals. Chad WI disposition of allied prisoners of war, civilian intcrrl(xrs ;uld forced laborers; political prisoners ; clisl)laccd rl:l.tiou:\ls of the occupied area including dmuobilizc~cl mc:rul~s of tIlc\ enemy armed forces; and civilian natiolrals of o&r errem! countries.
v.
Education. Supervising cxlucntirmn1 syslw~~ ; ol)p~l- ing of schools and prevention of subvcrsi~~~ or 1~11ll‘~l instruction.

W.
Public Welfare. Supervising public nnd private institutions for the care of children, the poor, the handi. capped and the aged, and the cncCWra~em2nt of ncccs~~~~ local orga&ations to operate such institutions.

x.
&z.cords. Keeping full and complctc records for the military commnndcr of everything that is C~CUIC

19
by hiln or under his authority in any Of the i%bOVc Ol” other fields of military government so that 11~ m:ty rcndcr nn accurate accounting. Such records will !X csscntinl :\t lxacc con­ferences, before claims commissions, for investigatory bodies and for historical purposes.
y. Miscellaneous. (1 1 In addition, the civil nFfairs officer will be concerned with SLC~other civilian activities as may in any way affect the occupying forces 01‘the war effort of the TJnitcd Stntcs and its allies. Cutting across all of the foregoing activities will be lxqblcms ccxnmon to most or all of them, such as the sclcction and USC of local oflicials and pcrsonncl, mnttcrs of coordination and priority and the obtaining of information and intclligcncc.
(2) Theafer of Operafions. Within each stafl, many problems will arise which will rquire coordination between civil affairs ofl?ccrs and other sections whcthcr the operations be single, joint or combined. Members of the civil affairs section of a staff will hnvc rclntions wit]1 other stal! sections, in connection with mutual problems, such as the follo$ng, illustrated from Army orgnniz:ltion;
Ia 1 For coordination and supcrvision—
1.      G-I, Procurcmcnt, classification, rcclnssi~cation, assignment, pay, pronlotion, trxisfcr, retire­ment, disch:lrgc, decorations, citatians, honor+
awards, IC~VCS OS i~l>scIIC(Ij furlough, rcw&s,
and punishment of civil aQl’uirs pcrsonncl; in­tcrnal xrrnngcments of hc!nclcluaiWrs, personnel statistics; so.nitnI.ion, buri:lls.
2.      G-2, Collcctinn and trkurnittal of iuforlnation rclnting to tlic enemy population by, and trans­niittnl of intclligcncc~ to, .thc civil aflairs section; requisitions for mnps; regulation of censorship and other mcnsLUYXi t0 plCiWW sccrccy; countersubvcrsivc activities.
3.
     G-3. Organization, equipment, and employ ment of military police units; training of civil affairs personnel, use of signal communicntions.

4.
     G-P. Prac~rc~nent of supplks in enemy tcrri­tory; distribution of supplies to civil nllnirs groups; control of tmnspqrtntion; construction and maintcnnnce of rotIds, clocl~s, nnd utilities: traflic control; evacuation and hospitnlizntion; salvage; property and funds; procurcnent of shelter and facilities; employment of nntiw labor; preparation of civil affairs annex: to 111~: administrative order.

r[ bl      For special staff functions-
I. Antiaircraft o@x~. Passive dcfcnse mCasWCS.
2.
Clasmicnl CJ~~CCT. Collective protcctivc xncasurcs.

3.
     E’ngimxr. Coqstruction and maintcnnncc of roads, docks, and utilities; distribution of mnl~s~

4.
     Hetzdqumtow conznznnrlant. Dctnil of ordcrlics an d mcssengcrs; messing and qwrtcring of civil affairs pcrsonncl; ofict: space.

5.
     Provost Mawhal. Enq~loyn~nt of military po­lice on civil affairs duty; control of conduct of troops in relntion to tlic: civil polxil:ztion.

6.
     Signal o@ccr. Use of military and coxiinirrcial signal communicntions lor civil nfl‘:lirs 19url9mw

7.
     SZW~COYZ. I-Ienlth and snnitntion; USC oE civiliw hospitals for military p~iqmscs; nllw;&n nl medical supplies to the civil popul:ttion.

8.
     Adjutant Gc~~.crnl. Distribution of routine orclers; classification, I.ccl:lssific.ntion~ nssign­mcnt, promotion, traxifcr, rq~lacc3n~trnt, clis­charge, decorations, citations, honkers, XWW~S, lGWEi Of RIXCIICC, nlld furlouglki; stipljly 0s publications; olwmtion of oflict! lwc~~~&~re,

9.
     JTidgc aduocntc!. Rwicws of tllc rccorcls of ini]i” t:Wy commissions.

10, Qu~rt~~77mstcr. Distribution of clL~a~tt:rrnaster eq+~~cnt and supplies; allocation of food and ~uartcrnmstcr supl)lics to the civil population.
Il. Tram~~orE @CL”).. USC of transportatiol~ by civil affairs pCiYK~I1l~Cl; USC Of railroads for civil aflairs purposes.
12, p&& ~clnlions 0fim1’. l’rcss, radio, 1Hotion picture, and similar rclcns~s.
(3) personal Rella9ion~. Not only is it nc!ccssary for mCI&Crs of Civil affairs sections to hlO\V the! functions of 1 the various sections of the gcncrnl and spccinl staff, but it is desirable that they cultivntc cordkll personal relations wit11 the ofEccrs thereof. Teamwork bctwccn staff sections is essential. It is assured not 011ly by staff confcrcnccs but by i&ividunl personal Contact.

SECTIOT\TIT1
 ORGANIZATION
 
13. GEldEWAL, In military occupations carried on by the Arnly, general control over military govwnnlcnt is cscrciscd by the Chief of Staff for the Swrctnry of War through the colnmanding oficcr in the thcatcr of olmxtims. In mili­tary occupations carried on by the Navy tllc S:Mlc gcncral control is cxcrcisccl by the Conmwldc‘r in CXcf, bnited States Fleet nncl Chief of Nnvnl Opcratims for the Sccrc­tary of the Navy through the fleet or force comluandcr in the thcntC1’ Of O~~ClYltil~llS,
cI. Plarining nncl forniulation of politics for nlilitnry govcrnmcnt arc carried out unclcr the clircction of the Joint Chiefs of Staff in olmxtions. in which both the United States Army and Navy lxwticilxltc.
b. When the olmxtion is cnrricd Out by ,thc conlbincd forces of the Unitccl Stntcs :wcl one or nmru of its allies, civil alFairs planning and opcrutions arc cxc~.~~tccl under the direction of the Combined C&i& of StaE of the two govcrnnmits.
12
14. WAR AND NAVY DEPARTMENT QRGANXZA-
The military agcncics designated by the Sccrctnrics of War and Navy to plan and formulntc policy WC the Civil Aflairs Division of the War Dcpartmcnt and thr o&e for Occupied Areas of the Navy Dcpartmcnt.
a.
The Civil Affairs Division, in the OJXCC of the Chkf of Stafl, informs and advises the Sccrctnry of War 0x1 all matters within the purview of the War Dl:partmcnt othol than those of a strictly military nature in XWLS occupied as a result of military operations. This Division has as its responsibility the formulation of broad War Dclxu?mcnt policies with regard to military govermncnt, and the plan­ning and coordination of civil affairs in nrcns occupied as a result of joint Army and Navy operations. Under gcn­era1 policies formulated by the Civil ARairs Division of the War Department, the selection and training of p~rson~n~~l for civil affairs is conducted under the sup~~rvision of thr Provost Marshal Gcncral.

b.
The Ofice fdr Occupied Arcas, part of the O&x of the Chief of Naval Operations, is charged with the planning, training of personnel, and preparation of materials for mili­tary government in areas of paramount naval intcrcst, and in coordination with the War Department in arcas of joint interest.

15. ORGANIZATION IN THEATERS OF OPERA­TIONS. The theater commnndcr is rcsponsiblc for dr­tailed planning aqcl operation of military govcrmncnt uutlrr the general dircctivcs and plans rcccivctd from l+lrt~l authority. The thcatcr organization for civil ;z[r’;lirs I)Iilll- ning and control dcpcnds on the mission of the th(‘i\tcr co111­mander, on ~11~ organization of the militnry forces ill the area, on the military situation, on the structure CII th(! c:sistitlK government, on the gcogriqhy of tllc arca, 011 the ccononl! and characteristics of tlic pcoplc, on tlul p~~w~~rs ;lnd characteristics ol: their ofi&Js, ancl 011 dll!T rt!lr:\ranl.
circumstances.  
16. TYPES  OF  ORGANIZATION.  Ch~cri\lly  sl)ty~I~iug,  
there  are  two  typs  of  civil  nfrairs  nrganizntion.­ ‘“13”““.  
tional  and territorial.  
60:110FI~..–4!~~~  23  

a. II1      the Opr~xtionnl type, C0nilllalldCrS Of cC)r!ht units
or of nlilitary administrative arcas arc responsible for civil affairs within their respective zOXlCS Of operation or areas; and the relationship of civil affairs Ofkr~ of 011~ echelon to civil affairs officers of a higher or IWVW cchclon are those prescribccl for staff officdrs in the aplxopiatc manuals. The chain of civil affairs control COnfOrlnS to the opera­tional or administrative ch:tin of command.
be In the territorial form, a separntc civil &airs organiza­lion is created under the direct C0Illlll:llld Of thO hater commander, or under a subordinntc CO111111:IIldC1’. Under this form, the chief civil aflairs of%lcer Of :1 territory is responsible to the military governor for the military govern­ment throughout the arca, :mt has ~~~lllll:\~ld of subordinate civil affairs oficers assigned to political subdivisions within the- territory. The lint of communication within the or­ganization is direct from higher to lower civil aflnirs oficcrs. Local civil affairs officers are IlOt rcsponsiblc t0 Op!ratiOnal ullit commanders stationed in the area with rrgard to the administration of civil affairs, but rcpokt directly to higher civil affairs oficcrs. It is n function of ~~‘~m~and to de­termine the tylx of organization to bc utilized at any particular time and ~Ixx. ThC SyStclll Xl0pt~d Inay Often involve fcaturcs of Cdl typ I:11llllllly I’Xil!S the occupy­tion will be progrcssivc, and one type of organization will
predominate  in  one  portion  of  :I  thcxtcr,  while  the  
other  type  prcdomin:&zi  in  nnothor  portion.  Under  
settled  conditions  in  continental  arcas  the  torritorial  fornl  
will  usually  prcvnil.  

17. ADVANTAGES      AND DISADVANTAGES OF EACH TYPE.
a. ‘Cantrol through OperatPonal Unit and Military Administratiive Area Commanders. (1 I Advantage, The ndvnntagc of control throu& opcr;ltion:ll nut1 military aclministrativc area commanders is thnt authority for all activities, civil as well as military, is conccntrntec~ in the hands of the commnndcr who is rcqonsiblc for operations, supply, and evacuation. Thin insures thxt 311 activities,
24
1“, I ,1
including relations between troops and inhabitants, wi&h” ” the given zone of operations or military administrative area, will be coordinated in support of the operation for which the commander is responsible. It obviates possible friction and misunderstandings which arc likely to arise when two mutually independent oflicers with overlapping responsibilities are present.
(21 Disadvantages. The disadvantngcs of control through operational unit and military administrative arca commanders are :
(al Such commanders, concerned with combat training and operations, supply and evacuation, are apt to overlook the importance of civil affairs duty to operations, as well as to diplomatic and economic objectives.
(bl Combat units are generally subject to frcqucnt movement, resulting in repeated changes in the pcrsonncl assigned to exercise control over local officials, with COXISC­quent variations in policy. Only to a limitccl cstcnt can this disadvantage be minimized by the retention in the arca, and attachment to incoming units, of civil affairs ofliccrs formerly on the staff of the outgoing unit.
(~1 Combat units will necessarily be disposed ;\ccording to strategical and operational requircmcnts, and only b) chance according to local boundaries. Corlsccplclltly, thr territory assigned as the zone of opcrntion of aOcombnt unit will usually embrace parts of the territory of numerous political subdivisions, To a lcsscr degree, this may alsa lx true of the territory assigned as the area of a military administrative unit. In such casts, the same set of local oficials may receive orders from the commanders of all the operational or administrative units whose zone of olxr;l- tions or areas lie within or partly withi the political sub­division. The headquarters of the unit may not bc located at the seat of the local governmcntnl authority, In such case, in order to provide cfTcctive control over civilian officials, the civil affairs section of the staf? of the uni1: mny have to be divided into two cchclo~~s, one at the nrilit:~ry headquarters and the other at the scat of govcxxmcnt, with consequent loss Of ~cficicncy. Even after the ix%sation of hostiiities, when forces arc used as garrisons, conformitv of their areas to political boundaries may not always be po+ sible. On the other hand, the cormander of any opera. tional unit or military administrative area may have to supervise the civil oGcials of scvcral political subdivisions, For these reasons, control through opcrationnl and ad. ministrative unit commanders is liltcly to be wasteful of
manpower.
(dJ Combat commanders and their staffs arc usually untrained in civil affairs work. Only to 9 limited extent can this disadvantage be minimized by the assignment of trained civil aflairs oficcrs to SUCK stalk
(eJ So long as hostilities are in progress or arc only temporarily suspended by an annistice, the control of civil affairs by military commanders takes their attention from the training of their men for combat, from lcadcrship in combat, and from other strictly military duties, which should ‘engage their whole time and energy.
IfI The imposition upon operating units of duties of military government or control of civil an’nirs tics such units to the al:ca in which they arc stationed and makes it very difficult to move them promptly ~1~~x1 military situa­tions, yhich should bc paramount, make such n move advisable.
b. Control Through a Civil Affairs Chain of Corn. mand. The advantages and disxdvantagcs of a civil affairs chain of command under the commanding offkcr of a higher cchclon are generally the opposite of those listed above for a civil aflkirs organization under operational units or miIitary aclministmtivc nrca commanders. A Civil affairs organization, established xftcr ~1 nrca bccomcs settled, will usually make a more cflcctivc and economical use of manpower than would an operating organization during such period. It would provide for greater con­tinuity of policy and personnel, and facilitate the use of specially selected and trained civil nkirs oflkers, On the other hand, since the 1ocn.l civil &‘airs oficcrs under thi? organization arc indcpcndcnt of the cammandcrs operating or garrisoned in their xrcas, or of commnndcrs exercising administrative command for other military purposes in the ” same area, unity of command at the lower level is not established.
18. COMBAT AREAS.
a.
Initial Organization. Military government usually begins in the combat zone, as soon as the area comes within control of the occupying force. In the forward areas organization of military govcrmncnt is necessarily limitccl to the most essential clcments of control in conformity with the military situation. Public officials may have fled, or be in hiding; consequently control must often bc cxcrciscd directly by the military forces on individuals. In rear areas, a greater degree of control and organization will usually be possible and dcsirablc. Rc,gimcnts or small naval combat units should be relieved of civil nfnirs control as far as possible.

b.
Type of Organization. In the combat zone, control on the principle of unity of command is p;~r:m~ount. Com­manders control the civil population within their zone’s of operation, without regard to political boundnrics. ThC civil airairs ofkxrs are either staff oBiccrs of the com­mander of the unit to which they arc attached or mcmbcrs of groups assigned to control cnpturcd :~cns. Orders con­cerning the control of civil nil’airs arc issued through the military chain of command. The cmploymcnt of military police or shore patrol or marine units 011 civil nfl’nirs duties is providccl for in the administrative or ol)cration or&r, or in an anncs thereto.

c.
Civil Affairs Personnel for Reinforcement. JVh the need is foucsccn, as when a city or other lx~l~ul~~us :w;\ is about to bc occupied, the thcrttcr commands clirccts that additional civil &tirs pcrsonncl be sent forw:~d to reinforce control of the area. Such personnel arc nttnclicd to the command within whose zone of olxrntions tl.11: city, port, island, or other nrcn will fall, but arc under or&:rs to pass to the control of the succeeding couin~:m&x wl~l~n combat units move forward. Evcntunlly, if the rr,rw:~~rl movement continues, they pass to the control of the c:()m­manding offkcr of a roar area or ‘to consul of tl~ n(~~~

l$rher civil affairs echelon under a civil affairs chain of command. While in the combat zone, reinforcing civil affairs personnel may be placed under the. orders of the chief of the civil affairs section of the staff of the unit to which they are attached. Reinforcing personnel should be selected with a view to their subsequent retention on civil affairs duty in the same area.
19.      ARM)’ COMMUNlCATlONi OR NAVAL AD. VANCED BASE ZONE.
a.
Amoun# of Organiza+ion. As territory falls within the communications zone or naval advanced base zone, a greater amount of civil affairs organization becomes pos­sible. Every effort is made to restore the normal func­tioning of the local government, subject, however, to civil aRairs control in aII echelons. Public ofEcixls are con­firmed in their functions, or replaced, except as to offices whose functions are suspended.

b.
Type of Organiza+ion. (1) In the communica­tions or naval advanced base zone, consiclcrntions of unity of command usually recluire that the zone and subordinate military administrative area commanders be given control of civil aflairs within their nrcas. 7%~ absence of zones of operation assigned to tactical unit commanders makes the assignment of civil aBairs control to such unit commanders as may be prcscnt unnecessary, and the disadvantages of control by such commanders make SUC~I assipncnt undesirable.

(2) If the communications or naval advanced base zone is not subdivided for purposes of military administration into sections or otherwise, the commanding oflicer of the zone (or the commxncling oficcr scrvicc forces of the theater, if he is charged with the duties of a commander of the zone) ) ‘creates a civil &airs command, and desig nates the chief of the civil affairs section of his staff as civil aflairs commander.
(3 1 If the communications or naval advanced base zone is subdivided for purposes of military administration into sections or otherwise, the commanding of&xx of the zone exercises civil al‘fairs control through section or other mili­tary administrative area comhmndcrs, who in turn control civil affairs oficcrs of the highest tmritorial political c~l~lt~l through the chiefs of the civil aflairs sections of their respective stafls, designated as civil afTairs ccmuuandcrs.
(4) If the occupied territory inch&s more than ore: country or island group or is divided into other territorial political subdivisions, it will gcncrally be advisable to detail a civil affairs group for onch of the subdivisions in tllc’ highest political echelon, with suficicnt pcrsonncl to supcr.~ vise the government of such subdivision, :tnd to m:zkc available, sufficient persomlcl for suballotmc~nt to subdivi­sions in lower political cchclons, including cities. Usually personnel will not be available for the direct supervision of political subdivisions of less degree than that corrcsl>onding to an American coun’~y, or of small critics. Thctsc% can bc supervised by frequent visits of pcrsonncl stationed at plncc!s of greater importance.
(51 Chiefs of civil a.fI’airs groups detailed to tbx military government of a territorial political subdivision command similar groups detailed to lc&cr territorial political sub­divisions included therein.
(61 The commander of a combat unit stationed in or passing through a locality in the conlrnunicntiorIs zone where ‘no civil aflairs ofEcm is prcscnt, may make arrt:sts in cases in which immediate restraint is nct!c:ssary; and, if so empowered by the theater commander, may :tp@nt provost courts to try inhabitants for oiYcnscs ag;\illst the security of his command or against inclividuals tht:r& sending the records of such trials, togcthcr with c.onvi~t~~tl defendants, tb the civil affairs o@icer iu c:hargc of t]~o ;\r(:;L. Othcrwisc, except in cmcrgcncies justifyinff assullrl)li(>n of civil affairs command by the scuior oficcr l)r(!s(qlt, con1­mandcrs of such units cxcrcise no control ov(:r l*ivil :\Q:xirs,
(7) When the forward boundary of a zone or section is about to be advanced, the comlnanclcr, unless civil alf;\irs ‘personnel who are to pass to his control are already irl th(x new arca, should arrange to have the nc:crssary ci\lil a[Sairs personnel report to the proper commander forward, to
29
be in readiness to assun~c control immccliatcly~ when the boundary is advanced.
2~. TASK FQRCE. A task ~OXXC commander operating in a theater of operations esmciscs civil affairs control lwithin his zone of operations in the same manner BS a theater commander.
21. =i’WEATER OF Q~~~~~l~~~.
a. During Campaign. (1 1 While, the thcatcr is sub. divided into a combat zone a~1 a communications or naval advanced base zone, the theater commander exercises civil affairs controI over the combat zone through tl~ command. ing officers of field armies OT the naval flcCt or task force Commanders and over the communications Or naval ad­vanced base zone through its commanding o&xx.
(21 If, however, the theater is subclividcd into zones of operations assigned to scparnte task forces, each of whicll has its own communications OS naval advanced base zone, the theater commander exercises control through task force commanders.
(3)
Control over the central civil administration of the occupied area is ordinarily cscrciscd directly by the theater commander through the civil all’airs section of his staff. If the thentcr headquarters is not at the capital, it may be necessary to divide the theater civil alITairs staIT section into two cchclons, and to station a portion of it at the head­quarters and a portion at the capital. If unclcr such cir­cumstanccs the capital is in the combat zone, the echelon of the civil aflairs section of the thcatcr stall: stationed thereat may bc nttachcd to thC ficlcl army or naval task force whose zone of olxxations incluclos the capital, nncl the commanding oficcr thcrcof may bc char@ with tempo­rary responsibility for supervision of the ci&l service at the capital.

b.
After CessaHon of Hostilities. hftcr fighting has ceased, in conscqucnce of an armistice or lx~tocol which rcndcrs the resumption of serious hostilities improbable, or if for any reason an occupied country is no longer within a Combat or communiCationi base xonc, tlrc tlicntcr com­

Ill;lndcr, or other suprcmc comnmndcr in the occupied country, so long as military government continues, may exercise control either through commanders of comhat units, within misting political subdivisions or within mili­
.tary districts consisting of a nunlbrr of such politknl subdivisions, or hc rnny cscrcisc control through civil af1’airs groups detailed directly to tcrritoriar politikxl subdivisions. If the situation ~warrants, a combination of thcsc two systcrns may be utilized, conlmaxlders of the larger cnnAx~t units being placed in control of the higher c~l~lons of military govCtmnerlt, with Civil nITairs groups, indclmKlcnt of commanders of the smnllcr combat units, bring dc~tailcd by them to exercise military govcrnmcnt functions it1 the lower ccliclons.
22. CIWIIL AFFAIRS STAFF SECTIIBN.
a.
Creation of Section. In aclvnnce of thr entry of United Stntcs forccx into territory to bc orcupicd, the thcatcr comninnclcr crcntcs a civil ntl‘nirs section of his staJT. Such sections arc also provided for the st:kIl’s of subordinate commanders who arc assigned broad responsi­bility for civil aflairs planning and ~ol~un:u~l.

b.
Duties of Chief of Section. ‘I’hc duties of 111~ chief of a civil nITairs section arc-­

(1 I To assist the commander ia all nmttc?rs of or~~;tniz;L- tion, supervision, and control 01 niilitary govcuinicut iii the area occupied, arId to furnish him with lull illforllmtion w the charnctcr af the p~ol~lc, the nntt~rc~ of tllc ~ovc~rn~r~wt, and the specific probkn~s likrly to bc facctl in tlmt territory.
(2 I TO be rcspisiblc for tllc pwpwlicln of tlL~tililC!Cl plans for nlilitary govl\rntiicnt in i>nch arca to Ix ocu~lkcl, inclucling gcncral di:sigrmtions of tlii: ~~unihrrs :u~l typrs of civil an’nirs pcrsonncl ni~lid, to kcq) sucl~ lk\i~s ~~irr~~it and to obtain the con1nl;uldcr’s npp~val of LINWL
(3 1 TO Inc rcsponsiblc for that, prqxnxticrn in :~l>l)r~>l)riilt(:
langungcs  of  such  llr(~cla.iuntioris,  ordiniulctx,  :ultl  orders  
to  be issued  in  the  XU~C  of  tlx  coltlnmtldcr  :ts  lmvr:  Ilot  
already  1×33~ prel~arecl.  
ti6H:l (18”-~-4!b—-o  31  

(4)
To prepare for issuance by the commander to sub. ordinate civil affairs offlccrs SUCK information on strategic and tactical dcvclopmcnts and 0x1the plans for military government of specific areas as will be necessary to keep them constantly up to date.

(5)
To corrclatc and analyze information rcceivcd through the commander fsom civil affairs ofliccrs and from intelligence and censorship lxrsonnel and to utilize it as a b&is for further planning.

(6)
To maintain constant liaisori with combat, security, supply, medical, engineering, and other officers on the commander’s staff, in order that planning I~KLY bc total ,ind coordinate bctwcen all branches of the scrvicc.

(7)
To be responsible under the command and in ac. cordance with specific directives issued for particular areas, for the supervision and coordination of the work of civilian agencies of the United States and its allies participating in the later phases of ,military government when the thcatcr commander has authorized their participation.

(8)
To supervise esccution of civil af?‘airs orders and,

where  designated  as chief  civil  affairs  off&r,  to  command  
,a11 civil  affairs  groups  placed  under  him.  
23. ORGANlZAl’IOl’l  OF CIVIL  AFFAIRS  SECTIION.  

’ a. General. The mxgnitudc and character OF the tasks of a civil aBairs stafl section will vary g.rcatly from one. territory to another. Ed1 section will riced to bc mnnncd to do the particular job at hand, and the stn@ assignments will ncccssnrily dcpcncl on the particular situation and the pcrsonncl available. A large cic~grcc of versatility in per­sonncl and flexibility in staff assignments will lx csscntial, particularly in the c>nrly periods when the nature and dc­grcc of the supervision to bc csorciscd over local onicials is uncertain.
b. Irsternal Orgchzation. The chiclF of every Civil a,ffairs section will need to make provision for the following activities, but in a small staff scvcral of thcYc activities may bc pcrformecl by a single ofl~ccr, particularly in isolntcd and sparsely populatccl tcrritorics or in island arc:~ of interest primarily to the Navy: ;
32
(11 Administrative Officers. eputy. A large section will require a deputy, assist the chief of the staff and act for him in his
absence.
fficer. The chief of the staff csccpt in small sections, will rcquirt: an csccutivc oflicc~r to coOr­dinate the management of the O&X and t0 handle spccinl
assignments.
(c) Staff Assistants. Every chief of a civil &Xrs see­tion should have one or more ,qcncml nssistants. Thq should not be given fiscd assignments, but shoulrl Ircb assigned to invostigatc any problem which nriscs ; to COIINC information; to see persons whom their chief cannot take the time to set; to visit lower cchclons; to prcparc‘ pl:Ul!i, policies, or decisions for considcrntion of their chief; to .
.      preparc orders to carry out such decisions; :md to SW to it that the orders xc transmitted to the proper pcrs~ns UKI arc carried out.
(dl Internal Administrative Officers. OfEccrs will. bc nccdcd to perform the duties of nrmy adjutnnt Or nav) csecutive 0Eicer nnd supply Oficor. ThWC llliltt~~l+S Of in­ternal administmtion arc Of vit:tl importnucc to the func­tioning of the civil afl’nirs section, :md should 1.~ :\ssign(~d to cxperienccd and qualified OfIkcrs. 111 a l:~rgc civil affairs section, scvcrnl oficcrs may bc nec&d to p:~forln these functions.
(2)
Functional CHficers, IIcpcnding upOn the conk plesity OE the duties t0 bc pc!ri’Ormcd, tlx civil ;112’;birs st:(*tiolr may require il numl.~C~r of functkxxd c~fkcrs, such ~1s nI& Cal, lcgnl, fiscal, intclligcncc,, and 0thc:rs. For ;I &:tdd description Of th? functions to bc p(:rfornic~C~ by civil :kll’;\irs ofkers set paragrnph 12.

(3)
Civil Affairs Officers from Other ServEces. 111 joint opcratinns, the c:Omm;mdc:r sho&i incluC~(: in the civil affairs section One Or morr civil nll’:\irs (Jf]iccrs Sroln th,a other service, It is nocc3sary tlult c:losc~ li;lis0n (+t [)t:­~WCU army :md navy civil :Gairs olliccrs, 1~ th(t O~~,tl~~;\- tion is primnrily Cln ;zrmy optxltion, it niivitl civil i,[l’;lirs oflicer shOLllC1IX Clttitdld to the\ army &vi1 ;\ffilirs st;tir ior

33
liaison and to assist in port Colltrol and 0t11cr Civil affairs duties. If it is a naval operation, and particularly if later Control is to be talrcn over by tbc army, it is csscntia.1 that army Civil affairs ofkcrs be attached to the naval Civil a&s staff.
(4) Civil AfTairs Officers of Ofher Na*ions. In my combined operations involving the forCcS of the Uditcd States and its :lllics, Civil affairs OffiCcrs of the nations participting should bc nssigncd to duty in number and to posts as dircCtcc1 by the thcatcr Comma~ldcr or his d&g­nated subordinate.
24.
CIVIL AFFAIRS COMMAMRS. Whcncvcr a civil aRairs section of&r is dcsignatcd as chief of civil affairs, hc exercises the usual functions of Comma~~d over civil affairs groups clctailcd to territorial politiCa subdivisions within the geographic limits under his supervision, while at the same tirnc continuing to scLrv(: as a ~t:lff ofriCer to his Commander.

25.
CIVIL AFFAIRS GROUPS.

Q. General. A Civil affairs$ group detailed to a terri-’ torial political subdivision should consist of such ofliccrs, warkant officers, and cnlistcd pcrsom~l as m:ly bc ncccssary, with due regard to the structure and functions of the governmental unit to bc Controlled, the nnmbcr of subor­dinate territorial political subdivisions within the subcli­vision to which the group is clctailcd, the cast of Communi- cation within the arca, and thr size nncl chnractcr of the l~opulntion. To avoid Compiicntions arising from clcntb or illxlcss a.t lcast two ofIiicYY3 should b(: assigned Co conch group. The pcrsonncl of the gro~q) should bc assigned to such duties as its chief may clirtxt. Bscept in lnrgc Cities, ordinarily the lower the political cchrlon the less is the need for spcckdizntion; and whcrc ,thc group is small, slxcinlizatioii is impossible. A Inrgc Civil nfl’nirs group may bc organized in a mnnncr similar to a civil nRnirs staK section. (Set par. 21.)
b. Required Ccdegaries. In orckr to Coiuplctc a wcll- balnncccl gm~tp for Civil afYairs clutics, the following catc­gorics of pcrsonncl may bc rcquirrd :
34 .
( 1 ) Esccutivc and administrntivc pcrsonnc~l with special training in military government and liaison.
(2)
Technical specialists with special training in the characteristics of the arc:\ to which assigned.

(3)
Junior assistants.

(4)
Secretarial, clerical, and similar pcrsonncl.

(5)
Intcrprcters.

(6)
Military police; short patrol, or marine clctnchmcnt.

(7)
Oficcr and cnlistcd pcrsonncl for operation of motor vehicles, patrol vcsscls and airplnncs assigned to civil airairs units.

26.      MlLlTARY POLICE, MARINES, AND SHORE PATROL.
a. Necessity. (11 The chief of each civil affairs group, in territory in which United States forces arc cscr­cising military government, will need su&icnt force at his command to insure cxccution of his orders; to nrrost offenders against the military govcrmncnt; to s&e Brcarms, ’ explosives and other contraband nrticlcs; to s&c and guard funds;’ to seize and seal rccorcls and archives; to .control, reinforce, or supplant the local police in the maintcnancc of public or&r ; and to prcvcnt or sUpprcss espionage, sabotage,, and rioting. Such forces will nlso be needed by combat unit comm;u~dcrs who arc vested with civil affairs control.
(2)
The use of combat units for this purpose, at lcast until a definite ccssntion of hostilities, is unclcsicnblc~, though at times .it may bc ncccssary. Not only arc such units divcrtcd from their combat nlission and innnobilizod hut their armament is unnc~cc~ssarily l~owcrful for orclimlry civil al-fairs duty.

(3)
Organic military police units nf arnlics, corps, divi­sions, and ma.rinc or short patrols of ilcct unit.s, will not ordinarily be available in the colnniunicntions zone 0r n;~vnl advnnccd base; furthcrxnorc, their :trnlaulcnt is n0t wtbll adapted to use in civilian control, While they lqill 1~ available in the forward nrcn, tlicy can si~lclom 1~ sp:trctl from otlicr clutics in suflkicnt nunJ~i~rs to control the population of a city, port, or ciqcstccl arca.

35
(4)
Where local civil police forces OX cOtlstabularics are trustworthy and adequate they shall be USC~ to the maxi­mum extent.

(5)
Where local civil police forces are inadequate or ca’nnot be relied upon, military police, marines, or shore patrol should be provided, organized, and equipped similarly to rear area military police units. Units which may have to be sent rapidly from their station to control outlying areas should be wholly or partially motorized or, in the case of island ‘areas, provided with patrol V~SSC~S and airplanes. The use of women nmrhers of the armed forces may be pra&&le, for technical and clerical duties.

la. Assignrmen+ and Command. (1) Military poIicc, marines, or ‘shore patrol units for the enforccmcnt of civil affairs control outside the forward arca should be assigned to cities and to political subdivisions a~ the situation war­xants. They should be placed under the command of the o&er in charge of civil affairs in ‘the city OX other political subdivision. This is a matter wholly within the discretion of the zone or theater commander.
E2) When there is riced thcrefor, the thcatcr commander may direct that reinforcing military police, marines, or shore patrol units be sent into the forward nrcn for the enforcement of civil afFnirs control in cities or other con­gested areas. Such units will bc attached to the combat unit in whose area of operations they arc to be. stationed, but with orders to pass to the control of succeeding com­manders when combat units I~~OVC forward, Eventually, if the forward movcmcnt continues, thc?y pass to the control of the commanding oficcr, communication zone or naval advanced base, or of the com~nancl~r of a s&ion thereof, and by him are l~la~ecl under the command of the proper civil affairs oficcr. While within the WJIK of operations of a combat unit, they may, by the commander thcrcof, bc placed, according to circumstances, under the command of a civil affairs oficer of the unit, OS otheswisr. assigned. They should bc sclcctcd with a view to their rctcntion, wholly or ih part, on similar duty in the same arca,
36
c. Authority to Make Arrests. Subject to the orders of higher authority, military police, whether on or ofF
5 duty,      have authority to arrest inhabitants of territory under military govermnqk,, who offend against, or arc suspected of offending against, the ordinances or other orders of United States military authority or against local law, or who are in any way disturbing the public pcacc or acting in a manner hostile to United States forces. When immc­diate restraint is ncccssary, they also have authority to arrest persons subject to military law; such poisons shoulcl, however, be turned over to the appropriate commander as soon as practicable.
SECTION IV

PERSONNEL
27. PLANNING AND PROCURE’MENT.
a. Responsibility of Theater Commander. ‘I’hc theater cpmmnndcr is responsible that careful cstimntcs trf civil affairs pcrsoniiel rcquiremcnts-oficcr, warrant of&c, and enlisted pcrson”d-bc made well nhcad of :rny plnnnc~d occupation, ancl that such personnel arc rcquisitionc:cl. 1‘1i~~ personnel furnished undrr the requisition will bc assc~blrd in the theater under the direction of the theater CC)I~­mander. They will bc given the ncccssary further training, orgnnizcd, and nssigncd to duty in numbers :~d with qu;\li­fications sufkient to meet anticipated needs. r\s ~1 rultl, cxccpt f6r comn1anders of large units who pay 1)~: g;i\rpn responsibility for civil afTairs, pcrsonncl of combat units will not be assignccl functions of spc&lly tr:tincd civil affairs o&ers. Nevertheless, if they arc nl:c:d(;d in tip early phases or when hostilities have ceuscd ancl milit;\rv
government is expandccl, combat pcrsonncl with ~jrcv&+ experience in sonic nspocts of civil govcrnmcalt may ~11 [)(a transferred to duty with civil al-l’:&. ‘CVhr:tl so :\ssignpd, they should be ~l~t~~hed from ~tl~r duticxs ;mc[ tllpir work confined to affairs of civil ;\dn\il&tration.
b. Responsibility of Officers of Lower Echelons. Each ofEicer charged with civil affairs control is responsible for the allotment of civil affairs persormcl to the next lower echelon to meet its anticipated needs %nd those of further subordinated echelons. The chief of. A civil aflairs section or group should be consulted as to the sclcction of his subordinates.
28. TYPES AND QUALIFICATIONS.
a.
General, Th& conduct of civil aRairs will require personnel drawn from various professions or callings. The chief administrative personnel for military government should have executive or administrative expcricnce and an understanding of the management of men and affairs. It is desirable that they should also have an intimate knowl­edge of the territory concerned, and its people and lan­guage. To assist them, persons with special or professional training in the several fields of civilian activity, or with ” particular knowledge of the area occupied, may bc needed.

b.
Chief or Deputy of Large Civil Affairs Staff Sec. tion of Field Group. Thcsc officers should have broad executive cxpcrience, military or civilian, and Exceptional clualifications of character, judgment, and ability. They should be thoroughly trained in civil aflairs work, and also \bc well informed concerning the territory occupied. Knowledge of the language or languages in use in the territory is desirable.

c.
Chiefs of Small Civil Affairs Sections and Field Groups, and Executive Officers. Thcsc oficers should have the same high personal qualities as rcquircd in b above but will usually bc less ospericnccd, They should bc thoroughly trained in civil aflairs work and, if possible, in the language of the territory.

d.
Staff Assistants. They should hivvc had esecutivc or administrative expcricncc, particularly in staIlC work, Some stall posts will also rcquirc an intimate lrnowledgc of the country, its people, and its language. They should bc thoroughly trained in civil affairs duty.

e.
Administrative Services Personnel. These serv­ices will hnvc to bc conductrd under diflicult circumstances,

at times in situations where the customary services of the Army and Navy are not available. The ofliccr and en­listed personnel should be experienced in the duties which they are to perform and familiar with the practices and procedures of the Army and Navy. *WhiIc dcsirnble, it is not vital that they have training OT cspericnce in civil affairs.
f. Functional Officers. Functional staff assistants and specialists should have both profcssionnl training and opcr­ating experience in their particular field, such as public health, public utilities, transportation, and others. Those assigned to theatw stat% and other high cchclo~~~ should bc trained in civil affairs and in the characteristics of the territory. In lower echelons while training in civil affairs is desirable it needs not bc more than a minimum.
29. TRAINING.
~1. In the United States. Training of administrative and specialist pcrsonncl is conducted in schools of military govcrnmcnt of the Army and the Navy. Military police schools for civil affairs training also aw conducted by the Army.
b. In Theater of Operations. 111rhc tl1mtcr of opcra- tions, training for civil aflairs duties is a function of com­mand. Civil aflairs pcrsonncl nssigncd to a particular ter­ritory in advance of the occupation sl~o~~lcl rcceivc further intensive training. Such training should inchule, cspc­cially, instruction in the background of the p:uticular arca, the language and charnctcristics of the proplc, and in the civil aRnirs plnns and orders for military govcrmncnt as they are mado ancl issued. Insoh: as practic;~blc, tlic tmin­ing should be given by officers having an intimate kno& edge of the nrca, and by the civil afl’airs stair dr;&ing tl~t: plans and orders. Current Army and Navy intclligcnrc and censorship reports sl~o~~lcl 1~ rn:ulc avnilahlc ant1 tl~c assigned civil affairs l~~~onnel should bc kept l)ostccl 011
ncccssnry  military  aspects  of  the  occupnticn  plans.  ‘rha  
military  commander  sl~o~~~d  tnlcc  steps  to  ~SSII~C  tl~nt  ci\7il  
affairs  OfIkC:IY  rccxivc  :I11  CliUiSiACYl  informntim  pi$ncl~l:  to  
their  duties,  
39  

SECTION V
* PLANNING
30.
GENERAL. Pl?nning for the control of civil affairs in occupied areas is a responsibility of commanders assigned to the planning of military operations. Civil affairs plan­ning, as a part of the planning of military ollerations, khould be integrated with operational plans and integrated with the situation and problems to be met. These problems ­in civil affairs should be anticipated and provided for by plans and alternatives, Acxible and subject to continuous change and adaptation during operatibns. Careful plan­ning will lead the command& to issue the specific civil’ affairs orders suited to the cxpcctcd situation. Planning will also reveal requirements for ofricers, enlisted personnel and materials, requisitions for which should be forwarded in ample time.

31.
BASIS OF PLANNING. Information required for preliminary planning of military government will be fur- nished by the War, Navy, and other-departments of the United States or alliecl govcrnmcnts. Information for later planning in the theater of operations will bc supplied by the intelligence and civil affairs branches of the various services. Such information will include, in addition to such parts of the military plan as may be necessary to civil aBairs planning, the following’ concerning the area to be occupied :

01. The rcccnt history of      the country.
Ib. The theory and actual apcration of its government including the titles, functions, backgrounds and names of ofZcials in a position to help or hinder the mission of the occupying force.
c.
All facts which may affect the mission, such as political parties, factions and ~l~avag~~, unoficiicial persons wielding political or other power both in the central govcrmnent and in political subdivisions.

d.
Geography, including l&ation, area, topography, climate, and natural resources.

e.
     Ch$mcteristics of the inhabitants of the country such 40

as ~~u~~lbers and prc~l~ortions by race, religion, and pliticnl 0r other nffYiation, and factors indicating probnblc attitudes toward the presence of the occupying force.
f, Local customs aud traditions, scnsitivc points, taboos, and national or religious obs~rvxnccs such as holidays and sacred or forbicldeu places,
g, Standards of living including hcnlth and dietary habits &ich might alrcct the occupying forces.
h.
Administration of justice, including tribal custc~nls aIld traditions.

i.
Forms of social courtesy townrds difTcrcnt ranks among the inhabitants.

j.
     Character of the p0pulation as to ordcrlincss and

obedience      to law. k, Chnractcr of the police force and fire dclmrtnmnts.
1. Regulations and conditions as to salts of liquor and narcotics.
m.
Existcncc of subvcrsivc 0~ tmtmy groups, potcntinl saboteurs and spies.

n.
Organization and reliability of the civil courts in which 0ffenscs by civilians might bc tried.

Q.
The dcgrcc of dcvcl0pnmnt of ngriculturc aud forrsts, industry, ruining, labor conditions, lxlrticularly as they will affect matcrinl, labor, :d other supplies for the: task fm~..

p, Financial situation, including banks, condition of banks of issue and comrucrcinl bmks, mtcs of cxclmngc, amount and s0u1~lness of currency in use.
q.
CurrcnC cconamic situation, i1lHOlltltS Of gOOClS :~.vnil­able for pulxI1:Isc, L\lld chc prob:Lblc cfl‘lx:l cd tl1c ]lrt’st!11ct: of a well-paid nccul)ying Eorcc.

r.
Fond supplies, including their sufficiency for thtr 1~~1~ lation and for the occupying f0rtx.

S.
The :zvailability nlld ndcquW,y of institutions,, I’i\CiXi­tics, matcrinls, scrviccs, equipncnt and I:tbor, likt‘ly tn afkct the mission of the force or In be rcrluirc:d by it, such as the capacity nnd condition 0.r ~~ublic works 3ud uW.ic:s, including milroncls, C:;iui1Is, hnrbors and d0cks, hi~hwnys, bridges, rolling stock, ~~otor vchiclcs, g;\s, clcctricity, writer works, and scwcragc.

41
t.
Extent, location, and condition of the postal tele­graph, telephone, and radio services.

u.
public health, inclucling sanitary condition prevalence and control of disease, protection of food, milk and water supplies.

v.
Civilian Bebense. Set paragraph 32~4.

32. R~§~O~SiR~~lT~ FOR PLANS.
a.
War and Mavy Depar#men*s. The Civil Affairs Division in the War Dcpartmcnt and the OfIiccz:for Occu­pied Arcas of the Navy D’cpnrtment, s~bje~l:to the directiou of the Joint or Combined Chiefs of Staff, are responsible for the integration of the civil affairs plan with the strate­gical and logistical plans for military operations and for liaison with civilian agencies of the United St,ztes hovern- ment. The civil affairs plan of the War and Navy Depart. merits, usua.lly brief and general, is transmitted to the theater commander in the form of ‘a dircctivc. It contains the broad political and economic policies to bc observed.

b.
Thea+er of Operations. Civil affairs planning for his command is a responsibility of cvcry officer charged with civil affairs control, whcthcr he be the theater coin­mander, the commander of a task force, a tactical unit, or a military administrative area, or the chief of a civil affairs group. The duty of actual preparation of the plan in accordance with the directive of the commander, usually devolves on the chief of the cisil affairs section of the staff. According to circumstances, the commander approves the plan, with or without modification, bclore it is translated into orders, or approves the civil aflairs order which results from the planning. It is dcsirnblc that civil aflairs plans of theater and task force commanders be trannnitted to the Joint or Combined Chiefs of Stafl’ for confirmation.,

33. FORM 6% CIVIL AFFAIRS ORDERS.
a. Of Thea+er and Task Force Commanders. These commanders may, according to circumstances issue civil affairs orders as annexes to administrative or operation orders for military operations, or as routine orders when there is no direct connection with an operation.
known to the subordinate or included in an accompanying field or operation order. This may include information of enemy forces, of the enemy populntion, and any available supprt from agencies not tinder the command of the issuing officer.
(2)
The general plan of the commander, cscept so far as it is already known or is included in an accompanying order.

(3)
Subordinate oficcrs charged with civil*nfairs con­trol.; crcat?on of civil aflairs command or civil affairs groups; attachments and detachments, with time and place of each, including military police, marines, or S~OUC

patrol;missions of each.
(4)
General instructions governing all subordinates; such as­

(a)
Security measures to bc tnkcn.

(b)
Controls to be estnblishcd over civilian supply.

(c)
Measures to be taken td rcstorc public order. (d I Records to be impounded and their disposit.ion.

(e)
Directions as to control or disposition of public funds, ($1 Directions as to authority to mnkc requisitions.

(g)
Dir&ions as,to handling of enemy-own~cl property. (hl Currency to bc used and rntc of cschange.

(i)
Treatment of, or conduct toward, enemy nationals and local population and of&i&.

(j)
Slxcia.1 mcasurcs to bc taken with regard to public institutions; banks, industry, commcrcc, labor, and other activities.

(k)
Authority to appoint military courts, and to approve alxd execute scntcnccs; rules as to proccdurc; limits of punishments.

(I 1 Authority to appoint and rcmovc local officials.
(ml Proclamations nncl general ordinances to br pub­lishdd. (These may a,plx?nr as an appcnclis to the civil RfFairs anncs or routine orclcr) .
(n 1 Authority to issue ordinances of local application. (09 Reports to bc made; when and whore.
(p) Location of the issuing commander.
44
SECTION VI
 

PROCLAMATIONS, ORDINANCES, ORDERS, AND INSTRUCTIONS
35. INlT1AL PROCLA
a.
Issuance. While not ninnclatory unclcr intcrnntionnl law, as soon ns lxactiC:nl~lc after coi~i~~ie~~ccii~c:iit Of an Occqation, the tllcatcr coulumdcr, Or an :xuthorizcd sub-Orclinatc, should issue tO the inhalGtants of the occulGx1 territory a prOclnmatian informing them of the fact of Occupation, tllc estcnt of territory nfTcctcd, and the obli­ptions, liabilitic:s, &tics, cmcl rights of tlic pol.dation unclcl military gOV~T~llll~nt. Gcncrnlly, this lmxkumtion will have lxmi lmprd in ndv:uicc and in accOrclancc with directives from higher authority. Whcrc occupation Of ;1 large nrca is lx0cix~iling by stngcs, it is lm~lxr to stntc that the proclaniation will 1.x: appl’icnl~lc in ndj:~ci~nt art:35 2s they WC occupied.

b.
Form and Character. 111 The ll~C~(:l~unn~ion should bc: brief and in siniplc tcrnis. It sl1ould lx! ph­lisld as witlcly as lmssil~lc in I?qlisli and in tllc latlguaps of the occupied Z11’CiL Ally trnnslntion sh0ulcl 1×1 iclimnatic~, clear, and con&c.

mation Jivill bc more friendly in character and may cmpha­size dcliverxncc from a common cncmy.
(3)
In occupations of neutral or nllicd territory, lately held by an enemy, a mnnifcsto may also be issued by the legitimate gavernmcnt supporting the ocxxpation and call­ing upon ~ff%ktls and inhabitants to coopcratc and to obey the r&es laid down by the commxldcrs of SUCK forces. Such manifcstos arc not legally ncccssnry, but arc issued to promote coopcration of the population with the CKXupying forces. In occupations of this type, the thcntcr commnndcr will usually clcnr such manifcstos with the Joint or Com­bincd Chiefs of Staff.

c.
contefa+s. The initial proclnmatioa will vary in content according to the circumstances of the occupation. The important items to-be covcrcd XC: the stntc of nRa&s which exists, a definition of the arcn and peoples to which the proclamation npplics, the cxtcnt to which the civil administration will bc nflcctcd, the manner in which the inhabitants arc to conduct thcmsclvcs, and the mcasurcs which will be resorted to by the military govcrnmcnt. It is imlxacticnble to outline the contents of proclamations for all tylxs of occupations. In dcfinitcly hostile territory the proclamation should, in gcncrnl, cover the following points :

(‘II 1 Declaration of the Occupatian. This is formal notice of the fact of occupation and of tllc territory in gcncral over which the military govcrnmcnt nssumes jurisdiction.
(21 Purpose and Policy of the Omxqmtion. It may bc advisnblc to include a. stntcmcnt as to the l~url~ose and policy of the occupntion. Politicnl objcctivcs should be included only prsunnt to instructions from higher authority.
(3 1 Supremacy 6f Military Authority of Occupying Forces. This is an csscntinl lxcrcquisitc to the ndminis­trntion of any military govcrmncnt. It shoulcl bc nn­nounccd that n military governor had been appoirrtcd and that political tics with 2nd obligntinns to the cncrny gov­crmncnt, if any, arc suspcndcd. It should bc announced that inhabitants will be rc:~pirccl to obey orders of the theater comnmndcr and his subordinates and to abstain from all acts Or WOKIS of hostility or disrcspcct to the occupying forces.
(4) Retention of Laws and Officials. It: &uld be nnnounccd that, unless the military authority directs othcr­wise, local 1:LwS alld CuStOlns will continue in force, local OIlGals will continue in Oflkc, and ofIiccr and cml~loyees Of all transportation and colnmunic:ltion systems and of public utilities and other csscritinl scrviccs will carry on with their regular tasks.
(51 Treatment of Inhabitants. Assuratm-~ho~kl be given that persOns who Obey the instructions of the mili­tary authority have nothing to fear and will be duly protcctcd in their lx~sOns, property, family rights, religion, and occupation; and that those who commit ol-lcnscs will he scvercly punished.
(6) Resumption of Usual Occupations. Inhabitants sho~~lcl be instructed that they nlust continue or resume their usual occupations, unless sp~cifcslly clirectcd to the contrary. This will assist in the nlaintennncc of law and Order and restoration of nornml Oconomic conditions.
(71 Detailed Rules of Conduct. It is advisable to put the polxk~tion On notice that furthc:r proclnnintions or ordinnnccs will specify in dctnil what is required of the inhabitants and what is forbicldcn than to do.
(81 Miscelllaneous. Other rnnttcrs may bc coverccl, if circuinstnncos wnrlYult. Proclnmations published by prc- vious military govcrnrncnts may nlso scrvf as useful guiclcx
d, Bwblication. Proclamations mn.y bc l~ublishccl by posting, publication in ncwslqxrs, broadcasting, or any other pcticablc ructhod avvail:tblc in the lmrticul;.lr tcr& tory. It may bc aclvisnblc to publish thcni iii the snnlc II~~II~I~ ns 1cga.l notictrs arc lx~blishccl in the occupied area, or to crcntc a new olIicia1 publication clovotcd csclusivcly LO actions Of the military gpmmrr~cnt and to provide that pruclaniations and Ordinnnccs bccoinc cn‘cctivc when they appcnr in such publicntion.
, ,
/ ;
/
,
(
a.
Issuclace. As soon as practicable after the publica­tion of the initial proclamation, the theater commander, or his authorized subordinate, will issue a detailed set of rules regulating the conduct of the population. These rules may appear as a proclamation, numbered in squcmce with other proclamations, or as ordinances. As far as possible these rules will have been prepared in advance and in accordance with directives issued to the ,thcater com­mandcr. Careful study should be made of the local laws, in order that necessary rules or ordinances, and only these, may be prepared, and in order that their full ramifications and effects may bc unclcrstood.

b.
Form-and Character. The people of the occupied territory should be informed as to what they are rcquircd to do, what acts are forbidden, and in what courts they may be tried if they are charged with offenses. In general they should bc warned of the penalties which may be im- posed for disobcdiencc. Offenses should be clearly and simply defined. These further proclamations or ordinances should be published in English and in the languages of the occupied area. Translations should be simple and clear. It may be necessary to have a general prohibition against all hostile or subversive acts to cover oBenses not specifi­tally mentioned. Great care must bc exorcised in connec­tion with such regulation as it will mean very little to the population and will bc subject to grcnt variations of inter- pretation by the courts. As soon as several conviction6 for a similar offense under such regulation have been approved by the reviewing, authority, that type of of%nsc should be made the subject of a clearly defined proclamation or ordinance. In this way all forbidden acts which could reasonably be forcsccn, or which have been pointed up by experience, will be clearly set forth as a guide Lo the courts and population.

c.
Contents. Contents of further proclamations OF ordinances will depend upon the stage of development of the pcoplc, their laws, customs, and institutions, and upon the military and political situation at the time of the occu­

pation. The rules laid down in the initial proclamations
and ordinancg are concerned primarily with the mnin­
tenance of law and order and the security of the occupying
forces and their lines of cOnnnunicatipn. Additional rules
or      ordinances will be issued as ncccssary to cOver a wide
variety of subjects. Proclnnlntions or ordinmccs may be
alnendcd or replaced, in accordance with cspcricnce. l’rc”.
quent changes are to be avoided, as they may be intcrlxctcd
by the inhabitants as indications of vacillations and wcab­
ness. In gcncral, it is sound policy to bc strict at the
beginning of an occupation and gradually relax the rcquirc-
nlents. Proclnniations Ox* ordinances should contain 110
provisions which it is not plautxd or not possible to enforce.
d. Delegation of Authority. Theater coxnmandcrs
lnay delegate their pOWXS to issue p~OCl~Ukli~tiOllS 01’
ordinances to subordinate ~omn~nndcrs or civil aflairs of&
cers, placing such limitations upon the csercisc of dclegatcd
authority as tl?cy see fit. It is geuerally advisable tl\at
considerable authority bc dclrgatcd cithcr to unit COIW
rnanders or civil a&k oflic~rs who arc actually locntcd in
the occupied territory. All ordinnnccs of local :qq~licntion
only will bc signed in the nnmc Of the military governor.
e. Publication. Publication may lx made as in the case of initial lxmlninntiOns.
37. ORDERS AND INSTRUCTIONS, Authority to issue detailed orders and instructions to locx~l oflit:i:ds sl~o~dcl iw delcgntcd to unit ~O~nnmndcr~ Or civil aflairs nflkcrs on thr spot. Insofar as possible SLI& orders and instructions should be in writing and topics rctninccl. Oral orders rund instructiorls may bc! given through intcq9rtWrs or in tlic local language. A record slmuld lx !-x~~t of iu~lxwtnnt: ones. Esccpt in cincr&m!ics, Only the ollici~ rcsl~or~sil~lc
1      for civil allYail Col1trOl in a pWtiCUl;W nrcta, or llis :~~ltllcjri& subordinates, should issue orclcrs or instructions to local oflicials. If an oficcr fr0m a higlicr civil &airs cchclorl
*      is sent into an arca 0x1 a mission requiring contact with local oficinlf;, hc should ~o~~s~dt with, act through, tilt: oficur charged with local civil nfl’nirs contrO1. Wlirrt: effkicnt n~lIiiiiiistration rccluircs that: lligli runlcing lc& civilian ofIicinls be permitted to continue a practice of transmitting orders directly to subordinatE officials, some procedure should be established whereby the civil affairs officer immediately concerned is informed of such orders and is empowered to interfere and countermand when he believes such action to be necessary.
SECTION VII

MILITARY COMMISSIONS, PROVOST COURTS, AND CLAIMS
38.
ESTABLISHMENT. When an area is occupied and placed under military govcrnmcnt, the commanding officer in the theater of operations should establish military conl­missions and provost courts to try inhabitants for offcnscs aflecting the military administratian. These courts in general will not be circunxcribcd by the statutory and other rules governing courts martial; and their number, types, jurisdiction and proccdurc will be determined by the theater commander, subject to instructions from higher authority. The term “military courts,” as used in this manual does not include “courts martial.”

39.
TYPES.

a. Customary Types. (1 I It has been customary for forces of the UniGxl States to provide lor at lcnst two types of military courts for the trial Of civilians-military com­missions and provost courts. The former deals with tbc most serious oflcnscs, for which punishment by death or by long prison terms and heavy fines have been prescribed, while the latter deals with less serious casts.
(2 1 Military commissions may bc appointccl or convened to try slxxific casts, t,f as standing tribunals to hear all suc11 CBSCS. Their nun&x and location will dcpcnd upon the volume of casts to be tried, the availability of ofkcrs to sit on such courts, the ncccssity for travel, the avail­ability of witncsscs, and the eficient administration of justice,
(3)
Provost courts may also be appointed Or convened to try specific cases, or as standing tribunals to hear various classes of lesser cases. Generally, a single type of provost court will be sufficient, although circumstances may war­rant the creation of superiar and inferior provost courts. Where there are a suficicnt number of minor oflenses in any locality to occupy the full time of one court, and enough of the more serious oflenscs cognizable by provost courts to occupy at least the part time of another court, it may be advisable to crcnte two types of provost courts, in order to espedite the disposition of the large volume of Ininor cases. The number, types, and location of provost courts will depend, as with military commissions, upon such factors as the volume of WSCS, the availability of oficcrs, the question of travel, the whcrcnbouts of wit­nesses, and the speed and cffcctivcness with which justice can be administered. Thcrcforc, for cficicncy, a civil aflairs oficer cxcrcising control over a p”rticular area should dclcgntc the power to bring to trial with cslxxlition the majority of cxcs. A table of masimum punishments for specific OIFCnSCs, aS well as the power of remission vested in reviewing oficcrs, should counteract any tcndcncy toward inquality of punishments mctcd out by provosl: courts in dill&xl: locnlitics.

b.
O+her Types. If local conditions warrant> special +tary courts may bC cstablishccl for the trial of vagrants, l~rostitutcs, juvcnilq trx& violatOrs, or other classes of Oflcndcrs, or for civil CURCS (par. 4~2).

40. COMPOSITION.
ma, Milihry Commissions. In providing for n$itnr)’ commissions, which may consi$ of any n~uiibcr of officers, rhc comrnnndcr will nppoint not less than three csccpt in cstraordinnry circumstances. In gencml, the rules for nrmy or navy gcW%xtl courts martial will scrvc as a guide in clctcrmining the coml~ositions OS militnry comni,issiOns, in­cluding the designation af lnw rncmbers, trial judge advo-C~QCS, and necessary nssistn.nts: The provision for a law I~E~~CP, with powers nnd clutics similar to those of a law member of an army gOncra1 court martial, promotes sound 51
decisions on matters of IZLW aId speed in procedure, and is recommended for such military commissions for both the army and the navy.
b.
Provosf Courts. A provost COUK~ will ordinarily consist of one offlccr who should, if possible, have legal training and expcricncc. When it is necessary to create two types of provost courts, it may be advisable in more serious cases to appoint three mcmbcrs to superior provost courts. Provision may be made for standing special judge advocates or defense counsel, dc:l.“:nding ‘upon the type and volume of casts which WC tried before these courts,

c.
Other Types. The purposes for which other types of military courts are crcatcd, 5ts ~011 ;U the kinds and the volume of casts heard by them, will dcterminc their com­position and the need for SUC~I special court personnel as judge advocates, dcfcnsc counsel, provost marshals and clerks. Ordinarily such courts will be constituted as provost courts.

d.
Personnel. It is customary and usually advisable to apl~oint commissioned oficcrs as members of military courts and as juclge advocates and defense counsel. In general, where an army officer is the thcatcr commander, he will appoint or nuthorizc the appointment of army of& cers ns’members of such military courts; and whcrc a naval officer is the theater commander, IZC will appoint or au­thorize the appointment of naval officers as members of such courts. l*hcrc is no rule, however, which pro­hibits a theater commander from appointing oficicers from bdth branches of the scrvicc, cithcr to sit on the same court or to sit on separate courts, within the theater under his command. .

41. APPOINTING AU’I’HORITIES. Military commis­sions and provost courts may be appointed or convened by the oflicer in command in the theater of operations. He may delegate this power to subordinate commanders or civil affairs oficers. In forward arcas, in order to avoid delay, the cxtcndecl ‘confinement of prisoners, or the loss of witncsscs especially in cases where immediate example is necessary, it is advisable to delegate such authority to ,
52
division, force or other unit ccmlmanders in forward areas and to civil nirnirs officers in both Eorw~rd and rear nrcas. Whenever subordinate ofliccrs appoint or convene military courts, the orders establishing such courts should, but need not, recite the sour02 Of their authority.
4i. ~~~IS~~C~~~
a.
General. Military courts hnvc jurisdiction only over such cases or classt:s of casrs as are rcfcrrcd to them by the qqointing or convening authority.

b.
.Qver Persons. Military courts have jurisdiction over all persons within the occupied torritory cxccpt those having diplomatic immunity, and csccpt prisoners of war; but, unless thcrc are cogent rCas0rls to tliP contrary in a particular cast, persons subject to military or navnl law of the United States or its allies should bc tried by court martial.

e.
Over Offenses DirecNy Affecting MilHary Cov­ernmen+. ’ Military courts have jurisdiction over the following types of oflcnscs:

(1 1 Oficnses against the laws and usngcs of war.
(2 1 Violations of the proclamations, ordin&cs, rcguln­tions or orders promulgntcd by the theater commander or by his nuthorizcd subordinntcs.
d.
Over Offenses Agains+ Local Criminal Laws. IT the criminnl courts of the occupied territory are open and functioning satisfactorily, they should ordinarily bc por­mittcd to try l~rsons charged with ofl’cnsta ugainst local criminal IXW, not involving the rights, intcrcsts, ;W lxq.xrty af the United States or nthcr person serving with the occu­pying forces and sul~jccl: to military KW naval Ixw of the United States or of countrks allicd with the ‘CJnitcd States. The thentcr comn~~udcr or his authnrizccl suborclinatc may suspend lxoccldings in such local c’ourts in ;my cr~se or class of casts or may clircct that su& c;ks(’ or class of cases bc tried by militury courts. SuCll powor should bc cxer­&cd with rcspcct to any. lxosccudon inimic:~l to tllo ill­tcrcsts of the I.Jnitcd Stntos.

e.
Over Civil Cases. II: the civil courts of tht: occupied

territory      arc ol.x!n and functioning satisfactorily, they should 53
b.
Military Commissions. It is gcncrally advkblc to direct that military connnissions follow the procedure of gcncral Army or Navy courts martial, except whcrc such procedure is l~lainly in:q~l~lictzblc. The :~llowance of pcr­cmptory challenges should not bc ncccss:~ry. Any rcquire­tncnts of unnninious vote for a dcnth scntmcc ulay unduly impede the authority of niilitary governnlcnt. It n1a.y bc advisable to curtail the cstcnt of prclimiunry invcstig&ons.

c.
Prwosf Caurts! Provost courts should in gcncrnl follow the proccdurc of Rrnly su~nnx~y courts martial or Navy dcclc courts, csccpt where such proccclure is nl:lni- fcstly inapplicable. If it is ncccssnry to cstnblish inferior provost courts, lxoccdurc uxxy bc sin+ified.

d.
Special Courts. The proccdurc of other types of military courts will corrcspnnd to that spctiificd for provost courts or military coniiuissions, as dircctcd by the appoint­ing authority.

e.
Trials. Trjals should bc had and judgrncnts cntcrcd with the utmost dispatch consistent with fair administra­tion of justice, pnrtic~ulnrly in Cases where witncsscs for or against the accused arc likely to disnlqxxr, Rccuscd per­sons should not bc tried utAw thy are present in person at the trial.

f.
Counsel. Rccuscd l~rso~s should bc nllowcd to rc­txin counsel of tlirir own clioicc and at their own csl~c~nsc. Ordinarily military counsel sl~wlcl bc provided only for l~crsons tried by nlilitary conunissions. I-Iowcvcr, unro:zso~~­nblc cw~tinunnccs in order to obtain caunscl sl~~ulcl bc prohibited.

g.
Witnesses. The attcndnncc of nlilitxry witnesses may be obtainccl as in Army or Navy courts nlnrtinl. Military courts should bc cml~owcrecl to conqxl tlic! ;tt­tcndnncc of civilian witncsscs, and to obtnin the nccc:ss;~ry assistnncc thcrcfor frani local oilicials, nlilitnry police, and short patrol, nncl nplxq~ria tc coitiinanding or civil ;I Ll’airs oflkcrs.

h.
Interpreters. Proccccliiqp should 1×2 concluctocl in the 1:mgungc most convcniwt uliclcr the circwustnnccs. Whcrc it is ncccssary, intcrprctcrs should bc proviclcd, so

that the accused, his counsel, and the personnel of the court are fully informed as to the entire proceedings.
i.
@porters. If available, shorthand reporters should, be employed in all cases tried before military commissions, and in such cases tried before provost courts as the appoint- ing or convening authority shall authorize.

j.
previous Convictions. A military court may be au- thorized to consider, after a finding of guilty and before imposition of sentence, evidence of previous convictions and sentences by military courts (American or foreign) or civilian courts. Evidence of conviction of an offense legally punishable by imprisonment for more than 1 year should be admissible without regard to the date of commission of such ofl?ense.

45. SENTENCES.
a. General, Sentences should be limited to those pre­scribed by the theater commander or his authorized sub­ordinates. These will usually be issued in the form ‘of a prepared table of maximum punishments in terms of fines or imprisonment, or both. This table should be issued to all military courts and in the discretion of the theater commander may be made public.
b., Military Commissions. In general, the sentences which military commissions should be author&d to impose will include fines, imprisonment at hard labor, and death.
c.
Provost Courts. Sentences imposed by provost courts should be limited to fines or imprisonment at hard labor, or both, with appropriate limitations, such as $5,000 and 5 years.

d.
Additional Penalties. The following punishments may be imposed in addition to OS in lieu of fines and confinement.

(1 I Exprnlsi~~~ Military courts may bc authorized, in
appropriate cases, to espcl convicted persons from occupied
territory.
(21 Confiscation. Military courts rnay~#be authorized
in cases involving the unlawful purchase, sale, possession or
use of property, to order the forfeiture of such property to
the military government.
56
(31 Padlocking. Military courts may bc authorized to close houses of prostitution, places where there is unlawful traffic in intoxicating licluor or narcotics, and other places whre persons arc found to bc engaging in unlawful netivity.
e.
Confinemen+. The theater commander should issue orders concerning the confincmcnt of convicted persons. Such orders will specify, among other things, the mnnncr of imprisonment, the rules of conduct to be followed,, and labor to be performed. Ordinarily, convicted persons should be confined within the occupied territory. The officer empowered to approve a scntcncc should designate the place of confinement. I(

f.
Fines. All monks received as court fines will bc held, accounted for, and ‘disbursed according to prcscribcd procedure.

46. RECORbS.
a. Charges. It is advisable that chxrgcs be preferred by a person subject to military or naval law and on a “chnrgc sheet.” The charge sheet used by the Army
(W.
I&, A. G. 0. Form No. 115) may bc used, with such changes and additions as ~nay br nccc’ssary, or xpproprinta forms may bc adapted from those contained in NavaI Courts and Boards ( 1937). No oath to the charges should be required.

b.
Mili+ary Commissions. M i 1i 1; a r y commissions sho~~lcl l~~ep records similar to those of Army or Navy goneral courts martial.

c.
Prowost Courts. The thcntcr conu-nnndcr should

qxescribc      the types of records to be made of various classes of cnsw tried before provost courts. In ccrtnin types of casts, it may be advisnblo to kccq~ full rccorcls, with a coxnplcte transcript of all testimony. .In others, a sunun:n-y record may bc kept on the bxk of the charge sllert. Where it is ncccssary to establish tlic’ infcri& type of provost court, the latter proccdurc will gcncrally be fol­lowc$, and oral evidcncc will not bc rccordud.
47. REVIEW.
a.
General. All records of trial by military courts should be examined by the appointing or convening oficer or duly authorized subordinate, for the ~LW~OSC of correct­ing injustices. Further review in the next higher echelon may be desirable in important classes of ~ascs, and some cases may be dircctcd for final rcvicw to the headquarters of the theater commander. No sentence of death should be executed until it shall have been confirmed by the theater commander or by an authorized subordinate, esccpt that if a death sentence is imposed by an exceptional military court convcncd under naval authority, it must also be ‘confirmed by the Secretary of the Navy. The rev&wing authorities should be cmpol+rcd to disapprove or vacate, in whole or in part, any finding of guilty; to mitigate, commute, remit, or vacate the uncsccutcd portion of scntenccs, in whole or in part; and to restore the accused to all rights affected by the findings and sentcncc.

b.
Military Commissions. NO sentcncc of a military commission ni’ay be carried into efkct until its record shall have been examined by the stafl’ judge advocate of the oficer appointing the commission or his successor (see

A.
W. 46) ; nor may the scntcnce of any military commis­sion be carried into eRect until it shall have been approved by the appointing oficer.

c.
Proves* Courts. The sentcnccs of provost courts should be executed forthwith, subscqucnt prompt review suEicir$ to correct injustices which may occur and to prevent the repetition of errors.

48.      CLAIMS ARISING IN OCCUPIED TERRITORY FOR, DAMAGE CAUSED BY MILIPARY. PERSONNEL (not including procurcmcnt claim) .
a. General. In order that there may bc prompt inves­tigation and settlement of claims, the military governor should establish in his territory a claims service, under the direction of an officer, prcfcrably with legal training and with expcricnce in the investigation and settlement of claims. The chief of the claims service will be rcspo&ible for the preparation of regulations governing claims pro:
58
ccdure and the operation of the claims invcstignting scrv­ice. Prompt awards will greatly improve the attitucle of the peopk toward the occupying IWCCS.
b.
Investigation. It is the duty of civil aflairs officers to make -prompt invcstigntion and record of all accidents and incidents which may give rise to claims. This will prevent later disputes and the prcscntati& of stale or unjustified claims through diplomatic or other channels.

c.
Settlement of Claims-Army. (1 I Qccupied Enemy Territory. The rules under which claims are processed dcpcnds upon whcthcr the award will be paid from United States funds or those of the military govcrn­mcnt. Since, in most cases, practically the entire popu­lation of cncmy territory occupied by Unitccl States forces will consist of enemy nationals, claims will normally bc chargeable to the military govcrnmcnt and paid from funds of the military govcrnmcnt, not United States funds. Such claims will bc processed in accordance with regulations issued by the thentcr commander. The provisions of the act of 2 January 1942 (55 Stat. 880; 31 U. S. C. 224d) as amended by the act of 22 April 1943 (57 Stat. G6), and AR 25-90, and the provision of the act of 3 July 194.3 (Public Law 112, 78th Gong.), and AR 25-25 do not apply to claims chargeable to such military government. In cast claims are to be paid from United States ‘funds the appropriate statutes and Army Regulations apply.

(21 Occupied Allied or Neutral Territory. AS for claims in occupied cncniy territory, the processing of claims in occupiccl allied or neutral territory depcncls upon the, source of funds for paymnnt. It is a nlattcr of poliq whcthcr claims in occupied allied or neutral territory are paid by funds of the military government. If so, they may be groccsscd in accordance with rcgulntions issued by thr thcntcr commanclcr and the statutes and Army Regulations cited hi paragraph 48c( 1 I abovc, do not apply. An) cl$ms which .it is dctcrmined shall bc chnrgcnblc to United States funds will bc considcrccl and allowecl and paid, or disallowed, by a .forcign clni,tns commissian unclcr the pro­visions of AR 25-90 and AR 25-25, as the case may bc.
59
T
The claims of all persons not members of the IJnited States
or allied military forces cognizable under the provisions of AR 25-90 or AR 25-25 should be subject to suspension of payment by general or special order of the military gov­ernor for such time as he may direct.
(3) Procedure. All claims for damage to, or loss or destruction of ‘property, or for personal injury or death, cognizable under the provisions of AR 25-90 or AR 25-25, should be fully investigated and processed in accordance with the provisions of such regulations and AR 25-20. All such claims will bc submitted to a foreign claims commis­sion, appointed under the provisions of AR 25-90. Claims chargeable to the military government may be submitted to ‘a foreign claims commission for processing CWIZ though not payable under AR 25-90; or such claims may be submitted to a board, commission, or other agency established by the military governor, which may be composed in whole or in part of officers of the United States Army, the United States Navy, or oficers of allied forces.
(41 Territory Subject to Jurisdiction of the United States Reoccupied by United States Army Forces. AS to territory subject to the jurisdiction of the United States qccupied by the enemy and reoccupied bfr United States or allied forces, claims arising therein will be proccsscd in accordance with the provisions of AR 25-25, whether or not a military government is established+
d. Settlement of Claims–Navy. In order that there may be prompt scttlcment of meritorious claims, command­ing officers of occupied territories shall appoint claims commissioners to consider and dccidc claims against the United States for injuries to property or inhabitants of occupied areas arising out of noncombat activities of United States naval forces including civi1in.n employees. If a claimant is a national of an ‘enemy country or of one of its all&, there must be a determination by the claims commission or by the 104 military. commxndcr that the claimant is friendly to the United States, bcforc his claink *Gay be allowed. A foreign claims commission may be aIlpointed to considcl; each claim as presented, or consti­
60
tute a standing claims commission to consider all claims presented to it. A commission will consist of not more than three commissioned officers of either the Navy, Marine Corps, or Coast Guard. Claims of $500 or less may be heard by a commission consisting of one oflkcr. Claims between $500 and $5,000 shall be heard by a commission of three ofhcers. Decisions involving payments of $2,500 or less are final, while decisions involving payments of $2,500 to $5,000 are subject to review by the commanding officer. The Sccrctary of the Navy may, if he deems any claim in excess of $5,000 to be meritorious, certify such amount as may bc just and reasonable to Congress as a legal claim for payment. Claims accruing subscqucnt to 1 May 19-13 must bc filed within 1 year after the occurrence of the injury which is the basis of the complaint. The fact that the act giving rise to the claim may constitute a crime ’ does not bar relief, Contributory negligence of the claim­ant has such effect in the way of defeating or reducing claimant’s rccovcry as it would have under local law.. No formal proccdurc is prcscribcd for the conduct of the hear­ing on claims, but the instructions in Naval Courts and Boards (1937) governing the proccdurc of Courts of Inquiry and Boards of Investigation should bc used as’ a guide. The claims commission shall forward to The Judge Advocate General for review its findings and recommen­dations on all claims in which total damage cscced $5,000 and where the clnimn.nt retuscs to accept that amount in settlement of his claim. Claims within the jurisdiction of the Commission, but disallowed, shall also be forwarded to The Judge Advocate Cenernl. The instructions and regu­lations of tlze Sccrctnry oi” the Navy concerning foreign claims commissions appearing in the 15 May 1943 issue of Navy Bullctin shall bc followed by all commanding ~fli~ers and their subordinntcs in accupicd territories. An Army claims Commission may liancllc foreign claims for the Navy if rcqucstcd to do so and vice versa, With rcspcct to claims payable from funds of the military govcrnmcnt as distinguished from claims approved by a foreign claims commission and payable out of United States funds refcr­cnc.e is made to paragraph 48~.

INDEX
 
Psmgrapll Pagt3Absence. (See Leave of absence.) Accidents, claims arising out of——-;—–48 58 Accounts. (See Records, accounts, etc.) Activities of civil affairs section————-23 Adjutant General, duties————____-__ 12Y ci Adjutant, duties of, performed by internal ad­
ministrative officers——–____ – _________ 23 33
Administration-Of chief political offices–______________ 12 15 Of property. (See Custody of property.)
Administrative area, (See Military administra­tive arca.)
Administrative ofXcers : Of civil affairs section _________-_-_____ 23 33 Internal administrative ofSccr ___________ Personnel—-_____________-_.-__I_I___ 22: 2
Aged, institutions for———————-12w 20 Agreement–_____________I —_-______ -_–_ 1 Agriculture—–i _____________ 9k, 11, 12c, 120, 31 11, 14, 1;
18, 4.0 Airfields—————: _________ -__—__ 12i 17 Airplanes, operation of, assigned to civil affairs
units—____ —___– ______________ —I_-25 34 Air raid precautions, blackouts, shelters, iire­fighting, casualty services ____-_- ~– ________ 12d 16 Allied Governments, furnish information for planning _–____ -__-__-________ – ____.___ 31 40 Allied territory, military occupation bf–_—–1 1
Claims arising in—–_________ -__-____ 48 59 Allies, civilian agencies—–,‘__I__ – _________ 22 31 Ammunition, custody———_-___ -___—_ 12s Annexes, appendixes (see nlso Orders) ______. 12y, 18 20, :;
To administrative or operational orders, civil affairs orders as ______ -_–____ -__ 33 43 To civil affairs orders issued by operational
unit commanders ____ –________ ___._-__ 33 43 Antiaircraft officer—–____ — _-____ -___–_ “__- 12Y Archives _____ -_-______________–_—_-___ 9p, 26 13, :: Areas. (See Sections of areas.)
Continental arcas _-___-_-___——–__ lo,12 13,15 Military administrative areas -_-_________ 17 Forward areas—______ –_____ – ___-___ 18 z: Rear areas, organization——.———- 18 27
Arcas-Continued. Pllmgra~lll I’ago Chain of command–I_________________ 18 27 Particular areas, directives ____________ -_ 22 31
Armnmcnt, of military police and marines, in­
adequacy bf for civil affairs—–________ -_ 26 Armistice __— -___—-____ —-___—-__–17,21 ,, 24 ti Arms, custody——-____ll_________l_____ 12s ‘is Army communications zone ____ -_–_______ –19 28 Army Regulations :
25-25——————————-59 25-go——-.——————-ii 59
Army and Navy: Division of responsibility between——–10 13 Depends upon nature of operation-in con­
tinental arcas usu,2ly with Army; in island areas and ports, usually with Navy -_-_–__-___-___-____________ 10 13
Fixed by Joint Chiefs of Staff or by Com­bined Chiefs of StnfF–______________ 10 13
Arrest: Commander of combat unit may———19 ,*,’ 28 Of defendants. (Ses Marines; Military
I I
Police; Shore Patrols.) Art, prcscrvation of objects ___- –_____—-__ c.yJ Article of War 24 ___–_ –______________—:: 54 Assignment –_-_—__—-_—-___________ 12Y 20 Attitude of inhabitants –_-____—I_ 9g, 12t, 1.2y, 31 6, 17, 20,
40 .
Beil—,—————————–~–4.3 54 Banks and bar&g— _____________ -9k, 121, 31, 34 11, 18,40,
44. Bar, local. (See Lawyers.)
Supervision ____.__I__ –_-___________.___ 12c 16 Bclligcrcnt occupntion——–“.–_________ -_ 3 2 Bclligercnts __-_______—–__-_____- -__-_-_ 1 “Black market”———-____ –_-_________ 9k
li
Prevention—-__-__ – -____ -__-__-_____ 12×1 ,18 Bounldnries, local, political-____ L ____________ 17, 18 ,,24, 22 Bridges _——– –____l_____lll________–3 1 4.0 Brothels. (So0 Prostitution.) Burinl of dcnd-________— I______…_ -_ 91, 11; 12~ 12, 14, 2a
Cabinet Ministers, removal ————-.“—9i 9 Cnblc—–.l-_——–,——————-1211 17 Camps. (See Conccntmtion camps.) Canals——,——-I-I1I—I————31
40
Capital, when thcntcr hca.dquarters are not nt
capitnl during campaign——________I_I 21 30
Captured areas, control ——————–18 27
63

I’ar~lglYlpll Pilge
Catenories of oersonnel. (See Personnel.) Censorship———-______ -___ 9k, 12g,12y,
Chain of command ________.. ———: _____
Chain of control-.————–_—___.___ – Of civil affairs _____________ -_–______-Adv&ntages and disadvantages———– Military orders, issuance through civil
affairs ______-___-________———- Challenges of members of military commissions-Characteristics of peoples:
As affecting theater organization, etc-..–­In general————————–­Instruction in study——-______-___.. –
Gharges – ____ – _____ -___-__–_–____–___.­Chemical officer, collective protective mcas­
urcs–_——,————————­
Chief of Naval Operations—-___—-__-___­
Chief of section of civil affairs staff: Duties—_____ -____ – _.__ – -,__ -__–______ Qualifications ____ -_—_-_-_-_ _.-,-_____ Preparation of plans by——_-.._____._­
Chief of Staff, U.S. Army ______. -_- __–___ -_ Children, care -______- -_-____ —__________
Institutes for ____- –_-__________ —_-­Cinema. (See Motion pictures.) Citations__——————————­City:
Within zone of operations ___…____-…_–­Small, supervision of ___-______ -__-_____ Civil affairs. (Ske Chain of command of civil
aflairs.) Definition–____ -_-_–__–___- ______-_ Jurisdiction – __________ – ______________ Organization _____ -__-_-_-______.______ Responsibility for planning ._.____…______-_
Civil affairs commands——-…——….–_–_
Civil afE airs groups : Composition ___-______ – _____ -___-__-_ In general–_____–_I~___ – __.____-__.._
Civil afTairs officers—- ______ -___–___–___ Administrative ___…___ -___-_-_– _____.+_ Duties of, supervisory rather than operat­
ing———-,—-_——–,-,-I-Functions of. (Sse Functions of civil
affairs officers.) May be staff officers of unit—– _______­Of other nations–_-_r________ – __-_____
64
 22,29
17
 
18
 
:;
18
 
44
 
:: 29,31
4.6
12Y
 13
 
22
 
2
 
13
 12w
 12w
 
12y
, ~3
 19
 
1
 8
 14
 
f?:
i:
1,12
 23
 
9i
11,17, 20,
 31,39
 24
 27
 
;:
27
 55
 
23
 
39, ::,
 57
 
31
 38
 42
 
2
 20
 
20
 
27
 28
 
i
 ,23
 42
 34
 
34
 34
 ’ 1,15
 32
 
9
 
27
 32
 
civil affairs officers-continued. Of other service ______ – __-_ -______ -___ Relations with local officials and inhabit­
ants——————____________ Selection and training _____ —-_________ Civil affairs orders:
Contents—————-,—________ In general——_-_______________ In detail _-__…-…_ – ____ — __________
Distribution __—____-__-___ -_—__-__ Form——————————­Of chief civil affairs officers———…–­Of military administrative area command­
ers——————————-­Of operational unit commanders——–­Of theater and task force commanders—­
Civil &airs sections——-____ – ______ —_
Organization of functional officers——-… Fiscal-___-________—–_–___­Intelligence ____ –_-__–__________ Legal_-_—————-_-__——­Medical _———__-_–__-______
Internal administrative officers———­Staff assistants _______ – ____________ -__­Officers from other services———____ Ofl’icers of other nations-____ -_- ____ —-
Civil affairs staff section: Creation—————————-­Duties——–l___l_l____ – _____ – _____ Internal organization–____.________ —­
Civil courts——_________ -___-_________ Civil government, enemy’s—_________ – _____ Civilian activities _——-:-_—-_-l–l—_ Civilinn agencies :
Supervision and coordination of work–.-­
Liaison with Civil Afl’airs Division——­Civilian defense- l——-__l____ – –______ Civilian employees, claims arising out of Con­
ductc–_,–,,,–,—1—————-­Civilian officials. (Sse Local oflicials.) CiviliansL-____ – __——-__ – –___-__ – _-___
Supplies, food, shelter, medical aid-,—­Transport facilities _______ —_______l_l Hospitals _-__——_ – —————- Distribution of food’ and supplies to, by
quartermaster ——__——I^r-l^_^
65
 
I’llU~grIL~Ll 23
 
.

2
 
34
 34
 34
 33
 33
 33
 
33
 
33
 
;“3
 
23
 
23
 
zi
23
 23
 23
 23
 23
 
22
 2’2,23
 23
 
12~,42
 3
 12Y
 
. 22
 32
 12d, 3 1
 
48
 
12C 12e 12i
12Y
12Y
Page
 32
 
9
 23
 
43 ’
 43
 43
 43
 42
 43
 
4.3
 43
 
4.2
 32
 43
 
4.3
 43
 43
 
4.3
 43
 43
 4*3
 44,
 
32
 
16.53
2
 20
 
31
 4,2
 
16,40
59
 
16
 16
 17
 20
 
20
 
rn Claims, Army _–_I____-_-_ – -___________  n1mnp11 48
  58 Pilgc!
 
Settlcmcnt-­_____-__ –___–_-_–_-___ In occupied allied neutral territory–­ 48
 48
  59
 59
 
In occupied enemy territory——-­ 48
  59
 
–     Procedure-__–_-_—­-___-_-_-_I  48
 
For property and personal injury or death­ 48
  i9”  
Certain stntutcs and regulations, applicnbil-
 
ity—–­_.__ -___-__-I_—-_-  59
 
Foreign claims commission———___  is”
  59
 
Claims, claims commissions —-L—-­i2c,  12~
  16,20
 
Sdurce of funds 1or payment -___-I  48
  59
 
Effect–_—__-_-__-_____,_______  48
  59
 
Suspension of payment in ccrtnin cases–­ 48
  59
 
Claims in occupied territory. (See Claims,  
Army;      Claims, Navy),
 
Chief 0 claims service, duties—-­_-___
 
Claims service to bc established——–­ 4.848
  ”      iii
 
For danlag: caused by military personnel  
(not including procurement claims) -___  48
  58
 
Investigation—–­_____-____-_______ – 48
  59
 
Proccdure—,,II_I—————–­ 48
  60
 
Regulations to be prepared ___-____-__ – 4.8
  58
 
Claims, Navy :
 
Accruing subsequent to 1 May 1943, filing
 
claim within 1 year…- _,_____ —-  48
  61
 
Amount of, as affecting number of offkcrs
 
on commission——­_-____ – ___-____  48
  61
 
Appointment OF claims commission—–­ 48
  60
 
BP enemy nationals -_______ –__-_­__-_  4,8
  60
 
Contributory negligcncc as affecting claim­ 48
  61
 
Foreign claims commission __________I_ – 48
  60
 
Judge Advocate Gcnernl, review by, in cer-
 
tain cases—-­-___-__­ 4~8
  61
 
May br: handled by Army  4.8
  61
 
Naval courts and boards (1937), guide
 
proccdurc-__—-_–__—_———–­ 48
  61
 
Procedure, informal -_­_______-_ –_  46
 
Rcvicw ‘of, by commanding of%xr—–­ 48
  i:
 
Settlement – ______________ I—-­ 48
  61
 
Classification -_____-_ –__­_____­ 12Y
  20
 
Clerical personnel. (Soe Person+.)
 
Climate—-_-I-_____—–_,————­ 31
  40
 
Clothmg, distnbution- Qk
  11
 
Collcctiv,e fines and punishments——,,–__ Collective protective measures—-,–­ g&:
 12Y
  2:  
Color. (See Discriminatory laws.)
 
Combat areas- _______- –__-­____­ 18
  27
 

66
 
combat commanders, off%xrs, troops :
 Larger units ______ -_–_-__-____ -__–_ 21.
 Liaison with civil affairs officers——–22
 Operations, units—____________ —-___ 4
 
Regiments _-__ —-_—-__- ______ – ____ 18
 Should be relieved of Civil Affairs Con-
 
trol——————————-18
 Small units ______________ -_–___—–_ 21
 Zone, combat-…———–_________-__ 17
 
Combined operations—-_____-_ – _______ 10, 13,23 Combined Chefs of Staff: Fix responsibility. as between U. S.
_and
allies ___-____ ——–: _______ -_-__ 10
 In general_-_————————13
 Planning—–,———————-32
 Plans of theater and task force com-
 
manders transmitted to, for confirma-
 tion-_—————————–32
 
Command, unity:
 Iti combat zcmc——-____-__ – _______ 18
 In naval advanced bnsc zone————’ 19
 
Commander in Chief, U. S. Fleet ____ – _-___ 13
 Commanding officer, supremacy _____ -_–__-_ 8
 Comment, upon refusal of defendant to answer
 
questions—L————————–._ 4.44
 Commerce, development and supervision—-lZq, 34
 Commercial activities——————____ 32e
 Commissioned officers as members of military
 
courts—___________ —-___—-______ -_ 40
 Communications (see also Signal communica-
 
tion) __—_________I__________ —–9k, 11,“:‘;
 Concentration c3mps——__________I –__-
 Conditions usual in occupied territory—-..–11
 
Rioting, looting, and food shortage——I 11
 Unburied dead———————–i:
 Water supply polluted _-__ —___–___-_
 
Conditions of cmplaymcnt. (See Employment,
conditions.)
 Confcrcnces. (See Pcacc conferences.)
 Confinement—————————–45
 Confiscation of property———___- -__-__ 45
 Congress. (See Investigatory bodies.)
 Constabulary, local _____ – __–_ —___l_l__l_ 26
 Continental arcas _-_____ L—-____– _______ 10, 12
 Continuity of policy and personnel———–9f, 17
 Contraband articles, seizure-____ — ______-___ 26
 Contributions, levy———–_I______—__ 12m
 Contributory ncgligcnce. (Sac Claims, Navy.)
 
67
 
30
 31
 3
 27
 
27
 30
 24
 
13,22,32
13
 22
 42
 
42
 
27
 28
 22
 5
 
54
 18,44
 16
 
52
 
57
 56
 
13, ;z 6, 24
 35
 18
 
Authority _______-__________ – ___-____ -7
 Degrec-~~~~_~_~~~~-~~~~~-~~~~~-~~~~-5
 Disease __I_________–_-______________ 91
 Exercise of, command responsibility——8
 Exports and imports———–________ 12n
 Pood__–_-_——_————~—–12n
 Insects—————–_-___________ 91
 Labor organizations ______ ________ -__-_ 9k
 Marketing by rationing _______I_____..___ 9k
 Of money and banking ___- -_– _–___-__ 9k
 Of. prices _-______________ i ___—-____ 9k
 Over imports and exports—-L ________ i-9k
 Period__–_–_–_——————–6
 
Convicted defendants-________ -__-_-_______ 19
 Coordination -________________I_ -_-_______ 12Y
 Between civil affairs officers and other staff
 
sections. (See Staff sections.)
 Counsel. (See Defense counsel.)
 Counterpropaganda -_____________—_______ 12t
 Countersubvcrsive activities (see nlso G-2)—- 12Y
 County, political subdivisions comparable to—-19
 Courts, local (see nlso Courts martial; Military
 
commissions; Provost courts; Civil) __-__-_ 12c, 21
 Courts martial (see nlso Military courts; Mili-
 tary commissions)—__________ -_-_-_____ 12c
 General rules for, applicable to military
 
commissions _______-__–_- – -____-__ -4.0
 Credit agencies _–___________I_-.—___I__ -121
 Creed. (See Religion.)
 Crime :
 
Persons accused _–______-__ –_-_______ 9g Prevention, dctcction, prosecution——–12b Scntences-_‘-I__-___ _- ________ll__l____ 9g Trial ____ – _-__-_ _-_- -_________________ %
Criminal courts, local _______ -_____ – ________ 12c Currency -____-_—-__–__-____________ 12,31,34 Custody of property of-
Enemy govcrnmcnts ____ – ______ –______ 12s
 Enemy nationals __________ – -._____ – ____ 12s
 Other govcrnmcnts _.-I_______ – ___-___ -_ 12s
 Private property l_–_-ll-_.l___.-l_____ 12s, 34
 
Customs of inhabitants ____-_.___ -_-_-._. ______ % To be retained usually—-_-___ – ._-___ L_ 9h,9m Study-_——–_-_–__,_____________ Tribal __-______—_.-.-_-_I__ – .I________ 31 !i
Custom(s) of war ____l__l___.- __.______I_____ f’;
4
 3
 12
 
1:
 18
 12
 17
 17
 
:: 17
 
4.
 28
 20
 
19
 20
 28
 
16,30
16
51
 18
 
1; 6 6
 
18,4,1, ii.
19
 19
 19
 
19,44
6
 6, 12
 40
 
40,48
 5
 
68
 
1’ttl%gi%p11 1’11gcDead, burial _—– ————I-_-_-______ 91,11 12, 14 Death sCnt(!IlCCS-..-.– ——–___ – __________ 44
Confirmation————–_-___-_____ 47 ii Debt moratoria. (See Morntorin, debt.) De& courts——…–___II______ –____ 44 55 DCcorntiOnS —-_I_-_-.–_.-__ -_-.____ 12Y 20 Defendants–___- –.–_.- -_–_-___ – _-_______ 19 D&nsc COLlnSel————–I-__ – _I______ 40, 4.4 52,:;DCfinition of militnry government _…–__-_____ DClCgatc, military governor m3y—–T _______ : : DClCgation of authority —_________________ 36 49 DCpartmCnts, local govcrmnent:
To be rctainrd usually—.““-..“-.-_________ 911 8 TJnnCcrssary or detrimental ones to be dis- continued –………–w–e —. _– ___.___-_^ 9i 9 Deputy chief, civil ‘LlfhiKi section _____-___-___ 33
(&difiCntions -l___l__l –_-___________ zi Destruction of buildings ———–_-___-_,__ 11 it‘ DCvClopment Of lOCal rrsourccs, rrgriculturrt, in­
dustry, commcrcr, P!X -.-_.,…- _..__.__–____-____ 120
DirectivCS—–____-__ ..l_l.._. I ..__ – ________-__ 12t :i Specific, for specific ;ux~s _,.___ — __.______ Of War and Navy I)rpnrtments _____-____ ;z 2
Discharge of ~WSOIUX~ ________I_______ _-____ 12Y 20 Discriminatory laws b:~Cd 011 UKC, color, CrCCd, .
oq political opinions should be nm~~llrcl~~-~-9n 12 DisCasC, control—~ l________l_-__ll____I___ 91, 31 12, 42 Displaced ~C~SOII~L I .–1–11- _.—l__l_.-l_____ 12u 19 Distribution of-
Necessities, food, fu01, medicine, and Cloth- ing __l._l.l-t.l__lll___—-.—… _.__,,__–9k 111 Routine orders by Adjutant Crcncrol–~-~~ 12Y 20
Docks : Construction ancl m:iintcliilnt:c–,——–12Y Engineer I‘unctiorl -.._–I…….._-_ – _-___ -_ 12y, 31 20, ifi
Doctors ____–_—..–_—–__–I _._—____ 11 14 Domestic territory… _–_-I___ – ____.._ – _.__-__ L- 1 1 Duties of civil nffnirs ofliccrs, suprrvisory rnthcr
thnn 0pcr:ltiiig. (S4d SupfxGiion.)
Ecl1clons : Of civil 2llTiLil3-… I…___..____.. _ 16, 17, 18, 19,21,23 24*,26, 28,
30,33 Palitical___I-.~._. ___-llllll.-.l. __..- I . -..-.. .-.–_-25 Cencrnl -_.- ___I_____-__- – 1.e-…__e. _. . . . . ..I___ 27, 28 37, ii
Economic: Circuinstnnccs _“.,_. I._ ._~ ..___ ….l_l_ -._ __.____,__ 5 3 Life, rcvivnl-__-_,l ___._,ll,,l.. __.I .l,–l-.-l-l-l- Qk Situ&on, of occupied nr~n __._._ —-“.–_ 31 :: People,. as affecting theater organization–1.5
Economics,  basic  economic  policy  of  United  l’aragra~~h  Pll&?  
States,  corollaries  __-_ -__–  91c I  11  
Economy  of-

Personnel -______ –__—_—_-_–_-___ 9d Education, supervision—______ -_-_—-____ 12v ,Electricity __—__-_______________________ 31 Employment, conditions __-_____________ -___ 12n jhlI311y nationals. (See Trading with the
cncmy.) Disposition, repatriation, or rclocation—-12U Claims against United States——-…—-34
Enemy property custodian. (See -Custody of property.)
Engineer: Special staff functions————–_ 12Y Liaison with civil affairs officers——–22
English language. (See Language.)
 Enlisted personnel _–____ –____ –_____ —-
 
Training————————–..-. 2275 Equipment—————–____ – ______ —31 Espionage——————-_———–26 Evacuation—-_————————12y,17 Evidence, rules of, Army and Navy courts mar­
tial to be followed——– ____ —–_____ 44 Exchangqrate .–._–…_ – _______ -___-_–___-12,31
To be included in certain orders——–34~ Executive authority —__—-___-_ -_-_____ -8 Executive officer:
Of civil affairs section __.._______ – ____ –
Personnel—…—————-__—-.–.-22: Exercise of control—-___-_______________ ­Explosives, seizure–______ -_—-____ –_____ 286 Expulsion,,—————–__—–__—-~—45
Facilities _____ – __________I_.-__ -_____ –__-8 Civilian transport–_________-I_______ -l2i Communication —_________ -___–___ 12s, 12~ Damage—————————–91< Information as to, for planning—-,—31 Trinsportation _______-.-..__I____ –___-12i
Farmers to bc supplied with essential equip­
ment–l-,-____-_—___,_______________ 9k FM, 27-10, Rules of Land Warfare ______ –__-7 Financial agencies, financial transactions. (See
Trading with the enemy.) Fines–_______ – ____ – ____ __-___—___ 9g, 12m,45 Firearms, seizure ____ — ____ -_-_- ____ –_-.___ 26 Fire Department, prevention——_________ 12b, 31
70
23
1: 41 18
34
:: 35 19,24
18, :: .44 5
33 35
5 35 56
5
19, :;: 11 41
9
11 6
6, 18,57
X’nrllgrnl,ll Page
Fiscal officers _____ -_____ i _____ -___________ 23 32
Fishing : Development and supervision-__________ 12P 18’ Resumption———–________ —-___ 9k 11
Fleet commander——-_________ —_____-13 74 Flexibility, importance———–________ 9e, 23, 30 6, 32,40 Food :
Distribution—————____ –___-_ 9k 11
By Quartermaster ____ — ______ -__-_ l?y 20 Inspection __—____-__ -_–_________ -_ 91 12 Shortage, upon arrival in occupied tcrri­
tory__-_————————–11,lZf 14,16
Supplies, in occupied area ______ – _____ -_ 31 40 Force commander-_______ – _________ –____-13 22 Force, use of, to prevent escape of prisoners
and persons suspected of crime———–­Forced laborers———-__________ -_…-___ ‘II: 1: Foreign claims commission. (See Claims,
Army; Claims, Navy.) Forestry, forests————-_–____ – _____ -9k, 31 11,40 Forfeiture of property—- -_____-_________ –45 56 Freedom of-
Press——-.————————-90 5 Religion ____ —-____ -_—-___-____-_ -9m 12 Speech——————.——-I—-13 Fuel, distribution _______; _______ – ________ -_ ,“;: 11 Functional ofhccrs __–_-_-_________-___I___ 23 33 Qualifications _______I___ – ___________ -28 \ 38
Functions : Of civil affairs officers during hostilities—12 15 Msintcnance of law and order, civilian de­
fense, etc——-,-___-_ —–___-_ –12b 15
Funds : Seizure of and guarding ___-________ 12y, 26,34 20,35,44 *Source of, as affecting claims. ‘(See
Claims.) Furloughs———-________–________ _- __.__ 12Y 20
G-l coordination and supervision with civil affairs officers———_____ – ____ — ______ 12y 20 G-Z coordination and supervision with civil affairs ofhccrs—_____ –___-___…_ — ____–12Y 20 G-3 coordination and supervision with civil , affairs ofliccrs ____ -__–__________ -_—__-12y q 20 G-4 coordination and supervision with civil affairs of6cers -___-__-______ – _______ –_–12Y 20 Garbage, disposal—; ________ – _____ – _______ 91 12
71
Garrisons—_______ –___—_l-______l_ –_ 17
 Gas—-,–_—————————–31
 General principles in conduct of civil afTairs—9
 Geography, of area, importance -_____–______ 9e, 15
 Information concerning, for planning—-31
 
‘Government:
 Native__,———-_—–_________ 9e
 Property of enemy ___________ -__–_-___ 12s
 Other governments _-________ -___-_____ 12s
 Existing, structure, importnncr-..—_____ 15
 Operations of, in occupied area ____.I__ -__ 31
 
Habits, local, dietary, study _____-___’ _______._ 31
 Hague Convention—–_-r-_-_——-L-___ 7
 Handicapped, institutions __–__—_–______ 12w
 Harbors,——-_————–__-____ 11,31
 Headquaqters:
 
’      Commandan’t, duties ___-__-____–____ –12,
 Of operational type ____________I__ –___
 During campaign __I__________-___ -___ ::
 
Heads of state; removal _.__- A ——_–______ 9i
Health _____ —-__————— —- —-91
 Burial of dead——-__—____-______ -91
 Civilian hospitals _____I______-___ –_-_-12Y
 Disposal of sewage and garbage –________ 91
 Food inspection ________-_-I___-___-___ 91
 In general ___I____-_______–_____I 11,12.f, 31
 Of occupying forces ___—___________ –31
 Water supply _————–.—-_—– 11
 
Highways——————————–31
 History of occupied arca, information concern-
 ing, to be supplied for planning -_-___ -____ 31
 Hoarding——-____________lr_ –________ 9k
 
Control_—__—–,-,—————12n
 Holidays, local, religious, to be studied——-31
 Honors (see nlso G-l ) _–._ —_________ – ____ 12Y
 
Function of Adjutant Gcncml—,—–.–12Y
 Hospitalization, function of G-4 ____ – _____-__ 12y
 Hospitals nnd hospital supplies ______l.–l 11, 12E, 12y
 Idostages, purposes for which taken———-9g
 Hostile occupation—-_l___l___l_ -_-_-____ 5
 Hostilities–___-___-_ – __-__ -._-_–___ ____ -__
 
Cessation __-__-_l-l__.—.. ____-_-_-17, 21, Z
 Hours of work –_.___ -_ . ..- -.-.._ – _.____._______ 9k, 12r
 I-Iouseboats———-I—_-I___-__-____–12j
 
Implemcnt$ of war, custody ___.___ i–‘-___- –_ 12s Imports, control ________ – __I_________ -___ 9k, 12n
72
 
P:lgt?
24
 
41
 5
 6, 23
 40
 
G
 19
 19
 23
 40
 
4.0
 4
 
14, i;
 
20
 24,
 30
 9
 12
 12
 20
 12
 12
 
14, 16, 40
 40
 
:t
40
 
1.1
 
::
 20
 20
 20
 
14, 16, 20
 6
 3
 24
 
24; 30, 35
 11, ia
 17
 
19
 11,18
 
Incriminating questions, refusal to answer, right P~l’a&@~ Z’lljiP of comment upon _____-_–_ – __-_____ —_ 44 55 Industries, supervision _-_—–9k, 11,12e, 12p, 31,34 11, 14, 16,
18,40,44 Information ———————129, t, and y; 22 17, 19, 20, 31
For planning, furnished by War, Navy, and other departments and by allied govern­ments—————___ 2 __-_____ -_ 31 40
Inhabitants : Treatment _______l____-l_____________ 9g 6 Relations with _________________ —__-12b 15 Dealings with, through local oficials—–9i
On official basis only————–9i, 12t 9,1: In general—_______ -_-_—_________ -17 24 Trial of, for ofl’cnses against security—-19 28 Characteristics, study ____________ –____ 29, 3 1 39, 40
Inland waterways, usually Navy assignment-; 10 13 Insect control—_I__-___ –________ –_—-91 12 Institutions, local (see also Welfare) __-_____ 9g, 31 6,40 Instruction, subversive or harmful, prevention–12v 19 Instructions (see also Orders)—_-__ –__–_ 37 49 Intelligence _____l____l–_______I____ 1!& 12y, 22 17,20,31
Branches of variouS services, inlormntion
supplied by—______-__ -___-___—-31 40 Officers _-______________ –___________ 23 32 Reports __________–______-____ –____ 29 39
Internal nrrsngcments. (Sea Headquarters.)
 International Law, rules——–_____ -___–7 4%
 Internrcs _____________-____________ —___ 12u 19
 Interpretation of purposes of occupation to in-
 
habitants —_-_-_-_–_ –______ -_-_-____ 12t 19 Interpreters —_________I-I_______l_lll 26, 37,44 35,49,55 Intoxicating liquor. (Se8 Liquor.) Investigation of claims _____l___l-____.__l_ –4.8 Investigatory bodies-___-__ -__—____ -___-_ 12~ ii Islands, island areas, island groups, $ Navy re­
sponsibility, usually _______l_ll______ –10, 12, 18 13, 15, 27
Joint Army ancl Navy operations ________ -___ 14,23 23,32
Joint Chiefs of Staff:
 Certain plans to be submitted to _r_______ 12y, 32 20,42
 Determine responsibility between Army and
 
Navy _-___..______ –__ll-l__________ 10 &ulnihg POliCiCS for military govcmmcnt, :92 Planning responsibility ____—-_ i _…_-..– i: 42
Judge advocate :
 Review of records of military commissions, 40
 Review of certain claims ___- _-________ 48 ii
 
Judicial authority of occupant————-w 8 5
I’lUW%%~,l~ I’IKC Judgments should be prompt—–__I—-__-44. 55 Justice, administration _____________________ 3 t 40 j uvenile-offenders, special courts for-__–I__–39 51
Labor : Procurement ____________I_____-9g, Sk, 12y, 3 1 6, 11,20,
40 Native -_-___. – -________ i-,-_______-__ 12Y 20 Conditions, study __________ – ________-I 31,34 40,44
LLaborers : Forced ___-I__ –__________ -__-______–1211 19 Native –___-_________________ –____._ 12Y 20
Labor organizations, control—______——-9k 11 Land wnrfsrc, rules ___________L_ – _________ 7 4 Language Of-
Pro&motions, ordinnnccs, orders, ctc—-22 31 Territory by civil nffairs officers———38 Desirnbility of English _______ – __________ ii 39
Large units, commanders of, responsibility far civil affairs———–__-______-____-____-27 37
Laws : Discriminntory to bc annulled——–,-9n 12 Criminal nnd civil, locnl, modilicntion or
suspension —__-______-___ -__- _.__.___ 12c 16 Lawyers (see also Bnr) —___–___-_____l_l_ 11 14 ’ Le;uve of absence -.___ – _-____ — ___–_____ __-t2y 20 Legal advice–l—_–__________________,_ 12c Legal oficcrs—_________ – _________-___ -__ 23 ;; Lcgislntion, lcgislativc functions——___._-._-_ 8 Lcgislativc bodies: Usually sus~~cnclccl~~~~-~~~ 9i Liaison :
Botwecn Army 2nd Navy—__-_____-_-_ 10 13 Between nov.val nuthorities nflont nnd nshorc and civil affairs organizations nshorc,.. 12j 17 Between chief of civil affairs section nnd
other combnt and stnff oficcrs ___l._l._l_ 22 31 Spccinl tmining–___ —____–______.__-34 With civilian ngencics———–,..–._-_ iii 4.2
Limitation of time in which to file &rim—–… 48cl 60 Line of communicntion of civil affnirs oficcrs in
territorial type of orgnnizntion_—-,——16 24 Liquor –.–___ -_____ –______—-_—-__-121,45 15,57 Litigation _I-___-____…_____ – _____-“. ___.__-__ 12C 16 Lo& customs and traditions -_-, __– ____,- _.___- 31f 41 Local govcrnmcnt departments, when to bc rc­
tained or discontinued ______-____ — __-_____ 9i 9
 LoCal Inw as to contributory ncgligcncc of
 clnirnant, egcct—-_____-_______________ 4.8 59
 
74 c
J.mal officials: 1%!ngrnp11 Pnge When to be retained or dismissed——–9i 9 Members of political parties _______-_____ 9i 9 Subordinate ones to be retained usually~-9i 9 Dealings with inhabitants through–~~~~~ 9i 9 In operational type of organization——- 24 Police—————~ ________ —_-_-:; 35
Local resources-______ –_____ —___-___ 9d, 9c, 12 6, 15 Lumbering————————–__-12lJ 18
Mail, censorship—____ -__________ – _______ % 13 Manifesto-____ –_-___–_–__—–___ _____ 35 45 Manpower. (See Waste.)
Economical use–,-_______ -____ -__—- 17 24
Manufacture : Resumption—..–r——————-Sk 11 Development and supervision-____ – __-__ 12P 18
Mal)s———————-,————-12Y 20 Marines (see also Military police; Shore pa­
trols) _—-___–_-_ —__-__ -____ –_ 12b, 18,25 15, 27,34 Arrests, authority ta make ____ —_______ 264 37 Assignment and command——________ 26 36 In general _____ -________ -_–_–_.-____ 2f.l 35 Necessity –_–___-_–_____ -__-_-_____ 26 35
Marketing, control _____ –_____ -__-__–_____ 9k 11 Material (see also Strategic material) __-_____ 12 15 Maximum punishments, table..-,-____ -__—_ 39 51 Medical oficcrs, liaison with civil affairs offi­
cers———————-,_–_————22, 23 31,32
Medicine and medical supplies: I Distribution –____ —__________ – ____ -_ 9k Lack—–_—–_____-_–____________ 11 ::
Messcngcrs————-____-______-______ 12Y 20 Messing __– I _-_____._ -_-_____ -___—-_-._-12Y 20 Military administrative arcn ____.___.-__ – –____ l?, 24 Military commissions :
hclvocate~~~~~~-~~-~~~~~–~~~~-~~~~–12Y Appointed by ____ -_-__________-______ -41 i:: Composition _____ – _______ -_______.._____ 40 51
Establishment –____ —_____–__________­
Jurisdiction – _____ —______ —_-______ ii 53
Personnel_——_—-_–________-____ 4,o 52
Procedure—–,———————-44 54.
Records of, review of by judge _-______ –_ 47 58
Types—–__–_–_-__-I_____________ 39 50

Military control, by agreement or convcntion–2 2
Military courts—–__–__-__ -_________ 34,38,48 44, 50,59
Military districts ___-_ -_-__ ______ –_- ___-_-_ 21 30

75

Military government – ____L____ 21  30  
Definition -____ – __I_________ -_­____-__ 1  
In general -__­__-____-___. –_ 22  3:  
Planning,,-,_–_-__—————–­13  22  
Territorial and operationnl types——-­16  24  
Military governor _-__-_ – ____-__ -L­1  1  
Responsibility of civil affairs offtcers-……–­16  
Military intelligence–­___-_­-c ______-____ 12g, 12~  17, :tT  
Military Inwl persons subject to, arrest _._._-____ 26  35  
Military necessity——­_-__–_-________ -_ 3  
Reprisals—­-__­___-___ – ________ 9g  i  
Military police. (SEE Mnrincs; Shore patrol.)  
Arrests, authority to make ——–I 26  
Assigmncnt of command _I_________ -___­26  
Duties—­__-_ – _____-___ L—,  
In general -__-­_____-___ – ____ –__ ’ 22:  
Necessity——————–­26  
Organic units, nv&tbility–­-___ 26  
Rear area–­___-______I___  
Milk –__: ____-_ – _____________-I -__­–,­32;  
Mining:  
Resumption——­- ____._.__ 9k  11  
Development and supervision 12,31  1540  
Minor offenses——­_-_______l_l_ – ____-__ 39  50  
Mission of theater commnnder -_-__-__-__-___ 15  23  
Money nnd banking -__r___–_-_l—_______ 9k, 121  
Monopolies, public _____._ _.__– -_-___ 12m  ::,  
Monuments, preservation ___–.____-__.____.___ 9r  13  
Morale—-,———–L—————-­11  14  
Morntoria, debt _________I_ –__—-_ 121  .I8  
Motion pictures, rclcnses-­___l__________l 12t, 12y  19, 20  
Motor trucks, busses, and vehicles. (See Trans-  ,,,  
portation.)  9  
Narcotics ____-__ r______–__–_______I_ lPb, 45  15,57  
National policies -__–____— – -__–____-__I 4  
Native government (see also Local government 9e, 9i  6,:  
departments) .  
Native labor. (See Labor.)  
Nwval advanced bnse zone. (See Zone.)  
Nwal combat units, small, should be relicvcd  
of civil &airs control ___-_ –_ 18  27  
Navy Dcpnrtment :  
Sccretnry of Navy – _________ -:–­ 22  
Commander in Chief, U. S. Fleet,— ::  
Chief of Naval Operations -_ 13  
76  

Navy Department-Continued. b Secretary of Navy-Continued. Pnrngmp11 PagO Joint Chiefs of Staff _-_____ 10, 12y, 13, 32 1,3,20, 22,
42 Combined Chiefs of Staff ______- 10. 13. 32 13, 22,4,2 Fleet commander–____ — ____ –..L ’ 13 22 Force commander—-___________ -_ 13 22 Vice Chief of Naval Operations——–L’ 14 23 Oflicc for occupied areas——-________ 14 23 Neutral territory, military occupation.-..–,—-3 2
Claims arising _-_–_ – __-____.__________ 48 59 Object of control ________ —_____ -___—–4 3 Objectives :
Of military government—————-98 G Economic——-,,—————I-17 24 Diplomatic -_-_____ —_____ —___ L— 17 24 Occasion for military government————3 2
Schools for training—-____ — _-__ -___ 29 39 Occupied territory, definition __________ -___ 1 1 Offenders, offcnscs:
Against security ____ –_-____ -_- ____ -_-_ 19 28 Military Commissions, Jurisdiction——42 53 Jurisdiction, minor offenses—-_________ Jurisdiction, serious offenses————i: 2
Oflice for occupied areas. (Ses Navy De­
partment.) Oflice procedure–____—–__—-_________ 12Y 20 Ofhcials, offices :
Actual and no!ninal heads——________ 9i 9 Appointment and removal—–____ -_– 34 Information concerning ______ -_____ -___ 31 2
Local,  use  of,  control  ________…____  -___­ 12Y  20  
Police,  local  I_-_-_______  –_-_­ 26  35  
Removal  of  high  political,  Cabinet—–­
Operating  ‘units ___—-_  I-___—______-_  1;  2:  
Operational  type  of  organization.  (Sfx  organ­
ization.)  
Operations,  Military  -___-__­ ____- -___  4  
Single,  joint,  or  combined-­ _._II_____.-__  12Y  2:  
General  __.__ –______–__—–  ___-___­ 17  24  
Operations,  theater  of.  (See Zone.)  
,,  Order,  maintain!ng  Public  4, 12b, 26,  34  3, 15, 35,  
~rderl6es,———-,——————–­ 12Y  iit  
Orders.  (See  Civil  Affairs  orders.)  
Annexes—-,———————–­ 18,33  27,43  
Civil  affairs,  supervision,  excCutlOn–,–­ 22  
Distribution  of, by Adjutant  General—-,  12Y  it  
77  

Orders-Continued, PtWllgNl~,ll Pngo Interpreters——__-______-__________ 37 50 Issued through chain of command—.—16 24 Language ———–_ _____^__________ 22 31 Preparation, by staff assistant–_______ ___ 23 Routine _____l-l________-__ —__–___ 33 2
Ordinances _____________ – _____ – __________ 12b English and dtbcr languages—-________ 34 :: In general-:-_______ – ___-_ – ______ —_ 36 48 Language–~———————___ 22 31
Organization: Advantages and disadvantages of each type 17 24 Army communications or naval advanced
b asc zone–_____________I_ –___-_–19 28 Civil affairs section–______ —-_______ 3 In general—–:——____ -_-___—__ 13-26 2: Theater, affected by various things——15 e 23 Types, operational territorial _-___-…_ -_-_ 16 24 War and Navy Department __-__–___ –14. 23
Padlocking, houses of prostitution, ctc——–4.5 57 Patrol vessels ____ -____ – ____ ———_—__ 24, 34 PSY-_-____-__—-____—————,-_ 12Y 20 Peace, disturbing ________ -______________ -_ 26 35 Peace conferences———__.___ —-__—– 12x 20 Personnel———_-_____—____ –___-___ 9c
Administrative service——————28 386 Categories, rcquircd—-______ –_______ 25 34 Civil affairs, selection and training by
PMG-___-_——_————–_-14 23 Clerical, secretarial—————–~-~ 25 34 Enlisted _______ —-____ -____ –__– 25,27,30 34,37,4,0 In gencral~~~_~~~~~~-_~_____________, 27-29 3 7-4.0 Military, damage done by, claims-_______ 4.8 58 Oniccr———————.———27 37 Statistics—–_____I __________ –_____ –12Y 20
“Versatility essential _-____—_____-_____ 32
W&ant ofliccr—–________—____-__ 8 37 Pestilence——–____________________ –__ 11 14 Petroleum production, dcvrlopment——–I-1211 18 Physicians. (See Doctors.) Planning, plans-,-_-_-___ – ____-__ -________ . 13 ’ 22
By civil affairs staff section _-_… – ._I______ 31 Chief of, planning by -__-___—_— zz Information furnished by———–22 3”:
In gcncral—___-____________ – ____-__ 30-34 4.0-4.4 Responsibility _____ -____ – _____ -_______ 32 42 Studies of localities, as basis __– – -______ 31 40
Police. (See Military police; Local oflicials.)
Policies : PUi~@YL~l11 Pngo Basic–__.-________—__–_______ Introductibn 1 Diplomatic—–_________ -__-_—_–__ 9g Economic __1-1_-__-_____1_________I -_ 911 1: Formulation ____ —————z____ 12a, 12b 15 . Covernmcntal ____ L———-_________ 4 3 Military –: _________________ – _________ , 9s 6 National ___________________ –_——-4 3 Of occupation _I___-_______ – _____ -_-__ 35 45 Political: Activity prohibited .—–__________I_ -__ 9j 11 Boundaries. (See Boundaries.) Circumstances–_______ ——–L—–5 Opinions not to be published ______ -__-_ 9n 1: Parties _–_–_-_——_______________ 31 40 Parties, membership–_______ – _________ 9i 9 Power wielded unofficially—–______ -__ 31 40 Prisoners, to be relensed _____ –______ -__ 9j 11 Subdivision ______ – -_____-______ 17,21,24,25 24,30,34 Subdivisions, to be rctnined————- 911 + Pollution of water supply–______ -____ —*z 91 1: Prevention —_______ -_-___——_—-11 14 Poor, institutions for _______ – _______ -_-_-___ l2w 20 Population, trcatmcnt (se0 also Inhabitants; Civilians; Civil afTairs orders)————- 9g 6 Port, duties of civil affairs officers in——–12j, 18 17,27 Port arcas ______________ —__—_________ 123 11 Postal communications, service ______ -___–_ 1211, 3 1 17, 4.0 Post-War, position of territory ____ -_- _______ 9e Press, freedom of ________ –____ — __-___—90 1: Press releases, prcpnration-_________ -__-_ 12t and y 19,20 Previous convictions——————-_ 44 55 Prices, control——______ – ____ —___- –__ 9lc 11 Principles -___________ -_–____l_l________ 9 5 Priority ______-_-_–__-___-_-____ – _________ l2Y 20 Prisoners : Political, to be released ______ -________ -9j, 1211 II,19
Racial prisoners __-_- -________________ -9j 11 Prisoners of war, allied—-_l.—l_.“—.-l—12u 19 Prisons—.__- —-_l–__- _————–_-12b 16 Private property. (See Property.) Procedure (see also Military commission claims,
Army) ________I___ – _________ – _______-_ 34 44 Proclamations –__-_———-________ 12b, 34,3G 15,44,40 English and local languages ____—I….-..–35 45 In ~encml_-___-_–___———-34 44
Proclamations-Continued.
Purther proclamations and ordinances—­Contents-_-,—–__–_____——–~-­Form and character———–_–­Issuance———-____ – _____ –_-­Publication -___-__-__–__I_______
Initial—-____ –___- ______ – _______-__ Contents———-____ -_- ________ Form and character,- __________I___ Publication——–______ -_-______
Language——_——————–­
Procurement: Claims_——l_–__——-LI———­Of labor——-____ –_-__–__________ Of personnel——————-______ Of services——_____ –___-_-_____-__ Of supplies _______ —–____ -__- ______ Responsibility of lower officers ____-_____ Responsibility of theater commander—–..
Production———-I——————-­Profession8 or callings:
Various, personnel drawn from __-_–.__– Promotion ___–__–_____ -_-___-_____-____ Propaganda. (Sea Counterpropaganda.) Property :
Enemy government, custody–_–_–_–­Private—-____ – L_______________-____ Private, of military use -__–_L——~
Prostitutes -___ –__- ______ —_________ -___ Prostitution, l~ouses of, closing, padlocking—­Protection for local officers—______________ Protective measures—________ –_-___._____ Protocols———-__——-__I_-_-____-­Provost courts———__-__ – _____._._.I_____
Appointed by -.____ –___- _____ – -___-__ Composition-__________ -___-_–_-I._.__ Jurisdiction – ,____ – _______c__________-_~ Personnel—______l___l__-_____r_I___ Procedure ___._-_ – ______.-___l_________ Records -…—-L——-__-_-_c-__–___ Sentcnixs imposed _—-___-__-_—____
Provost marshal –_.. –_-___—–.. – -__–__–
Selects and trains personnel _l-_…-_—_- Publications, supplied by Adjutant General-­Public finance, budget, revenues, expencliture,­Public health :
Training and cxperiencc in, qualihcations for functional ofliccrs——-___- –___ 00
rflmgml,ll
 36
 36
 
iz
35
 35
 35
 35
 22
 
48
 9g
 27
 9g
 9g, 12y
 27
 27
 
3d,12n
28
 12Y
 
12s 12s s
12s, 12y
 39
 45
 9i
 12Y
 21
 39,4,4
 41
 19, 40
 39,42
 40
 
4.4
4.6
 39,45
 12Y
 14,
 
12~ 12m
28f
Pllg@
4.8
 48
 48
 48
 
59
 6
 31
 6
 
6,20
i:
 6, 18
 
38
 20
 
19
 19
 
19,20
 51
 57
 
2:
30
 51,55
 
28, :“z
51,53
 t 52
 55
 57
 
51,57
 20
 23
 20
 18
 
39
 Public monopolies. (See Monopolies.) I’aragra~~Il PaC’r Public relations officer .+-_-_-_ –____ -___– 12Y 20 Public utilities :
ODerating exrxxience in, desirable for
-functional &icers—-l___________ -_ 28f 39 Planning concerning———_____–_–31 40 Restoring —–____–____ -A–9k, 11, 12k and y 11,14,1’/,
20 Punishment, punitive measures (see also Maxi-
mum punishments) ______-________II_____ 98 6 Carried out publicly ______ —___–__-c_ Limits _____-___ – -_____– -___—___–2 4:
&rchascs -_–_–_——–__—____ — ____ 12n 18
Purposes : Of occupation-I——__-,_-______,___ 12t 19 Set forth in initial proclamation———35 4*5
Qualifications : Of civil affairs oficcrs __________ –___-28 38 Executive and administrative experi­ence, management—-.–.——.-28 . 38 Knowledge of territory and language-28 38 Of functional 0fXcers :
Prafessional training __-__ -___-_____ 28 Quartering———————__________ 12Y ;llQuartermaster, distribution of equipment and
supplies by __-______________I____ – _____- 12Y 20
Racial discrimination: Inhabitants imprisoned solely because of, to be released————-____ ______ % 11 Laws based on, to bc annulled———9n 12
Radio—————_-l-l——-l_-_l__l 121s 15 Releases __l__l___l_ —__—___–___-_ 12t Service————-_–__-,-,—__,__ 31 to”
Railroads, railways————————12i
Use of for civilian Durnoscs ____l-__l_ 1.2~. 31 20, :;I Rationing ____________–L–L –__-_–__-_I_ “9k Rear areas, orgapizstion __________I_ —-__-18 :: Rebels —_______________________________I 1 Reclassification _-____________________ -__-_ 12Y 2: Record;, of trials before military commissions,
review of Judge advocate Gcncral (see also Reporters)——-______–_ -_-______-___ 12Y 20 Records, accounts, etc., to bc kept by of­ficers,————-___,_______________ 12x
Records, historical and current ______________ 9P Seizure and sealing _________ -____ -_-___ 26 To be impounded———-,,______,,, 34
Regiments, civil affairs control, should be rc­
lievcd—————,,——–_———-18
 Regulations:
 As to claims in general————-_–48
 Navy claims ________ -_-_-_—_________ 48
 
Reinforccmcnts of civil affairs pcrsonncL—-18
 Relations of troops with inhabitants
 9i, 12b, 12t, 12y, 17
 
Release. (See Press releases; Radio; Motion
Pictures; Prisoners.) Relief————————-~–~-~~~~~ Religion and religious places—____________
Laws discriminating against to bc an­
n~illed_-I_-_-_——–_—__——-­Local, study ____________ -___-_–_-___ Places of religious worship to remain open.. Respect for religious customs and organiza­
tions—————————–­Relocation of displnccd persons . ..__—-_____…- Remission of punishment—____ —__-__-___ Repatriation of-
 
Persons I___________________-,——–
Persons in occupied territories———­Replacement_—-_-____ –_____ – _____-____ Rcportcrs for military coinmissions———­Reprisals against inhnbitants————II-­Requirements for of&xrs, enlisted personnel
 
materials, planning for_—-_-_—–___–­Requisitions -L—-____– ____I____________
For pcrsonncl and materials——–,—Rcsourccs (See also Local resources) -_______ Responsibility, division of:
 
Bctwccn Army and Navy————–Bctwecn United States and allies–.-,–..­Plans. (See Planning.)
Retention of-Existing laws, customs, and political sub­divisions——————_-______
Local oficcrs and offices ————— Retirement of personnel-_____ -_____ – _____ -_ Revenues, public—–_________l_l_ll_llll_ Review of records of military commissions by
judge advocate-_______ -____ -__-_- _____ Rioting—______l_l_______l__________I___ Roads———————————-­
Construction and maintenance __–__l-l_ Rolling stock __________ – _-_-_-_–___I___-_
82
 
12e 9m
page
21
 
58
 
60
 
27
 
9, 15, 19,,
 20,24
 
16
 12
 
911
 31
 102
 9m 12
 
31
 40
 12~1
 19
 38
 50
 
12u 11
 ii
 
* 12y
 20
 
4.4
 55
 %
 6
 
30
 40
 
1211
 18
 90, 34,
 40,44.
 9d
 6
 
10
 10
 fi
9h
9i i
 12y 20
 12m 18
 
12y, 47
 20,58
 
26
 35
 12i
 12Y
 :7;
31
 40
 Routine orders; (See Orders, routine.) I’lli?ll&Ul~~ll PllSC Rules for trials. (See Procedure.) Sabotage and saboteurs, preventing and thwart­
ing—-____ ——: -____ —-___–___-4, 26, 31
 3, 35,4q
 Sacred places, information concerning——–3 1
 40
 Safe deposit– _—_ – ____-_____-_-___—-_ -121
 18
 Salvage _______._ – -_.___ —________ – _____ —12Y
 20
 Sanitation ____ – __._ —_- _____ -__ 9i, 11, 12f, 12y, 31
 9, 14,16,
 
20,4.0
 Duties of surgeon———_______ —–12Y 20
 ‘Schools. (See Instruction.) Schools of military government train adminis­
trative and specialist personnel ____ – _____ -_ 39
 Seal and sealing records and archives——-35
 Secretarial personnel. (See Personnel.) Secretary of Navy _________________________ 22
 
May certify meritorious claims in excess of $5,000 to Congress for payment——59
 Secretary of War——–_____ -__–_____ —22
 Advised by Civil Affairs Division _——–14
 23
 Sections of areas, when advanced, what com­mander should do–______ – _——–_—- 19
 28
 
Security:
Of occupying force-_____ -___—____-_ 4~, 12g
 3, 17
 Officers —I_______-___ –________–__ 22.
 31
 
Sentence (see also Death scntcnces) _________- 34
 44
 
Padlocking, Expulsion; Confiscation, Con­finement, Fines, Confirmation, Mitiga­tion; Disapproval, Commutation, Rc­mitting, Vacating——-_______–___ 2; 57
 
Review of _—__-__–_-___—_——– 58
 Serious offenses————-__–___——-38
 Services- __-__ -_-____ –________ —-_-___ 8, 9, 31
 .5,::
 Service trades—————_____ –______ 9k
 11
 Sewage and sewerage—_____ -____ -_— _-__ 12f, 31
 iF, 40
 Shelter—————_-__ ——- —-…— 12Y
 20
 Short patrols (see &so Military police; Ma­
rines) ____.____ – ___—– -_–___–___ 12b, 18,25 15,27,34* ,
 In general ______ -_-_–___________ -__-26,34 35,44
 Necessity —-_—–__ –______ —___-_ 35
 Assignment and command ____________ 22: r Arrests, authority to make _______ –_____ 2G ;;
Shrines, preservation…———_-___._–____ 9r 13
 Signal communication -_____ -______ —-_-___ 12y 20
 
Signal oflicer ____.__-___ –__l__l_______ 12Y 20
 Social relationships, (See Relations.)
Sovereignty cloes not pass to occupant——— 1
 1
 
Pnge
Specialists and specilization (see also Schools -of military government)–.L–__-____ 11, 25, 28
 14, 34, 38
 
Special staff functions, generally-‘_______ ____ 12Y
 20
 Speech, freedom of ____ – _____ –__-_-___-___ 9o
 Spies_———————————–31
 2
 Staff. (See Special staff functions, G-l, G-2,
 
G-3, G-4; Staff sections; Civil affairs staff
 section; Staff assistants; Staff officers.)
 Staff assistants:
 
Duties ____——_- – —–_ -__–___-__-23
 32. No fixed assignments——- ____ –__ 23
 Investigate problems—____ –__-__-_ 23
 2
 Collect information—————-
 32
 Prepare orders—-r-__—-__ – _____ 223”
 32
 
Qualifications __-_-_____ -___-__-______ 28
 38
 St& officers, civil affairs. officers may be, of
 commander of unit _—.—-_-_____ – ______ 18
 27
 ‘aff sections (see also G-l, G-2, G-3, and
 G-4)—————————–,—-12Y
 20
 Coordination between civil affairs officers
 and other staff sections————–12Y
 20
 
itistics——–_____ – –___c___ —_______ 12Y
 20
 rategic material _______—–__—-_______ 12
 15
 
otrategical rcquiremcnts as affecting control through operational and military administra­tive area commanders-_—–_-_-__-__–.-. 24,
 
Studies of local matters, as basis of planning– i:
 40
 Subversive instruction. (SSS Instruction.)
 suits. ($60 Claims.)
 lummons to dcfcndant——_____ – ___- -___ 43
 55
 hpcrvision :
 
And coordination with G-l, G-2, G-3,
 
and G-4~——_——-_–_———-12Y
 In general——–_______I__ -_-______ 22
 321” Of agriculture, commerce, etc _______-__- 120, 3 1
 18,40
 Of educational system __I…__—–__-_– 12v
 19
 Of industries–_____________-____-____ 9k
 11
 Of production __l__l_________ – ________ 9d
 6
 Rather than operating head, general rule
 
for civil affairs oflicers–___l____ll___ 9i
 9
 ! upremncy of ‘commanding officer————8
 5
 ! upplies :
 
In general _.___– – ______ – __—-_– —-i7,31 24, 30
 Medical ___________l____l________ Il,12j, 12~ 14, 17, 20
 
84
 
Specialists and specilization (see also Schools
of military government) – _______ -_—-11, 25, 28
 Special staff functions, generally-L ______..-___ 12y
 Speech. freedom of—-__________ -___—__-
 Spies-~—_——————————i;
 Staff. (See Special staff functions, G-l, G-2,
 
G-3, G-4; Staff sections; Civil affairs staff
 section; Staff assistants; Staff officers.)
 Staff assistants:
 
Duties-_______–_–_—–_-__________ 23
 No fixed assignments _______________ 23
 Investigate problems _-_l_____l_l___ 23
 Collect information ____-___-______ –
 Prepare orders ____ ———–_____ ;33
 
Qualifications -_-_-___c_____ – _________ 28
 Staff officers, civil affairs, officers may be, of
 commander of unit ____ – _____ – ____ —_-__ 18
 Staff sections (see also G-l, G-2, G-3, and
 G-4) -_-____-_________________________ 12Y
 Coordination between civil affairs officers
 and other staff sections ____ – _________ 12y
 
Statistics ____ -__- _____ – -__—-___—- – ____ 12Y
 Strategic material——–______ –_________ 12
 Strategical requirements as affecting Control
 
through operational and military administras
tive area commanders–________ –____ –__ 17
 Studies of local matters, as basis of planning– 31
 Subversive instruction. (See Instruction.)
 Suits. (See Claims.)
 Summons to defendant–__-__ – ________ -___ 43
 Supervision :
 
And coordination with G-i, G-2, G-3,
 and G-4 ____________-I_____——– 12p
 In-general—______ —__-_I_–___ –__ 22
 
._
Of agriculture, commerce, etc ___-_______ 120, 3 1
 Of educational system- _-______ – _-____ -12v Of industries-______ –__-___-_____ –__ 9k Of production——-___– ___-_ -_—__ 9d Rather than operating head, general rule
for civil affairs ofSccrs———______ 9i
 Supremacy of commanding ofhcer—-…——-8
 Supplies :
 
In general ______ -_–_r_______–_-_—17,31 Medical—————–________ 11,12j, 12~
84
 
pwe
14, 34, 38
 20
 
:;
32,
 
2
 32
 32
 38
 
27
 
20
 
20
 
20
 15
 
24,
 40
 
55
 
3’1”
18, 4.0
 19
 11
 
6
 
9
 5
 
24j 30
 14, 17, 20
 
Supplies-Continued. Parngmpl\ Puge
Occupied territory as source- ____________ 9k
Quartermaster——_____ –___—___–12Y ::, Supply officers, liaison with civil affairs officers-22 Surgeon———_——————-_—-12Y ii
‘Taboos—-~—————————–31 40 Tactical unit commanders——————. 28 Task force ____I__________________ -___–_-:z 30
Commander exercises same control as the-
ater commander __-_-_ —___-_-___–21 30 Taxes, collection——______ —__-__-__–_ 12m Teamwork, importance–_______I________ —12Y :i Technical specialists–______ —-___—___–25 Telegraph–_…_.– _… -_- _______I__ –_____ 12h,Sl 17, :“d Telephone ____ –__–___-__-__-____ L _____ 1211,31 17,40 Territorial type of organization. (See Organization,) Theater commander:
‘Directives—————————-32 42 In general——-_–____ -_-__–__-__-I 13 22 Mission of, as affecting planning——15, 19, 20 23, 28,30
Theater of operation—— __-_ -__-__–_ 12y, 13,21 22,30 After cessation of hostilities————-21 30 During campaign-_____________ – __-___ Planning___————————–:: ii!
Theater organization depends on mission,
forces, etc—-___._ -_- ———,———Topograpl~y~~~~~~~~-~____________________ ;: i: Trade. (See Trading with the enemy.)
Development and, supervision ___________ 12q 18 Trading with the enemy——————-121 18 Traditions, local——____________________ 31 40 Traffic, control _l____–_–_____–_l__ 12b, 12y, 39 19, 20,51 Training :
In iiaison _____ –_–__________________ 34 In theater of operations—– ___________ z95 t 39 Of Army personnel ____________ ——–12Y 20 Of civil affairs officers _____ -__–_______ 12a
In the United States————–27 By schools of military govern­
ment——____-^___-_-_–_ 29 39 Of combat troops—.—-.—–. –______ 17 24 Of Navy personnel ____________________ 14
Transcript of testimony (see also Records; Re­porters) ___—-l-I———————46
Transfer : Of sovereignty, none in military occupa­tion—l-l-i7_–‘—————-­Of 06icersL “’
—L–L———-?——­Translations of proclamations, ordinances, etc–
Paragranh  PR@  
1  
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35  

Transport officer, duties————______ 9k, 12~ 11,:: ‘Transportation——____—-____ -_ 11, 12i, s, y, 25 14,17, 19,
Training and experience in, for functional
officers —-_—_–___—__-___ _____ Treatment of local population will vary ac­cording to attitudes—— ______L___ – _____
Trials (see nlso Judge advocate) __——–__
Records —___–_____–___-___–_____ Tribal customs ______.-__ – _____ —_____ -___ Tribunals _-_____ – ______ – ________ –______ ­Troops, relations with inhabitants———–­Types of organization. (See Organization.)
Utilities. (See Public utilities.)
Vagrants -_——__-_—_–_-_I__________ Versatility in personnel essential———–­Vice Chief of Naval Operations, in charge
of Office for Occupied Areas—–_________
Wages, abnormal increases—————-­
War Department: Organization of Civil Affairs Division—­Information for planning _-____ -___-__­Responsibility for planning——-,—-­
Warrant officers- _-__-____ – _____-_______ -_ Waste———————————-­Of manpower_——,—————­
Water supply—————–,—_______ -_ Pollution,——______________ -_-___ Works_—————————–­Protection _____ –____ – ______ –_—___
Waterways——————_____________
 Welfare, public __-__ –____ –_-_–_– _____
 Wireless. (See Radio.)
 
20,34
28,31 38,40
9s 6
4.4, 12~ 55,20 19 31 ii
38 30 17 24
51 ;:, 32
14 23
9k, 12r 11,17
14, 32 23,42
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12f 16 17 24 91 12
11,12f 14,16 31 40 31 40 12i 11
12w, 34 20,44
Witnesses –_-_­Works, public-­___—__—–__———–
 Worship. (See Religion.)
  -_
  44 31  55 40  
Zone :
 Of operations—­Combat —___­ – ___-________ —–___­-_-_­_-__  17,19 18  24,2S 27  
86  

For H& by the S&crintendent of Documents. U. S. Government Printing Office
 Wnslhgton, 1). C. -Price 15 cents
 

 

Legal support operations

Legal support operations

Legal Support to
Operations

HEADQUARTERS, DEPARTMENT OF THE ARMY
DISTRIBUTION RESTRICTION: Approved for public release; distribution is unlimited.
This publication is available on the General Dennis J. Reimer Training And Doctrine Digital Library at www.adtdI.army.mil
*FM 27-100
1 March 2000

Legal Support to
Operations

HEADQUARTERS, DEPARTMENT OF THE ARMY DISTRIBUTION RESTRICTION: Approved for public release; distribution is unlimited. *This publication supersedes FM 27-100,3 September 1991.
Table of Contents

PREFACE………………………………………………………………………………..v

..INTRODUCTION ……………………………………………………………………….vii

Chapter 1 Role of the Judge Advocate ………………………………………………………………… 1.1

1.1 THE JUDGE ADVOCATE GENERAL'S CORPS MISSION ……………………..1.
1
1.2 PERFORMING TRADITIONAL ROLES ………………………………………………… 1.1

1.2.1 Mission…………………………………………………………………………………………. 1-2

1.2.2' Service…………………………………………………………………………………………… 1-2

1.2.3 Legitimacy……………………………………………………………………………………. 1-2

1.2.4 The Military General Practitioner ……………………………………………………… 1-3

1.2.5 The "Judge" Function …………………………………………………………………… 1-4

1.2.6 The "Advocate" Function ……………………………………………………………… 1-5

1.2.7 The "Ethical Adviser" Function ………………………………………………………… 1-5

1.2.8 The "Counselor" Function ……………………………………………………………….. 1-5

1.3 IN A CHALLENGING NEW ENVIRONMENT ……………………………………… 1-6

1.3.1 More Missions ………………………………………………………………………………. 1-6

1.3.2 Command and Control Relationships ………………………………………………. 1-7

1.3.3 International Operations ………………………………………………………………… 1-7

1.3.4 Fluid Operations …………………………………………………………………………….. 1-7

1.3.5 Technological Advancements …………………………………………………………… 1-8

1.4 CHALLENGES FOR JUDGE ADVOCATES IN THE 21ST CENTURY …….1-8

1.4.1 Mission………………………………………………………………. …………………….1-8

1.4.3 1.4.2 Service………………………………………………………………………………………….. 1-9

Legitimacy………………………………………………………………… i…………1-10

1.5 SUMMARY………………………………………………………………………………………. 1-10

Chapter 2 Organization to Support Army Operations ……………………………………………. 2-1

2.1 JUDGE ADVOCATE ORGANIZATIONS ………………………………………………-2-1

2.1.1 Office of The Judge Advocate General ………………………………………………-2-1

2.1.2 Field Operating Agencies ……………………………………………………………….. -2-3

2.1.3 The U.S. Army Legal Services Agency …………………………………………….. -2-3

2.1.4 The Judge Advocate General' s School, U.S .Army …………………………….. -2-5

2.1.5 Army National Guard Legal Organizations ………………………………………… 2-6

2.1.6 U.S. Army Reserve Legal Organizations ……………………………………………. 2-7

2.1.7 Staff Judge Advocate Offices …………………………………………………………. 2-10

2.1 8. Command Judge Advocates ………………………………………………………….. -2-14

2.2 JOINT LEGAL ORGANIZATIONS …………………………………………………….. -2-14

2.2.1 The Office of the Legal Counsel to the Chairman, Joint Chiefs of Staff ..2.15
2.2.2 Unified, Specified, and Subordinate Unified Command Staff Judge
Advocates ……………………………………………………………………………………………….. 2-15

2.2.3 Joint Task Force Staff Judge Advocate ……………………………………………. -2-15

2.3 MULTINATIONAL FORCE LEGAL ORGANIZATIONS ………………………. 2. 15

2.4 PROVIDING .ARMYLEGAL SUPPORT FOR OPERATIONS ………………… 2. 16

2.4.1 Overview of Operational Law Support…………………………………………….. 2-16

2.4.2 Tailoring Operational Law Support…………………………………………………. 2-19

5.3.1 Command & Control. Sustainrnent. Personnel Service Support ……………..5-4

5.3.2 Command and Control (C2)…………………………………………………………….-5-4

5.3.3 Sustainrnent……………………………………………………………………………………5-5

5.3.4 Personnel Service Support ………………………………………………………………. -5-6

5.4 THE CORE LEGAL DISCIPLINES IN WAR …………………………………………..5-7

.4.1 Administrative Law 5,
………………………………………………………………………..-5-8

5.4.2 .
Claims …………………………………………………………………………*…*..*…..*……
5-8
5.4.3 Civil Law ……………………………………………………………………………………….5-8

5.4.4 Military Justice ………………………………………………………………………………. 5-8

5.4.5 International Law ……………………………………………………………………………. 5-8

5.4.6 Legal Assistance ……………………………………………………………………………..5-9

5.5 ORGANEATION FOR WAR ……………………………………………………………….-5-9

5.5.1 Theater Legal Structure ……………………………………………………………………5-9

5.5.2 Army Service Component Command …………………………………………………5-9

5.5.3 Command Posts …………………………………………………………………………….5-10

5.5.4 Judge Advocate Disposition ……………………………………………………….5-11

5.5.5 Brigade Command and Control Facilities …………………………………………5-22

5-6 MATERIEL IN WAR …………………………………………………………………………-5-24

5.7 TRAINING FOR WAR ………………………………………………………………………..5-25

Chapter 6 Legal Support to Military Operations Other Than War ……………………………6-1

6.1 INTRODUCTION……………………………………………………………………………….. -6-2

6.2 STRATEGIC CONCEPT ……………………………………………………………………… -6-3

6.3 THEATER CONCEPT ………………………………………………………………………… -6-3

6.3.1 Political Objectives ………………………………………………………………………….6-4

6.3.2 Legal Complexity …………………………………………………………………………..-6-4

6.3.3 Mission Complexity ………………………………………………………………………. -6-4

6.3.5
6.3.4 Command and Control ……………………………………………………………………-6-4

Interagency Coordination ………………………………………………………………..-6-5

6.4 THE ARMY'S ROLE IN MOOTW ………………………………………………………… 6-5

6.4.1 Arms Control……………………………………… :…………………………………………6-6

6.4.2 Combating Terrorism ……………………………………………………………………..-6-6

6.4.3 Counter-Drug Operations ……………………………………………………………….. -6-6

6.4.4 Enforcement of Sanctions and Exclusion Zones …………………………………..6-6

6.4.5 Humanitarian Assistance ………………………………………………………………… -6-7

6.4.6 Nation Assistance …………………………………………………………………………… 6-7

6.4.7 Noncombatant Evacuation Operations ……………………………………………….6-7

6.4.8 Peace Operations ……………………………………………………………………………. 6.7

6.4.9 Recovery Operations ………………………………………………………………………..6-8

6.4.10 Show of Force Operations ……………………………………………………………….. 6-8

6.4.1 1 Strikes and Raids ……………………………………………………………………………. 6-8

6.4.12 Support to Insurgencies …………………………………………………………………… 6-9

6.4.13 Operations Under Armistice Conditions …………………………………………….. 6-9

6.5 ORGANEATION OF MGAL SUPPORT ………………………………………………. 6-9

6.6 LEGAL ASPECTS OF C2. SUSTAINIVENT. AND SUPPORT OPS …………..6-9

6.6.1 Legal Basis for the Operation …………………………………………………………. 6-10

6.6.2 Status of Forces ……………………………………………………………………………6- 10

6.6.3 International& Interagency Relationships ………………………………………..6-11

6.6.4 Use of Force & Rules of Engagement (ROE) …………………………………….6-11

6.6.5 Treatment of Civilians …………………………………………………………………..-6- 12

6.6.6 Fiscal Responsibility ……………………………………………………………………..6-13

6.6.7 Intelligence Oversight …………………………………………………………………..-6- 14

6.7 LEGAL TRAINING REQUIREMENTS ………………………………………………..-6- 14

6.8 LEGAL EQUIPMENT REQUIREMENTS …………………………………………….-6- 15

6.9 SUMMARY……………………………………………………………………………………… 6-15
Chapter 7 The United States as a Theater ……………………………………………………………. 7-1

7.1 INTRODUCTION………………………………………………………………………………… 7-1

7.2 Organizing and Equipping Judge Advocates ……………………………………………. 7-2

. .

7.3 Tramng Judge Advocates …………………………………………………………………….. 7-2

7.4 Military Support to Civil Authorities ……………………………………………………..7-3

7.4.1 General ……………………………………………………………………………………….7-3

7.4.2 Authorization for Military Support ………………………………………………….7-3

7.4.3 Lead Agency Concept and Role of Military ………………………………………..7-4

7.4.4 Rules for Use of Force ……………………………………………………………….7-5

7.5 Military Support to Law Enforcement ………………………………………………….. 7-6

7.5.1 Civil Disturbance Operations ……………………………………………………………7-6

7.5.2 Counter-Drug Operations ………………………………………………………………..-7-9

7.6 Emerging Threats in the Continental United States (Terrorism) …………………7-12
Chapter 8 Rules of Engagement ……………………………………………………………………….8-1

8.1 INTRODUCTION…………………………………………………………………………………8-2

8.2 ROE DEVELOPMENT CONSIDERATIONS ………………………………………..8-2

8.2.1 Commander's Responsibility …………………………………………………………….8-2

8.2.2 Purposes of ROE …………………………………………………………………………….8-2

8.2.3 Drafting Considerations ………………………………………………………………….8-3

8.2.4 Situation Considerations -METT-TC ………………………………………………..8-4

8.2.5 Definitions and Key Concepts …………………………………………………………..8-5

8.2.6 Types of ROE …………………………………………………………………………………8.6

8.3 CJCS Standing ROE ……………………………………………………………………………..8-7

8.4 THE I-D-D-T METHODOLOGY ……………………………………………………………8-9

8.4.1 Interpret…………………………………………………………………………………………8-9

8.4.2 Draft ……………………………………………………………………………………………8-10

8.4.3 Disseminate…………………………………………………………………………………8-13

8.4.4 Train…………………………………………………………………………………………… 8-13
GLOSSARY
REFERENCES
INDEX
ENDNOTES

Preface

Legal support to operations encompasses all legal services provided by Judge Advocate General's Corps (JAGC) personnel in support of commanders, units, and soldiers throughout an area of operation and across the spectrum of operations. This support includes Operational Law and the six Core Legal Disciplines, which support command and control, sustainment, and personnel service support. Legal support to operations promotes the operational mission, provides quality legal services. and preserves the legitimacy of operations.
Field Manual 27-100, Legal Support to Operations, is the Army's capstone legal doctrinal manual. It describes the missions and operations of JAGC organizations, units, and personnel supporting Army operations. Legal support to operations must be thoroughly integrated into all aspects of operations to ensure compliance with law and policy and to provide responsive, quality legal services. This manual does not provide comprehensive treatment of the Law of War or Geneva Conventions. For information on these topics, refer to Field Manual 27-10, The Law of Land Warfare.
The purpose of this manual is to provide authoritative doctrine and guidance on all legal support to Army operations. It also provides the basis for legal training, organizational, and materiel development. It contains guidance for commanders, Staff Judge Advocates, staffs, and other JAGC personnel. It implements relevant Joint and Army doctrine, incorporates lessons learned from recent operations, and conforms to Army keystone doctrine.
The proponent of this publication is The Judge Advocate General's School, U.S.
Army. Send comments and recommendations on DA Form 2028 to Commandant, The Judge Advocate General's School, U.S. Army, ATTN: JAGS-CDD, Charlottesville, Virginia 22903-1 78 1.
Unless otherwise stated, specific gender pronouns include men and women.
Introduction
Mission of The Judge Advocate General's Corps and Purpose of FM 27-100
The mission of judge advocates and supporting legal personnel is to provide professional legal services at all echelons of command throughout the range of military operations.' The purpose of Field Manual (FM) 27-100 is to describe how the Judge Advocate General's Corps (JAGC) will provide legal support to operations and how commanders should integrate legal support in operationai planning and training.
Legal Support to Operations and Functional Areas
Legal support to operations encompasses all legal services provided by judge advocates and other legal personnel in support of units, commanders, and soldiers throughout an area of operations and across the spectrum of operations. Legal support to operations falls into three functional areas: command and control, sustainment, and personnel service support (or support for short). The following are illustrative examples of the types of legal support within these functional areas. Command and control functions include advice to commanders, staffs, and soldiers on the legal aspects of command ' authority, command discipline, the application of force, and the Law of War (Low). Some examples of judge advocates' command and control responsibilities are interpreting, drafting, and training commanders, staffs, and soldiers on rules of engagement; participating in targeting cells; participating in the military decision-making process; participating in information operations; applying the LOW; and advising commanders on policies prescribing soldier conduct and ensuring discipline (e.g., jurisdictional alignment, convening authority structure, and authority to issue General Orders). Generally, issues directly affecting the commander's operational decision-making process on the battlefield fall within command and control functions. Sustainrnent functions include negotiation of acquisition and cross-servicing agreements and status of forces agreements (SOFAS), combat contingency contracting, fiscal law, processing claims arising in an operational environment, and environmental law. Personnel service support functions include soldier discipline advocacy services (courts-martial, nonjudicial punishment, and other routine matters in the administration of military
justice), legal assistance services, and basic soldier-related claims issues.
Operational Law

Operational Law is that body of domestic, foreign, and international law that directly affects the conduct of operations. The practice of Operational Law consists of legal services that directly affect the command and control and sustainment of an operation. Thus, Operational Law consists of the command and control and sustainment functions of legal support to operations. Support functions are an integral part of legal support to operations; however, they are treated separately from this discussion of Operational Law.
vii

Core Legal Disciplines
The six core legal disciplines are administrative law, civil law (including contract, fiscal, and environmental law), claims, international law, legal assistance, and military justice. Functional areas of legal support to operations contain some core legal disciplines in their entirety, and cut across others. For example, foreign claims are a sustainment function, while personnel claims are a personnel service support function. Functional areas of legal support are intended to describe better what combat (operational) functions are supported by particular legal services. While some traditional judge advocate functions are associated with Combat Service Support (CSS), legal support to operations goes beyond traditional CSS functions, and often impacts substantially on a commander's command, control, and sustainment of an operation. Further, providing critical legal support requires the presence of judge advocates and other legal personnel far forward and in key operational headquarters, centers, and cells.
Doctrine to Train and Operate
The United States Army is doctrine-based, and FM 27-100 contains the doctrine for legal support to operations. Doctrine within the military profession is the authoritative guide to how forces fight wars and conduct operations.' Doctrine builds on collective knowledge. It reflects wisdom that has been gained in past operations. It incorporates informed reasoning about how new technologies may best be used and new threats may best be re~isted.~ Doctrine, in this and other field manuals, records a shared and reasoned vision that can serve as the basis for planning operations, organizing and structuring forces, training soldiers and units, leading, developing tactics, and procuring weapons and equipment. The military professional who studies doctrine knows the principles that officially guide these essential functions of United States forces: doctrine, training, leadership, organization, materiel, and soldiers (DTLOMS).
Effective doctrine is not dogma. It is not doctrinaire. It is not static. Effective doctrine is dynamic, adapting to changes on the battlefield and in the world. It is also balanced, reconciling the need for precision to achieve unity of effort with the need for flexibility to achieve decentralized appli~ation.~
FM 27-100 links JAGC roles and missions to current Army keystone doctrine, recorded in FM 100-5, Operations, and to developing doctrine. FM 100-5 and developing doctrine, in turn, link the Army's roles and missions to the National Military Strategy and the National SecuriQ Strategy. Developing doctrine takes the force projection concept enunciated in the 1993 FM 100-5 to a new level with the concept of strategic preclusion-moving so fast (strategic maneuver), with such lethality (strategic fires), that enemies cannot set forces and operate at an ad~antage.~This requires the ability to project fighting forces into more than one theater and to sustain those forces from support and staging bases that may or may not be in close proximity to the supported forces.
Changes in the strategic situation since the end of the Cold War, and the development of the Force XXI Army, require a new model of legal support to operations. Past doctrine must change to meet the demands of the significant increase in the number and types of Army missions, joint and combined operations, fluid operations, complex command and control relationships, and technological advancements. Thus, in addition to implementing FM 100-5 and national strategic documents, this manual implements or considers applicable portions of several joint doctrinal manuals, as well as FM 100-6, Information Operations; FM 100-7, Decisive Force: The Amy in Theater Operations; FM 100-11, Force Integration; FM 100-15, Corps Operations; FM 100-16, Amy Operational Support; FM 100-17, Mobilization, Deployment, Redeploymen!, Demobilization; FM 100-19, Domestic Support Operations; FM 100-20, Military Operations in Low Intensity Conflict; FM 100-23, Peace Operations; FM 100-25, Doctrine for AmySpecial Operations Forces; and other current Army manuals.
Judge advocates must be trained and prepared to operate independently across the spectrum of core legal disciplines and the spectrum of conflict, standing by the commander's side. To succeed in today's operational environment, judge advocates must be master general practitioners; effective in their roles as lawyer, ethical advisor, and counselor; increasingly knowledgeable as soldiers and lawyers; constantly aware of the operational situation; and proactively working to promote the mission, serve Army personnel and their families, and enhance the legitimacy of Army operations. Doctrine in this manual reflects that judge advocates are increasingly operating individually, or in smaller teams, in order to better support split-based operations and the specialized operational cells and headquarters required to run mobile, tailored forces.
Supporting legal personnel (warrant officers, noncommissioned officers, and enlisted soldiers) must be proficient in battle-staff and legal tasks, and managing a legal office in the field. Legal specialists (enlisted soldiers and noncommissioned officers with military occupational specialty 71D) must spot potential legal issues and raise them for resolution. Legal specialists must operate under JA supervision across the range of core legal disciplines and the spectrum of conflict. Noncommissioned officers (NCOs) must also perform traditional functions-training and taking care of troops. In addition to legal, staff, and office skills, all JAGC personnel must train to proficiency in soldier common tasks.
Accordingly, commanders, with the Staff Judge Advocate, are responsible for training and supporting judge advocates and their subordinates to ensure robust legal support to operations. Training must be conducted according to the Army's training principles, such as those found in FM 25-1 00, Training The Force, and FM 25-101, Battle Focused Training. Staff Judge Advocates must develop a training plan and Mission Essential Task Lists (METL), to include establishing conditions and standards, training objectives, and selection of battle tasks. The training plan must include training that integrates and trains JA personnel with the units they support in a variety of environments, settings, and exercises. Without active training, judge advocate personnel will not develop the soldier and lawyer skills needed to provide legal support to operations.
Operational law training and practice in all components must reflect that military operations are inevitably joint and increasingly combined. Army National Guard legal support is embedded in National Guard organizations, including the National Guard Bureau, State Area Commands, and subordinate guard units. U.S. Army Reserve legal support is embedded in Reserve units, such as the U.S. Army Reserve Command, and contained in Judge Advocate General Service Organizations (JAGSO). The recent advent of Active Component-Reserve Component (AC-RC) Divisions, with their teaming and training associations, dissolves some of these historical boundaries, meshing active and reserve component soldiers into a standing division headquarters with subordinate National Guard enhanced brigades.
Finally, the modern training and practice of operational law must recognize that digital and information technologies have profoundly altered the pace of operations and the manner in which judge advocates locate legal authority and introduce legal considerations into the conduct of military operations. The materiel required to provide legal support to operations derives from the three functional areas-command and control, sustainment, and personnel service support. A judge advocate must be able to shoot, move, communicate, and research on the battlefield. Thus, judge advocates must have vehicles, sophisticated automation equipment-to include the Rucksack Deployable Law Office and Library (RDL), communications equipment, and access to key communications modes, nodes, and nets. Current operations are more legally intense than ever before. They involve vast numbers of government, non-government, and private organizations. The judge advocate's ability to reach back through technical channels for research and support is'critical.
Legal Support to Operations

Chapter 1 Role of the Judge Advocate

1.1     THE JUDGE ADVOCATE GENERAL'S CORPS MISSION
The mission of the Judge Advocate General's Corps (JAW) is to provide professional legal support at all echelons of command throughout the range of military operations. This support includes Operational Law and the six Core Legal Disciplines, which support command and control, sustainment, and personnel service support.
Throughout the history of the United States Army, the JAGC has performed this mission by supporting the Army mission; providing quality legal services to commanders, staffs, personnel, and family members; and promoting the legitimacy of the Army both in American society and throughout the world.
As the 21StCentury dawns, the JAGC transitions along with the Army. The JAGC will capitalize on new information technologies, strengthen its technical support network, obtain new warfighting capabilities, master the legal issues affecting operations, and develop the Soldier-Lawyer-Leaders who will perform the JAGC's traditional roles in a challenging, new environment.
1.2     PERFORMING TRADITIONAL ROLES
Traditionally, judge advocates have mastered many fields of law, and performed several legal roles (judge, advocate, and counselor), all in support of three fundamental objectives: mission, service, and legitimacy.
CONTENTS PAGE
THE JUDGE ADVOCATE GENERAL'S CORPS' MISSION …… 1-1
PERFORMING TRADITIONAL
ROLES…………………………………….. 1-1

Mission………………………………. 1-2

Service……………………………….. 1-2

. .
………………………….. 1-2

Leg~t~macy
The Military General

Practitioner…………………….. 1-3 The "Judge" Function …………. 1-4 The "Advocate" Function …….. 1-5 The "Ethical Adviser" 1-5
Function……………………..
The "Counselor" Function ……. 1-5

IN A CHALLENGING NEW
ENVIRONMENT…………………………. 1-6 More Missions …………………….. 1-6 Complex Command & Control 1-7 International Operations ………. 1-7 Fluid Operations …………………. 1-7 Technological Advancements 1-8
CHALLENGES FOR JUDGE ADVOCATES IN THE 21st
CENTURY………………………………… 1-8

Mission………………………………. 1-8

Service……………………………….. 1-9

. .
………………………….. 1-10

Leg~t~macy SUMMARY………………………………… 1-10

1.2.1 Mission
"Mission" means protecting and promoting command authority, preserving Army resources, and ensuring fair military systems, especially the military justice system. Judge advocates promote command authority in several ways. They participate in the key military decision-making processes, becoming involved early to identify and resolve legal issues before they become command problems. They create efficiencies and improve unit effectiveness by leveraging legal solutions to accomplish Army missions in lawful ways. They add value to the organization as soldiers and individuals, applying their skills and energy to solve legal and non-legal problems. They administer the military justice system, which promotes the discipline that makes units effective. They provide advice on other Army procedures that promote organizational discipline, such as investigations, reports of survey, standards of conduct, and environmental compliance.
1.2.2 Service
"Service" means meeting the legal needs of commanders, staffs, personnel, and family members. Judge advocates provide these clients legal advice based upon a thorough understanding of the situation, an analysis of lawful alternatives, and their individual professional judgment. They enhance C2, sustainrnent, and support operations by providing operational law advice and legal services in all core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) during peacetime, war, and operations other than war.
"Legitimacy" means engendering public respect and support, promoting justice and ethical behavior. Judge advocates must be "competent, confident, caring, and courageous . . . grounded in values, and totally integrated into the arm^."^ They enhance the Army's legitimacy by integrating society's values into Army programs, operations, and decision-making processes.
To promote legitimacy, judge advocates must be well-grounded in Army and constitutional values. Frequently, there is tension between the military mission and civilian control that the judge advocate must resolve for the command. This tension existed in America before the Revolutionary war.. .
Prior to his assumption of command of the Continental Army, Washington had been deeply concerned with the administration of military justice. As early as 1756, when Washington was engaged in the French and Indian war, , he protested the enactment of the "act governing mutiny and desertion" which required a commander to obtain permission from the Governor of Virginia to hold a general court-martial and to obtain a warrant from Williamsburg, the colonial capital, before execution of
Legal Support to Operations

sentence. It was his opinion that if good discipline was to be maintained, justice had to be meted out expeditiously.'
…and continues to modern times.
The diflerences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise . . . . [T]he military constitutes a specialized community governed by a separate discipline from that of the civilian, and . . . the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of
discipline and duty . . .
Judge advocates are able to reconcile these tensions for the command because of their status and specialized training as soldiers and lawyers. They serve as soldiers in every operational contingency; therefore, they appreciate Army values -Loyalty, Duty, Respect, Selfless Service, Honor, Integrity, and Personal Co~rage.~They are members United States Supreme Court

Parker v. Levys
of the legal profession; therefore, they appreciate American constitutional values, including civilian control.
Finally, to promote legitimacy, judge advocates must help the Army conduct operations in ways that will win public support.

The responsibility for the conduct and use of military forces is derived from the people and the government. The Army commits forces only after appropriate direction from the National Command Authorities (NCA). In the end, the people will pass judgment on the appropriateness of the conduct and use of military operations. Their values and
expectations must be met..
The Militarv General Practitioner
Judge advocates must not only display professional values and well- honed skills as a judge, advocate, and United States Army

Field Manual 100-5, Operationdo
counselor, but also have broad legal expertise. During the Spanish-American War, then Lieutenant Colonel Enoch Crowder served in the Philippines, where he worked on the arrangement for the Spanish surrender, headed the Board

of Claims, served on the Philippine Green assisted in drafting martial law Supreme Court, and drafted the documents and served as the executive Philippine Criminal Code." During to the Military Governor in Hawaii. World War II, then Colonel Thomas
"In a deployment, they've got to be ready to shift into 4-5 functional areas on any given day. They'll touch crim. law, operational law, fiscal law, foreign claims, personnel law, ethics … all in one day."
–LTC Michele M. Miller'2
Today, deploying judge advocates must be capable of providing comprehensive legal advice and services in all core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) and, in addition, have general knowledge of legal sub-disciplines (e.g., contract law, fiscal law, environmental law, or intelligence activities law).
When practicing these core legal disciplines, a judge advocate must be an effective lawyer, which includes the roles of "judge" and "advocate," ethical advisor, and counselor. Recognizing the applicable function is of the utmost importance; the function must be appropriate to the task at hand.
1.2.5 The "Jud~e"Function
True to their title, judge advocates perform the function of "judge." They are routinely called upon for opinions or rulings on whether a law is applicable, a legal obligation exists, or a legal right must be respected.
This function is not limited to military judges and magistrates who participate in courts-martial and other proceedings under the Uniform Code of Military Justice. It applies also. to judge advocates rendering legal opinions, serving as legal advisors on official investigations, ruling on whether claims are cognizable, and reviewing the legality of procurement actions. As "judge," the judge advocate does not interpret the law on the basis of personal views or policy preferences, but rather on the basis of a careful reading of the authoritative rule and objective reasoning.
The judge function demands distinct skills: legal research and interpretation, reconciliation of facially contradictory precedents, and extensive knowledge of which legal authorities have precedence. It requires impartiality, diligence, independence, moral courage, and intimate knowledge of the facts. It requires prudence in refraining from activities that could cast doubt upon impartiality. It requires wisdom, care, sound judgment, and a judicious temperament.l3
Legal Support to Operations
1.2.6     The "Advocate" Function

Also true to their title, judge advocates perform the function of "advocate." They are commonly relied upon to make arguments about what a legal rule means or whether it applies, to present evidence, or to persuade.
Judge advocates frequently perform this function within a structured, adversarial proceeding, in which they prosecute or defend a particular client's interests. The client may be the command or an individual soldier. Advocacy skills may also be needed outside the courtroom: in liaison with environmental compliance agencies, non-governmental organizations or a host nation; or in formulating command policy, as a full understanding often requires the ability to see issues from different points of view.
Advocacy requires many important skills. These include careful study of substantive rules, applicable procedures, and decision-makers; conducting investigations; interviewing and examining witnesses; formulating theories; and composing arguments. Sometimes advocates use their persuasive skills to seek changes in the law. Ethical performance of the advocate function requires zealousness, but also candor and fairness.14
1.2.7     The "Ethical Adviser" Function
Judge advocates perform the additional function of advising commanders whether their actions are ethical. This includes appraising conduct in light of laws and regulations governing the conduct of government officials, but also includes consideration of other ethical precepts, including officer ethics and Army values.
1.2.8     The "Counselor" Function
Judge advocates also perform a "counselor" function in which they advise commanders whether proposed actions, while legal and ethical, are prudent.

Judge advocates functioning as counselors provide advice early in the decision-making process to enable the command to accomplish missions. They seek to be proactive and to confront problems before the problems confront the command.
When a judge advocate acts in any of these functions, they identify issues; formulate courses of action and evaluate their strengths, weaknesses, and legal consequences; anticipate potential legal attacks; consider ethical and prudential concerns; provide their personal recommendations to decision-makers; and frequently execute command decisions.
A variety of skills are required to perfom these functions. As a military staff officer, the judge advocate must plan, train, and coordinate, all with an understanding of the Army, its history, and operational art. Judge advocates must work constantly and tirelessly to acquire an intuitive and reasoned grasp of the command's interests and objectives. As a lawyer, the judge advocate must research, analyze,
negotiate, and mediate. By combining     1.3 IN A CHALLENGINGNEW
legal and military knowledge and skills, ENVIRONMENT
the judge advocate enhances decision-
making processes and contributes to Judge advocates must perform their
effective, ethical, and lawful mission     traditional roles in a challenging, new
accomplishment.     environment, described by Joint Vision 201 0 in this way:
Accelerating rates of change will make the future environment more unpredictable and less stable, presenting our Armed Forces with a wide range of plausible futures. Whatever direction global change ultimately takes, it will afSect how we think about and conduct joint and multinational operations in the 21'' century. How we respond to dynamic changes concerning potential adversaries, technological advances and their implications, and the emerging importance for information superiority will dramatically impact how well
our Aimed Forces can perform its duties in 2010."
The new environment will consist of Missions will increase not only in more missions, complex command and number, but also in diversity. The control relationships, international National Security Strategy requires operations, fluid operations, and military forces "to effectively deter technological advancements. aggression, conduct a wide range of
peacetime activities and smaller-scale
1.3.1     More Missions contingencies, and . . . win two overlapping major theater wars."lg
Missions are increasing in number Supporting national military objectives and type. "The US military will be include promoting peace and stability, called upon to respond to crises across and defeating adver~aries.~~ To the full range of military operations, accomplish these objectives, the Army from humanitarian assistance to fighting envisions a full spectrum of missions, and winning major theater wars . . ."I6 including defending or liberating Between 1990 and 1996, the Army territory, intrusions in support of "deployed 25 times -an increase in counterdrug and counterterrorism missions by a factor of 16."" During the operations, peacemaking, peacekeeping, same period, the Army has become national and theater missile defense, smaller. Between 1989 and 1999, the multilateral military exercises, military-Active Army reduced from 781,000 to to-military exchanges, and humanitarian 468,000, and the Total Army from relief.21 1,960,000 to 1 ,068,000.18
Legal Support to Operations
1.3.2     Command and Control Relationships (.Joint, Multinational, and Interapencvl
Command and Control relationships will become increasingly complex. Operations will be joint and multinational, requiring improved interoperability among the services and with allied and coalition partners.22 Additionally, U.S. forces must "enhance their ability to operate in consonance with other U.S. government agencies, and with Non-governmental Organizations (NGOs), International Organizations (IOs), and Private Voluntary Organizations (PVOs) in a variety of settings."23 These relationships will require much of future leaders.
Our future leaders at all levels of command must understand the interrelationships among military power, diplomacy, and economic pressure, as well as the role of various government agencies and non-governmental actors, in achieving our security objectives. They will require a sophisticated understanding of historical context and communication skills to succeed in the future. The evolution of command structures, increased pace and scope of operations, and the continuing refinement of force structure and organizations will require leaders with a knowledge of the capabilities of all four services.24
1.3.3     International O~erations

U.S. Armed Forces will continue to be involved in international operations for several reasons. First, threats to United States security interests are international; they include regional conflict, proliferation of weapons of mass destruction, terrorism, ethnic disputes, and international organized crime.25 Second, responding to these threats will require international cooperation. "We are continuing to adapt and strengthen our alliances and coalitions to meet the challenges of an evolving security en~ironment."~~
'This. will require military forces to act in cooperation with other nations' forces. Third, responding to these threats will require the full spectrum of military operations to shape the international environment, respond to international crises, and to deter and resolve international conflicts."
1.3.4 .     Fluid Operations
Military forces will be required to be flexible, versatile, and responsive in changing missions and locations, and to do this as it restructures. "[Olur military must also be able to transition to fighting major theater wars from a posture of global engagement –from substantial levels of peacetime engagement overseas as well as multiple concurrent smaller-scale contingen~ies."~~"AU organizations must become more responsive to contingencies, with less 'startup' time between deployment and employment. Because we rely on the total force to provide the full range of military capabilities, we also require responsive reserve components that can rapidly integrate into joint organization^."^^ The Army's "ability to project power is greater today than at any time in our Nation's history. . . . Today, we can deploy a heavy armored brigade in 96 hours. .. . our ability .. .will be further enhanced, thus making our forces even more versatile . .

This era will be one of accelerating technological change. Critical advances will have enonnous impact on all military forces. Successful adaptation of new and improved technologies may provide great increases in specific capabilities. Conversely, failure to understand and adapt could lead today's militaries into premature obsolescence and greatly increase the risks that such
forces will be incapable of eflective operations against forces with high te~hnology.~' 1
1.3.5 Technological Advancements
For judge advocates, the most significant technological advancement will occur in information systems. This will change operations in three important ways; it will accelerate the tempo of operations, allow fusion of information in distinct staffing cells, and empower decision-making at lower echelons than in the past.32
1.4     CHALLENGES FOR JUDGE ADVOCATES IN THE 21ST CENTURY
While judge advocates will continue to perform their traditional roles, the new environment will greatly affect how they pursue their three fundamental objectives -mission, service, and legitimacy.
1.4.1 Mission
Pursuing the mission in the 21st Century will challenge judge advocates in three distinct ways. First, judge advocates must become increasingly refined as soldiers and lawyers. Judge advocates must understand how the Army will accomplish its various missions, and how to identify and resolve legal issues arising during these missions. They must understand the command and control relationships involved in each operation, and provide advice concerning the authority and responsibility of relevant agencies. They must be thoroughly grounded in all core legal disciplines to be effective in a fluid operational environment. They must be increasingly knowledgeable in international law as the Army cooperates with other nations' forces to secure United States interests world-wide.
Second, judge advocates must become more involved in the military decision-making process in critical planning cells, and at lower levels of command. As information technology increases the speed of decision-making and allows fusion of information in distinct cells, it becomes critical for judge advocates to be located where the relevant picture of the battlefield is received, evaluated, resolved, and affected. Otherwise, legal advice will not be timely or effective. To be proactive, the judge advocate must be present. As information technology empowers decision-makers at lower
Legal Support to Operations

levels of command, judge advocates must be present there.
Third, judge advocates must be capable of expanding the level of legal support to meet the mission demands of a force projection army. Projection creates surges in demand for legal services: deploying forces require legal support; the power projection platform requires temporarily increased legal support during mobilization, and augmented legal support in the event of deployment of tenant units and their organic judge advocates; the home station continues to require legal support. Judge advocates, in both the active and reserve components, must plan for the legal resources to meet these demands, and must be prepared to provide services with the deploying unit, the power projection platform, or home station.
1.4.2 Service
Providing effective service to commanders, staffs, personnel, and family members in the new environment will challenge judge advocates in four ways. First, judge advocates must maintain connectivity with operational and tactical networks and legal information sources in a fluid and technologically advanced environment. Of paramount importance will be the ability of the Rucksack Deployable Law Office and Library (RDL) to interface with Maneuver Control System -Phoenix (MCS-P), Global Combat Support System -Army (GCSS-A), Combat Service Support Control System (CSSCS), and Legal Automated Army-Wide System (LAAWS). As future systems develop, judge advocate connectivity must continue.
Second, judge advocates must provide technical supervision (supervision of legal operations by a Staff Judge Advocate) and technical support (direct legal expertise from JAGC organizations) to deployed judge advocates in every contingency. The variety of legal issues arising from diverse missions is a tremendous legal challenge to a deployed judge advocate. This can be especially challenging in joint and multinational operations. In joint operations, service specific regulations and policies apply. In multinational operations, troop contributing nations must still comply with their national laws. Legal supervision and support must be effective to ensure quality legal service to commanders and staffs. RDL connectivity will be critical to providing this support.
Third, judge advocates must be mobile. They must move, not only with the supported unit, but also independently to investigate claims and potential war crimes, to be at the commander's side at key meetings, and to perform other legal missions. A judge advocate's ability to collect evidence first-hand is frequently the reference point from which a claim is adjudicated fairly, and the truth about a potential war crime is learned. Responsive service in a fluid operational environment requires dedication of transportation in support of the judge advocate.
Fourth,' judge advocates must provide professional legal services to personnel and families, most importantly during deployments and split-based operations. Expanding the level of legal support during demanding times will be the most significant challenge. Also important, however, will be allocating adequate legal resources: the trained personnel and facilities required to provide the professional atmosphere expected by clients.33 This contributes substantially to good quality of life, which in turn, retains quality people.
1.4.3 Legitimacy
The future environment will challenge judge advocates in several ways. First, judge advocates must be well-grounded in constitutional and international law and values. Their understanding of, and ability to reconcile, those laws and values will be instrumental in promoting effective coalitions and international public respect for U.S. Army operations. Second, as the U.S. seeks to promote democracy abroad,34 the international community will expect U.S. Army operations to be consistent with democratic values. Therefore, the judge advocate's traditional role of assisting commanders to integrate democratic values into Army operations must continue. Finally, as the U.S. military "serves as a role model for militaries in emerging democracies around the
judge advocates must personally serve as teachers, trainers, and mentors for their counterparts.
1.5 SUMMARY
The judge advocate in the 21St Century must adapt the traditional role to a more demanding, complex, fluid, international, and technological environment. The judge advocate must continue to be a master of all core legal disciplines, and must be effective in the roles of judge, advocate, ethical advisor, and counselor. The judge advocate will succeed in the new environment by becoming increasingly knowledgeable as soldiers and lawyers, maintaining constant awareness of the operational situation and communication with technical supervision and support, and integrating constitutional and international democratic values into. military operations.
Legal Support to Operations
The Assistant Judge Advocate General (TAJAG) supervises the organization, administration, and functioning of OTJAG; the Field Operating Agencies of OTJAG; the procurement and professional training of members of the Judge Advocate Legal Service; the proficiency of reserve component judge advocates; and the operations of the judge advocate Guard and Reserve Affairs Department, Regulatory Law and Intellectual Property Division, Legal Technology Resources Office, and Standards of Conduct Offi~e.~'
The Assistant Judge Advocate General for Civil Law and Litigation (AJAG/CLL) supervises or oversees Contract Law Division, Litigation Division, Procurement Fraud Division, Contract Appeals Division, Environmental Law Division, Defense Appellate Division, and Trial Defense Servi~e.~~
The Assistant Judge Advocate General for Military Law and Operations (AJAG/MLO) supervises or oversees Criminal Law Division, Administrative Law Division, International and Operational Law Division and the Center for Law and Military Operations (CLAMO), Legal Assistance and Policy Division, Labor and Employment Law Division, and Government Appellate Di~ision.~~
The Army National Guard Special Assistant to TJAG is the principal advisor to TJAG concerning all niatters affecting judge advocates in the Army National Guard.
The Assistant Judge Advocate General for Operations is an Individual Mobilization Augmentee, and the principal advisor to TJAG concerning all matters affecting judge advocates in the
U.S. Army Reserve.
2.1.2     Field O~eratin~ A~encies
Certain enduring and specialized legal missions demand significant synergy or independence from the SJA sections that support various echelons of command. The Judge Advocate General's Field Operating Agencies (FOAs) are organizations designed to meet this institutional need.
2.1.3     The U.S. Armv Legal Services A~encv
The primary mission of USALSA is to deliver legal services to the Department of the Army in coordination with OTJAG; support and deliver legal services to field activities; and consolidate delivery of legal services by military judges and defense counsel to guarantee their independence. The organization is depicted in Figure 2-2.
Legal Support to Operations
Members of the JAGC in the Army National Guard serve in a unique status. Each is a full member of the JAGC and also a member of the particular state guard unit. Army National Guard judge advocates support their units' federal mission to maintain properly trained and equipped units that are available for prompt mobilization, and state mission to provide trained and disciplined forces for domestic emergencies or as otherwise required by the state.
The Army National Guard judge advocate's dual status can be useful. For example, an Army National Guard judge advocate in state status could be permitted to provide assistance to civilian authorities when a judge advocate in federal status might be precluded from providing assistance due to the restrictions of the Posse Comitatus Act.
Military judges in the Army National Guard are trained and certified by TJAG similarly to the military judges in the Army and Army Reserve. While in state status, an Army National Guard military judge may, when authorized by applicable state law, preside over courts- martial convened under state law. Upon mobilization and federalization of an Army National Guard military judge, the Chief Trial Judge will review the Army National Guard military judge's training, background, experience, and qualities (demonstrated mature judgment and high moral character) to determine the officer's suitability to serve as a member of the Army Trial Judiciary. Army National Guard officers who qualify for such service may be assigned, as needed, to the Army Trial Judiciary.
2.1.6     U.S. Armv ' Reserve Le~al Or~anizations
Legal support in the U.S. Army Reserve consists of support embedded in
U.S. Army Reserve units, such as in the judge advocate sections of Garrison Support Units (GSUs) designed to provide legal services to power projection platforms, and in Judge Advocate General Service Organizations (JA GSOs).
JAGSOs are legal units that provide legal services to troops not otherwise provided organic legal support. Additionally, JAGSOs provide CONUS sustaining base support for mobilization, mobilization sustainment, and demobilization operations. JAGSOs consist of judge advocates, warrant officers, and enlisted legal personnel.
JAGSOs consist of modular teams that provide legal services in all core legal disciplines. JAGS0 teams are an integral part of the Total Force and must maintain high standards of professional proficiency and military readiness. TJAG is responsible for the technical supervision, training, and assignment of JAGS0 personnel. Training associations between active component and reserve component legal elements ensure quality training and seamless integration during mobilization.
Each type of JAGS0 has specific capabilities. The Legal Support Organization (LSO), which is commanded by a judge advocate, provides operational control and technical supervision for as many as four Legal Services Teams &ST). An LSO will be assigned primary duties as a
Legal Support to Operations
(MAJ), and a legal NCO (SSG). The Trial Defense Team (TDT) performs duties as defense counsel in proceedings before administrative boards, under Article 15, UCMJ, and in courts-martial. It is capable of providing defense services on the basis of one team per 12,000 soldiers. A TDT, which currently exists separately from the RTDT, consists of a senior defense counsel (MAJ), three defense counsel (CPT), and one legal NCO (SSG). To maintain their independence, when not mobilized, regional and trial defense teams assigned to defense legal support organizations operate under the technical supervision of the Chief, U.S. Army Trial Defense Service. Upon mobilization, defense teams organic to LSOsMSOs will be under operational control of the U.S. Army Trial Defense Service.

The Senior Military Judge Team performs judicial duties and supervises Military Judge Teams. Its members preside at general and special courts- martial, perform duties as military magistrates, and serve in various other judicial capacities. The team consists of a senior military judge (COL) and a legal NCO (SSG), and is capable of providing judicial services on the basis of one team per 15,000 soldiers. The Military Judge Teams, which currently exist separately, consist of a military judge (LTC) and a legal NCO (SGT). Upon mobilization and IAW 10 U.S.C. 826(c), military judge teams organic to LSOs/MSOs will be reassigned to the
U.S. Army Trial Judiciary, will come under the supervision and control of the USALSA, and will be employed as directed by the Chief Trial Judge and attached, as required.
The Army assigns JAGS0 teams to theater armies, theater army area commands, corps, corps support commands, and other organizations as required. To prepare and train for operational missions, it is important for active component SJAs to establish close relationships with supporting JAGSOs. The gaining organization SJA, therefore, is responsible for planning for the employment of JAGS0 team personnel. Except for regional and trial defense teams and senior and military judge teams, JAGS0 teams fall under the technical supervision and administrative control of the SJA of the organization to which a JAGS0 team is assigned. The JAGS0 teams may augment the SJA section or may work as a remote detachment. The active component SJA is responsible for tasking the JAGS0 to perform operational missions.
Upon mobilization, JAGS0 teams depend on the unit to which they are assigned for all logistical and administrative support. Personnel services, finance, communications, transportation, maintenance, automation equipment, and supply are all areas of support needed by the JAGSOs to enable them to deliver the operational law services for which they are designed.
While not on active duty, JAGS0 team duties depend on the units to which they are assigned (regional support command or regional support group) for all support and administrative functions. Typical areas of heavy support include maintenance, unit reporting requirements, common soldier skill training, and transportation.

Each LSO and LST is designated to provide legal services in support of either mobilization or other military operations. When supporting mobilization, the LSO or LST provides legal services to United States Army Reserve, National Guard, federal, and state agencies affiliated with mobilization. It assists Continental United States Army (CONUSA) SJAs in premobilization planning and in coordinating use of legal assets within the CONUSAs. It coordinates with regional support commands (RSC) or regional support groups (RSG) to provide required legal services, such as Soldier Readiness Processing, to expanded troop populations. It coordinates with RSC, RSG, STARCs, and installations to provide responsive legal services to family members and other authorized personnel. It assists in the re-acquisition of federal property for installation expansion, helps develop or revise Department of Army civilian work rules as required, and provides advice and assistance on acquisition matters while monitoring streamlined acquisition procedures for possible fraud or abuse.
Upon mobilization, one LSO and at least one TDT will be assigned to FORSCOM subordinate commands (most likely the CONUSAs) in each of the ten standardized federal regions to perform mobilization support and CONUS srrsiaimnent base missions. Twenty LSTs will be assigned to these missions and will be assigned as needed under the supervision of the ten mobilization support LSOs.
2.1.7 Staff Judpe Advocate Offices
The Ofice of the Staff Judge Advocate (OSJA) is organic to units commanded by a general court-martial convening authority. An organization with a General Officer in command may also be assigned an OSJA, even if there is no general court-martial convening authority. OSJA provides all legal services to the organization except those which must be provided independently. The OSJA normally is composed of a Staff Judge Advocate (SJA), a Deputy Staff Judge Advocate (DSJA), Division Chiefs, judge advocates, a Legal Administrator, a Chief Legal Noncommissioned Officer (CLNCO), legal specialists, and federal civilian legal support staff.
The Staff Judge Advocate (SJA), the senior judge advocate, is a member of the commander's personal sW and, as such, communicates directly with the commander to provide legal advice for all matters affecting morale, good order, and discipline of the command. Additionally, the SJA is a member of the commander's special staff.41 As such, the SJA serves under the supervision of the Chief of Staff, provides legal services to the staff, and coordinates with other staff members to provide responsive legal services throughout the organization.

The SJA, as a field representative of TJAG, provides technical supervision over all JAGC personnel and legal services in the command, including planning and resourcing legal support, conducting and evaluating training, and assignment and professional development of JAGC personnel
in a tactical operations center (TOC) or other headquarters structure. They must also perform traditional NCO functions-training and taking care of troops. In addition to legal, staff, and office skills, 71 D personnel must train to proficiency in soldier common tasks. They must be able to survive on the battlefield, and be able to help other soldiers survive.
Finally, legal specialists maintain a deployment legal office package (forms, supplies, equipment, references, etc.) ready to deploy in support of the legal office and the command. When required, the legal specialist provides administrative support during Soldier Readiness Processing (SRPs), and Emergency Deployment Readiness Exercises (EDREs), and to any other mobilization preparation process.
Civilian Legal Support StafS may include paralegals, court reporters, legal clerks, legal secretaries, and other supporting staff who provide paralegal and administrative support under the supervision of the SJA, Division Chiefs, judge advocates, and civilian attorneys.
2.1.8 Command Jud~e Advocates
A Command Judge Advocate (CJA) is the senior judge advocate in a legal office serving a commander who is not a general court-martial convening authority, anci who is not otherwise authorized an SJA. 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. The Regimental Judge Advocate of the Ranger Regiment is an example of a CJA.
The CJA supervises the legal specialists. With their assistance, the CJA provides legal support in required legal disciplines to the commander and the staff. Normally, the host installation OSJA will provide legal support in the disciplines of legal assistance, military justice, and claims. Nevertheless, a CJA may provide such services in accordance with the policies of the commander and the SJA of the host installation or the next higher command, and consistent with professional responsibility requirements.
Law Center Officers in Charge (OICs)
An OIC of a Law Center is a judge advocate responsible for supervising the provision of all legal services in a designated military community. The Law Center is a branch ofice of a senior headquarters SJA office. Law Centers are particularly common in Europe. Unlike CJAs, OICs typically are responsible to provide legal support in all core legal disciplines and to supervise legal services provided by law center personnel. The OIC typically advises the installation and tactical commanders in that community.
2.2     JOINT LEGAL ORGANIZATIONS44
Legal organizations are embedded in each joint organization, including the Office of the Chairman, Joint Chiefs of Staff, each unified, specified, and
Legal Support to Operations
subordinate unified command; and each joint task force. A&~ legal organizations support army organizations designated as a component command, or otherwise a part of a joint organization.
2.2.1     The Office of the Legal Counsel to the Chairman, Joint Chiefs of Staff
The Office of the Legal Counsel advises the Office of the Chairman of the Joint Chiefs of Staff concerning the legal basis for conducting operations, rules of engagement, and other international and domestic law affecting operations.
2.2.2     Unified, S~ecified, and Subordinate Unified Command Staff .ludee Advocates

SJA offices in these commands provide legal support to the command. Their specific organization and functions vary according to the mission of the Unified, Specified, or Subordinate Unified Command. Nevertheless, these offices are composed of an SJA or Legal Advisor, judge advocates with required specialities from various services, legal specialists, and civilian employees. These offices provide legal advice in international and operational law, law of the sea, air and space law, military justice, administrative law, civil law, claims, legal assistance, and any other required areas of law.
2.2.3     Joint Task Force Staff Judee Advocate
When a Combatant Commander forms a Joint Task Force (JTF), the combatant command SJA designs and staffs the JTF SJA office based on the JTF mission and organization. The JTF SJA provides the legal services required by the JTF, supervises legal services in organizations subordinate to the JTF, and coordinates additional legal support through the combatant command SJA. The JTF SJA will receive technical supervision from the combatant command SJA and will exercise technical supervision over legal personnel in organizations under JTF operational control.
2.3     MULTINATIONAL FORCE LEGAL ORGANIZATIONS
Legal organizations may be embedded in multinational headquarters to provide legal advice and support to multinational military operation^.^^ These multinational headquarters may derive their authority from the United Nations, a regional alliance, a bilateral or multilateral international agreement, an ad hoc coalition agreement, or a combination thereof.46 Regardless of the applicable international legal authority,
U.S. Forces and personnel remain subject to the U.S. National Command Authorities (NCA) and domestic law.
Legal organizations in multinational headquarters provide advice concerning command authority, the legal basis for operations, rules of engagement and the use of force, the status of multinational forces, and other issues. Legal advisors in multinational headquarters must find legal solutions that satisfy the legal standards of the international community and each troop contributing nation, or must forward issues to

superior national and international authorities for resolution.
2.4     PROVIDING ARMY LEGAL SUPPORT FOR OPERATIONS
All the legal organizations described above provide legal support to operations in the deployment theater and at home station throughout all stages of the mobilization and operation. Organic legal organizations provide support to unit C2, sustainment, and support operations. JAGSOs and other reserve component judge advocates, such as the judge advocate sections GSUs, augment organic legal support in required core legal disciplines. SJAs of superior commands provide technical legal supervision and support to subordinate units. OTJAG, the Field Operating Agencies (USALSA & TJAGSA), and CLAM0 provide additional required technical legal support.
The challenge for the SJA is to provide legal support to operations that meets the organization's mission-specific requirements. The SJA meets this challenge by detailing operational lawyers (judge advocates) to each key operational cell (e.g., G-3 Plans, G-3 Operations, Information Operations, targeting cells, tactical command posts, civil military operation centers, and Brigade main CPs), providing all core legal disciplines at each division or corps command post and home station, and coordinating technical legal supervision, technical legal support, and augmentation requirements.
2.4.1     Overview of Operational Law Support

Operational Law (OPLAW) is that body of domestic, foreign, and international law that directly affects the conduct of operations. OPLAW tasks support the command and control and sustainment of military operations, including the military decision-making process and the conduct of operations. OPLAW supports the commander's military decision-making process by performing mission analysis, preparing legal estimates, designing the operational legal support architecture, wargaming, writing legal annexes, assisting in the development of Rules of Engagement (ROE), and reviewing plans and orders. OPLAW supports the conduct of operations by maintaining situational awareness; advising and assisting with targeting, ROE implementation, and information operations. Judge advocates performing OPLAW also provide or facilitate support in the core legal disciplines. Therefore judge advocates performing OPLAW must be well-versed in all core legal disciplines, skilled in managing legal operations, and effective in
,

relations with military commanders and staffs. The general OPLAW support concept is depicted in Figure 2-3, below.
Legal Support to Operations
Legal Support to Operations
The diagram also depicts communication and automation linkages from the company area to the CONUS sustaining base. Each Judge advocate must be linked to the Army Battle Command System (ABCS), particularly to Maneuver Control System -Phoenix (MCS-P), to Global Combat Support System -Army (GCSS-A), and to legal information networks through the kgai Automation Army-Wide System (LAAWS). Only then will judge advocates know the situation and have the complete and current legal information required to provide the proactive, timely, and accurate legal advice that will empower and sustain the force.
Not depicted in the diagram, but vital to effective legal support, are the equipment and transportation requirements. Legal organizations must be as capable as the units they support. The OSJA element in a corps, division, or brigade Command Post must have the workspace, communications and automation capabilities, and transportation assets to function in coordination with the staff. Other critical equipment requirements include radios linked with tactical nets, global positioning devices, and the RDL. (The RDL and its components are discussed in Chapter 4.) In addition, many legal functions require mobility: the SJA must travel to supervise legal services (as must the DSJA when managing legal services at another command post); foreign claims and war crimes investigation teams must travel to investigate claims and potential war crimes; judge advocates must attend Joint Military Commission meetings and meetings with international organizations, nongovernmental organizations, and private volunteer organizations; trial and trial defense counsel must travel to counsel commanders or clients and investigate cases.
2.4.2     tailor in^ Operational Law Su~port
The SJA begins tailoring legal support to an operation by analyzing METT-TC (mission, enemy, troops, terrain and weather, time available, and civilian considerations) to determine the potential legal issues, the extent of support required within each core legal discipline, and the legal resources available. Substantial and helpful information is available to assist the SJA in this analysis in the Operational Law Handbook, which is published annually by the International and Operational Law Department at TJAGSA, and in lessons learned on file with CLAMO.
Next, the SJA must design the legal support architecture for the operation. There are two requirements: first, judge advocates, and any required legal specialists, must deploy with each key operational cell; second, the SJA must provide support in all core legal disciplines to both the deployed force and home station, even if support in some disciplines is not deployed. These requirements place significant demands upon the legal organization. SJAs must consider the need for augmentation and address concerns through legal technical channels.
To meet these two requirements, there are two complementary strategies. First, the SJA may deploy a legal organization equipped to provide support in all legal disciplines. This structure may contain a proportionate slice from each division. (Significant efficiencies are obtainable by deploying personnel skilled in multiple legal disciplines. Therefore, SJAs must ensure that judge advocates and legal specialists are trained in multiple disciplines.) Second, the SJA may deploy legal support in a particular legal discipline, while providing other legal support from the home station or other location. (For example, if a commander deploys an organization to perform a mission of brief duration and likely to involve claims issues, the SJA may deploy all or part of the claims division.) These approaches are not mutually exclusive; they may be blended to meet mission requirements.

Finally, the SJA must coordinate technical legal supervision and support. Judge advocates receive technical legal supervision (i.e., guidance, direction, and assistance in the discharge of their duties) from TJAG and SJAs of superior commands.48 Judge advocates may receive technical legal support (i-e., legal information or expertise) from any Army legal organization. Technical legal supervision and support normally follow the chain of command. In joint operations, or when Army units are operationally controlled by other Army organizations, technical supervision follows operational control; superior parent and supported headquarters should both provide required technical support. Nevertheless, technical supervision and support arrangements must be coordinated for each specific core legal discipline. For example, military justice supervision and support could either lie with the parent
command or the joint headquarters. In allied or coalition legal organizations, technical legal supervision will be dual (national and international). SJAs supporting allied or coalition organizations must coordinate thoroughly to define the parameters of technical legal supervision, as well as to resolve the myriad legal concerns arising during operations.
2.5 SUMMARY
TJAG heads and directs all legal services in the Army, and provides legal support for operations at all levels of command. Embedded legal organizations (OSJAs or CJAs) in the active and reserve components and in joint organizations provide operational law and core legal discipline support to their parent organizations. Special legal units (JAGSOs) augment legal support as required by the mission. Judicial and trial defense services are provided by independent legal organizations in order to preserve the integrity of the military justice system. Joint and multinational legal organizations provide operational law support and supervise legal operations of subordinate units within the parameters of international and domestic law.
SJAs tailor, or task organize, legal support for each specific operation, by detailing judge advocates and any required legal specialists, to all key operational cells, providing support in all core legal disciplines to the deploying force and home station, and ensuring effective technical legal supervision and support. The result is responsive, proactive, flexible, and expandable legal support in every operational contingency.
Legal Support to Operations

Chapter 3 OPLAW and Core Legal Disciplines Supporting Army Operations
3.1 INTRODUCTION
The last chapter described legal organizations supporting operations, and how SJAs tailor, or task organize, to provide legal support to operations. This chapter describes OPLAW and the core legal disciplines (military justice, international law, administrative law, civil law, claims, and legal assistance) that Army legal organizations provide. Subsequent chapters will provide information about legal support to specific types of military operations.
As discussed in the previous chapter, legal support to each operation must consider the organization's mission-specific requirements, and include legal support in OPLAW and each core legal discipline. OPLAW and the core legal disciplines contribute directly to the command and control (C2), sustainment, and personnel service support required by the organization. Different aspects of a core legal discipline may support C2, sustainment, or personnel service support. For example, foreign claims are a sustainment function, while personnel claims are personnel service support. It is important that SJAs tailor legal support (OPLAW and core legal disciplines) to the organization' s mission-specific requirements. Therefore, this chapter will describe OPLAW and the core legal disciplines, what tasks are performed, where they are performed, and how they support each phase of an operation from premobilization through demobilization.
CONTENTS PAGE
INTRODUCTION…………………………
OPLAW……………………………………..
MILITARY JUSTICE …………………….
INTERNATIONAL LAW ………………..
ADMINISTRATIVE LAW ……………….
CIVIL LAW ………………………………
CLAIMS……………………………………..
LEGAL ASSISTANCE ………………….
SUMMARY…………………………………

3.2 OPLAW
OPLAW is that body of domestic, foreign, and international law that directly affects the conduct of operations.
OPLAW supports the command and control of military operations, to include the military decision-making process and the conduct of operations. OPLAW supports the military decision-making process by performing mission analysis, preparing legal estimates, designing the operational legal support architecture, wargaming, writing legal annexes, assisting in the development and training of Rules of Engagement (ROE), and reviewing plans and orders. OPLAW supports the conduct of operations by maintaining situational awareness, and advising and assisting with targeting, ROE implementation, and information operations. OPLAW also involves the provision of core legal disciplines that sustain the force.

SJAs normally provide OPLAW support at each Brigade Headquarters (Main CP), and at each key operational cell at every higher level of command (TAC CP, Main CP, Rear CP, G-3 Plans, G-3 Operations, Information Operations, and Targeting Cell). OPLAW support is also provided at each joint and multinational headquarters. Some missions will also require BPLAW support at battalion level, or in specialized units or operational cells. This is increasingly the case in peace operations and disaster relief.
As OPLAW directly affects the conduct of military operations, its tasks must generally be performed throughout all phases of any operation, from before mobilization through demobilization. Nevertheless, the OPLAW Judge Advocate's (OPLAW JAYs) focus will change during these phases. The focus during premobilization, mobilization, and predeployment will be on OPLAW military decision-making functions. The focus shifts toward tasks related to the conduct of operations from deployment through demobilization. During all phases, however, the OPLAW JA must provide or facilitate support in core legal disciplines required to sustain the organization.
Before mobilization, OPLAW JAs and legal specialists should conduct contingency planning, deployment preparation, and training. OPLAW JAs must proactively develop staff skills and relationships at all times, not merely before deployment. Deployment preparation, a cooperative effort between the OPLAW JAY the CLNCO, the Legal Administrator, and other key personnel, should include developing SOPS, identifying deploying personnel, marshaling resources, and establishing liaisons. Training before mobilization should develop legal personnel in their soldiering and legal skills, provide mission-related legal information to unit personnel, integrate legal personnel into unit training events, and establish relationships with reserve component legal personnel who will support legal operations upon mobilization.
During mobilization and predeployment, OPLAW JAs, with the assistance of legal specialists, should receive and integrate mobilized legal personnel who are supporting deploying and non-deploying units; conduct
Legal Support to Operations
mission briefings for deploying personnel regarding ROE, general orders, code of conduct, law of war, and other appropriate legal topics; conduct final mission planning; and coordinate legal support for individual deployment readiness.
During deployment and entry, OPLAW tasks related to the conduct of operations become more critical. OPLAW JAs must maintain situational awareness to provide effective advice about targeting, ROE, and legal aspects of current operations (including information operations). For this reason, judge advocates should deploy with their RDLs, vehicles, radios, and global positioning devices in a sequence that ensures their presence in key operational cells at all times. Deploying legal specialists help the OPLAW JA maintain situational awareness during the operation by attending briefings, monitoring email traffic, tracking the battle, and providing other required assistance. Upon entry, OPLAW JAs must organize and coordinate the delivery of legal services in all core legal disciplines in accordance with the legal annex to the OPLAN or OPORD. Finally, even during fast-paced operations, OPLAW JAs must continue to perform OPLAW military decision- making process functions in support of the staff's operational planning.
During redeployment and demobilization, OPLAW JAs and legal specialists must perform several recovery tasks: assist the redeployment of legal personnel and equipment, participate in the command's after-action reviews and lessons learned processes, and catalogue and retain legal files and journals. SJAs should forward after action reports and all pertinent legal documents, memoranda, email, et cetera, to the CLAMO, and integrate them into future contingency planning, deployment preparations, and training.
3.3 MILITARY JUSTICE
Military justice is the administration of the Uniform Code of Military Justice (UCMJ), and the disposition of alleged violations by judicial (courts-martial) or nonjudicial (Article 15,UCMJ) means. The purpose of military justice, as a part of military law, is '"to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United
state^."^^
TJAG is "responsible for the overall supervision and administration of military justice within the Army."5o The commander is responsible for the administration of military justice in the unit, and must communicate directly with the SJA about military justice matters.51
There are three components of military justice, each with its distinct functions. First, the SJA is responsible for military justice advice and services to the command. The SJA advises commanders concerning the administration of justice, the disposition of alleged offenses, appeals of nonjudicial punishment, and action on court-martial findings and sentences." The SJA supervises the administration and prosecution of courts-martial, preparation of records of mal, the victim-witness assistance program, and military justice training.53
Second, the Chief, United States hy Trial Defense Service "exercises supervision, control, and direction of defense counsel services in the Army."54 Judge advocates assigned to the Trial Defense Service advise soldiers and represent soldiers before courts-martial. These judge advocates also represent soldiers in adverse administrative hearings.

Third, the Chief Trial Judge, United States Army Trial Judiciary provides military judges for general and special courts-martial, supervises military judges, promulgates rules of court, and supervises the military magistrate program.55 Military Judges assigned to the Trial Judiciary preside over courts- martial, exercise judicial independence in the conduct of courts-martial, conduct training sessions for trial and defense counsel, and perform or supervise military magistrate functions.56 Military magistrate functions include the review of pretrial confinement and confinement pending the outcome of foreign criminal charges; and the issuance of search, seizure, or apprehension authorization~.~'
Military justice services are semi-centralized to facilitate timely, e*cien? delivery. Noranally, courts-martial are processed at theater, corps, division, or other headquarters commanded by a general court-martial convening authority. Joint Force Commanders, and Army Brigade and Battalion' Commanders also have court-martial convening authority, and may require support to conduct courts-martial. Trials may be held at the main or rear command post. The convening authority may designate where the court- martial will meet IAW Rules for Courts- Martial (RCM) 504(d) and RCM 906(b)(ll) and consistent with rulings of the military judge. SJAs provide military justice advice to general court- martial convening authorities, including Joint Force Commanders with general court-martial authority. Other judge advocates provide military justice advice to subordinate commanders. Legal specialists in battalion, squadron, and higher headquarters prepare and manage military justice actions, and provide other technical legal and administrative support for military justice. As the situation requires, LSTs specializing in criminal law may assist theater, corps, or division military justice operations. In multinational organizations, each troop contributing nation is responsible for the discipline of its military personnel. Thus, the U.S. element of the multinational organization will require military justice support.
Trial defense and judiciary services are provided on an area basis under the independent supervision and control of the U.S. Army Trial Defense Service and
U.S. Army Trial Judiciary, respectively. Trial Defense Counsel will normally be located with SJA sections at theater, corps, and division, from where they travel throughout the operational area to provide advice and services as far forward as required. Military Judges are normally collocated with SJA sections at theater, corps, and division, depending upon judicial workloads. As the situation requires, LSTs specializing in trial defense or judiciary services assist
wherever needed in the theater. The Chief, U.S. Army Trial Defense Service, and Chief Trial Judge, U.S. Army Trial Judiciary, supervise Defense Teams and Military Judge Teams, respectively.
Military justice support must transition through the phases of military operations smoothly, providing continuity in jurisdiction and responsive support to the deployment theater and home station. Critical to success are prior planning, mission training, and staff augmentation.

Before mobilization, the primary focus is planning. The SJA's planning for military justice operations should include the preparation of key personnel for deployment, the identification and marshaling of resources and personnel to support split-based operations, the identification and alignment of court-martial convening authorities, the guidance for disposing of pending cases upon deployment, the selection of court- martial panels in the deployment theater, the content of a general order for the operation, the strategy for supporting military justice in the deployment theater and at the home station, and the coordination of support for trial defense and judiciary services.58 The supporting Regional Defense Counsel (RDC) must develop an operation support strategy, prepare personnel for deployment, and marshal resources. Of particular importance are the RDC's plans for mobility in theater and technical supervision of deployed Defense Counsel. The supporting Chief Circuit Judge must likewise plan for operations.
During mobilization and predeployment, the SJA must execute
Legal Support to Operations
the military justice transition and conduct mission training. Transition tasks may include aligning the convening authority structure for the deployment theater and home station, ensuring units and personnel are assigned or attached to the appropriate organization for the administration of military justice, requesting or accomplishing required designations of home station convening authorities, transferring individual cases to new convening authorities when necessary, and publishing a general order for the ~peration.~~Mission training will include briefings to deploying and home station commanders concerning military justice operations, and briefings to deploying soldiers concerning the terms of the general order for the ~peration.~"
During deployment and entry, the SJA must ensure the military justice support arrangements are in place and operating properly. The SJA should ensure orders assigning units and personnel clearly indicate which commander has nonjudicial punishment and court-martial authority. Rear detachment commanders at the home station will require military justice training, which should emphasize the commander's autho~ity and responsibility, and the prevention of unlawful command infl~ence.~~
Finally, the SJA should expect an increase in the home station military justice workload, and must ensure that resources are properly allocated between the deployment theater and home station.62
During redeployment and demobilization, the SJA transitions back to the original home station military justice structure. This will
normally include returning to the original convening authority structure, ensuring units and personnel are assigned or attached back to the appropriate organization for the administration of military justice, revoking the designations of home station convening authorities established for the operation, transferring individual cases, and rescinding the general order for the operation.
3.4 INTERNATIONAL LAW
International law is the application of international agreements, international customary practices, and the general principles of law recognized by civilized nations to military operations and activities. Within the Army, the practice of international law also includes foreign law, comparative law, martial law, and domestic law affecting overseas, intelligence, security assistance, counter-drug, and civil assistance a~tivities.~~
The SJA's international law responsibilities include: implementation of the DoD Law of War (LOW) Program, including LOW training, advice concerning the application of the LOW (or other humanitarian law) to military operations, the determination of enemy prisoner of war (EPW) status, and supervision of war crime investigations and trials; assistance with internationai legai issues relating co U.S. forces overseas, including the legal basis for conducting operations, status of forces agreements, and the impact of foreign law on Army activities and personnel; the monitoring of foreign trials and confinement of Army military and civilian personnel and their dependents; assistance with legal issues in intelligence, security assistance, counter-drug, and civil assistance activities; advice to the command concerning the development of international agreements; and legal liaison with host or allied nation legal a~thorities.~~
Normally, the SJA provides international law support at the main and rear command posts in Army of Excellence divisions and corps, and main command posts in Force XXI divisions and corps, TAACOM or TSC headquarters, Theater Army headquarters, and each joint and multinational headquarters. In addition, international law support may be required at brigade and battalion headquarters.
International Law tasks will vary from phase to phase, but are designed to ensure operational capability and support international legitimacy throughout all phases of an operation.
Before mobilization, international law planning is preeminent. The SJA and international law attorneys must thoroughly understand the contingency plan and the international law affecting the planned operation. They must ensure the contingency plan complies with international legal obligations, including obligations to EPWs and civilians. They must also identify and obtain relevant international agreements (e.g., status of forces agreements, exchanges of diplomatic notes, and acquisition and cross-servicing agreements), identify requirements for additional agreements, and forward these requirements through higher headquarters to the proper negotiation authority. International law planning objectives include informing the commander and staff of the international legal obligations on the force, minimizing legal obligations or their effects on the force, protecting the legal status of unit personnel, ensuring rights of transit, and providing responsive and economical host nation support. At the same time, international law attorneys are responsible for training unit personnel on the LOW and other international law affecting potential operations.

During mobilization and predeployment, establishing liaison and briefing deploying personnel are the principal international law tasks. The SJA should establish liaison with the International Committee of the Red Cross (ICRC), the country team for the area of operations, legal officials in the host nation, and other government, nongovernmental, international, and private voluntary organizations, as directed by the commander. The purposes of this liaison are to establish productive relationships that will help sustain the operation; coordinate the legal aspects of the deployment and entry; confirm understanding of agreements concerning status of forceP, rights of transit, basing, and host nation support; and provide assurance of compliance with international legal requirements. Briefings to deploying personnel should cover the legal basis for the operation, the legal status of deploying personnel, relevant country law, guidance on the treatment of civilians in the area of operation^,^^ and the applicability of the LOW or other humanitarian law.
Legal Support to Operations
During deployment and entry, the SJA's principal international law tasks are advising the command and managing legal processes. These tasks require continuous liaison with the country team, host nation legal officials, the ICRC, and other agencies related to the operation; and effective integration into the headquarters staff. Advice to the command may involve the law of war, including advice to the EPW team; interpretation of international agreements; treatment of civilians or foreign diplomats; assistance to international organizations, U.S. or host nation government organizations, non-government organizations (NGOs), or private volunteer organizations (PVOs); civil affairs; and other international legal matters. Legal processes include the investigation and trial of war crimes, Article V tribunal proceedings, foreign criminal trials of U.S. personnel, foreign civil or administrative proceedings, and proceedings conducted under occupation or martial law.
During redeployment and demobilization, the SJA's international law priority is to resolve legal issues remaining from the deployment or relating to redeployment. Significant tasks may include coordinating the legal aspects of base closures, resolving host nation support issues, managing war crimes investigations, monitoring
Administrative law is the body of law containing the statutes, regulations, and judicial decisions that govern the establishment, functioning, and command of military organizations. The practice of administrative law includes advice to commanders and litigation on behalf of the Army involving many specialized legal areas, including military personnel law, government information practices, investigations, relationships with private organizations, labor relations, civilian employment law, military installations, and government

Administrative law attorneys perform the following functions: advise commanders, review actions, and litigate cases involving military personnel law; advise Army officials regarding their obligations under the Freedom of Information Act (FOIA) and Privacy Act; advise investigating officers, review investigations for legal sufficiency, and advise appointing authorities concerning investigative findings and recommendations; advise Army officials concerning support for and relationships with private organizations; advise Army officials concerning labor relations, including certifying and negotiating with labor unions, grievances and arbitration, and unfair labor practice allegations; advise Army officials concerning the recruiting, hiring, evaluating, and disciplining of employees, and represent the Army in litigation arising from employee ,gievances and discrimination complaints; advise installation commanders concerning the legal authorities applying to military installations; and advise Army personnel concerning government ethics, and supervise the command financial
disclosure and ethics training
programs.68
Administrative law support is usually provided at brigade headquarters, main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, COSCOM headquarters, and at each higher army, joint, and multinational headquarters. Because of the vast scope of issues they face, administrative law attorneys, especially, must be capable of conducting specific technical legal research and writing.
Administrative law support must be provided during all phases of an operation. The legal research capabilities and technical support structure must be robust to provide specialized legal knowledge and the flexibility to resolve different issues as an operation moves through its phases.
Before mobilization, administrative law attorneys must identify the issues likely to arise in the operation and provide policy guidance in the OPLAN. Consideration of the likely legal issues must take into account the participating organizations -joint, allied or coalition, international, non-governmental, and private. The plan should include policy guidance concerning access by non-DoD personnel to unit facilities and ~ervices.~'
During mobilization and predeployment, administrative law attorneys must provide prompt guidance to commanders concerning military personnel issues that typically arise immediately before deployment, such as conscientious objection and family care plan failure^.^' They should also brief deploying personnel concerning issues arising in the theater, e.g., family care plans and foreign gifts.71
During deployment and entry, administrative law attorneys will provide advice and assistance with the legal issues that arise in theater. They should be prepared to spend considerable time and effort on command investigations, as these may have a significant impact on the unit and mission.72 They must also, even in a deployed environment, supervise the government ethics program, including the filing of financial disclosure forms.73
During redeployment and demobilization, administrative law attorneys will assist with issues that arise, and will continue to manage the legal aspects of ongoing investigations and other actions as they redeploy to home station.
3.6 CIVIL LAW
Civil law is the body of law containing the statutes, regulations, and judicial decisions that govern the rights and duties of military organizations and installations with regard to civil authorities. The practice of civil law includes contract law, fiscal law, environmental law, as well as many other specialized areas of law.74
Contract law is the application of domestic and international law to the acquisition of goods, services, and construction. The practice of contract law includes battlefield acquisition, contingency contracting, bid protests and contract dispute litigation, Legal Support to Operations
procurement fraud oversight, commercial activities, and acquisition and cross-servicing agreement^.^^
The SJAYs contract law responsibilities include furnishing legal advice and assistance to procurement officials during all phases of the contracting process, overseeing an effective procurement fraud abatement program; and providing legal advice to the command concerning battlefield acquisition, contingency contracting, Logistics Civil Augmentation Program (LOGCAP), Acquisition and Cross-Servicing Agreements (ACSAs), the commercial activities program, and overseas real estate and construction.
Legal counsel must participate fully in the acquisition process, make themselves continuously available to their clients, involve themselves early in the contracting process, communicate closely with procurement officials and contract lawyers in the technical supervision chain, and provide legal and business advice as part of the contract management team.76 To accomplish this, SJAs usually provide contract law support at the main and rear commarid posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, COSCOM, Theater Support Command Headquarters, and each higher army and

joint headquarters. Contract law advice may also be required at brigade or battalion headquarters. SJAs should deploy a contract law attorney with contracting Early Entry Modules (EEM). OPLAW JAs supporting a DISCOM or COSCOM should be trained in contract law. Expertise may be required at the multinational command headquarters to advise concerning international
acquisition agreements.
Fiscal law is the application of domestic statutes and regulations to the funding of military operations, and support to non-federal agencies and organizations.
The SJA's fiscal law responsibilities include furnishing legal advice on the proper use and expenditure of funds, interagency agreements for logistics support, security assistance, and support to non-federal agencies and organizations.
SJAs usually provide fiscal law support at the main and rear command 'posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, DISCOM, COSCOM, TAACOM/ TSC headquarters, and each higher army and joint headquarters. Expertise may also be required at the multinational command headquarters to advise concerning international support agreements.
Environmental law is the body of law containing the statutes, regulations, and judicial decisions relating to Army activities affecting the environment to include navigable waters, near-shore and open waters and any other surface water, groundwater, drinking water supply, Imd surface or subsurf~ce~ez,~mbient air, vegetation, wildlife, and humans.77 Overseas, host nation law may also affect Army operations.
SJAs provide legal advice and services on all aspects of environmental matters, to include representing Army activities in environmental litigation and at hearings before local, state, or federal agencies in coordination with the Chief, Environmental Law Division, USALSA, and the Department of Justice (DoJ); monitoring state and federal environmental legislative and regulatory developments; providing advice concerning the appropriateness of any environmental enforcement activities; and reviewing all draft environmental orders, consent agreements, and settlements with Federal, state, or local regulatory officials before signature.78
SJAs usually provide environmental law support at the main and rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, DISCOM, COSCOM, Theater Support Command Headquarters, and each higher army and joint headquarters.
Civil lawyers must support all phases of an ~peration;~'nevertheless, the issues and requirements they face will change during each operational phase.
Before deployment, planning and training are the primary concerns. Contract lawyers assist the planning for contracting by identifying the legal authorities for contracting, obtaining relevant acquisition agreements or requesting their negotiation, helping the contracting team to define requirements and to establish procurement procedures for the operation, and reviewing the contracting support plan for legal sufficiency. Fiscal lawyers assist the planning by identifying funding authorities supporting the mission. Environmental lawyers assist the planning by providing legal advice concerning environmental reviews and environmental requirements in the area of operations, and by reviewing plans to ensure plans address environmental law and policy requirements. The environmental plan should address policies and responsibilities to protect the environment, certification of local
preservation, and the base field spill plan.80
During mobilization and predeployment, support to the contracting and real estate EEMs is important. A contract lawyer should deploy with the contracting EEM; an environmental lawyer should deploy with the real estate EEM. In preparation for deployment, these judge advocates or civilian attorneys must marshal resources, assist the EEM's final coordination to include confing warrants, funding sources and environmental legal requirements, and establish liaison with the country team in theater. Upon arrival in theater, the contract lawyer and environmental lawyer support the EEM missions of facilitating the deployment and entry of forces. The environmental lawyer should ensure an environmental survey is completed to provide a baseline against which later claims for damage may be as~essed.~'
During deployment and entry, civil law support must be responsive to force requirements. SJAs must plan for additional contract law and fiscal law support as the theater matures, because
Legal Support to Operations
contracting and fiscal issues will increase in number and comple~ity.~~ SJAs should encourage the use of Acquisition Review Boards, as these promote prudent management of resources and proactive resolution of logistical support issues.83 SJAs must maintain close coordination with the organization's environmental team and civil affairs section, and liaison with the country team and local environmental legal authorities.
During redeployment and demobilization, civil lawyers support force redeployment and close-out. Contracts for subsistence, temporary lodging, or transportation are required to allow logistics units to redeploy. During close-out, contract and environmental claims or disputes will arise. Civil lawyers help contracting and real estate officials resolve claims or disputes. When claims or disputes are not resolved, the civil lawyer will support the contracting and real estate personnel who are responsible for litigati~n.'~Civil lawyers are normally required until all forces leave the area, and therefore normally redeploy last. Even after redeployment, unresolved contractir~g and environmental issues may require legal support.
3.7 CLAIMS
The Army Claims Program investigates, processes, adjudicates, and settles claims on behalf of and against the United States world-wide "under the authority conferred by statutes, regulations, international and interagency agreements, and DoD
directive^."^^ The Claims Program supports commanders by preventing distractions to the operation from claimants, promoting the morale of Army personnel by compensating them for property damage suffered incident to service, and promoting good will with the local population by providing compensation for personal injury or property damage caused by Army or DoD per~onnel.'~ Categories of claims include claims for property damage of soldiers and other employees arising incident to service, torts alleged against Army or DoD personnel acting within the scope of employment, and claims by the United States against individuals who injure Army personnel or damage Army property."
The Secretary of the Army (SA) heads the Army Claims System.'' TJAG supervises the Army Claims Program and settles claims in accordance with delegated authority from the SA." The
U.S. Army Claims Service (USARCS) administers the Army Claims Program and designates area claims offices, claims processing offices, and claims attorneys?' SJAs, or other supervisory judge advocates, operate each command's claims program and supervise the area claims office (ACO) or claims processing office (CPO) designated by USARCS for the command.g1 ACOs and CPOs are the normal claims offices at Army installations that investigate, process, adjudicate, and settle claims against the United States; and identify, investigate, and assert claims on behalf of the United States.92 Claims attorneys at each level settle claims within delegated authority and forward claims exceeding that authority to the appropriate settlement authority.93
Claims must be investigated and paid in an area of operation^.^^ In multinational operations, unless otherwise specified in applicable agreements, a troop contributing nation is generally responsible to resolve claims arising from its own operations. Foreign claims against the U.S. will normally be resolved by the service assigned claims responsibility for the area. Claims attorneys should consult DoD Directive 5515.8, Single-Service Assignment of Responsibility for Processing of Claims (June 1990). U.S. personnel claims will normally be resolved by the parent service. Amy claims services are normally provided in the main or rear command posts in Army of Excellence divisions and corps, main command posts in Force XXI divisions and corps, the Theater Support Command headquarters, and Theater Army headquarters. While claims services are centrally processed at these locations, claims personnel must travel throughout the area of operations to investigate, negotiate, and settle claims.
Before mobilization, commanders should appoint unit claims officers (UCO); UCOs document and report incidents to claims offices that might result in a claim by or against the United States.95 The SJA and Chief of Claims should develop the claims architecture for the planned operation, and provide training for deployable claims attorneys, legal specialists, and UCOs. The claims architecture should prescribe the technical chain of claims authority, identify additional required claims processing offices or foreign claims commissions, and describe the claims procedures applying during the operation. Claims architecture planning
Legal Support to Operations
factors include the type and duration of deployment, the area to which deployed, the existence of international agreements governing the presence of U.S. personnel and the processing of claims, host nation law, and service claims responsibility for the area.96 Claims procedures should describe how claims are received, investigated, processed, adjudicated, and paidag7 Training for claims personnel should cover foreign claims procedures, prevention of property damage and personal injury, investigative techniques, and documentation of preexisting damage.98
During mobilization and predeployment, SJAs and Chiefs of Claims should provide preventive law advice concerning home station storage of personal property, and information briefings to deploying personnel about theater claims policies, including policies concerning any types or amounts of personal property for which compensation will not be paid. SJAs and Chiefs of Claims should also coordinate with USARCS to facilitate the appointment of Foreign Claims Commissions or Claims Processing Offi~es.9~
During deployment and entry, claims personnel establish the claims operation and perform claims services. When establishing the claims operation, the senior claims attorney in theater should inform host nation authorities how claims will be processed, provide information to the local population about claims procedures, and obtain translation services and local legal advice.'@' Critical at this point are efforts by claims personnel and UCOs to document the existing condition of base camps, unit locations, or transportation routes; good documentation at the beginning of an operation will enable accurate payment of legitimate claims and prevent payment of fraudulent or inflated ~laims.'~' The digital camera that is a component of the RDL is very useful for this purpose. When performing claims services, the senior claims attorney should coordinate with UCOs to assist them with claims investigations; with Civil Military Operations (CMO) to facilitate liaison with local officials, learn about local customs, and provide CMO personnel information about claims procedures; and with military police and military intelligence personnel to share informati~n.'~~ Throughout the operation, claims perso~el must travel throughout the area of operations to receive, investigate, and pay claims.'03
During redeployment and demobilization, the senior claims attorney must ensure all filed claims are paid, closed, or transferred to a claims office with post-deployment responsibility for the area. Claims personnel at home station must be prepared to receive and process claims by deployed personnel for damage to property damaged in storage during deployment.
3.8 LEGAL ASSISTANCE
"Wherever you have judge advocates among soldiers, you will have the practice of Legal Assistance."'"
Captain Nicole Famer
Legal assistance is the provision of personal civil legal services to soldiers, their family members, and other eligible personnel.105 The mission of the Army Legal Assistance Program is "to assist those eligible for legal assistance with their personal legal affairs in a timely and professional manner by -(1) Meeting their needs for help and information on legal matters; and (2) Resolving their personal legal problems whenever po~sible."'~~ "From an operational standpoint, the mission of legal assistance is to ensure that the soldiers' personal legal affairs are in order prior to deployment, and then, in the deployment location, to meet the soldiers' legal assistance needs as quickly and as efficiently as possible."107 The Army Legal Assistance Program promotes morale and discipline, and thereby contributes directly to mission accomplishment.
Legal assistance attorneys, and legal staff working under their supervision, provide legal assistance in a variety of settings, including combat readiness exercises, premobilization legal preparation (PLP), soldier readiness

Program processing (SRP), demobilization briefings, noncombatant evacuation operations, client interviews, informal requests for assistance, federal and state income tax assistance, and preventive law programs.'08 They provide extensive legal services: ministerial and notary services, legal counseling, legal correspondence, negotiation, iegai document preparation and filing, limited in-court representation, legal referrals, and mediation.'0g They handle a wide variety of cases: family law, estates, real property, personal property, economic, civilian and military administrative matters, torts, taxes, and civilian criminal matter^."^
Legal assistance is provided at the Theater Army headquarters, Theater Support Command headquarters, main and rear command posts in Army of Excellence divisions and corps, and main command posts in Force XXI divisions and corps, and as required at brigade or lower echelons.lll While each service and each troop contributing nation is responsible to provide legal assistance for its personnel, some legal assistance may be required at joint or multinational headquarters.
Before mobilization, active and reserve component SJAs should conduct regular and proactive preventive law programs, resolve legal concerns of soldiers, their families, and other eligible personnel prior to deployment, and plan for mobilization and deployment processing. In conducting such programs, SJAs should coordinate with and involve the reserve component judge advocates (such as MSO JAGSOs or the judge advocate sections of GSUs) which will be assigned to assist their organizations upon mobilization, or with whom they have developed training associations. Preventive law programs provide information to service members and families that enable them to avoid legal problems, or to identify concerns and seek prompt assi~tance."~ Regular SRP processing, along with reserve component PLP, ensures soldiers and emergency-essential civilian employees have their legal affairs in order and are prepared for deployment. Because legal needs may not be met upon deployment, SJAs must plan to provide legal assistance to large numbers of personnel
Legal Support to Operations
preparing to deploy. SJAs must also plan to provide legal assistance to personnel in the deployment theater and family members at home station, mobilization stations, or elsewhere during the operation.l13 The MSOs and the judge advocate sections of the GSUs described in Chapter 2 provide SJAs the capability to provide this surge and sustainrnent legal assistance.
During mobilization and predeployment, the SJA and Chief of Legal Assistance should manage SRP processing, coordinate with the local bar and courts concerning current legal assistance issues or stays required by the mobilization or deployment, provide legal assistance briefings for family members, and resolve as many legal concerns as possible before deployment.'14 SRP processing should review, at a minimum, Soldiers' Group Life Insurance (SGLI) beneficiary designations, requirements for wills or powers of attorney, the existence of Soldiers and Sailors Civil Relief Act issues or any pending civilian or military charges, the receipt of Geneva Convention briefings, and family care plan concerns.115Providing advance SRP packets to deploying soldiers enables them to consider their legal needs in advance, to come to the SRP with the information needed to process efficiently, and to leave with the legal products and advice they require.l16
During deployment and entry, SJAs must provide legal assistance both in the deployment theater and at home station. Due to the special attorney- client relationship and the possibility of conflicting interests between commanders and soldiers, the SJA
generally designates specific judge advocates as legal assistance attorneys. Because of the increased demand for legal assistance services during deployments, the SJA may allow judge advocates who are not legal assistance attorneys to provide legal assistance services when consistent with professional standards. The SJA will rely heavily on the judge advocates assigned to GSU supporting the installation and the MSO supporting the deployment. Also, the SJA may seek support from the Senior Defense Counsel, who may assign Trial Defense Counsel to provide legal assistance consistent with the Trial Defense ~nission."~In theater, legal assistance attorneys should be prepared to resolve the full range of legal assistance cases, and to provide federal and state income tax assi~tance."~The Chief of Legal Assistance in theater, should establish liaison with the U.S. Consulate, and ensure effective communication and courier service between legal assistance offices in theater and home station.llg At home station, in addition to providing legal assistance to the home station, the legal assistance office must provide required assistance to deployed legal assistance attorneys and provide legal assistance briefings to family members.'*O
During redeployment and demobilization, the SJA and Chief of Legal Assistance must resolve legal assistance matters in the deployment theater, or coordinate to ensure they are resolved after redeployment, and resolve matters at home station that arose or remained unresolved during the operation.
3.9 SUMMARY
The JAGC provides comprehensive legal support to operations across the spectrum and throughout all phases of military operations. Staff Judge Advocates ensure OPLAW and core legal disciplinary support at each level of command from the theater through brigade, and at lower echelons as required. This chapter described, in general terms, what legal support is provided. The following chapters will describe how legal support is provided to specific types of operations.
Legal Support to Operations

Chapter 4 Legal Support in Theater Operations

CONTENTS

THE THEATER …………………………

Key Terms and Distinctions ….. Communications Zone and
Combat Zone …………………….

Strategy…………..l ……………. Structures of Command and

.PAGE
4-2

4-2

4-3

4-4

Theater command structures and
Coordlnatlon…………….

….
4-4

campaign planning originated in World War II and have existed. with variations. ever since . In the 1980s. during digestion of the hard lessons of Vietnam. the services … adopted [the] concept of an intermediate level of war. between the strategy from Washington and the tactics of the battlefields. Operational art received its foml designation in the 1982 version of the Army's Field Manual 100.5. with the other services closely following . The present flowering of joint doctrine. still in progress. has been marked in Congress by the passage of thh Goldwater-Nichols Act in 1986 . At last. the United States has begun to place in print ideas and techniques in ferment since the time . of Lincoln and Grant …
Lieutenant Colonel Daniel K.Bolger
Savage Peace"'
Command, Control, and Support Relatlonshlps ……….

PLANNING AND DECISION
MAKING…………………………………….

Planning………………………………

Functions of Staffs ………………. The Military Decision Making
Process…………………………….

Decision Making in a Time- Constrained Environment ….. SJA Planning. Decision- Making. and Orders ……………

LEGAL SUPPORT IN THEATER …..
Introduction…………………………

Overseas Presence and Force
Projection………………………… Legal Support in Theater ……… The United States as a
Theater……………………………..

Technical Channels ………………
MATERIEL…………………………….

Legal Automation ………………

. .
Moblllty……………………………….

Communications………………….
TRAINING………………………………….

Principles of Training …………… Mission Essential Task Lists … Planning for Training ……………

LEGAL SUPPORT AND SPECIAL
OPERATIONS…………………………….

Legal Support and Special
Operations………………………..

Legal Support and Civil Affairs
4-8

4-10

4-11

4-11

4-12

4-18

4-20

4-21

4-21

4-21

4-23

4-24

4-24

4-25

4-25

4-28

4-29

4-30

4-30

4-32

4-35

4-36

4-38

4-39

Though many Law of War problems arose, . . . judge advocates [in theater] also dealt with a signGcant number of other legal issues. . . .As so aptly stated by one judge
advocate involved, somewhat tongue-in-cheek, "You can only tell the C.O. that he can't shoot the prisoners so many times. You reach a point at which when the boss has run out of beans and bullets, has certain equipment requirements, and has the locals clamoring to be paid for property damage, you have to be prepared to provide the best possible legal advice concerning these issues as well. "
Lieutenant Colonel David E. Graham
Operational Law-A Concept Comes of Age1"
4.1 THETHEATER
Operational art is best understood within the context of a theater, a geographical area outside the continental United States for which a Commander- in-Chief (CINC) of a unified command has been assigned military re~ponsibility.'~~ The theater is the setting within which United States commanders determine when, where, and for what purpose major forces will be committed. It is the setting into which forces are deployed and later inserted into or withdrawn from operations. It is the setting within which optimal effect can be made of the resources of personnel, materiel, and time because the commander is consciously employing them to achieve desired strategic ends.lZ4
Legal support to operations is the comprehensive set of professional legal functions and disciplines needed to support worldwide operations. Due to the modem national security structure of the United States, these worldwide operations involve military forces projected into and within theaters.
Accordingly, judge advocates must have a detailed understanding of the terms, distinctions, and structures of command and coordination associated with theater operations. They must also understand several separate but complementary relationships of command, control, and support that are exercised within theaters.
P4.1.1 Kev Terms and Distinctions
Theaters may be described as either continental, i.e., European Command (EUCOM), Central Command (CENTCOM) or Southern Command (SOUTHCOM), or maritime, i.e., Pacific Command (PACOM), or littoral based on their dominant geographic
characteristic^.'^^ A unified combatant commander who has a geographic area of responsibility-recall that the ClNCs
Command (STRATCOM), and Space Command (SPACECOM) do not-is also referred to as a theater commander.lZ6 United States Joint Forces Command (US JFCOM), formerly Atlantic Command (ACOM), maintains its Atlantic area of responsibility.
2l.V.
Because unified commands were created following World War II to integrate the separate services into an efficient warfighting tearn,lZ7 a CINC's theater is sometimes called a theater of war, regardless whether combat operations are taking place within it. This theater of war may be subdivided into subordinate theaters of operations, which may be further subdivided into areas of operations (AO). The CINC has great freedom to organize his theater, and he will frequently designate other areas of significance, such as joint operations areas (JOA), joint zones (JZ), and joint rear areas (JRA).
4.1.2     Communications Zone and Combat Zone
One traditional organizational device divides the theater of war into a

-communications zone (COMMZ) and a combat zone (CZ). The COMMZ and the CZ are contiguous and do not overlap.128 The COMMZ is the rear part of a theater of operations, and it contains the lines of communications, air and sea ports, establishments for supply, maintenance, field services, personnel support, health services and evacuation, and other agencies required for the immediate support and maintenance of the field forces. The COMMZ reaches back t6 &e. continental United States or to ano~;d~c's area of responsibility.
The CZ is the territory forwe of the COMMZ. In the European theater, the boundary line falls at the Army group rear boundary: that is, everything forward of the Army group rear Legal Support to Operations
boundary was the CZ. The CZ is the area required by operational and 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.
Noncombat contingencies and contingencies that involve sporadic or isolated combat create the need for alternatives to the CZ device. A contingency is "[a]n emergency involving military forces caused by natural disasters, terrorists, subversives, or by required military operations."129 Contingencies cause CINCs to designate areas of conflict (AOC), geographic areas where hostilities are imminent, and areas of assistance (AOA), areas where forces conduct humanitarian assistance or other support operations
Commanders, SJAs and other Army leaders deploying forces to a theater of operations must understand yet another distinction. A developed or mature theater is typically one in which the United States has an existing overseas presence, to include a support structure of communications, logistics, air defense, ports, etc. An undeveloped or immature theater lacks one or more of these features. When projecting force to an immature theater, leaders must choose between creating a support base in the theater or operating with external support.131
same service that are commanded by separate CINCs, such as Army mechanized infantry and Army special forces.
A joint task force (JTF) consists of elements of two or more services (Air Force, Army, Navy, Marines) operating under a single commander. The Secretary of Defense (SECDEF), as well as the CINCs, may establish JTFs, which are created to perform theater missions having specific limited objectives or missions of short duration.
There are other types of joint command. One of these is the subordinate unified command, which, unlike a JTF, has broader, enduring objectives or missions. Examples of subordinate unified commands are Alaskan Command (ALCOM), U.S. Forces Japan (USFJ), and U.S. Force Korea (USFK), all of which fall within the area of responsibility of CINC PACOM. Another type of joint force that a CINC may create within a theater is the functional component command, which focuses on operational responsibilities that cut across service lines. The four types of functional component commands are the Joint force land component command (JFLCC), the Joint force air component command (JFACC), the Joint force maritime component command (JFMCC), and the Joint force special operations component command (JFSOCC).
The judge advocate will encounter a great number and variety of joint boards, cells, and other joint organs within a theater. For instance, land forces participate in the joint targeting process
Legal Support to Operations
as defined by the Joint Force Commander (JFC), a generic term for a commander of the various joint forces outlined in the previous section of this chapter. JFCs may delegate targeting oversight functions to a subordinate commander, or they may establish a Joint Targeting Coordination Board (JTCB) within their staff either as an integrating center for this effort or as a JFC-level review mechanism. While the JTCB maintains a campaign-level perspective-and thus is not involved in selecting specific targets and aim points or in developing attack packages-an OPLAW JA must serve on this board.
There are many other examples. For instance, the JFC may establish a series of joint logistics centers, offices, and boards to coordinate the joint logistics effort. Judge advocates may be called upon to furnish legal advice to these organizations, which include the following:
Joint Transportation Board.
Joint Movement Center .
Joint Petroleum Office.
Joint Civil-Military Engineering
Board.
Joint Facilities Utilization Board.
CINC Logistic Procurement Support
Board.
Theater Patient Movement
Requirements Center.
Joint Blood Program Office.
Joint Mortuary Affairs Office.
Joint Materiel Priorities and
Allocation Board.

4.1.4.2 Multinational (Combined)
The term multinational describes operations conducted by more than one
Legal Support to Operations

Army doctrine calls upon commanders and staffs to revise estimates continuously-throughout the military decision making process-as factors affecting the operation change, as new facts are recognized, as assumptions are replaced by facts or are rendered invalid, or as the mission changes.
Staff estimates analyze the influence of factors within particular staff officers' fields of interest on the accomplishment of the command's mission. In coordination with other staff officers, the officer preparing an estimate develops feasible courses of action, and then analyzes and compares those feasible courses of action. The results are conclusions and recommendations.
These conclusions are presented to the commander, who thus may hear a personnel estimate, an intelligence estimate, an operation estimate, a logistic estimate, a civil-military operations estimate and any other desired staff estimates before arriving at his own estimate. The commander bases his estimate on the METT-TC, on personal knowledge of the situation, on ethical considerations, as well as on the staff estimates. The result is a decision, which can be incorporated into a plan or order and then executed by subordinate units.
Receipt of Mission. The parallel estimates developed by staff and commander are the heart of the elaborate decision-making process. The decision-making cycle begins upon receipt of a mission, which the higher headquarters assigns or the commander simply deduces from formal or informal communications with his senior commanding officer. Even before closely analyzing the mission, the commander at this point may seek more infomation about the current situation and about the mission itself, and he may or may not ask the staff to assist him at this early point.
Mission Analysis. The commander then conducts a rather formal mission analysis so as to obtain a clear understanding of what it is he is being asked to do. Mission analysis involves identifying the tasks that must be performed, the purpose to be achieved through accomplishing the assigned tasks, and the limitations on his unit's actions, if any. Some tasks will be specified in the operation plan or order received from higher headquarters. Other tasks may be implied. The limitations a commander may discern will include a variety of constraints upon either the operation or the planning process. Examples are phrases in a higher headquarters order that specify "Be prepared to . . . ," "Not earlier than . . . ," "Not later than . . ." Time is a frequent limitation.
Restated Mission. The restated mission is what results from the commander's mission analysis. It becomes the basis of the commanders and staff estimates. If these are written, it is paragraph 1. Later, when the commander issues the operation plan or order, this restated mission will be paragraph 2 of that document.
Planning Guidance. The commander may provide planning guidance to the staff when he announces his restated mission or at any other point in the process. The goal is to provide a common point of departure for the different staff elements without introducing bias into their estimates. He may, for instance, issue definite guidance on whether and how a particular weapons system will be used. He may request that a particular course of action be developed or eliminated altogether. The frequency, amount, and content of planning guidance will vary with the mission, time available, situation, information available, and experience of the commander and the staff.
Course of Action Development.

Relying upon the restated mission, any planning guidance, and estimates, the coordinating staff officers then prepare courses of action. The ongoing estimate process is interactive within a particular decision cy~1e.l~~ Staff officers exchange information while concurrently analyzing how relevant factors from their disciplines affect the courses of action. Furthermore, the development of courses of action itself is interactive. The operations officer (U-3/J-3/G-31s-3) will frequently sketch the tentative schemes of maneuver and supporting fires (see section below on plans and orders) he is considering as part of the operations estimate. The intelligence officer (U-2/J-2/G-2/S-Z) or logistics officer (U-4lJ-4lG-41s-4) might quickly identify one of these schemes of maneuver as not feasible,138 enabling another course of action to be developed before a series (usually three) of courses of action is formally incorporated into the staff estimates that are briefed to the commander.
Course of Action Analysis (War Gaming). The chief of staff or
executive officer ensures that staff estimates are coordinated, that differences of opinion are identified and resolved, and that only issues requiring the commander's personal attention are presented to him for decision. However, he must take great care not to gloss over or compromise genuine issues for the sake of presenting a common option to the commander. In some units, the Chief of Staff consolidates the various staff estimates and presents one overall staff estimate to the commander. The Courses of Action contained in the estimates are war gamed to determine strengths, weaknesses, and details.
Course of Action Comparison and Selection. The commander considers modifying the courses of action evaluated in the staff estimates and war gamed, and then, if necessary, returns them for another round of analysis and comparison by the staff. If satisfied with the courses of action as formulated, the commander is to compare all of the courses of action validated by the staff as feasible. Then he makes a decision by adopting the one he thinks is optimal.
Course of Action Approval. Having decided on a course of action to accomplish the mission, the commander announces his decision and concept to key members of the staff. Subordinate commanders may also be present. The concept is the commanders description of how he visualizes the conduct of the operation. The commander may announce his decision and concept orally and in sufficient detail so staff officers and subordinate commanders understand what they must do and, if necessary, can execute the operation without further instructions.
Legal Support to Operations

for developing an OPLAN when time is relatively unconstrained. It remains the subject matter for baseline instruction on decision-making in the Army's system for leader development and reflects time-honored principles. However, the Army recognizes a modified version of the MDMP for use in decision cycles that occur after operations commence. Some refer to this as the "combat decision- making process" or "CDP," although the MDMP remains the only doctrinally recognized "process." The CDP is best understood as selectively shortening the MDMP without substantially changing it. In theory, the MDMP is not intended to be a rigid, lockstep approach to arriving at a decision;140 in practice, it may become unwieldy, particularly when faced with an enemy commander who may gain great advantage by shortening his decision cycle.
The CDP strives to prevent the commander-as military operations involve ever more technical and complex systems-from being submerged in vast oceans of information generated by the staff. The CDP seeks to give the commander the information he truly needs. It seeks to produce decisions that are "close enough" and have the virtue of being quickly made and passed onto subordinates for decentralized execution.
The CDP abbreviates the MDMP using four primary techniques. 141 The first is to increase the commander's involvement, allowing him to make decisions during the process without waiting for detailed briefings after each step.
The second technique is for the commander to become more direct in his guidance, limiting options. This saves the staff time by focusing members on those things the commander feels are most important.
The third technique, and the one that saves the most time, is for the commander to limit the number of COAs developed and war gamed. In extreme cases, he can direct that only one course of action be developed. The goal is an acceptable COA that meets mission requirements in the time available, even if it is not optimal.
The fourth technique is maximizing parallel planning. Parallel planning means that several echelons conduct the MDMP at the same time.'" Although parallel planning is the norm, maximizing its use in a time-constrained environment is critical. In a time-constrained environment, the importance of warning orders increases as available time decreases. A verbal warning order now is worth more than a written order one hour from now. The same warning orders used in the full MDMP should be issued when the process is abbreviated. In addition to warning orders, units must share all available information with subordinates, especially Intelligence Preparation of the Battlefield (IPB) products, as early as possible.
While the steps used in a time-constrained environment are the same, many of them may be done mentally by the commander or with less staff involvement than during the full process. The products developed when the process is abbreviated may be the same as those developed for the full
Legal Support to Operations
the test ,through field application. Development is a constant and iterative process.
4.3     LEGAL SUPPORT IN THEATER
4.3.1     Introduction.
A solid gasp of the theater and associated concepts introduced in the first part of this chapter makes possible a more precise understanding of how legal support is practiced and delivered. When Army forces are not actually conducting operations in a theater, the JAGC supports the mission of the Army and its major commands within CONUS to prepare those forces for eventual employment by a CINC within a theater. That preparation is a massive job, and it consists of everyhng necessary to organize, train, and equip Army forces "primarily for prompt and sustained combat incident to operations on land" and "for the effective prosecution of
war. "'45
The day-to-day mission of readiness-organizing, training, and equipping forces for operations-inevitably involves Army commanders and judge advocates in legal issues, questions, and cases that may seem only remotely "operational." Judge advocates serving throughout the major commands of the Army and in the FOAs of TJAG will often, properly, conceive of themselves as practicing within a narrow portion of a single legal discipline.
Hence the judge advocate defending the Army in multibillion-dollar environmental litigation is practicing "federal litigation" and "environmental law" within the Civil Law discipline. That judge advocate is also principally discharging the advocate role. Hence the judge advocate investigating a major allegation of procurement fraud may be practicing Contract Law within the Civil Law discipline while discharging principally a "judge" role. Hence the Staff Judge Advocate at a CONUS installation where advanced individual training is conducted may be counselor to the commander on detailed criminal law issues pertaining to improper relationships between instructors and trainees. In these and countless other examples from the daily legal practice of uniformed attorneys in CONUS, legal support reverts to its component core disciplines. These core legal disciplines also dominate the technical language used to describe that da. practice.
For the environmental litigator, the procurement fraud investigator, and the training installation SJA in these examples, the terms "legal support to operations" and "OPLAW" serve as reminders of the readiness challenge that underwrites all of their work. It also reminds them of the need to remain generally competent across all legal disciplines in case their next assignments are to theaters. All judge advocates must be prepared to deliver legal support to operations.
4.3.2     Overseas Presence and Force Proiection.
Force projection follows a general sequence, although stages overlap in time and space (for instance, mobilization and deployment may be continuous and occur simultaneously or sequentially). Force projection includes
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.
Corps. 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. 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 Army Service Component 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.
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 fixed organization and contains a mix of subordinate units as required by the size and c~~guration
of the corps.

4.3.4     The United States as a Theater Pomestic O~erations).
This is addressed separately in Chapter 7.
4.3.5     Technical Channels.
, The command channel is the direct, official link through which one headquarters passes orders and instructions to subordinate headquarters.14' The command channel links one commanding officer to another. A technical channel is a link between two headquarters that transmits orders, instructions, advice, recommendations, and information inappropriate for the command channel because of their volume, specificity, or routine nature.150
Legal Support to Operations
The practice and delivery of legal support in operations rely heavily on technical channels. As described earlier, many modern legal problems are complex, demanding expertise and information that will only rarely reside at a single echelon of command. Technical channels-particularly when linked to expertise and information available at CLAM0 and TJAGSA- make synergy possible even for judge advocates facing problems in distant theaters.
Those judge advocates and their supported commands benefit from two separate channels, corresponding to the two branches of the chain of command for Army forces in a joint force. Recall from earlier in this chapter that one branch of that chain of command is for operations and the other for administration and logistics. Similarly, one technical channel carries information and legal expertise associated with operations (command and control functions); the other carries information and expertise associated with administration and logistics (sustainment and personnel services support functions).
For example, the SJA advising the 10th Mountain Division at the start of military operations in Haiti in September of 1994 used a technical channel that ran through the ASCC SJA (who was also the JTF SJA) to the USACOM (now USJTFCOM) SJA to the legal advisor for the CJCS. This channel provided valuable guidance on rules of engagement and other operational matters. The SJA of the 10th Mountain Division also used a technical channel that ran through the ASCC to FORSCOM and then to Army OTJAG. This channel provided valuable guidance on a wide variety of legal issues relating to administration and logistics.
Of course, legal issues sometimes will not fall neatly into command and control, sustainment, and personnel service support categories _Also,many complex legal issues will require expertise from several legal disciplines. In these situations, SJAs achieve synergy on a legal issue by tapping whichever channel contains the necessary information or expertise. Often, both channels must be consulted on the same issue. This approach is consistent with the JAGC operating as a single large legal organization, whereby its several members are expected to support each other with information and expertise necessary to assists their clients.
4.4 MATERIEL
All legal personnel must be well equipped and highly trained in order to practice and deliver legal support in a theater of operations. The most critical categories of equipment are legal automation, mobility, and communications. Training of legal personnel, meanwhile, must be conducted according to the Army's principles of training.
4.4.1 Legal Automation
The JAGC requires a dedicated system of automation to provide responsive legal services at all echelons of command. That system is the Legal Automation Army-Wide System (LAAWS). LAAWS integrates legal
and the substantial increase of data that is required to be processed, manipulated, and transmitted in an ever decreasing amount of time. Specific details regarding hardware and software technical requirements can be located by contacting CLAM0 or the JAW Proponent, Combat Developments Department, Organization and Materiel Branch, located at TJAGSA, Charlottesville, Virginia. Its current configuration is as follows:
a laptop computer (with sufficient processor and memory capabilities to interact with ABCS, to conduct efficient research from electronic databases, and to store a large volume of required legal references and products with removable hard drive for secure storage of classified information. CD ROM reader (preferably internal) scanner-printer (battery backup) PCMCIA fax modem (cellular phone and satellite telephone up-linkable) digital camera digital audio card and microphone hard-shell case full range of software full range of legal references on compact disks andlor hard drive

RDL requirements are based upon staff functions, OPLAW (C2 and Sustainrnent) responsibilities, operations at key operational nodes, core legal discipline tasks, and mobility requirements.
The SJA, DSJA, Legal Administrator, and CL,NCO perform the staff functions of providing advice and organizing, sustaining, controlling,
Legal Supportto Operations
supervising legal services throughout the area of operations and training legal personnel. They each require an RDL to provide legal advice to the command, to access legal technical support, and to exercise legal technical supervision. OPLAW JAs designated to serve in a BOLT or the TAC CP (or other mobile or fixed command cells or command posts) and in planning and operation cells, each require an RDL. The RDL is required to access ABCS, LAAWS networks, and other secure or controlled communication systems, and to perform core legal discipline tasks in locations away from the main and rear CPs or apart from other legal sections located in the main or rear (based on organizational design and where the legal function is performed). Of utmost importance is the ability to interact with communication and network systems capable of transmitting privileged information or communications (e.g., defense counsel and client; legal assistance attorney and client), classified materials and matters of national security. Each element within the SJA section (as well as the military judge and trial defense elements) requires an RDL to perform tasks relating to its core legal discipline. Additional RDLs are required for judge advocates within divisions of the SJA section who must travel throughout the area of operations to provide services (e.g., claims judge advocates, trial counsel, and legal assistance attorneys).
LSOs and MSOs require RDLs to command the organization and supervise legal services. LSTs require RDLs to perform tasks related to core legal disciplines, and additional RDLs for each judge advocate who must travel throughout the area of operations.
CONUS based legal organizations which support mobilization operations, or which are part of the Base Engagement Force or Base Generating require RDLs to support operations. These organizations also include the legal training organizations of TJAGSA, legal NCOES, and legal sections of Division Training and Exercise elements, and Training Centers.
Finally, other judge advocates and legal specialists in all legal organizations require components of the RDL to perform their legal duties (one laptop computer per attorney and one computer for 80% of the legal specialists).
The RDL equips judge advocates deploying to theater with the basic load of legal references, country-specific materials, and forms necessary to spot and resolve the most common legal issues that will arise during a contingency operation. Digital databases, such as that maintained by the Joint Electronic Library and CLAMO, contribute to the achievement of this goal by furnishing current legal references and recent lessons learned from exercises, the Combat Training Centers, and deployments around the world. The availability of CD-ROM writing equipment at division and corps staff judge advocate sections makes possible the storage of massive amounts of material on compact disk in the days immediately prior to deployment to or within a theater. Much of this material may be obtained during the predeployment period from the exploding numbers of legal reference sites on the World Wide Web. When the deployed judge advocate element is incapable of resolving an issue, the RDL also provides the capability to request and receive advice in digital format from technical judge advocate channels.
Because it is a set of capabilities rather than a fixed package of hardware and software, the RDL permits the JAGC to continue to harness the rapid improvements in the marketplace. Because it is a standard set of capabilities, the RDL provides a common basis to permit training, organizing, and equipping OPLAW JAs and legal personnel.
Despite advances in information technology, legal personnel must always be prepared to provide operational support. Therefore, legal personnel should deploy with paper copies of required references and forms.
4.4.2 Mobility
Embedded legal personnel depend on the units to which they are assigned or attached for transportation. Separate legal organizations, such as LSOs or MSOs, require organic transportation assets. Sufficient vehicles are required for legal personnel, i.e., the SJAICJA and his staff, military judges, and defense counsel. The number and type of vehicles will depend on the commander's requirements for legal services. Normally, however, a commander should dedicate four High Mobility Multipurpose Wheeled Vehicles (HMMWV), one 5 ton truck, and four cargo trailers to a division or corps SJA section and one HMMWV and one cargo trailer to each CJA
advocates must use combat net radios (CNR), area common user (ACU) telephones, Army Data Distribution System (ADDS) equipment, and Broadcast System (BDCSTS) equipment, where necessary.
Principles of Training

1.     
Train As A Combined Arms And Services Team

2.     
Train As You Fight

3.     
Use Appropriate Doctrine

4.     
Use Performance-Oriented Training

5.     
Train To Challenge

6.     
Train To Sustain Proficiency

7.     
Train Using Multiechelon Techniques

8.     
Train To Maintain

9.     
Make Commanders The Primary Trainers

Staff judge advocates must have a training philosophy. Training affords staff judge advocates as well as commanders the opportunity to explore and surmount the variety of problems and challenges that will always confront them. When a staff judge advocate takes this attitude, most of his or her problems-and those of the section-will be met and solved in the course of regular training, and thus will cease to be problems. The same attitude wili prevail again over new problems.
Training must address both the soldier and the lawyer-tactical skills and legal skills. Soldier training should address common soldier skills, such as use and maintenance of weapons, NBC protection and decontamination, land navigation, first aid, and radio procedures-how to shoot, move, and communicate. Training applies just as crucially to legal research, writing, advocacy, case and project organization, automation, maintenance, and safety. Training is all-encompassing and should be related to everything lawyers and legal personnel do to support the commander on the battlefield.
The key to all successful training lies in raising the quality of individual skills and the teamwork of small sections or units. Success in everythng from a battle or other real world military operation to large scale legal representation is dependent on the coordinated effort of a number of small units of diverse types working together to accomplish a mission. Other things being equal, the military force with the best-trained small units will prevail, and the legal organization with the best-trained small teams will prevail. Even if other things are not equal, superior training at the individual and small section level will often carry the day.
Staff judge advocates prepare for operations in a theater by adhering to the Army's principles of training. There are nine.
Train As A Combined Arms And Services Team. "Combined arms and services" is a technical term referring to military actions that integrate combat functions (infantry, armor, and aviation), combat support functions (field artillery, air defense artillery, and engineers), and combat service support functions (logistics, personnel services, and health
Legal Support to Operations
services).154 The example provided in Field Manual 25-100, Training the Force, is that of the division commander who trains regularly with his entire "slice" of "basic combat, combat support, and combat service support systems." SJAs recognize that this first principle mandates not only that they support the command's desire to conduct collective training with a full "slice" of judge advocate support, but also that the training of an SJA section itself must integrate claims, legal assistance, military justice, administrative law, civil law, international law, and all other aspects of legal support to operations. It also means that the SJA must coordinate with reserve component legal elements to have them participate in major exercises.

2.     
Train As You Fight. This principle demands that training take place under realistic conditions. Operations in Panama, the Persian Gulf, northern Iraq, Haiti, Bosnia, and other places confirmed that legal issues are some of the most challenging the command and staff will face. They must be incorporated into collective training events, just as smoke, noise, chemical attacks, battlefield debris, loss of key leaders, and cold weather must be incorporated.

3.     
Use Appropriate Doctrine. Training must conform to Army doctrine. Recall that one of doctrine's roles is to reflect a shared vision that can serve as the basis for planning, organizing, leading, equipping, and training the force. We are a doctrine-based Army. Army

doctrine is contained in Field Manual 100-5, Operations and supporting doctrinal manuals, such as this one. Army training doctrine is contained in Field Manual 25-100 as well as in Field Manual 25-101, Battle Focused Training. Judge advocates must be conversant in these references.
4.     
Use Performance-Oriented Training. Soldiers and lawyers learn best by doing, by putting their hands and minds on the implements they will be required to use when the real test of combat or deployment comes. The Army stresses use of a full range of training aids, devices, simulators, and simulations (TADSS) to take the individual or unit being trained out of the sterile classroom and into a practical situation that reproduces the conditions under which they must be able to perform. The Army's four Combat Training Centers, with judge advocate observer-controllers or trainers at each, provide the most realistic training. An SJA invokes this principle whenever he and the Chief of the Criminal Law Team organize rehearsals of trial counsel's opening statements, examinations, motions arguments, or closing arguments. SJAs also invoke this principle when they insist that RDLs and other equipment are brought to the field and that every division generates its standard products during exercises.

5.     
Train To Challenge. SJAs and other judge advocate leaders never apologize for the challenging training they plan and execute. OPLAW demands tough, realistic

training that challenges legal personnel physically and intellectually. Such training builds competence and confidence by developing and honing skills. It inspires excellence by giving each individual a glimpse of how daily activities fit into the broader mission and by fostering initiative, enthusiasm and eagerness to learn.

6.     
Train To Sustain Proficiency. The SJA section must always be ready to deploy; it must be vigilant not to "peak" and then have proficiency drop as time passes, skills decay, and new people replace experienced people.

7.     
Train Using Multi-echelon Techniques. Field Manual 25-100 tells us that "[tlo use available time and resources most effectively, commanders must simultaneously train individuals, leaders, and units at each echelon in the organization during training events." This principle not only demands that legal specialists perform individual tasks (e.g., disassemble and assemble M16 rifle, fill in the blocks of a nonjudicial punishment form) but also demands that the claims division and the entire SJA section perform collective tasks (e.g., process, investigate, adjudicate, and pay a foreign claim; administer the military justice system, etc.). Quality training exercises are so rare that leaders must make them count on many different levels.

8.     
Train To Maintain. The upkeep of equipment and weapons is as much a part of training as using the equipment expertly. Legal personnel routinely perform virus checks and

other diagnostics, change printer cartridges, and protect our equipment by ensuring that atl work areas are kept clean and dry. They frequently draw and maintain all of the tentage, vehicles, weapons, and equipment they will need in real deployments to a theater of operations.

9.     Make Commanders The Primary Trainers. Commanders are responsible for the training and performance of their units. They personally ensure that exercises are based on real world mission requirements, identify the applicable Army standards, assess the current level of proficiency, provide the required training resources, and develop training plans designed to create proficient individuals, leaders, and units. Similarly, SJAs-with command support-must be the primary trainers of their section.
4.5.2     Mission Essential Task Lists (METL)
Mission essential tasks are collective tasks in which an organization must be proficient to accomplish some portion of its mission in a theater. The Mission Essential Task List (METL) for an SJA section consists of the mission essential tasks on which the section focuses its training. The METL concept was conceived in recognition that units and organizations cannot achieve and sustain proficiency on every possible training task. "METL development" is not only applicable to corps and divisions and brigades; it also applies to subordinate elements, such as the staff, and-within
The METL development process then continues as the SJA and the DSJA help guide each of the separate division chiefs (operational law, claims, military justice, administrative law, civil law, legal assistance, international law)-to develop METLs for their elements. In addition, they guide the BOLTS in the development of the BOLT METLs. LSOiMSO commanders do the same for LSTs.
Throughout this process, S JAsDS JAs and LSOiMSO commanders mentor subordinates to ensure that the METLs and corresponding training objectives developed accurately reflect tasks that will be essential to mission accomplishment in wartime. Through leadership and personal example, they guarantee that METL development is a dynamic process and that all section training is directed toward METL tasks, conditions, and standards.
4.5.3 Planninp for Training.
Training Assessment. Once they have developed and received approval of a METL, SJAsDSJAs and LSOMSO commanders then conduct training assessments. They compare current proficiency with the standards listed for each mission essential task. They use all available evaluative material to make this comparison, to include consultations with the separate team chiefs. Then they develop a training strategy to achieve a "trained" proficiency level in each supporting collective subtask and individual task.
Legal Support to Operations

Throughout this process, they consult the commander's training guidance documents, which identify major training events.161 In this way, they are able to incorporate Combat Training Center rotations and other major exercises into the training plan.
Training Guidance. Soon after taking command, a commander issues command training guidance and an up- to-date long-range training calendar for the unit. The SJA and the DSJA present and receive approval of the SJA section METLs during the one of the quarterly training briefs or semi- annual training briefs early in the commander's tour. This same process applies to the METLs of the LSOsMSOs, as well as RC units with embedded judge advocate sections; however, the training briefs by which their METLs are reviewed and approved may be presented to their peacetime chains of command in addition to, or in lieu of, presentation to the their wartime gaining commanders.
Training briefs produce a training contract between commanders and SJA or LSOMSO commanders. The commanders provide resources and protect the SJA sections or LSOsMSOs from unprogrammed taskings. SJAs and LSOMSO commanders then lock in and execute approved training plans. This shared responsibility helps maintain priorities, achieve unity of effort, and synchronizes actions to achieve quality training and efficient resourcing.
The training briefing is a highlight of the commander's leader development program. It provides the commander an opportunity to coach and teach subordinates on the fine points of his
>     Assisting in the creation and supervision of military tribunals and other activities for the proper administration of civil law and order.
>     Assisting civil administration activities, including:
>     The establishment and operation of local judicial and administrative agencies.
>     The closing and reopening of local courts, boards, agencies, and commissions.
>     Defining the jurisdiction, organization, and procedures of local government institutions.

Legal Support to Operations Chapter 5 Legal Support in War
Whenever Amy forces are called upon to fight. they fight to win . Amy forces in combat seek to impose their will on the enemy … Victory is the objective. no matter the mission . Nothing short of victory is acceptable …
Field Manual 100.5. operation^'^^

In 1970. with all the [lst Cavalry Division] lawyers located at the division main headquarters. such activities as interviewing witnesses for trial. advising convening authorities located outside of Phuoc Vinh and. in some instances. actively conducting trials at firebases. required traveling by air. Additionally. troops normally did not come into headquarters for personal legal assistance or to file claims; judge advocates brought legal services to them … [Tlhanks to the division chief of staa Col. Edward C. Meyer. a helicopter was dedicated one-half day a week for use by the Amy lawyers . It was known as the "lawbird" on the days it flew .
Colonel Frederic L.Borch III
Judge Advocates in Combat'70
CONTENTS

THE LIMITS OF WAR …………………. PHASEDANDNESTED
OPERATIONS…………………………….

CONCEPT OF LEGAL SUPPORT
IN WAR ……………………………………..

Command and Control. Sustainment. Personnel Service Support ……………….. Command and Control ………….
Sustainment………………………… Personnel Service Supp~rt ……

THE CORE LEGAL DISCIPLINES
IN WAR ……………………………………..

Administrative Law ……………….

Claims…………………………………

. .
Civ~l Law ……………………………..

Military Justice …………………….

International Law ………………….

Legal Assistance ………………….
ORGANIZATION FOR WAR ………..

Theater Legal Structure ……… Army Service Component
Command………………………….

Command Posts ………………….. Judge Advocate Disposition …. Brigade Command and Control Facilities ………………

MATERIEL IN WAR …………………….

I TRAINING FOR WAR ………………….

.PAGE
5-25 1

5.1 THE LIMITS OF WAR
In war, military force is the state's primary means to achieve victory. Among the categories of conflict between states, war is the most violent and the most dangerous. A modem nation at war-because of the enormity of the resources engaged and the destructiveness of the means employed-will frequently perceive the war as "total" and "absolute."171 For those fighting it, war will appear to spell victory or 'defeat, with no middle ground between those stark alternative^.'^^
A commander leads his forces to military victory in war by practicing operational art. He directs attacks against enemy centers of gravity.'73 He and the enemy commander are both constantly looking for an edge, for the opportunity to gain and maintain the initiative. Often it is the side that can adjust most rapidly that will gain this edge and go on to win. The commander seeks to outthink the enemy commander and thus give United States troops the advantage over their foes. This is often a matter of giving the enemy commander more problems to solve in a given time than he and his organization can possibly handle. It is a matter of exhausting the enemy's options, breaking the coherence of his operation, and forcing him to fight on our terms. Finally, it is a matter of physically defeating or destroying him.'"
Throughout history, a defining feature of wars has been that they include periods of intense, armed combat; soldiers, sailors, airmen and marines physically defeating enemy units by killing enemy soldiers, sailors, airmen, and marines in battles. For the individuals involved, sometimes reduced to fighting with bayonets or their bare hands, war is totally consuming. It absorbs every ounce of energy, will, and stamina, with nothing left in reserve. In such circumstances, war is absolute. It is life or death.
Yet the popularized notions of "total war," "absolute war," and "unlimited war" are misleading. As Peter Paret, one of Clausewitz' modem interpreters, has written, "If war .were one short, uninterrupted blow; preparations for it would tend toward totality, because no omission could ever be rectified." But in reality war is always a longer or shorter succession of violent acts, interrupted by pauses for planning, the concentration of effort, the recovery of energy-all on the part of two or more antagonists, who interact. A variety of elements within the opposing societies, the "free will1' of the leadership, which may or may not conform to the objective realities, and the political motives of war, will determine the military objective and the amount of effort to be expended. "War is merely the continuation of policy by other
Thus, the term "unlimited war" does not accurately describe even prolonged large-scale conflicts in which forces suffer heavy casualties. To be sure, as Clausewitz says, war is "an act of force, and there is no logical limit to the application of that force." But "[iln the real world, the absolute is always modified …
Legal support in war involves the study and application of those limits our
Legal Support to Operations
government formally imposes on the waging of war. In conjunction with national policy, law regulates when, where, how, and against what commanders and soldiers we may employ weapons. Law creates the procedures and military courts by which good order and discipline are maintained within the force, within the ranks of captured enemy prisoners of war, and throughout occupied territories. Law ensures that supplies and equipment are procured in a manner that frustrates waste, fiaud, and abuse of public moneys. Law governs the mobilization of the reserve component. Lawful regulations articulate formal policies for everytlung from the taking of war trophies by United States forces to the conduct of official investigations. The law, even in war, continues to treat each soldier as an individual person, capable of drawing a Last Will and Testament, making contracts, incurring debts, getting married, paying child support, or filing an income tax return.
5.2     PHASED AND NESTED OPERATIONS
Military operations during war are not uniformly intense through time. This fact bears heavily upon the intensity of demand for the different functional areas and legal disciplines. The preconflict and postconflict phases of wartime operations will often resemble military operations other than war (MOOTW) in the character of legal issues generated.
Commanders use phasing because operational art requires them to shift emphasis fiom one operational category to another.'" For example, elements of the Third U.S. Army deployed to Saudi Arabia in 1990 primarily as a show of force to deter aggression against that country. The Third Army's operational focus shifted to the defense when enough forces arrived to make that possible. It shifted to the offensive when it launched a ground attack to destroy the Iraqi Army. Following the successful offensive, the Third Army's operational focus shifted to post-conflict operations designed to restore essential infrastructure in Kuwait. Branches and sequels in the plan account for the need to shift emphasis as a mission unfolds.
In addition to conducting different categories of operations over time, units sometimes conduct different categories of operations simultaneously. One headquarters may have subordinate units focused on different categories of operations, all operating in the context of the higher commander's intent. The larger the unit, the more this nesting of unlike operations is likely to occur. For example, a corps conducting offensive operations may have several brigade- sized units engaged in offensive operations while the rest of the corps conducts defensive operations. Some of its other units may be conducting support operations to aid battlefield refugees.
The smaller the unit, the more likely the entire force will focus on the dominant operation. A division conducting a mobile defense, for example, may employ one brigade to conduct delaying actions (defensive operations) ,and two brigades to strike the decisive blow (offensive operations). On the other hand, a company in the attack often employs all assets in the offense.

Some units may conduct roughly the same activities regardless of the category of operation they are conducting. This is particularly true for combat service support forces and certain combat support forces such as signal elements. Others may have to perform significantly different tasks. An infantry company conducting a movement to contact executes a different set of tasks than it does when conducting a disaster response.
In this regard, the distinction between war and MOOTW should not be relied upon by SJA sections to create two wholly separate approaches to training and operations. While large scale deployments to prosecute wars will more likely involve classic offensive and defensive operations, they will also frequently include stability and support operations. As the next chapter explains, stability and support operations, whether during war or MOOTW, may present particularly tough and sustained challenges to operational law assets.
5.3     CONCEPT OF LEGAL SUPPORT IN WAR
5.3.1     Command & Control, Sustainment, Personnel Service SIlDDort
Legal support in the preparation for and execution of war will cut across all three functional areas and vary in proportion throughout an operation. After the initial surge of personnel support during the mobilization and deployment of forces, the practice of OPLAW-the C2 and sustainment functions described in Chapter 3-in war will dominate the legal landscape. The issues are fast-paced, require constant situational awareness, and can affect a commander's options by expanding or limiting his courses of action. This is not to say, however, that legal personnel services are any less critical to providing legal support in operations. When delivered properly, legal personnel services may appear transparent to the commander. A loss of discipline, or morale failure where soldiers are overly concerned about problems at home, however, would not.
5.3.2     Command and Control (C2).

The American way of war is to employ overwhelming force at the decisive point, but it is also to respect legal limits. In order to achieve the former, commanders and staffs must know the precise extent of the latter. In the early phases of an operation (mobilization and predeployment), the SJA must deliver operational law advice by introducing information about the legal aspects of command authority and the legal limitations on war into the MDMP. Judge advocates serve as counselor, providing recommendations about how missions can be accomplished within the law and, frequently, dispelling misconceptions that a law or treaty precludes various effective courses of action. OPLAW JAs participate in targeting and information operations cells; implement, draft, and train soldiers on ROE; advise commanders on policies relating to conduct and discipline; ensure war plan compliance with the Law of War and
customary international law; and ensure soldiers have a basic understanding, in the treatment of non-combatants, protected markings, and other particulars of the Law of War.
Defining General Courts-Martial Convening Authorities both in the theater of operations and in garrison must be done early and with precision. Transferring pending actions to new or different convening authorities will require extensive technical channel communication. In split-based operations, commanders must decide to either leave their flag at the garrisons, take the flag command with them, or seek out a new rear provisional convening authority. Certainly in war, SJAs must plan on incorporating the reserve component into the convening authority process. In the future, federalized National Guard or United States Army Reserve Commanders may lead active component units into battle. Such an order of battle may necessitate Secretary of the Army action defining and designating new convening authorities such that the commander can ensure good order and discipline for all
U.S. forces under his command in theater.

As the Army moves through deployment and into offensive or defensive operations, judge advocates continue to provide critical sustainment and personnel service support. During actual combat operations, however, OPLAW JAs will focus most of their attention on C2 legal support-targeting, ROE, Information Operations (IO), dealing with enemy prisoners of war (EPW), use of mines, the applicability of the Chemical Weapons
Legal Support to Operations
Convention, fratricide investigations,
and so forth.
At the conclusion of or during extended pauses in combat operations, judge advocates will continue to provide legal support in all three functional areas. The main effort of legal support, however, will turn back to sustainment and personnel service support. -4fier the U.S.'s successful prosecution of armed conflict, commanders and judge advocates may have to deal with the enormous obligations that accompany the law of occupation or implementing international agreements or mandates that will follow conflict. Commanders can also again return their attention to taking care of soldiers and redeployment to home station.
5.3.3 Sustainment
The DoD Dictionary defines sustainment as "[tlhe provision of personnel, logistic, and other support required to maintain and prolong operations or combat until successful accomplishment or revision of the mission or of the national ~bjective."'~~ This is the second prong of operational law. For legal support to operations, sustainment includes legal issues that cut across most of the legal disciplines. Like C2, failure to recognize and resolve-proactively if possible-sustainment issues can limit a commander's options on the battlefield. Complicating virtually every aspect of sustainment is the joint and multinational nature of modem military operations. The very presence of multiple coalition partners spread across several sovereign states, requires commanders and judge advocates to look at sustainment issues not only from an international law perspective, but also in light of the often restrictive domestic law.

During all phases of an operation, OPLAW JA must know and understand the privileges and immunities that exist or do not exist for U.S. forces and the civilians that accompany the force. War plans may call for Intermediate Staging Bases stretching across several international boundaries, command posts in various countries, or deployment directly into a hostile territory. In all of these cases, judge advocates must seek out and understand applicable Status of Forces Agreements, Stationing Agreements, of other applicable treaties or international agreements. Moving personnel and supplies into the theater of operations may require multiple transiting agreements.
Even though fiscal and contract constraints in war will be less onerous than in Military Operations Other Than War (MOOTW), U.S. domestic law is not waived. Even in war, commanders are still stewards of taxpayers' money and subject to strict scrutiny-sometimes long after the end of hostilities. In virtually any theater of operations, commanders will need immediate contracting capability to hire local nationals and purchase items such as water, fooci, iumber, fuel, and lubricants. Coalition partners may require extensive support from U.S. forces, thus creating a need for Acquisition and Cross-Servicing Agreements (ACSAs). Every judge advocate, regardless of the type of operation, must have an understanding of what money is available, when, and for what purpose. With reliance on today's Logistics Civil Augmentation Program (LOGCAP), and contractors on the battlefield, commanders must address everything from their status on the battlefield to handling discipline with a large civilian force. Before deployment, OPLAW JAs must develop a foreign claims process that will protect both the U.S. and the claimant. Judge advocates must help the commander resolve issues concerning federalizing National Guard forces, mobilizing the USAR, and dealing with non-governmental and private organizations in the theater of operations.
5.3.4 Personnel Service Susport

There can be little doubt that the main effort of legal support to operations during mobilization and predeployment lies with the routine administration of military justice and the provision of legal assistance through Soldier's Readiness Programs. While the nuts and bolts of the administration of justice or the provision of legal assistance services may remain in abeyance during offensive or defensive operations, the limited character of war implies an important role for deployed lawyers serving as judges in courts-martial or within the context of other proceedings and procedures. It also implies an important role for lawyers serving as advocates for the Army or for individual soldiers charged with crimes or in need of personal legal assistance.
While the operational law support during the early phases of an operation are critical to the success of the mission, proactive work in the administration of
Legal Support to Operations
justice will ensure that the foundation of the American Army-good order and discipline-is scrupulously managed allowing commanders. to fight and win our nations wars.
While still at home station, whether this is from a CONUS or OCONUS installation, legal assistance services for our soldiers and family members will consume the majority of judge advocate resources. In recognition of the importance of legal assistance to the deploying force, the Army is committed to ensuring that every soldier that needs or desires a Last Will and Testament or Power of Attorney has one. Answering questions about taxes, providing legal help for family members during deployment, participating in the set up and success of the command's family support group network, and helping reserve component soldiers with legal issues arising from mobilization are just a few areas that encompass legal support to operations during mobilization and deployment. The delivery of these key and essential services result in enhanced soldier morale as our soldiers worry less about concerns at home. This immense amount of work will occur only through the extensive legal support provided by the reserve component. While the Legal Support Organization (LSO) has a warfighting mission and will primarily deploy with the Staff Judge Advocate into the theater of operations, the Mobilization Support Organization (MSO) will provide "surge support" legal services to mobilization stations during all phases of the operation (mobilization, predeployrnent, deployment, combat operations, post- conflict, and redeployment). They provide this support by supplementing
the capabilities of their installation legal offices, as augmented under their MOBTDAs and by the judge advocate sections or assigned GSUs. Furthermore, they will provide supplemental legal services to other installation legal offices in support of their area responsibilities to provide legal services to the dependents of deployed AC mQRC soldiers Finally, they will provide legal services at other locations, such as STARC offices and ARNG installations, RSC offices and installations, and elsewhere.
5.4     THE CORE LEGAL DISCIPLINES IN WAR
Contrary to the popularized notion that legal complications wither away during wartime, unit histories and after- action reports attest that issues will arise in all six core legal disciplines. Perhaps the only generalization that may be stated about legal support in wartime, particularly OPLAW, is that a number of legal provisions in diverse disciplines will become clearly applicable without the need for drawing elaborate analogies that is present during many MOOTW. This is so because these provisions hinge on the existence of "war" or "combat" or "international armed conflict," though the legal definitions of these and related terms vary from document to document. It remains useful for judge advocates to use the legal discipline structure as it enhances professional educational training and reflects the most efficient delivery of legal services in the garrison environment. A unique characteristic of being a judge advocate is that the legal mission continues, both in garrison and the deployed environment.
5.4.1 Administrative Law
Administrative separations, conscientious objector applications, implementation of general orders, the handling of war trophies, official investigations into fratricides and other incidents, and distribution of medical care are among the many issues that will arise.
5.4.2 Claims
While claims arising from damage occumng as a result of combat will not generally be cognizable, claims nevertheless may still be payable in some circumstances under the Foreign Claims Act, the Military Personnel Claims Act, and a variety of other statutes and international agreements. Prompt and correct processing, adjudication, and payment of foreign claims will be necessary to maintain good will toward United States forces by local civilians.
5.4.3 Civil Law

Unless provisions are exempted or relaxed, the Federal Acquisition Regulation (FAR) still applies, including rules concerning full and open competition. Similarly, the basic fiscal controls on appropriated funds-namely those constraining availability of appropriations as to purpose, time, and amount-still apply. Environmental considerations will include documenting environmental conditions and changes thereto in areas of operations, reporting improper modification of environmental conditions as a method or means of warfare, and ensuring environmental safety and integrity for the well being of soldiers.
5.4.4 Militarv Justice
The need for an efficient and just disciplinary system will never be more urgent than in war. This core competency of OPLAW JAs will be heavily practiced, as non-judicial punishment, courts-martial of all types, and perhaps even military commissions will be convened. The "time of war" provisions of the Uniforrn Code of Military Justice will be in effect, increasing the feasibility of courts-martial in forward areas.
5.4.5 International Law
Common Article 2 of the four Geneva Conventions will be triggered by the state of "international armed conflict" that exists during a true war. This will cause a great number of provisions in the law of war to become clearly applicable to the conduct of United States and enemy forces. Commanders and staffs will require interpretations of many nuances of the law of war as they relate to the targeting of objectives and the treatment of the wounded and sick, captured prisoners, and civilians. Soldiers will directly apply the "soldier's rules" which they learn in basic training.179 Although the law of war, and in some circumstances United States military law, will displace portions of the law of the foreign country where our forces have deployed, most of the default legal rules will be those of the foreign country. If the United States is fighting the war within a coalition, domestic legal issues associated with security assistance will
Legal Support to Operations
likely arise. War Powers Resolution reporting may be necessary. Other federal statutes, executive branch materials, and court decisions relating to national security may be applicable.
5.4.6     Le~alAssistance
United States soldiers in war will continue to hail from all fifty states and the Temtories. They will continue to require wills and to face taxation, divorces, indebtedness, child custody and support disputes, and a wide range of lawsuits, many of these aggravated by long deployment. Some reserve component soldiers will be wrongly fired by employers. Legal assistance attorneys will use a wide variety of tools available under federal and state law on behalf of their soldier-clients.
5.5 ORGANIZATION FOR WAR
5.5.1     Theater Le~al Structure
As discussed in detail in Chapter 4, the Theater SJA distributes available legal resources to facilitate delivery of the full spectrum of legal services. The SJA achieves economies of scale and specialization and maintains the flexibility to shift priorities of legal
Component Command (ASCC), the theater army area commands (TAACOMs) or theater support commands (TSCs), area support groups (ASGs), Army special operations commands, and other units and functional commands (e.g., personnel commands, medical commands, engineer commands, etc.) in theater.
Legal support to operations will take place during war within a theater. A unified combatant commander in chief (CINC) will command all United States forces in the theater and may also serve in a separate capacity as the commander of multinational forces. The CINC, through his SJA or legal advisor, will also establish policy for the employment of all operational legal assets in the theater, which are typically assigned, attached, or serving in direct support of several different echelons.
The CINC has this policy-setting authority as a matter of law, but the underlying rationale is rooted in an age-old principle for effective warfighting. This principle is known as unity of command; it holds that forces should be under a single responsible commander with the requisite authority to direct all forces in pursuit of a unified purpose.'80
5.5.2     Armv Service Com~onent Command
The CINC's legal advisor will coordinate closely with the TJAGs of the separate services, with the SJA for the ASCC, and with the SJAs for the corps and divisions within the ASCC to devise a concept for employment of operational law resources. With the exception of providing trial judges and trial defense counsel-which are detailed centrally from USALSA-the SJA sections for the divisions within the ASCC are responsible for practicing operational law and providing legal support to operations across all legal disciplines in assigned geographic areas.
5.5.3 Command Posts
The practice and delivery of operational law in a division requires understanding of the command post (CP). The CP of a division is the principal facility employed by the commander to command and control combat operations. A division's command post is frequently spoken of in the singular, but a division commander normally deploys his command post in three echelons or facilities. These are the tactical command post, the main command post, and the rear command

post. Note, emerging doctrine in the Force XXI digitized divisions may use only two command posts-a tactical command post (sometimes referred to as the DTAC or TAC1) and a main CP. Both of these CPs are larger than their Anny of Excellence Division tactical CP and main CP counterparts. The digitized division, however, may have no rear CP. Judge advocates in command posts provide operational law support and provide or facilitate support in core legal disciplines required to sustain the organization, as described in Chapter 3.
CPs are organized and set up to operate on a 24-hour basis. This includes operating while displacing. Shifts must be established that provide enough personnel to operate the CP and also the required expertise to make decisions. There should not be a "first team" and "second team" approach. Both shifts must be capable of efficient CP operation. Command group personnel are not included in the shifts.
The shift officer-in-charge (0IC)-also referred to as the "battle captainM– is the focal point for information management. He controls all information going in and out of the command post. In addition to managing informational flow, the battle captain is responsible for updating the current operations, maps, and charts. To accomplish his duties, the OIC must have guidance from the commander, XO, and S-3, a thorough knowledge of the TAC SOP, current orders, the synchronized matrix, execution checklist, and other command and control tools, and subordinate unit plans and graphics. The shift OIC is assisted by the shift noncommissioned officer-in- charge (NCOIC). The shift NCOIC supervises all updating of maps and charts to ensure all information is exchanged. He supervises monitoring radios and maintenance. He ensures journals are properly prepared and prepares all reports for the OIC's approval.
The tactical CP (sometimes called "TAC CP;" or, in rapidly deployed divisions, the "Assault CP;" or in Airborne and Air Assault Divisions the Joint Airborne and Communications Center Command Post, or JACCICP; or as TACl in the Digitized Division) is the forward echelon of the Division's CP. The concept behind the TAC CP is that it is close to the brigade commanders' CPs so that the division commander can directly influence current operations. The rule of thumb is that the TAC CP should be within FM radio range of the committed brigades. The Assistant Division Commander for Maneuver (ADC-M) normally leads the TAC CP. This is a lean apparatus,
Legal Support to Operations
typically consisting of about a dozen officers and a few NCOs operating out of a few vehicles or tents.''' Judge advocates in the TAC CP provide advice regarding ROE, LOW, and other OPLAW matters. They also maintain situational awareness to identify and resolve legal concerns before they become distracters.

The main CP is the primary division CP. Whereas the TAC CP focuses on commanding and controlling current operations, the main CP focuses on sustaining current operations and on planning future operations. It should be located out of enemy medium artillery range so that the enemy must take a special effort to knock it out if it is able to find it. The officer in day to day charge of the main CP is the Division Chief of Staff. The Division Commander normally commands from the main CP, though he will frequently travel to the TAC CP, to the rear CP, to subordinate unit CPs, or wherever he can best exercise his will. The main CP is a much bigger operation than the TAC CP, consisting of more than 50 officers, NCOs, and enlisted soldiers. The Division Headquarters Company moves the main CP when it has to move, and it secures the main CP from attack. The Digitized Division's Main CP, while having various cells to include an Jnformation Operations cell, can be an extended distance from the DTAC or TAC1 making appropriate mobility and communication capabilities a must to maintain situational awareness.
The rear CP focuses on everyttung else-essentially the massive job of sustaining current and future operations-and remains prepared to control current operations if the TAC CP or main CP cannot function. The rear CP's main concerns are synchronization/direction of combat service support; terrain management; security of the rear area; and movement of tactical units, personnel, mail, and logistics. The Assistant Division Commander for Support (ADC-S) normally leads the rear CP, which is collocated with the CP of the Division Support Command (DISCOM), the brigade-sized element dedicated to logistical support of the division. The rear CP is in the division's rear area, though this does not imply it will be spared enemy attack. To the contrary, a division's rear area contains many of the division's most lucrative targets. The rear CP does not exist in the Digitized Division.
5.5.4 Jud~eAdvocate Dis~odtion
Frequently, when direct, immediate legal advice is required, the OPLAW JA will deploy with the TAC CP (or, in rapidly deployable divisions, with the assault CP). Division commanders will elect to use an augmented TAC CP or assault CP when split-based operations are necessary. Split-base operations involve a forward and a rearward CP separated by great distances and linked by reliable communications. These communications enable the passing of staff work electronically from a secure area (the location of the rearward CP) to a combat zone (the location of a forward CP) and back again. The forward and rearward CPs are designed based on METT-TC by beginning from the TAC CP/ assault CP and rear CP models and then dividing functions from the main CP model. When the TAC CP is thus augmented, the OPLAW JA frequently deploys with it. In the digitized division, OPLAW JAs are positioned in the DTACITACl to render immediate OPLAW advice, particularly within the C2 function.

As a general rule, however, Army doctrine for division operations locates the OPLAW JA in the main CP. Because the Division Commander normally commands the division from the main CP, the SJA will locate himself there, with the OPLAW JA. The SJA and the OPLAW JA will normally divide operational law duties in the main CP, which include participation in the Deep Operations Coordination Cell (DOCC).
Each of these judge advocates is a member of the DOCC, which identifies and plans attacks on deep, high-payoff targets and whose members include the Division Artillery (DIVARTY) Commander, the Deputy Fire Support Coordinator (DFSCOORD), the Deputy G-3 for Plans, and a G-2 representative. Within the main CP, these judge advocates will locate themselves with the G-3 plans element. Note, emerging doctrine may push the DOCC forward to the TAC CP; this would require a judge advocate in the TAC.
OPLAW duties in the main CP (or, when appropriate, in the TAC CPI assault CP) involve the counselor function and the core legal disciplines supporting the command and control, and sustainment of battlefield operations. Judge advocates provide legal support to combat service support and personnel service support operations from the rear CP or other support location. The SJA and CJA introduce relevant operational law considerations into DOCC planning and the MDMP by interpreting ROE.
The DOCC uses a methodology known as decide-detect-deliver-assess. This methodology is explained in detail in Field Manual 6-20-10, Tactics, Techniques, and Procedures for The Targeting Process.182 This manual is essential reading for the OPLAW JA and SJA.
The bulk of the SJA section deploys with the combat service support cell of the rear CPlg3 The SJA will position himself with this element as necessary to ensure the provision of professional legal services, but the DSJA normally supervises the performance of legal duties in the rear CP (or sustainment cell). These duties comprise both OPLAW functions (C2 and sustainment), personnel service support, and all six legal disciplines. While all legal personnel in the SJA section must be capable of resolving issues across this entire range of duties, the practice and delivery of OPLAW from within the combat service support cell will be marked by significant division of labor. The volume of legal issues arising and the number of judge advocates available will compel and permit particular judge advocates to concentrate on certain functions and disciplines. In this way, the section will take advantage of special expertise of judge advocates.
The remainder of the division SJA section deploys with the command posts of subordinate brigades, brigade-sized commands, or separate battalions. The SJA will determine which subordinate commands are directly supported by judge advocates serving as Chiefs of Brigade Operational Luw Teams (BOLTs). In making this determination, the SJA will consider ME'IT-TC and the principles of tailoring in Chapter 2. BOLTs are discussed later in this chapter.
Army Service Component Command. The Army Service Component Command (ASCC) OSJA structure must be tailored to support C2, sustainment, and support operations for the deployed force. Army legal personnel serve at several levels within a theater. The Army Service Component Command (ASCC) includes an SJA section. The corps, divisional, and separate brigade commands subordinate to the ASCC also include SJA or CJA sections, or BOLTs, as do various supporting theater army area commands (TAACOMs) or theater support commands (TSCs), area support groups (ASGs), Army special operations commands, and other units and functional commands (e.g., personnel commands, medical commands, engineer commands, etc.) in theater. The SJA is the senior judge advocate in the ASCC. The SJA is assisted by the DSJA, other judge advocates, a legal administrator (warrant officer), the CLNCO, and legal specialists. Judge advocates are also located in theater command, group, regiment, and brigade headquarters. Legal specialists are also located in theater command, group, regiment, brigade, and battalion or squadron headquarters. Continuous, reliable communication networks, both secure and non-secure, and RDL linkages with the tactical command and control network and the unclassified Internet (including LAAWS) are essential to provide legal support
Legal Support to Operations
throughout the theater. Accurate and timely OPLAW advice to the commander depends on tactical communication linkages. For example, in a digitized headquarters, operational attorneys must have immediate access to MCS-Phoenix. Judge advocates must be diligent to comply with information and operational security requirements when using these resources.
The ASCC SJA is a member of the ASCC commander's personal and special staffs. The TAACOWTSC SJA is the senior JA within that structure and a member of the TAACOWTSC commander's personal and special staff. In their respective organizations, they provide advice on all aspects of law and military operations. They supervise the delivery of legal services throughout the theater of operations and are a technical channel conduit. The SJA requires dedicated transportation assets/support to perform these funpions throughout the area of operations.
Judge advocates in the ASCC's Early Entry and Operations/Intelligence Modules support the commander and staff in the conduct of military operations. On a twenty-four (24)-hour per day basis, they integrate proactive legal support into all aspects of the conduct of operations. They support current operations and plans. Judge advocates in the TAACOWTSC Early Entry Module (EEM) provide similar support to TAACOWTSC early entry operations. This includes the critical role of providing legal review and advice for contracting actions.
Judge advocates in the ASCC Main Module provide specialized legal knowledge, training, and experience in support of theater-wide operations. They provide centralized services, along with any additional support requirements unable to be filled by judge advocates located in subordinate units. Judge advocates of the TAACOM/TSC provide similar support throughout the TAACOMITSC and its subordinate units. Judge advocates in the ASCC Rear Module support rear operations and assist contracting officers in the theater rear.
Legal specialists in the ASCC and TAACOWTSC headquarters work in support of the SJA section and OPLAW JAs. They work under the supervision of judge advocates, collect information, conduct research, and prepare documents. They support judge advocates and commanders and assist in the delivery of legal services. Some legal specialists are specially trained court reporters, who compile verbatim records of judicial and other proceedings. The CLNCO supervises and trains legal specialists throughout the theater of operations. Legal specialists in battalion, squadron, group, regiment, and brigade headquarters provide professional and ministerial support of legal actions. Under the supervision of judge advocates, they provide the critical forward assistance for the judge advocates and facilitate the delivery of legal services and the judge advocates' legal advice.
Corps. The SJA is the senior judge advocate in the corps. The SJA is assisted in the corps headquarters by the DSJA, other judge advocates, a legal administrator (warrant officer), the CLNCO, legal specialists,, and JAGC civilian personnel. Judge advocates support the corps support command (COSCOM), and each group, regiment, and separate brigade headquarters. METT-TC dependent, the SJA can task organize legal support below separate brigades. Legal specialists support each group, regiment, separate brigade, and battalion or squadron headquarters. Continuous, reliable communication networks, both secure and non-secure, and RDL linkages with the tactical command and control network and the unclassified Internet (including LAAWS) are essential to provide legal support throughout the theater. Accurate and timely OPLAW advice to the commander depends on tactical communication linkages. For example, in a digitized corps, OPLAW JAs must have immediate access to MCS-Phoenix. Judge advocates must be diligent to comply with information and operational security requirements when using these resources.
The SJA is a member of the corps commander's personal and special staffs. The SJA provides legal advice to the commander on all aspects of law and military operations. The SJA supervises the delivery of legal services throughout the corps and exercises operational control over all JAGC personnel assigned to the corps. The SJA provides technical supervision and provides support as necessary to division, separate brigade, and armored cavalry regiment judge advocates within the corps. The SJA exercises operational control over additional legal assets, legal organizations, or legal teams that are assigned to the corps area, except military judges who perform independently under the U.S. Anny Trial
Legal Support to Operations
Judiciary, and Defense Counsel who perform independently under the U.S. Army Trial Defense Service. The SJA task organizes legal assets to provide responsive legal support throughout the corps areas of operation, and as far forward on the battlefield as necessary. The SJA requires dedicated transportation assets/support to perform these functions throughout the area of operations.

The DSJA acts for the SJA, administers the full range of legal services throughout the area of operations, mentors legal personnel, supervises legal operations in the Army of Excellence Corps Rear Command Post, or at other separate locations, and plans collective training.
Judge advocates in the corps tactical command post advise the corps commander and the battle staff on legal issues associated with the conduct of military operations. On a twenty-four hour per day basis, they integrate proactive legal support into all aspects of the conduct of operations.
Judge advocates located at the corps main command post provide specialized knowledge, training, and experience in support of corps-wide operations. They provide operational law and core legal discipline support at the main CP. They support group, regimental, command, and brigade judge advocates.
Judge advocates in the corps G3 plans and operations sections, information operations, or other operational cells provide legal advice and assistance in support of plans, targeting operations, and current operations in the corps main command post.
Judge advocates at the Army of Excellence corps rear command post, or other support location, provide specialized knowledge, training, and experience in support of corps rear operations. They are prepared to assume the mission of the corps main legal section. They provide centralized legal services relating primarily to personnel support operations, but they also assist the SJA with C2 and sustainrnent legal support as required.
Legal specialists in the corps headquarters work in support of the OSJA and OPLAW JAs. They work under the supervision of judge advocates, collect information, conduct research, and prepare documents. They support judge advocates and commanders and assist in the delivery of legal services. Some legal specialists are specially trained court reporters who compile verbatim records of judicial and other proceedings. The CLNCO supervises and trains legal specialists throughout the corps.
Judge advocates in the COSCOM, group, regiment, and separate brigade headquarters provide legal support to the commanders in all functional areas (to include subordinate commanders at all levels), staffs, leaders, and soldiers of the unit. In addition to OPLAW duties, the COSCOM judge advocate may be tasked to provide or coordinate for contract law advice in support of the COSCOM.
Legal specialists in the COSCOM, group, regiment, brigade, battalion, and squadron headquarters support the processing of legal actions. Under the supervision of judge advocates, they provide the critical forward assistance for the judge advocates and facilitate the delivery of legal services and the judge advocates' legal advice.

Division/Separate Brigade/Armored Cavalry Regiment.
The division SJA section is the lowest-echelon, organic, full-service element of legal support to operations. It is modular-capable of being tailored to provide legal support for specific missions that may be undertaken during a war. It also features significant synergy-a product of bringing together diverse, techcally skilled legal professionals and providing them the informational and legal research infi-astructure necessary for tackling complex legal issues.
Each division receives the organic full- service operational legal support of a complete SJA section because divisions are depended upon. to fight battles and engagements (the tactical level) in such a way as to achieve success at the operational level. An Army corps is two or more divisions. An Army division is a unit that combines in itself the necessary arms and services required for sustained combat.
There are different types of divisions-armored, mechanized, light infantry, airborne, and air assault, -and not all of these types are exclusive. For instance, airborne divisions are capable of all missions assigned to light infantry divisions.
The essence of a combat division is that it trains and fights as a team, and it has the necessary equipment to fight for a significant time.. Although Army doctrine designates the corps as the largest tactical organization, the division is the largest organization that regularly trains as a team. A typical light infantry division has three infantry brigades (each comprising three battalions), an aviation brigade, a brigade-sized artillery element, a brigade-sized logistical support element, and a number of separate battalions. In rough terms, it consists of about 18,000 soldiers equipped with rifles, machine guns, mortars, anti-tank missiles, bridging equipment, air defense missiles, artillery tubes, helicopters, and other weapons and equipment.
A typical mechanized infantry division has two mechanized and one armored brigade (sometimes referred to as "maneuver brigades"), an engineer brigade, an aviation brigade, a brigade- sized artillery element, a brigade-sized logistical element, and a number of separate battalions. The maneuver brigades will include, as a whole, five mechanized and five armored battalions, task organized by the division commander according to METT-TC. A typical armored division features the same capabilities as the mechanized infantry division except that it has two armored brigades and one mechanized brigade. These maneuver brigades in the armored division will include, as a whole, six armored and four mechanized battalions task organized into brigades according to METT-TC.
This manual focuses on division SJA section deployment during war or other
Legal Support to Operations
prolonged operations because the division is the focus of Army warfighting doctrine. However, the division SJA section model also provides a guide for achieving the proper balance of modularity and synergy in SJA sections that support corps, TAACOMsITSCs and other large commands. Although military operations other than war (MOOTW) sometimes require the deployment of entire division SJA sections, military operations in war invariably require such deployment. In war, the division SJA is the ultimate practitioner of OPLAW. He positions himself at all times to support the division commander, who must constantly strive to link the employment of soldiers and materiel to strategic aims. The division SJA organizes the section as necessary to provide professional legal services at all subordinate echelons of command.
The SJA is the senior judge advocate in the division. The SJA is assisted in the division headquarters by the DSJA, other judge advocates, a legal administrator (warrant officer), the CLNCO, and legal specialists. Judge advocates support each brigade to include the division artillery (DIVARTY), the Engineer Brigade, and DISCOM headquarters. Legal specialists also support each brigade, battaIion, or squadron headquarters. Continuous, reliable communication networks and RDL linkages to C2, sustainment, and support systems and LAAWS are essential to provide legal support throughout the division. Particularly in digitized divisions, where brigades may have extraordinary lines of communication, brigade judge advocates must be prepared to provide all functional areas of legal support across all six legal disciplines. For this to occur, the OPLAW JA must have access to the commander and continuous secure and non-secure communication and automation capabilities. Judge advocates must be diligent to comply with information and operational security requirements when using these resources.
The SJA is a member of the division commander's personal and special staffs. The SJA provides legal advice to the commander on all aspects of law and military operations. The SJA supervises the delivery of legal services throughout the division and exercises operational control over JAGC personnel assigned to the division and its subordinate units. The SJA requires dedicated transportation assets/support to perform these functions throughout the area of operations.
The DSJA is normally the second most senior judge advocate. The DSJA acts for the SJA, administers the full range of legal services throughout the area of operations, mentors legal personnel, supervises the brigade judge advocates, and plans collective training.
Judge advocates in the OSJA provide specialized legal knowledge, training, and experience in support of division C2, sustainment, and support operations. They provide centralized services and augment brigade judge advocates. The JAGC provides OPLAW support and comprehensive legal services in core legal disciplines throughout all phases of military operations. Mission, enemy, terrain, troops, time available, and civilians (METT-TC) impact the precise location for delivery of services. OPLAW support is provided as part of an overall plan for delivery of comprehensive legal services. OPLAW support is generally provided at the division tactical operations center, division G-3 plans and operations sections, division information operations cell, targeting cell, and each brigade headquarters. Based on mission requirements, OPLAW support may be provided to battalion and smaller-sized organizations.

Legal specialists in the division headquarters work in support of the SJA and OPLAW JA. They work with, and under the supervision of, judge advocates, ,collect information, conduct research, and prepare documents. They support judge advocates and commanders and assist in the delivery of legal services. Some legal specialists are specially trained court reporters who compile verbatim records of judicial and other proceedings. The CLNCO supervises and trains legal specialists throughout the division.
Judge advocates in the division's TAC CP advise the division commander, the assistant division commander, and the battle staff on legal issues associated with the conduct of military operations. On a twenty-four (24)-hour per day basis, they integrate proactive legal support into all aspects of the conduct of operations.
Judge advocates in the division G3 plans, operations, or information operations sections provide legal advice and assistance in support of plans, ROE, targeting operations, and current operations in the division main CP. The commander or SJA may task organize his judge advocate support to optimize situational awareness, such as providing dedicated legal support to the emerging information operations (10)cell.
Legal Support to Operations

TACl /DTAC
2 JAs (12 Hour Shifts) in DOCC 1 MCS Terminal
DIVISION MAIN
Sustainment Cell: SJA, Legal Admin (cW3)~ CLNCO 6 JAs: Chfs, LA, MJ, AdAnt'l Law 2 MCS Operators (71 Ds) 3 Plans/Exercises Cell (PLEX): 9 71 Ds
Figure 5-1
The above diagram depicts one model of judge advocate organization to support provide legal support to the emerging digitized division. Judge advocates are task organized to maximize situational awareness given the potentially enormous division battlespace made possible by technological advances. Note that the BOLT may be hundreds of kilometers from the Division Main.
Office of the Staff Judge Advocate 1st Brigade Army of Excellence Division 3d Brigade
1JA, 1NCOlC (71 D) NColC (71D) 3-5 Bn 71 Ds 2d Brigade 3-5Bn 71 Ds
1JA, 1NCOlC (71 D)
3-5Bn 71Ds

Aviation Brigade
1JAY 1 NCOlC (7lD)
3-5 Bn 71 Ds

Division Support CMD -Engineer Brigade (DISCOM) Division Main 1JA, 1 NCOlC (71D) 1 JA, 1NCOlC (71D) SJA + 2 JAs 3-5 Bn 71 Ds 3-5 Bn 71 Ds 2 71Ds
Division Rear
DSJA
7 JAs: DSJA, Chiefs of Operational Law, Claims,
Intn'l Law, Admin Law, Legal Assistance, Military Justice
1Legal Administrator (Warrant Officer), 1Chief Legal NCOIC, 22 71 Ds

Figure 5-2
Another model of judge advocate organization based on the Army of Excellence.
Legal Support to Operations

The Brigade Operational Law Team (BOLT). The SJA task organizes OPLAW support to commanders, staffs, and soldiers of a brigade combat team (BCT) or brigade task force. The SJA identifies early, the Brigade Judge Advocate, who serves as Chief of the BOLT. This judge advocate is usually the trial counsel for that brigade while in ganison. The BOLT also includes the legal specialists assigned to the supported BCT. The legal issues facing brigade judge advocates may extend across the full spectrum of OPLAW and the core legal disciplines. Although it is trained and equipped to identify issues across all three functional areas and the six disciplines of legal support to operations, the challenge for the BOLT is always to achieve requisite synergy to resolve complex legal questions within particular disciplines. Often, this synergy can be achieved only by communicating with the division SJA section and other judge advocates in technical channels.
The division SJA, in consultation with the DSJA, determines which subordinate units within the division will be directly supported by BOLTs. The SJA considers METT-TC in making this determination, paying particular attention to the likely complexity and volume of legal issues the subordinate unit will face and to the ability of the unit to receive OPLAW support from assets located with division command posts. The legal specialists that comprise the BOLT are under the supervision of the brigade judge advocate and provide the critical forward assistance for the brigade judge advocate and facilitate the delivery of legal services across the brigade combat team. The provision of timely and accurate legal support requires the combined team of the legal specialist and the brigade judge advocate. There are instances, however, when a brigade judge advocate is required to support more than one brigade. Further, a judge advocate deploying with the brigade may have requirements to support other organizations within the area of operations. These variables emphasize the brigade judge advocate's need for mobility and cornmurlication capability.
The DISCOM BOLT should have training or experience in contract law. In addition to other legal duties, the DISCOM brigade judge advocate may be tasked to provide or coordinate for contract law advice in support of the DISCOM.
Judge advocates and legal specialists serving in BOLTs must understand the capabilities and role of brigade-sized units in the Army. The brigade is the first unit in the infantry or armored soldier's upward chain of command that includes a full range of soldiers who do tasks very much different from his own. A brigade task force includes interrogators, counterintelligence operatives, attack helicopter pilots, howitzer crew chiefs, Marine Corps air and naval gunfire liaisons (ANGLICO), heavy anti-tank weapon gunners, bulldozer operators, air defense gunners, fuel bladder technicians, engine repairmen, water purifiers, ambulance drivers, physicians, and graves registrars. The brigade is the smallest unit in the Army that must integrate all of the seven battlefield operating systems-intelligence, maneuver, fire support, mobilitylsurvivability, air
defense, combat service support, battle command-into a potent whole. Brigade task forces that deploy with BOLTs and brigade surgeons are also the smallest units in the Army that have their own legal and medical professionals in the field. For a more detailed explanation of brigades and how they are organized and fight, see, e.g., DEP'TOF ARMYFIELD MANUAL 7 1 -3, THE ARMOREDAND MECHANIZED INFANTRY (8 Jan. 1996); DEP'T
BRIGADE OF ARMY FIELD MANUAL 71-123, TACTICS AND TECHNIQUESFOR COMBINED ARMS HEAVY FORCES: ARMORED BRIGADE, BATTALION TASK FORCE,AND COMPANYTEAM (30 Sep. 1992).
The BOLT must be present in the TOC or TAC, have access to the commander, and have the training, mobility, secure communications and equipment to provide the right answers at the right time and place. Legal support to operations contributes to several other battlefield operating systems in addition to combat service support. The most prominent of these is the command and control system, but intelligence, maneuver, fire support, mobility1 countermobilityl survivability, and air defense also require OPLAW support. In serving within these other systems, the BOLT must be prepared both to identify and resolve the full range of legal issues-across the legal functional areas and core legal disciplines-by inserting sound analysis and recommendations into the brigade's MDMP.
Legal support to operations must be managed with careful attention to what can and must be done at each echelon of command. Accordingly, the BOLT cannot and does not attempt environmental litigation, legal representation in foreign legal systems, review of high dollar-value contracts, convening of general courts-martial, conclusion of international agreements, drafting of inter vivos trusts, review of Foreign Military Sales cases and other highly technical services. The BOLT seeks to practice preventive law and to identify the full range of legal issues that need to be raised to higher echelons.
5.5.5     Brigade Command and Control Facilities
Judge advocates serving as Chiefs of BOLTs must understand the brigade command and control facilities. They are adept at obtaining information from the flow of messages into and out of these facilities, at inserting important information into that flow, at helping the brigade staff determine what ingredient the decision process needs, and in supplying the needed ingredient.

The brigade has four types of command and control facilities: the command group, the tactical CP, the main CP, and the rear CP. Like the command posts discussed at division level in Chapter 5, the brigade CP must be able to ensure that the commander is continually abreast of the developing situation that subordinate commanders are provided with the means to accomplish their assigned missions.
The brigade command group is a temporary organization consisting of the brigade commander and other soldiers and equipment required to perform command group functions. The primary
Legal Support to Operations

function of the command group is to influence the immediate action through the commander's personal presence. Other functions include observing the battlefield, synchronizing the battle, and providing planning guidance. The command group moves forward from the tactical CP. The command group sometimes operates from a command and control helicopter.
The tactical command post (TAC CP) fights current close operations, provides the commander with combat critical information, and disseminates the commander's decisions. It is supervised by the brigade S-3 and is usually as far forward as the battalion main CPs. The TAC CP should strive to have redundant abilities in personnel and equipment at the main command post.
The main command post monitors the current battle, executes planned deep attacks, and plans future operations. It coordinates operations throughout the brigade sector and keeps higher headquarters informed. It is supervised by the brigade executive officer (XO) and includes staff personnel representing all facets of brigade operations. The tactical operations center (TOC)is the operations cell within the main command post.
The forward support battalion (FSB) commander supervises the rear command post, which is collocated with the forward support battalion CP. The rear CP is responsible for administrativeflogistic functions. The rear CP or the direct support artillery battalion main CP is usually designated as the brigade alternate CP. The forward support battalion commander is responsible for fighting rear operations.
An infantry brigade must maintain continuous, synchronized operations. To establish the necessary "battle rhythm" to make this happen, the brigade makes optimal use of scheduled conference calls, shift change briefings, and battle update briefs (BUBs). The brigade commander conducts conference calls with his subordinate commanders at regular intervals shortly after the division conference calls. The shift change brief is supervised by the outgoing TOC shift OIC and is designed to exchange information between the outgoing and incoming shifts. It can also serve as a commander's update, but the primary audience is the incoming shift. Battle Update Briefs are called on an as-needed basis to update the TOC on current and significant events.
Occasionally, when he can be expected to make a direct contribution to current operations, the brigade judge advocate will deploy with the TAC CP or accompany the brigade command group. As a general rule, however, the brigade judge advocate will deploy with the main CP. Because the brigade commander normally commands the brigade from the main CP, this is the optimal position for the brigade judge advocate. The brigade judge advocate, supported by the brigade legal specialist, will provide OPLAW support in the main CP, which will include participation in the brigade's targeting process. When in the TOC at the main CP-as opposed to the TAC or assault CP-the brigade judge advocate or legal specialist should locate themselves
adjacent to the PSYOP and civil affairs elements.
The brigade level legal specialists of the BOLT deploy with the rear CP, at the adminiswative and logistics operations center (ALOC). They are supervised in their OPLAW duties by the BOLT element in the main CP. The brigade judge advocate and legal specialist communicate regularly with the remainder of the BOLT in the rear CP. They also periodically travel there to provide leadership and guidance, to provide legal assistance and complete other tasks that cannot be attempted in the main CP, and to ensure that legal specialists are utilized in support of the operational law mission.
The present manual identifies the BOLT as the model of modular legal support to an Army unit smaller than division size. Many of the organizational principles defining the BOLT can be applied to good effect in the modular legal support teams that deploy with special operations elements. For example, the SJAs of United States Army Special Operations Command and United States Army Special Forces Command face the same challenges in generating synergy around the legal challenges that confront the Group Judge Advocates and OPLAW teams that deploy with special forces groups. Although the unique mission of special forces groups will inevitably raise distinct legal questions (see the discussion of special operations in Chapter 4), these judge advocates and teams, like BOLTS, must be able to identify a broad range of legal issues, and coordinate those issues with higher technical channels, while focusing on a
band of issues critical to sound decision- making by command and staff.
5.6 MATEREL IN WAR
The practice and delivery of legal support in war may be marked by heavy and persistent demand for administrative law, contract, or fiscal law opinions, foreign claims adjudication, for advice on United States obligations under treaty or foreign legal provisions, and for interpretations of domestic security assistance statutes. It will likely require the convening of courts-martial. It will require the provision of a high volume of legal assistance services. As discussed earlier, critical legal support within the personnel service support function will surge during predeployment, then remain at a relatively constant volume once in theater. OPLAW-C2 and sustainment-will surge upon entry into the theater with command and control issues dominating legal support during combat operations and sustainment issues just before and after combat operations. As communications improve and weapons lethality continues to increase the battlespace, judge advocates must be linked into the tactical and non-tactical communication systems. To effectively provide OPLAW advice to the commander at the critical time and place on the battlefield,
judge advocates must remain aware of the tactical situation and have access to the commander.
The materiel that accompanies the division SJA section must be sufficient in types and quantities to meet these requirements. Chapter 4 described in general terms the automation, mobility,
Legal Support to Operations
and communications equipment necessary for OPLAW elements to accomplish their missions.
The materiel requirements of the SJA section in prolonged, large-scale operations are not limited to automation, mobility, and communications equipment. CD ROM and hard copy books and forms are also needed to back up essential references, or for frequent use or consultation.
The need for courts-martial to maintain good order and discipline will require the establishment of a courtroom, judge's chamber, deliberation room, and private locations suitable for interviewing witnesses or the accused by counsel. The frequency of reference to reported case precedents may justify the deployment of hard copy case reporters to augment the cases contained on compact disk. Also, adequate furniture, lighting, court reporter equipment, supplies for the creation of exhibits, and a means for photocopying key documents will be essential to the achievement of justice and due process close to the forward line of troops.
In war, the adequate provision of professional legal services at all echelons of command (to include the companies, battalions, brigades, divisions, and corps making up the tactical level) requires courts-martial to be conducted in theater. Discipline in a combat zone is ill-served by courts-martial conducted far away from the dangers of war.
5.7 TRAINING FOR WAR
The training challenge in today and tomorrow's military is immense. Judge advocates must balance the ever-present mission in garrison with the need to deploy and provide our commanders and soldiers with the full range of legal support in operations. Like their non- legal counterparts, legal personnel must be aware of and train with emerging technologies-global positioning devices (GPS), night vision devices, vehicles, communication means, and automation software and hardware. All legal personnel should be well read on emergng joint and army doctrine and train on individual soldier skills at every opportunity (e.g., S JA section leader development programs, unit exercises, deployment to the Army's Combat Training Centers).
The division SJA, in conjunction with the DSJA, CLNCO, and Legal Administrator, trains the SJA section for wartime deployment using Army training doctrine, the application of which to OPLAW was described in Chapter 4.
The SJA section's METL is the single most important product for conducting battle focused training. The SJA and DSJA must use the process described in Chapter 4 to develop and assess METLs of LSOsMSOs andlor the judge advocate sections of other RC units within their subordinate wartrace chain of command. This process should be part of the training association relationships between SJA sections and RC units, such as the training relationships created and fostered pursuant to FORSCOM Regulation 27-1, Judge Advocate Training Association Program (15 Jun 1998).
In planning training to develop proficiency on a mission essential tasks, Battle Command Training Program (BCTP) rotations should be given special emphasis. The BCTP is the only combat training center with the specific mission of providing stressful and realistic training to corps and division staffs on their METLs. SJAs and DSJAs, in conjunction with CLAM0 and judge advocate observer- controllers detailed to the BCTP, must ensure that OPLAW issues are fully and realistically integrated into BCTP rotations. Integration of legal issues that have arisen during deployments is essential not only for the effective training of the SJA section; it is essential for the effective training of the command and staff.lp4
Legal Support to Operations

Chapter 6 Legal Support to Military Operations Other Than War

United States military operations in the Republic of Haiti in 1994 and 1995 represented a comprehensive and stunningly successful application of law to fluid and challenging circumstances. Many Americans will recall the tense beginning. when a large combat force entered Haiti peacefully on terms negotiated in the ll? hour by duly empowered civilian representatives of the United States. Many Americans also will recall how these operations soon achieved the ouster of a dictator. the return to power of an elected Haitian president. and the removal of a threat to regional peace and security. These aspects of the Haiti deployment not only reafirmed the rule of law. they also held a symbolic and political importance that aroused great popular interest .
Yet other signijicant applications of law took place day.to.day. at the individual and unit level . Infantry privates balanced initiative with restraint under the rules of engagement while confronting potentially hostile Haitians . Supply clerks distributed food and other items that had been purchased strictly in accordance with acquisition and appropriations laws . Military policemen treated Haitian detainees pursuant both to internal rules and to standards derived from international treaties . Investigating oficers pe73'ormed their duties thoroughly and fairly in gathering evidence about incidents of alleged misconduct. Soldiers, sailors. airmen. and marines remained undistracted by personal concerns. enjoying a sense of security provided by statutory programs of life insurance and legal assistance. With very few exceptions. these men and women in uniform also scrupulously followed orders given by their chain of command. justzfying a disciplinary system acknowledged by Congress and the courts to be essential to mission accomplishment.
Center for Law and Military Operations
Law and Military Operations in Haiti. 1994-1 995 18'
CONTENTS
INTRODUCTION…………………………
STRATEGIC CONCEPT ……………….
THEATER CONCEPT ………………….

Political Objectives ……………….

Legal Complexity ………………….

Mission Complexity ………………

Command and Control …………. Interagency Coordination …….. THE ARMY'S ROLE IN MOOTW ….. Arms Control ………………………. Combating Terrorism …………… Counter-Drug Operations ……… Enforcement of Sanctions and
Exclusion Zones ………………..

Humanitarian Assistance ……… Nation Assistance ………………… Noncombatant Evacuation
Operations………………………..

Peace Operations …………………

Recovery Operations …………….

Show of Force Operations …….

Strikes and Raids …………………

Support to Insurgencies ………. Operations under Armistice
Conditions……………………

ORGANIZATION OF LEGAL
SUPPORT………………………………….

LEGAL'ASPECTS OF C2. SUSTAINMENT. AND SUPPORT
OPERATIONS…………………………….

Legal Basis for Operation …….. Status of Forces ………………….. International and lnteragency
Relationships……………………. Use of Force and Rules of
Engagement (ROE) …………….

Treatment of Civilians …………..

Fiscal Responsibility …………….

Intelligence Oversight ………….. LEGAL TNG REQUIREMENTS LEGAL EQUIP REQUIREMENTS …. SUMMARY…………………………………

.PAGE

6.1 INTRODUCTION
The last chapter described legal support to operations in war. This chapter describes legal support to military operations other than war (MOOTW) outside the United States. The next chapter describes military operations within the United States.
MOOTW are "[o]perations that encompass the use of military capabilities across the range of military operations short of war. These military actions can be applied to complement any combination of the other instruments of national power and occur before, during, and after war."186
Although MOOTW and war may often seem similar in action, MOOTW focus on deterring war and promoting peace while war encompasses large- scale, sustained combat operations to achieve national objectives or to protect national interests. MOOTW are more sensitive to political considerations and often the military may not be the primary player. More restrictive ROE and a hierarchy of national objectives are followed. MOOTW are initiated by the National Command Authorities and are usually, but not always, conducted outside of the United States.18'
There are many types of MOOTW, several having multiple components: arms control, combating terrorism, support to counter-drug operations, enforcement of sanctions and exclusion zones, ensuring freedom of navigation and overflight, humanitarian assistance, nation assistance, noncombatant evacuation operations, peace operations, protection of shipping, recovery operations, show of force operations, strikes and raids, support to insurgency, and operating under armistice ~onditions.'~~
MOOTW present significant legal challenges to judge advocates. First, they must understand and relate the national and international political and legal frameworks affecting the specific operation. These frameworks affect command authority, ROE, and the success of operations more than they do in war. Second, they must frequently advise commanders concerning the relationships between international forces, joint forces, non-governmental agencies, private voluntary organizations, and U.S. governmental agencies. Third, they must forge consensus among joint, international, government, and private organizations on legal issues, thereby promoting unity of effort and mission legitimacy. Fourth, they must identify and resolve technical legal issues in specialized, fluid, and uncertain operational situations.
To assist judge advocates who support MOOTW, this chapter will describe the strategc and theater concepts common to MOOTW, the Army's role in MOOTW, unique considerations for organizing legal support for MOOTW, prominent legal issues affecting command and control, sustainment, and support operations in MOOTW, and legal training and equipment requirements. Judge advocates should also read current joint and army doctrinal publications on MOOTW.~~~
6.2 STRATEGIC CONCEPT
United States security strategy calls for U.S. leadership abroad -"we must lead abroad if we are to be secure at home …"Ig0 As a result, the U.S. "must be prepared and willing to use all appropriate instruments of national power to influence the actions of other states and non-state actor^."'^' This leadership requires engagement with
U.S.
political, economic, and military power to shape the international environment and to promote democracy.lg2

U.S.
engagement will be multinational and multidisciplinary. "Durable relationships with allies and friendly nations are vital to our security. A central thrust of our strategy is to strengthen and adapt the security relationships we have with key nations around the world and create new relationships and structures when nece~sary."'~~

The United States will use an integrated approach to address threats, including superior military forces, a strong diplomatic corps, and foreign assistance program.'94 Frequently, military operations will be in a supportive role or will support a lead agency.lg5
"[Olur national military objectives are to Promote Peace and Stability and,
include peacetime engagement and deterrence,lg7 and may involve any of a variety of military activities. Military activities such as international exercises,
Legal Support to Operations

Partnership for Peace, foreign military sales, and military-to-military contacts promote stability, build coalitions, enhance interoperability, and promote democracy.Ig8 Counterdrug and counterterrorism operations protect Americans and other nationals, and fight drug and terrorist organizations through international cooperation, intelligence and technical support, and nation assi~tance.'~~Peacekeeping operations support peace agreements and facilitate long term settlements through deployment of military units to monitor and perform other assigned tasks.200 Arms control prevents conflict and reduces threat through treaty verification, weapons security, and weapons seizure, dismantling, or destru~tion.~~' Noncombatant evacuation operations protect American citizens abroad and other selected persons by extracting them from a dangerous location to a safe haven.202 Sanctions enforcement of U.S. policy decisions and UN Security Council resolutions includes military operations to interdict movement, prohibit activities in a specific area, or ensure freedom of navigation.*03 Peace Enforcement operations apply military force to maintain or restore international peace and security.204 Military activities also support diplomatic activities such as peacemaking, peace building, and preventive dipl~macy.'~~
6.3 THEATER CONCEPT
There are several unique aspects of the MOOTW theater: the primacy of political objectives, legal complexity, mission complexity, command and control, and interagency coordination.
6.3.1 Political Obiectives
"Political objectives drive MOOTW at every level from strategic to tacti~al."~~ Political directives will authorize and prescribe military
operation^.^^' Political organizations frequently take the lead role.208 Political considerations affect how the military conducts operations.209 Political implications may affect the success of the military operation, or require changes in the operation.z10 "Having an understanding of the political objective helps avoid actions which may have adverse political effects. It is not uncommon in some MOOTW, for example peacekeeping, for junior leaders to make decisions which have significant political implication^."^^'
MOOTW theaters are legally complex for three reasons. First, units conducting MOOTW cannot rely solely on traditional law of war rules regarding the use of force, but must develop ROE that accomplish the mission and protect the force consistent with international law and political directives.212 Second, MOOTW frequently involve national, multinational, and international legal authority.'13 Reconciling the legal concerns of each nation, or concerns between the U.S. and an international organization, is a challenging task.214 Third, the legal issues arising during MOOTW may be specialized and widely varied. Commanders will require legal advice in international law, host nation law, fiscal law, security assistance, command authority, and other issues.215
6.3.3 Mission Com~lexitv
MOOTW missions occur simultaneously and sequentially, and involve extensive contact with civilians. "Noncombat MOOTW may be conducted simultaneously with combat MOOTW, such as HA [humanitarian assistance] in conjunction with PEO [peace enforcement operations]. It is also possible for part of a theater to be in a wartime state while MOOTW is being conducted elsewhere within the same theater."216 Commanders must plan to transition from war to MOOTW, or from MOOTW to combat.217 The mission in Haiti transitioned from sanctions enforcement to peacekeeping, and included plans for simultaneous noncombatant evacuation and either forced or semi-permissive entry into Haitia218
MOOTW missions are complex also because of their impact on civilians. Commanders must be prepared to collect human intelligence concerning political, cultural, and economic factors affecting the operation,219 to conduct public affairs, civil affairs, and psychological operations,220 to provide humanitarian a~sistance,~~' develop that
to ROE protect the force without causing civilian ca~ualties,2~~
to process civilian detainees,223 to process requests for temporary refuge or asylum,224 and to perform other tasks as the mission requires.
6.3.4 Command and Control
In MOOTW, Theater C2 must account for multinational forces and myriad other organizations. National Command Authorities (NCA) and Joint
Legal Support to Operations
Command and Control (C2) over the
U.S. military remain generally the same as in war.225 The President will never "relinquish .. .command authority … but …may . . .place U.S. forces under the temporary operational control of a competent. . .

Multinational forces may employ several C2 options: the lead nation option, in which one nation provides most of the forces and exercises operational control of the multinational force; the parallel option, in which a mandating organization selects a commander, each nation contributes proportionally to the staff, and each nation provides the commander some degree of operational control; and the regional alliance option, in which an existing multinational headquarters exercises C2.2" The United Nations Mission in Haiti is an example of the parallel 0ption.2'~ Operation Joint Endeavor in Bosnia is an example of the regional alliance 0ption.2~~
6.3.5 Intera~encv Coordination
Coordination with U.S. agencies, nongovernmental organizations, and private voluntary organizations is essential to understand the situation and society involved, 230 and to ensure unity of effort.u1 "For MOOTW outside the United States, the lead agency will normally be the Department of State (DOS) and the U.S. Ambassador will coordinate U.S. activities through an established Country Team with representation from all U.S. departments and agencies in that country, including
mD.,,232 A Civil-Military Operations Center (CMOC) can provide effective coordination with nongovernmental and
private voluntary organizations.233 Forty nongovernmental and private voluntary organizations were in Haiti;234 four- hundred were in Bosnia.235 Because there are so many agencies and organizations, each with its unique authority and capabilities, judge advocates should consult the references in footnote 189 of this chapter for more specific information.
6.4     THEARMY'S ROLE IN
M00'nv

The Army's role in MOOTW outside the United States is to perform specific DoD missions, normally as part of a joint force, normally under the lead of DoS, and in coordination with U.S. government, nongovernmental, and private voluntary organization^.^^^ These missions involve myriad legal concerns, the most important of which are addressed later in this chapter.
The doctrine on the types of MOOTW, and the interrelationships between them is developing. This section will describe common Army MOOTW missions outside the United States: arms control, combating terrorism, counter-drug operations, sanctions enforcement, humanitarian assistance, nation assistance, noncombatant evacuation operations, peace operations, recovery operations, show of force, strikes and raids, support to insurgencies, and operations under armistice conditions. Because doctrine is developing, judge advocates should consult the current doctrine when planning or conducting an operation.
6.4.1     Arms Control
Arms control is a plan, based upon international agreement, that governs the numbers, types, or characteristics of weapon systems, or the strength, organization, equipment or employment of armed f0rces.2~~ Potential army missions include verifying treaty provisions, seizing weapons of mass destruction, escorting weapon deliveries, or disposing of weap0ns.2~~ The army may also participate in confidence building measures, including inspections, base visits, and equipment demon~trations.~~~
6.4.2     corn bat in^ Terrorism

Combating terrorism includes antiterrorism and counterterrori~rn.~~~ Antiterrorism involves "defensive measures used to reduce the vulnerability of individual and property to terrorist acts, to include limited response and containment by local military forces."241 Antiterrorism programs are comprehensive; they include threat analysis, vulnerability assessments, information security, operations security, personnel security, physical security, crisis management planning, tactical measures to contain or resolve incidents, training, and public affairs.242 "A well-planned, systematic, all-source intelligence and counterintelligence program is es~ential."~~ Counterterrorism is a special operations mission that involves "offensive measures taken to prevent, deter, and respond to terrori~rn."~ Response measures "include preemptive, retaliatory, and rescue operations."245
6.4.3     Counter-Drug O~erations
While counter-drug operations primarily support U.S. law enforcement agencies,246 they also support the national drug control strategy goal of breaking foreign sources of Counter-drug support to foreign nations is provided through security assistance programs and civil-military ~perations.~~ Security assistance programs provide equipment needed to meet the drug threat, services related to the equipment, and training in drug enforcement when granted exceptions to restrictions on police trai11ing.2~~ Civil- military counter-drug operations in foreign countries include providing information about the host nation drug culture, cooperative programs to reduce drug trafficking, providing collateral intelligence to host nation authorities, and assisting host nation information
6.4.4     Enforcement of Sanctions and Exclusion Zones
Sanctions and exclusion zone enforcement are coercive measures to enforce decisions of competent national or international a~thorities.~~' The military objectives are to establish barriers to the flow of goods, or to prohibit certain activities in specific geographic areas.252 Operations SUPPORT DEMOCRACY off Haiti in 1993, SOUTHERN WATCH in Iraq in 1992, and DENY FLIGHT in Bosnia in 1993 are examples of sanctions and exclusion zone enf~rcement.~'~
Legal Support to Operations

6.4.5     Humanitarian Assistance Humanitarian and civic assistance programs are "provided in conjunction
Humanitarian Assistance operations with military operations and exercises, "relieve or reduce the results of natural and must fulfill unit training or manmade disasters or other endemic requirements that incidentally create conditions such as human pain, disease, humanitarian benefit to the local hunger, or privation in countries or populace."261 This assistance may take regions outside the United state^."^" the form of medical, dental, and Military support is intended to veterinary care, and rudimentary supplement other agencies, and may include command and control, operational planning, intelligence, 6.4.7 Noncombatant Evacuation logistics, or Operations
6.4.6     Nation Assistance Noncombatant evacuation operations evacuate U.S. citizens and selected non-
"Nation assistance is civil or military U.S. persons from a foreign country.263 assistance (other than HA [humanitarian These operations normally include assistance]) rendered to a nation by U.S. "swift insertions of a force, temporary forces within that nation's territory occupation of an objective, and a during peacetime, crises or emergencies, planned withdrawal upon completion of or war, based on agreements mutually the mission."264 Depending upon the concluded between the United States specific mission and situation, these and that nation."256 Nation assistance operations may require medical and includes security assistance, foreign dental support, combat search and internal defense, and humanitarian and rescue, mortuary affairs, public affairs, civic assistance programs provided psychological operations, and command under Title 10 U.S. Code Section 401 .257 and control Evacuee Security assistance provides defense processing may occur in country or in a articles, training, and services under the safe haven,266 and may involve searching Foreign Military Sales Program, Foreign and segregating personnel, inspecting Military Financing Program, for restricted items, providing logistical, International Military Education and medical, and chaplain support, and Training Program, Economic Support requests for asylum or temporary Fund, and Arms Export Control Act refuge.267 sales.258 Foreign Internal Defense is a Special Operations mission that enables 6.4.8 Peace Operations foreign nations to fight subversion and insurgency.259 These missions include Peace operations "support support to security assistance, joint and diplomatic efforts to reach a long-term
combined exercises, exchange programs, . political settlement and [are] categorized civil-military operations, sharing as peacekeeping operations . . . and intelligence and logistical support, and peace enforcement operations."268
combat operations when approved by Military operations such as preventive National Command A~thorities.~~" deployment, military-to-military contacts, or other MOOTW may also support preventive diplomacy, peacemaking, or peace building.269
Peacekeeping Operations (PKO) are "military operations undertaken with the consent of all major parties to a dispute, designed to monitor and facilitate implementation of an agreement .. . and support diplomatic efforts to reach a long-term solution."270 PKO tasks are specific to the mission and may include observing and monitoring compliance, investigating alleged violations, negotiating and mediating with the parties, supervising cease-fires or other aspects of the agreement, and assisting civil authorities.271 PKO planning considerations include, but are not limited to, compliance with the international mandate, terms of reference (TOR), and Status of Forces Agreement (SOFA); coordination with nongovernmental organizations and private voluntary organizations; coordinating the sources and funding responsibilities for logistical support; methods for collecting information; developing rules of engagement restrictive enough to comply with the mandate and robust enough to protect the force; procedures for addressing foreign claims; and procedures for handling dislocated civilian^.^"
Peace Enforcement Operations (QEQ) "are the application of military force or the threat of its use, normally pursuant to international authorization, to compel compliance with resolutions or sanctions designed to maintain or restore peace and order."273 PEO tasks are also mission specific and may include "enforcement of sanctions and exclusion zones, protection of HA,
operations to restore order, and forcible
separation of . . . parties" and
conducting internment or resettlement
PEO planning
considerations are similar to PKO, but
also include more emphasis on
intelligence collection, fire support,
mobility and survivability; and ROE that
enable the use of force to compel
compliance while minimizing collateral
6.4.9 Recovery O~erations

"Recovery operations are conducted to search for, locate, identify, rescue, and return personnel or human remains, sensitive equipment, or items critical to national They may occur in either friendly or denied areas.277
6.4.10 Show of Force Operations

Show of force operations demonstrate U.S. resolve through increased visibility of military forces to influence respect for U.S. interests or defuse a situation.278 These operations may include formation of a joint task force, repositioning of forces, patrolling, or conducting exercises.279
6.4.11 Strikes and Raids
"Strikes are offensive operations conducted to inflict damage on, seize, or destroy an objective for political purposes. . . .An example of a strike is Operation URGENT FURY, conducted on the island of Grenada in 1983."280 "A raid is usually a small-scale operation involving swift penetration of hostile territory to secure information, confuse the enemy, or destroy installations. . . . An example of a raid is Operation EL DORADO CANYON conducted against Libya in 1986, in response to the terrorist bombing of U.S. Service members in Berlin."281
6.4.12 Support to Insur~encies
Support to Insurgencies includes
U.S. logistic and training support, but normally not combat operations, for an organized movement to overthrow a constituted government.282 An example was U.S. support to the Mujahadin resistance in Afghanistan 'during the Soviet invasion.283
6.4.13 Operations Under Armistice Conditions
An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not defined, the belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.284 For example, the Korean Armistice Agreement signed on 27 July 1953, shapes the conduct of military operations on the Korean peninsula and there are specific Armistice Rules of Engagement for the Korean theater. Consequently, judge advocates stationed in the Republic of Korea must be familiar with the Korean Armistice Agreement and other sources of international law dealing with armistice agreements.
6.5     ORGANIZATION OF LEGAL SUPPORT
The legal support organization for MOOTW is generally as described in
Legal Support to Operations
Chapter 2. Nevertheless, because each MOOTW is unique, SJAs must tailor legal support, and must coordinate technical legal supervision, technical support, and augmentation requirements for the specific situation and mission. When tailoring legal support for MOOTW, SJAs should consider mission-specific requirements for legal duties and skills. MOOTW require judge advocates to perform additional mission-specific duties.28s During operations in Haiti, for example, legal personnel supported refugee operations in Panama and Cuba, the Joint Interrogation Facility, the Joint Logistics
Support Command, and the United Nations Mission in Haiti headquarters.286 In Bosnia, judge advocates supported each Battalion Task Force, a level of command lower than normal, and served as advisors to Joint Military Co~nmissions.~~~ During both operations, split-based operations generated requirements for additional legal resources.288
6.6     LEGAL ASPECTS OF C2, SUSTAINMENT,AND SUPPORT OPERATIONS
While S JAs must always provide support in OPLAW and the core legal disciplines described in Chapter 3, SJAs should pay special attention to the following prominent legal concerns arising in MOOTW outside the United States. Although this section outlines only the principal concerns, the potential MOOTW missions, situations, and corresponding legal issues are myriad. Therefore, legal personnel should consult the Operational Law Handbook289and other legal sources for detailed information about the legal aspects of various types of MOOTW.
6.6.1 Lepal Basis for the O~eration

The legal basis for an operation derives from international and domestic law, and the decisions of competent
It may be expressed in U.N. Security Council Resolutions, regional security organization resolutions, international agreements, U.S. National Command Authorities decisions, orders, mandates, terms of reference, or other forms. While U.S. National Command Authorities consider international and domestic legal authority when ordering military operations, judge advocates advising military commanders must know the legal basis for the operation for two important reasons.
First, a clear understanding of the legal basis promotes the legitimacy of the operation. "A clear, well-conceived, effective, and timely articulation of the legal basis for a particular mission will be essential to sustaining support at home and gaining acceptance abroad."291 Therefore, OPLAW JAs must understand the legal basis and brief commanders, enabling them "to better plan their missions, stsucture public statements, and conform their conduct to national Commanders' statements and conduct contribute to legitimacy by demonstrating adherence to law and authority.293 Co~nmanders and judge advocates must also educate the soldiers about the operation's purpose and legal basis. Informing the soldiers will help their morale and improve their ability to communicate and cooperate with local civilians, other
nations' forces, and nongovernmental
organizations.
Second, the legal basis of the operation guides the commander in many ways. It may affect the operation's sc0pe,2~~ timing,296 and ROE;297 the status of
the command' s relationships with military and non-military organization^;^^^ and the applicable funding authorities.300 Therefore, OPLAW JAs must obtain and study all relevant international organization resolutions and international agreements, the mandate, the terms of reference, and higher command orders. Furthermore, OPLAW JAs must be diligent throughout the planning and conduct of the operation to incorporate legal guidance from these documents into the relevant portions of all operations plans and orders.
6.6.2 Status of Forces

The status of forces is of critical concern to commanders during MOOTW overseas.301 Because the jurisdictional default to the Law of the Flag does not normally apply in MOOTW, numerous legal issues affecting the success of the operation must be resolved, including host nation criminal and civil jurisdiction, authority to conduct law enforcement activities including trials by courts-martial, claims against the U.S. or U.S. personnel, authority for U.S. forces to carry arms and use force, force protection, entry and exit requirements, customs and tax liability, contracting authority, authority to provide health care without a local medical license, vehicle registration and licensing, communications support,
Legal Support to Operations
facilities for U.S. forces, hiring of local personnel, authority to detain or arrest, and provisions for transferring custody.302 These issues can become significant issues for the SJA and the entire command.303
SJAs and OPLAW JAs must identify and resolve status of forces issues beginning early in the planning process and continuing throughout the operation. There are several strategies available to resolve status concerns. First, look to existing agreements, which should be available at the Unified Command, Component Command, or International and Operational Law Division, 0TJAG.304 Second, consider the need for additional agreements and inform the proper authority under Army Regulation 550-51 of any req~irements.~'~ Agreements can be negotiated during or after operations.306 Third, consider whether conventions on the status of United Nations personnel apply and are adequate.307 Fourth, consider whether an agreement is unnecessary because the Law of the Flag applies or there is a jurisdictional
Finally, where compliance with host nation law is required, inform the command of these requirements and consider measures to mitigate the impact on the operation.
6.6.3     International & Interagency Relationshim
Information describing the basic relationships existing between military organizations, and with non-military agencies and organizations is provided earlier in this chapter, and in references cited in footnote 5. Commanders will encounter three general concerns involving international and interagency relationships that require judge advocate support: questions concerning command authority,309 requirements for legal liaison co~rdination,~'~
and and conflicting legal concerns.311
SJAs and OPLAW JAs must perform several important tasks relating to these concerns. They must advise commanders about their legal authority in relation to other commands, agencies, and organizations. They must coordinate legal advice and actions with all relevant commands, agencies, and organizations.312 They must perform liaison as directed by the commander, which may include liaison with the International Committee of the Red Cross and legal officers in other troop contributing nations, participating in the Civil-Military Operations Center, and giving briefings for the Joint Military Comrni~sion.~~~
Finally, they must take the initiative to find innovative solutions to conflicting legal concerns.314
6.6.4     Use of Force & Rules of Enga~ement(ROE)
The general principles and judge advocate tasks relating to the interpretation, drafting, dissemination, and training of ROE discussed in Chapter 8 and the Operational Law Handbook apply in MOOTW.315 The general purposes of ROE-to accomplish the mission and protect the force-also remain valid.316 U.S. forces will always retain the inherent right of self-defense.317 The Chairman of the Joint Chiefs of Staff (CJCS) Standing ROE (SROE) will generally, but not always, apply in MOOTW.318
Nevertheless, there are several unique ROE concerns in MOOTW. "ROE in MOOTW are generally more restrictive, detailed, and sensitive to political concerns than in war . . ."3'9 Restrained, judicious use of force is necessary; excessive force undermines the legitimacy of the operation and jeopardizes political objectives.320 MOOTW ROE considerations may include balancing force protection and harm to innocent civilians or non-military areas,321 balancing mission accomplishment with political
consideration^,^^' protecting evacuees "while not having the authority to preempt hostile actions by proactive military measures,"323 enabling soldiers to properly balance initiative and restraint,324 determining the extent to which soldiers may protect host nation or third nation civilians,325and the use of riot control agents.326 In multinational operations, developing ROE acceptable to all troop contributing nations is imp~rtant.~" Being responsive to changing ROE requirements is also
SJAs and OPLAW JAs will be much more involved in ROE interpretation, drafting, dissemination, and training during MOOTW.329 Interpretation must consider not only the SROE or other applicable higher headquarters ROE, but also the legal authority for the operation, mandate, and specific political objectives.330 Drafting must address considerations such as those discussed in the previous paragraph, and account for the specific concerns of each troop contributing nation.331 Dissemination must be prompt and responsive throughout all levels of command, from the appropriate political authority to the individual soldier.332 Training should include vignettes, in which soldiers role- play expected situations and train to respond in accordance with the ROE.333
6.6.5 Treatment of Civilians
SJAs and OPLAW JAs face significant challenges regarding the commander's legal obligations toward civilians: determining an individual's status, identifying the specific legal rules that apply, and applying legal rules in a wide variety of operational situations. Generally, while the law of war will not normally govern MOOTW, DoD Dir. 5100.77 and Chairman of the Joint Chiefs of Staff Instruction 5810.01 require U.S. forces always to apply the principles of the law of war in MOOTW as a matter of Beyond this, however, the issues become complex.
The legal complexity relates to the three challenges identified above. The status of civilians encountered may include U.S. civilians, host nation civilians, third country civilians, diplomats, media, criminals, host nation civilian officials, armed civilian groups, international organization employees, non-governmental and private voluntary organization personnel, refugees, contractors on the battlefield, and other
The applicable law will always include the principles of the Law of War, and may also include the customary international law of human rights, the Universal Declaration of Human Rights, human rights treaties, provisions of Protocols I & It, or host nation The operational situations may include maintaining public order,337 applying military force,338 providing humanitarian assistance,339 processing

Fourth, recommend that the commander establish multidisciplinary logistics and acquisition boards; provide legal advice to these boards.360 Fifth, consider innovative solutions learned from recent experiences.361
6.6.7 Intelligence Oversight
MOOTW require "multi-disciplined, all-source, fused intelligence;" human intelligence may be the most useful component.362 Intelligence support is critical to all types of MOOTW.363 Intelligence collection in MOOTW focuses on "political, cultural, and economic factors that affect the situation" rather than on an enemy's military capability.364 As a result, intelligence collection and counterintelligence operations involve substantial contact with non-government organizations, private voluntary organizations, the local populace, and allied or coalition ~artners.3~~
Because of sensitivities that exist when working with nonmilitary organizations or in
U.N. operations, it is frequently appropriate to use the term "information gathering" rather than "intelligence
Many intelligence organizations have organic legal support; nevertheless, SJAs and OPLAW JAs must provide intelligence law advice to their own organizations in the development and oversight of operations.367 Therefore, SJAs and OPLAW JAs must be familiar with the legal rules relating to intelligence operations,368 have the security clearances required to access relevant information,369 and be prepared to resolve sensitive intelligence law i~sues.~'' Technical legal support from SJA, U.S. Army Intelligence and Secu,rity Command can assist SJAs and OPLAW JAs with these issues.
6.7     LEGAL TRAINING REQUIREMENTS
The general training principles and procedures in Field Manual 25-100, Field Manual 25-101, and chapter 4 of this manual apply to MOOTW t~-ai1ing.3~' In particular, SJAs must always ensure all legal personnel are proficient in individual skills such as land navigation, handling classified material, first aid, weapons qualification, et~.,~~~that
and legal organizations are proficient in collective tasks relating to OPLAW and the core legal disciplines. Training for MOOTW, like training for war, requires legal personnel to receive and provide individual and collective training, and to train with the units they
Nevertheless, MOOTW require mission-specific skills. First, judge advocates must have political-military skills.374 In Bosnia, the legal advisor to the Joint Military Commission advised the commander on the application of the Dayton Accords and drafted correspondence to the military and political faction^.^" Other judge advocates coordinated multinational ROE, provided advice concerning persons indicted for war crimes, and communicate with government and non- government organization^.^'^ Second, deployed legal organizations must have host nation expertise -an understanding of the local law, and the ability to communicate in the local language.377'? Third, deployed legal personnel may
Legal Support to Operations
require specialized expertise. Special Operations units, which conduct many MOOTW missions, require legal advisors who know special operations missions, structure, doctrine, and
In Haiti, experts in civilian legal and judicial functions were required to assist the newly restored Aristide government.379
SJAs should emphasize the following aspects of MOOTW individual training: situational training exercises involving ROE, individual readiness training for the specific operation, and interagency and international cooperation.380 Training in interagency and international cooperation should improve cultural awareness, understanding of the roles of various organizations, and consensus-building ~kills.3~~
SJAs should become heavily involved in MOOTW mission rehearsal exercises (MRE). First, SJAs must become involved early in MRE planning to ensure the legal aspects of the specific mission are integrated into the mission rehearsal exercise scenario. Second, SJAs should ensure the scenario addresses training needs of two audiences: the command and staff at all echelons, and their legal personnel. Third, SJAs should ensure that deploying legal personnel participate in the exercise with their supported units.382 Fourth, SJAs should ensure that experienced and well-trained legal personnel act as observer-controllers. SJAs of superior commands must provide or coordinate the technical support required to ensure the success of the MRE.
6.8     LEGAL EQUIPMENT REQUIREMENTS
The facilities and equipment generally required to provide legal support described in Chapter 2 are sufficient for legal support to MOOTW. Recent experience in MOOTW confirms the requirements for the RDL, Internet access, electronic legal research capabilities, connectivity with tactical command, control, and communication systems, secure communication and storage capabilities, and dedicated vehicles.383 SJAs and OPLAW JAs must ensure that RDLs are pre-loaded with the software packages and research materials required for the operation, that battle boxes are adequately supplied, and that other military equipment and office supplies are on hand, and ready for u~e.3'~
6.9     SUMMARY
MOOTW present significant challenges to judge advocates. They must master the complex political and legal frameworks common to MOOTW, provide competent advice concerning the roles of various organizations involved in an operation, forge consensus among numerous military and non-military organizations, and resolve technical legal issues. Thorough understanding of the strategic and theater concepts, diligent participation in the planning and conduct of MOOTW, and mastery of the prominent legal issues are essential to accomplishment of the military mission and political objectives.
Legal Support to Operations

Chapter 7 The United States as a Theater

7.1 INTRODUCTION
Although a theater of operations, as discussed in Chapter 4, is technically defined as an area "outside the continental United States," emergencies or other circumstances may arise in which a senior commander must provide support within the United States. That is, he must determine when, where, and for what purpose tactical forces, equipment, or other support will be committed in support of strategic aims. Judge advocates supporting operations taking place in the U.S. practice OPLAW and provide legal support to these operations much the same as judge advocates deployed overseas do for foreign operations. Statutes, numerous Department of Defense Directives, and other materials define the parameters of military support to domestic operations. Judge advocates that provide legal support to these operations must have a detailed understanding of the various programs, and their underlying legal authorities, that make up the domestic support arena. This chapter applies to operations in the U.S., including Alaska, Hawaii, Puerto Rico and other U.S. territories and possessions.
Generally, domestic operations fall into three categories: military support to civil authorities (e.g., disaster relief); military support to law enforcement (e-g., civil disturbances, counterdrug operations); and military support to terrorism response (to include those involving weapons of mass destruction) (described later in this chapter as Emerging Threats in the Continental U.S.). This chapter will address each of these categories with a view toward the specialized nature of training and preparation legal personnel require for these operations.
Commanders and their judge advocates must understand that the DoD plays a support role in domestic operations. DoD acts in support of another federal, state, or local government or agency, known as the lead agency. Judge advocates must prepare to work closely with all appropriate organizations and agencies to help the commander stay within the restrictive boundaries of law and policy characteristic of military support in the United States.
CONTENTS PAGE

INTRODUCTION………………………. 7-1

ORGANIZING AND EQUIPPING
JUDGE ADVOCATES …………………. 7-2

TRAINING JUDGE ADVOCATES …. 7-2 MILITARY SUPPORT TO ClVlL AUTHORITIES…………………………… 7-3
General……………………………….. 7-3

Authorization for Military 7-3
Support……………………………

Lead Agency and Military Role 7-4

Rules on the Use of Force …….. 7-5 MILITARY SUPPORT TO LAW ENFORCEMENT………………………… 7-6
CIVIL DISTURBANCE OPS ……. 7-6

General……………………………….. 7-6 Authorization for Military Support……………………………. 7-7 Lead Agency and the Role of the Military ……………………….. 7-7 Rules on the Use of Force …….. 7-8
COUNTER-DRUG OPS ………….. 7-9

General……………………………….. 7-9 Authorization for Military Support…………………………… 7-10 Lead Agency and the Role of theMilitary……………………….. 7-11 Rules on the Use of Force …….. 7-11

TERRORISM……………………………… 7-12

7.2     ORGANIZING AND EQUIPPING JUDGE ADVOCATES
For an SJA, organizing and equipping judge advocates to deliver legal support to domestic operations is no different than it is for war or operations other than war. Based on the MElT-TC model (the variance being that the enemy could be an actual disaster, potential threats to force protection in a civil disturbance, or terrorists), the SJA will task organize his legal support to support the command and troops in the operation. The SJA should develop formal or informal training associations with Legal Support Organizations, Reserve Support Commands, or the Army National Guard to obtain the benefit of the experienced reserve component support embedded therein. The National Guard (non-federalized in a Title 32 status) will likely play a significant role in all domestic operations; therefore, S JAs involved in domestic support operations should develop such training associations with National Guard judge advocates. SJAs can expect small task force-sized units that are logistically heavy in terms of troops and mission. Despite the potentially small size of
units that may be called upon to provide assistance, any domestic operation will be legally intensive. While operations covered in other chapters in the publication focus mostly on judge advocate support to brigades and larger organizations, judge advocates should expect to support battalion-sized and smaller units in domestic operations.
7.3     TRAINING JUDGE ADVOCATES
Most judge advocates have little experience or training in domestic operations. This, coupled with the legally intensive nature of military support to domestic operations, is the reason that this chapter focuses on training. TJAGSA's Operational Law Handbook and CLAM0 are two training resources for domestic operations. The general training principles described previously in chapters 4 and 5 remain the same. Lessons learned from past operations indicate a need for judge advocates to plan, develop legal expertise, and train for the use of the military to respond to domestic events- disasters, civil disturbances, and terrorist threats. That added need is the focus of this chapter.
understanding of the limitations and exceptions to the Posse Comitatus Act.
7.4.4 Rules for Use of Force
The Chairman of the Joints Chief of Staff Standing Rules of Engagement (SROE) do not apply to domestic disaster relief operations. Commanders and their judge advocates must pay particular attention to any guidance on the Rules for Use of Force (the term "ROE" is not used for domestic operations) in the execute order or in any subsequent orders or directives. While most disaster relief operations will occur in a non-hostile environment, soldiers need to know the applicable Rules for Use of Force. DoD Directive 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties (25 February 1992), provides guidance pertaining to the authorized use of deadly force which may be applicable. A situation where soldiers might be confronted with use of
Legal Support to Operations

force situations might include a civil disturbance (e.g., looting) that occurs during disaster relief operations. Other state and local agencies, and perhaps non-federalized National Guardsman, are responsible for law enforcement functions-not federal troops. Again, the Posse Comitatus Act does not apply to the non-federalized National Guard. Commanders must be mindful, however, of force protection and the welfare of their soldiers. Proper training will ensure soldiers understand the rules on the use of force in domestic operations.
Finally, commanders must abide by and consider specified laws and policy on intelligence restrictions, election support restrictions, chaplain activities, payment of claims, debris removal, donated property, environmental compliance, support to relief workers, and the use of volunteers when planning and executing disaster relief and other types of military support operations in the United States.
7.6     EMERGING THREATS IN THE CONTINENTAL UNITED STATES (TERRORISM)
Due to our military superiority, potential enemies, whether nations or terrorist groups, may be more likely in the future to resort to terrorist acts or other attacks against vulnerable civilian targets in the United States instead of conventional military operations.
A National Security Strategy for a New Century The White House- October 1998
The federal government, in concert with state and local governments and agencies, will respond to acts of terrorism occumng in the United States. In general, the federal government's response will include the restoration of order and delivery of emergency assistance. Presidential Decision Directive (PDD) 39, signed in June 1995, establishes U.S. policy, and assigns responsibilities, concerning domestic terrorism. PDD 62, signed in May 1998, lays out the Executive Branch's vision and the corresponding assignment of responsibilities for a coordinated U.S. response to acts of terrorism involving weapons of mass destruction (WMD). PDD 62 directs the Department of Justice (DoJ), acting through the Federal Bureau of Investigation (FBI), to take the lead responding to acts of tenorism using WMD. The Federal Emergency Management Agency (FEMA) supports the FBI in preparing for and responding to the consequences of such an incident.
As part of the Domestic Terrorism Program, the Department of Defense (DoD), along with many other agencies, will provide specified capabilities and assets in support of the FBI, FEMA, and other federal, state, and local governments as part of an integrated consequence management program. As part of this Program, the DoD will maintain units to assist in WMD consequence management and to help train emergency response personnel. This training may include exercises or other forms of training. Further, the DoD will help train the Army National Guard and other reserve assets for their role in assisting local authorities in managing the consequences of a WMD attack.
Again, like other forms of military support to domestic operations, judge advocates must have a detailed understanding of the laws, regulations and policies addressing terrorism and the roles of federal and state agencies. Judge advocates must recognize that a terrorist attack on the United States involving WMD will likely entail a massive, joint, and inter-agency response that will cross federal, state, and local government lines. Time to respond may be of the essence and command and control lines may be unclear or confused. Further, a well-organized, trained, and equipped military may have the tendency to step in and take "charge." Absent direction from the NCA (akin to a declaration of
Legal Support to Operations

martial law), federal military commanders must remember that DoD remains in a support role to assist DoJ, the FBI, FEMA or other lead agency with primary responsibility and overall control of the mission.
Legal Support to Operations

Chapter 8 Rules of Engagement

War is tough, uncompromising, and unforgiving. For soldiers, the rigors of battle demand mental and physical toughness and close-knit teamwork. Between the anxiety of battle, soldiers spend long hours doing routine but necessary tasks in the cold, wet weather and mud, moving from position to position, often without hot meals, clean clothes, or sleep. In war, the potential for breakdown in discipline is always present. The Army operates with applicable rules of engagement (ROE), conducting war$are in compliance with international laws and within the conditions specified by the higher commander. Army
forces apply the combat power necessary to ensure victory through appropriate and disciplined use of force.
Field Manual 100-5, Operations

It is not uncommon in MOOTW, for example peacemaking, for junior leaders to make decisions which have significant political implications.
Joint Publication 3-07, Joint Doctrine for Military Operations Other than War

I CONTENTS PAGE
INTRODUCTION………………………. 8-2

ROE DEVELOPMENT
CONSIDERATIONS…………………. 8-2

Commander's Responsibility.. 8-2
Purposes of ROE ……………….. 8-2
Drafting Considerations ………. 8-3
Situation Considerations …….. 8-4
Definitions& Key Concepts …. 8-5
Types of ROE …………………… 8-6
CJCS STANDING ROE ……………….. 8-7
THE I-PDT METHODOLOGY …….. 8-9
Interpret………………………………. 8-9

Draft……………………………………. 8-10

Disseminate……………………………. 8-13

Train…………………………….. 8-13

8.1     INTRODUCTION
OPLAW provides vital links between the strategic and tactical levels of conflict. The strongest of these links are often rules of engagement (ROE). ROE enable mission accomplishment, force protection, and compliance with law and policy. While ROE are always commanders' rules, the interpretation, drafting, dissemination, and training of ROE are also the business of OPLAW JAs.
Every chapter of this manual records the importance of ROE to the practice of OPLAW. ROE integrate many of the six disciplines of legal support to operations and epitomize the counselor function of OPLAW JAs. Development of expertise with ROE is a prominent duty and responsibility of S JAs. Involvement with ROE places judge advocates fdy within the command and control of operations. Theater operations implement the ROE established by Commanders in Chief (ClNCs) of combatant commands. Corps and Division Deep Operations Coordination Cells (DOCCs), or Information Operations Cells of the future, rely upon OPLAW JAs to incorporate ROE considerations into the targeting process. Military operations other than war (MOOTW) tend to be characterized by ROE demanding greater restraint in applying combat power, a factor that creates great challenges for judge advocates deployed with forward brigade task forces.
8.2     ROE DEVELOPMENT CONSIDERATIONS
8.2.1 Commander's Res~onsibilitv
ROE are commanders' rules for the use of force. Operations personnel are principally responsible to ensure that the ROE further operational requirements. OPLAW JAs assist the commander to interpret, draft, disseminate, and train ROE because all ROE must conform to international law, because a Department of Defense Directive and service regulations give military attorneys a role in ROE compliance, and because the Chairman of the Joint Chiefs of Staff has directed that attorneys will review all operations plans and participate in targeting meetings of military staffs.
Also, the Hague and Geneva Conventions contain dissemination provisions that encourage the involvement of judge advocates in ROE matters. A provision of the 1977 Protocol I to the 1949 Geneva Conventions-which though not ratified by the United States is considered declarative of customary international law on this point–expressly mentions the role of "legal advisors."
8.2.2 Purposes of ROE
ROE are driven by three sets of considerations: policy, legal, and military. An example of a policy-driven rule is Executive Order 11850, which prohibits first use of riot control agents and herbicides without Presidential approval. An example of a legal-driven rule is the prohibition, "hospitals, churches, shrines, schools, museums, and any other historical or cultural sites will not be engaged except in self-defense." An example of a military-driven rule is the commonly encountered requirement for observed indirect fires for the purpose of effective target engagement. ROE are not the same as fire control measures. Fire control measures are implemented by commanders based on tactical considerations. An example of a fire control measure serving tactical purposes is the common requirement in ground operations that the artillery tubes organic to a unit will not fire beyond a designated fire support coordination line (FSCL); this ensures an efficient division of labor between fires controlled at one level and those controlled by higher levels of command. Moreover, it helps prevent fratricide by indirect fire.

The purposes of ROE quite often overlap; rules implementing strategic policy decisions may serve an operational or tactical military goal while simultaneously bringing U.S. forces in compliance with domestic or international law. As a result, troops in the field may not always appreciate the reasons why a leader fashioned a particular rule.
ROE must evolve with mission requirements and be tailored to mission realities. ROE should be a flexible instrument designed to best support the mission through various operational phases and should reflect changes in the threat.
8.2.3 draft in^ Considerations
Operational requirements, policy, and law define ROE. ROE always Legal Support to Operations
recognize the soldier's right of self-defense, the commander's right and obligation to self-defense, and America's national right to defend itself and its allies and coalition partners against aggression. In the Standing Rules of Engagement (SROE) for U.S. Forces, the Joint Chiefs of Staff provide baseline guidance and procedures for supplementing this guidance for specific operations. Effective ROE are enforceable, understandable, tactically sound, and legally sufficient. Further, effective ROE are responsive to the mission and consistent with unit initiative.
In all operations, ROE may impose political, operational, and legal limitations upon commanders. Withholding employment of particular classes of weapons or exempting the territory of certain nations from attack are examples of such limitations. At the tactical level, ROE may extend to criteria for initiating engagements with certain weapon systems (for example, unobserved fires) or reacting to attack.
Effective ROE comply with domestic and international law, including the body of international law pertaining to armed conflict. Thus, ROE never justify illegal actions. In all situations, soldiers and commanders use force that is necessary and proportional.
Effective ROE do not assign specific tasks or drive specific tactical solutions; they allow a commander to quickly and clearly convey to subordinate units a desired posture regarding the use of force. In passing orders to subordinates, a commander must act within the ROE received. However, ROE never relieve
multiplying the effectiveness of our operations.

8.2.5 Definitions and Kev Conce~ts
ROE are defined in Joint Publication 1-02 as "directives issued by competent military authority which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered." A few examples illustrate the broad range of rules that fall within this definition: requiring an F-111 crew to confirm that all target acquisition systems are operable to bomb a Libyan barracks abutting a civilian population center; prohibiting entry by U.S. Navy ships into territorial seas or internal waters of a neutral nation; or authorizing an infantryman at a guard post to use deadly force against saboteurs of mission-essential equipment.
Wartime Versus Standing ROE. In general, ROE differ in wartime to reflect the increased justification for using force. Wartime ROE permit U.S. forces to open fire upon all identified enemy targets, regardless of whether those targets represent actual, immediate threats. By contrast, the SROE, which will be discussed later in this chapter, merely permit engagement in individual, unit, or national self-defense. Most legal grounds for intemational use of force during peacetime are traceable to self- defense. Wartime ROE are familiar to units and soldiers because battle focused training concentrates on wartime tasks. Individual Army privates and officer trainees in all occupational specialties receive instruction and undergo evaluation on basic wartime rules, such as "attack only combat targets" and "do Legal Support to Operations
not destroy property unless required by the necessities of war." In war, national leaders will seek to make the ROE no more restrictive than international law.
Necessity and Proportionality. The principles of necessity and proportionality help define the peacetime justification to use force in self-defense and are thus fundamental to understanding ROE for MOOTW. The necessity principle pennits friendly forces to engage only those forces committing hostile acts or clearly demonstrating hostile intent. This formulation-a quite restrictive rule for the use of force-captures the essence of peacetime necessity under international law. In 1840, Secretary of State Daniel Webster articulated the essence of the necessity rule. He wrote that use of force in self-defense is justified only in cases in which "the necessity of that self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation." The rule of necessity applies to individuals as well as to military units or sovereign states.
Definitions of "hostile act" and "hostile intent" complete the meaning of "necessity." A hostile act is an attack or other use of force. Hostile intent "is the threat of imminent use of force." The precise contents of these definitions become sensitive when the ROE describe specific behaviors as hostile acts or equate particular objective characteristics with hostile intent. For instance, the ROE might define a foreign uniformed soldier aiming a machine-gun from behind a prepared firing position as a clear demonstration of hostile intent, regardless of whether
specified circumstances; however, only the NCA may authorize the exercise of collective self-defense.

The SROE distinguish between the right and obligation of self-defense-which is not limited-and use of force for the accomplishment of an assigned mission. Authority to use force in mission accomplishment may be limited in light of political, military or legal concerns, but such limitations have no impact on the commander's right and obligation of self-defense.
Once a threat has been declared a hostile force, United States units and individual soldiers may engage without observing a hostile act or demonstration of hostile intent. The basis for engagement becomes status rather than conduct. The authority to declare a force hostile is given only to particular individuals in special circumstances. A~~endix to Enclosure A of the
A SROE contains guidance on this authority.
8.4     THE I-D-D-T METHODOLOGY
I-D-D-T Methodology
Interpret
Draft
Disseminate
Train

Legal Support to Operations
Commanders and staffs at all echelons use the Interpret-Draft-Disseminate-Train (I-D-D- T)
methodology to incorporate ROE into the conduct of military operations. OPLAW JAs participate in all four facets of this methodology. Each facet is connected with and influences the others, and together the facets describe a process of continuous refinement and revision. The facets in the ID-D-T methodology are interactive rather than sequential.
In joint task forces and at higher joint echelons, the I-D-D-T methodology is conducted by an ROE Planning Cell. The ROE Cell consists of the 5-3, the J- 2, the J-5,and the SJA or designated representatives, in addition to other special staff officers as appropriate. The Joint Task Force 5-3 is responsible for ROE in crisis action planning, and the ROE Cell provides a formal planning structure through which the J-3 can effectively perform this responsibility.
At corps and divisions, the I-D-D-T methodology is conducted by the members of the Deep Operations Coordination Cell (DOCC) and any Information Operations Cell, in conjunction with their duties in the targeting process. At brigade level, the Brigade Judge Advocate coordinates throughout the military decision-making process with the S-3 and with all staff officers engaged in targeting to ensure that the I-D-D-T methodology is conducted.
8.4.1 Interpret
At the operational and tactical levels of conflict, commanders and staffs must interpret the ROE issued by higher headquarters. At the theater level, the CINC and his staff must interpret the SROE and any mission-specific ROE that may emanate from CJCS or the National Command Authorities. Interpretation of ROE demands skills that are well-honed in the legal profession and specifically cultivated within the "judge" function of legal support to operations. Thus, while the commander will ultimately determine what a rule issued by higher headquarters demands of his command, OPLAW JAs will provide expert assistance.

The interpretive expertise of the OPLAW JA begins from a thorough familiarity with the SROE. It relies upon aggressive research to find all operations plans, orders, messages, standing operating procedures, treaties and coalition documents, directives, and regulations that purport to establish or change the ROE. It demands careful organization of these documents (chronologically, by issuing headquarters) to determine which is authoritative on which point. It requires skill at reconciling two rules that appear to contradict by considering broader imperatives contained in the text of the rules or other guidance as well as clearheaded reasoning from any available precedents as to how the contradictory rules have been interpreted in the past. It presumes intimate knowledge of the "facts" of the military operation and sufficient knowledge of staff organization and procedures to gather information from those who can provide additional needed facts.
The OPLAW JA's contribution to the interpretation of ROE sometimes requires more than the skills of textual construction and factual analysis, however. In some situations, the OPLAW JA will be the sole member of the ROE Planning Cell, the DOCC, or the staff possessing the necessary training in objectivity and impartiality to state unpleasant interpretations of a higher headquarter's ROE. This requires constant situational awareness made possible through secure and nonsecure communication nodes, mobility, the commander's task organization of placing OPLAW JAs in command posts as discussed in earlier chapters.
8.4.2 Draft
In some operations, ROE will be top-driven, meaning that a higher echelon commander-for instance a CINC-establishes ROE that must be disseminated verbatim to all lower echelons. The preference of military doctrine, because it preserves lower echelon initiative, is for ROE to be top-
fed, meaning that a higher-echelon commander establishes rules for immediate subordinate echelons. These subordinate echelons in turn disseminate ROE that are consistent with those of higher headquarters but tailored to the particular unit's mission. These methods may also coexist within a particular operation, as some rules may be top-driven while others may be subject to discretion on the manner of dissemination and thus top-fed.
When the rules are not top-driven, commanders and staffs from theater level down to brigade draft ROE for
Legal Support to Operations
their commands. At theater and JTF levels, the drafting of ROE results in Appendix 8 (Rules of Engagement) to Annex C (Operations) of the operations plan (OPLAN) or operations order (OPORD), in accordance with the Joint Operations Planning and Execution System (JOPES), Joint Publication 5-03. At corps, division, and brigade level, the drafting of ROE results in Annex E to the OPLAN or OPORD in accordance with Army doctrine. Army doctrine also calls for the integration of ROE in the coordinating instructions subparagraph of paragraph 3 (Execution) of the body of the OPLAN or OPORD.
JOPES and Army doctrine provide minimal guidance as to the contents and format of these ROE documents. Standing operating procedures (SOPS), which exist in part to enable OPLANs and OPORDs to be brief, frequently provide extensive content and format guidance. This guidance, in turn, typically draws heavily upon the SROE, incorporating both standing rules and supplemental rules according to a command-specific format that is periodically updated and continuously trained. Appendix E to Enclosure B of the SROE contains a message format by which CINCs request and receive supplemental ROE.
The drafting of ROE in the context of multinational operations presents additional challenges. The SROE state that United States forces assigned to the operational control (OPCON) of a multinational force will follow the ROE of the multinational force unless otherwise directed by the National Command Authorities (NCA). The SROE further state that United States forces will be assigned and remain OPCON to a multinational force only if the combatant commander and higher authority determine that the ROE for that multinational force are consistent with the policy guidance on unit self- defense and with the rules for individual self-defense contained in this document. When U.S. forces, under United States OPCON, operate in conjunchon with a multinational force, reasonable efforts will be made to effect common ROE. If such ROE cannot be established, U.S. forces will exercise the right and obligation of self-defense contained in the SROE while seeking guidance from the appropriate combatant command.
Participation in multinational operations may be complicated by varying national obligations derived from international agreements; i-e., other members in a coalition may not be signatories to treaties that bind the United States, or they may be bound by treaties to which the United States is not a party. United States forces still remain bound by U.S. treaty obligations even if the other members in a coalition are not signatories to a treaty and need not adhere to its terms.
A multinational partner's domestic law, policy, and social values may also effect mu1 tinational planning at the strategic and operational level. Lessons learned from recent multinational exercises and operations reflect significant differences in how various countries understand and view the application of military force through the ROE. These factors can severely limit -or expand a Multinational Commander's ability to use a national contingent's capabilities. Legal advisors at all levels

advocates disseminate and train ROE to all lowest levels. All training opportunities should reinforce ROE and teach soldiers how to apply the basic rules of self-defense. Individual and unit preparation for specific missions must incorporate training that challenges soldiers to apply mission-specific ROE. In crisis response situations, ROE training may consist of leaders and soldiers receiving and training on the mission-specific ROE en route to the departure airfield. Jn that case, the knowledge gained on the basic rules of self-defense and scenario-specific, situational ROE during past scheduled training enables commanders and soldiers to better understand and adhere to the crisis situation ROE. When preparing for missions such as peacekeeping or disaster relief, commanders should remember that these missions normally require soldiers to use greater restraint and discipline than in offensive or defensive operations.
ROE should always include situational training. This situational training should challenge soldiers in employing weapons, levels of force, and other ROE. Situational training exercises (STXs) focus on one or a small group of tasks-within a particular mission scenarieand require that soldiers practice until the tasks can be executed to some pre-established standard. Trainers refer to these scenarios unofficially as "vignettes," and to this type of training as "lane training." To conduct STXs on ROE, a commander, judge advocate, or other trainer places a soldier in a particular simulated operational scenario and then confronts him with an event, such as the crashing of a traffic checkpoint barrier by a speeding vehicle. The trainer evaluates the soldier's response, and afterward discusses alternative responses available within the ROE. The STX brings to life abstract rules contained in written ROE, giving the soldier concrete tern of reference within whch to determine his response. In this way, the soldier achieves the balance between initiative and restraint so important to success, particularly in MOOTW. The SJA must be prepared to assist in providing ROE training, including vignette-driven training, and to ensure that subordinate SJAs are involved in providing similar assistance for ROE training.
The SROE articulate baseline principles that are useful in conducting soldier training within STXs, prior to a deployment. These principles can be restated within an acronym that permits individual common task training (CP) by establishing a standard against which to evaluate the soldier's response during the STX. One training device that captures the baseline SROE principles is the mnemonic RAMP. The box below outlines the elements of R-A-M-P, which when used within a context of repetitive and varied situational training, inculcates effective responses under conditions of stress. Because R-A-M-P principles incorporate necessity and proportionality, RAMP training provides a solid framework upon which mission- specific ROE training can build. Nevertheless, legal personnel must assist soldiers in understanding that R-A-M-P self-defense principles are not a substitute for mission-specific ROE training.
Legal Support to Operations

In all ongoing operations, but particularly in volatile and rapidly changing peace operations, commanders must conduct continuous refresher training. Commanders in Bosnia effectively developed and updated situational ROE training based on actual recorded events that took place in the theater of operations from previous weeks. In the gray zone surrounding ROE in peace enforcement operations, commanders, with their OPLAW JAs, must continually hone their soldiersy ability to balance initiative and restraint.
R-A-M-P
R -Return Fire with Aimed Fire. Return
force with force. You always have the right
to repel hostile acts with necessary force.
A -Anticipate Attack. Use force if, but
only if, you see clear indicators of hostile
intent.
M -Measure the amount of Force that
you use, if time and circumstances permit.
Use only the amount of force necessary to
protect lives and accomplish the mission.

P -Protect with deadly force only human
life, and property designated by your
commander. Stop short of deadly force
when nrnterti nu nther nrnnertv

ABCS AC-RC ACCA ACO ACOM
ACS A

ACU
ADCON ADDS AGCCS ADC-M ADC-S AJAG AJAGICLL AJAG/MLO
ALCOM ALOC ALLS AMOPES AMOPS ANGLICO A0 AOA AOC AOE
AR
ARFOR ARNG ARNG Spec Asst
ASCC ASG AS1 Assault CP ATCCS
BCT BCTP BDCSTS
Legal Support to Operations

Glossary
Army Battle Command System
Active Component-Reserve Component
Army Court of Criminal Appeals
Area Claims Office

Atlantic Command (ACOM will be redesignated USJFCOM on or
about 1 Oct 99)

Acquisiti.on and Cross-Servicing Agreement
Area Common User
Administrative Control

Army Data Distribution System
Army Global Command and Control System
Assistant Division Commander-Maneuver
Assistant Division Commander-Support
Assistant Judge Advocate General
Assistant Judge Advocate General for Civil Law and Litigation
Assistant Judge Advocate General for Military Law and
Operations

Assistant Judge Advocate General for Operations, a United States
Army Reserve Individual Mobilization Augrnentee
Alaskan Command

Administrativebgistics Operations Center
Army Law Library Service
Army Mobilization Planning and Execution System
Army Mobilization and Operations Planning System
Air and Naval Gunfire Liaison Company
Area of Operations
Areas of Assistance
Areas of Conflict
Army of Excellence
Army Regulation
Army Forces
Army National Guard

The Army National Guard Special Assistant to The Judge
Advocate General

Army Service Component Commander
Area Support Group

Additional Skill Identifier
Assault Command Post, a TAC CP in a rapidly deployed division
Army Tactical Command and Control System
Brigade Combat Team Battle Command Training Program Broadcast System BDE BN BOLT BUB
C2 C21 CA CAAF CENTCOM CCE CD CDD CDP CD-ROM ClMIC CINC CJA CJCS CJCSI CJCS SROE CLAM0 CLE CLEA CLNCO CMO CMOC CNR COA COCOM COL COMMZ CONUS CONUSA COSCOM COTS CP CPO CPT CTC CTT
cz
DAD D-D-D-A Brigade Battalion Brigade Operational Law Team Battle Update Brief
Command and Control Command, Control, and Information Civil Affairs Court of Appeals for the Armed Forces Central Command Commanders' Critical Information Requirements Compact Disc; Counter Drug Combat Developments Division, TJAGSA Combat Decision-Making Process Compact Disc, Read-Only Memory Civil-Military Information Center Commander in Chief Command Judge Advocate Chairman, Joint Chiefs of Staff Chairman, Joint Chiefs of Staff Instruction Chairman, Joint Chiefs of Staff Standing Rules of Engagement Center for Law and Military Operations Continuing Legal Education Civilian Law Enforcement Agency Chief Legal Noncommissioned Officer Civil-Military Operations Civil-Military Operations Center Combat Net Radios Course of Action Combatant Command Colonel Communications Zone Continental United States Continental United States Army Corps Support Command Commercial-off-the-shelf Command Post Claims Processing Office; Civilian Personnel Office Captain Combat Training Center Common Task Training Combat Zone
Defense Appellate Division Decide-Detect-Deliver-Assess
Legal Support to Operations

DEP'T DFSCORD DIRLAUTH DISCOM DIVARTY DOCC DoD DoD Dir. DoJ DBMS DOS DSJA DTAC DTLOMS
EEM ESF EPW EUCOM
FAR FJ3CB2 FBI FCA FCC FEMA
FM

FOIA FORSCOM Force XXI
FRAGO
FSB FSCL FSCORD FSOP
GAD
GCM

Department

Deputy Fire Support Coordinator
Direct Liaison Authorized
Division Support Command
Division Artillery

Deep Operations Coordination Cell
Department of Defense

Department of Defense Directive
Department of Justice

Director of Milit&y Support
Department of State

Deputy Staffl Judge Advocate
Division TAC CP

Doctrine, training, leadership, organization, materiel, and soldiers
Early Entry Modules

Emergency Support Functions
Enemy Prisoner of War
European Command

Federal Acquisition Regulation
Force XXI Battle Command-Brigade and Below System
Federal Bureau of Investigations
Foreign Claims Act

Foreign Claims Commission
Federal Emergency Management Agency
Field Manual

Freedom of Information Act
Forces Command

Force Twenty-One, the digitized Army
Fragmentary Order

Forward Support Battalion
Fire Support Coordination Cell
Fire Support Coordinator
Field Standard Operating Procedures
Corps and Division Assistant Chief of Staff, Personnel Corps and Division Assistant Chief of Staff, Intelligence Corps and Division Assistant Chief of Staff, Operations and Plans Corps and Division Assistant Chief of Staff, Logistics Corps and Division Assistant Chief of Staff, Civil Affairs Corps and Division Assistant Chief of Staff, Information Management Government Appellate Division General Court-Martial GCMCA GCSS-A GPS
IFA

BCA HMMWV
I-D-D-T IMA IMO IPB
J A J AGC JAGCNet JAGS0 JAW JCS JFACC
JFC
JFCOM JFLCC JFMCC JFSOCC
JIATF
JWC
JO A JOPES JP
JRA
JSCP JSOTF JTCB General Court-Martial Convening Authority Global Combat Support System-Atmy Global Positioning System
Humanitarian Assistance Humanitarian and Civil Assistance High-Mobility Multipurpose Wheeled Vehicle
In Accordance With

International Committee of the Red Cross
International Organization; Information Operations; Investigating
Officer

Interpret-Draft-Disseminate-Train
Individual Mobilization Augmentee
Information Management Officer
Intelligence Preparation of the Battlefield
Manpower & Personnel Directorate of a Joint Staff Intelligence Directorate of a Joint Staff Operations Directorate of a Joint Staff Logistics Directorate of a Joint Staff Plans Directorate of a Joint Staff Command, Control, Communications, Computer Systems Directorate of a Joint Staff Judge Advocate Judge Advocate General's Corps Judge Advocate General's Corps Network (www.jagcnet.army.mi1) Judge Advocate General Service Organization Judge Advocate Warfighting Experiment Joint Chiefs of Staff Joint Forces Air Component Command Joint Force Commander Joint Forces Command (the successor organization to ACOM) Joint Forces Land Component Command Joint Forces Maritime Component Command Joint Forces Special Operations Component Command Joint Inter-Agency Task Force joint Military Commission; Joint Movement Center Joint Operations Area Joint Operations Planning and Execution System , Joint Publication I Joint Rear Areas 1 Joint Strategic Capabilities Plan Joint Special Operations Task Force Joint Targeting Coordination Board
JTF JTTP JZ
LAAWS LDP LOGCAP LOW LSO LST LTC
MACDIS Main CP MAJ MCS MCS-P MDMP METL ME'IT-TC
MNF MOB MOBTDA MOOTW MOS MPCA MRE MSG MSO
NATO
NBC
NCA
NCO
NCOIC
NG
NGO
NGR
NMS
NSS
OC
OCONUS
OIC
Legal Supgloat to Operations

Joint Task Force Joint Tactics, Techniques, and Procedures Joint Zones
Legal Automated Army-Wide System Leadership Development Program Logistics Civil Augmentation Program Law of War Legal Support Organization Legai Support Team Lieutenant Colonel
Military Assistance for Civil Disturbances Main Command Post Major Maneuver Control System Maneuver Control System -Phoenix Military Decision Making Process Mission Essential Task List Mission, Enemy, Troops, Terrain, Time Available, and Civilian Considerations Multinational Forces Mobilization Mobilization Table of Distribution and Allowance Military Operations Other Than War Military Occupational Specialty Military Personnel Claims Act Mission Rehearsal Exercise; Meals Ready to Eat Master Sergeant Mobilization Support Organization
North Atlantic Treaty Organization Nuclear, Biological and Chemical National Command Authorities Noncommissioned Officer Noncommissioned Officer in Charge National Guard Non-governmental Organization National Guard Regulation National Military Strategy National Security Strategy
Observer-Controller Outside the Continental United States Officer in Charge OOTW OPCON OPLAN OPLAW OPLAW JA OPORD OSJA OT OTJAG
PACOM PCMCIA
PDD PEO PFC PKO PLEX PLP PPTO PROE PSYOP PVO
R-A-M-P
RCM RDC RDL Rear CP ROE RSC RSG RTDT
S-i S-2 S-3 S-4 S-5 SA SECDEF SFC
Operations Other Than War Operational Control Operations Plan Operational Law Operational Law Judge Advocate Operations Order Office of the Staff Judge Advocate Observer-Trainer Office of the Judge Advocate General
Pacific Command Personal Computer Memory Card International Association (modem and network cards for notebook computers) Presidential Decision Document Peace Enforcement Operations Private First Class Peace Keeping Operations Plans/Exercises Cell Premobilization Legal Preparation Personnel, Plans, and Training Office Peacetime Rules of Engagement (superseded by the JCS SROE) Psychological Operations Private Voluntary Organization
Learning device for ROE training. Return Fire with Aimed Fire- Anticipate Attack-Measure the Amount of Force-Protect with Deadly Force only Human Life and Property Designated by the Commander Rules for Courts-Martial Regional Defense Counsel Rucksack Deployable Law Office and Library Rear Command Post Rules of Engagement Regional Support Command Regional Support Group Regional Trial Defense Team
Adjutant
Intelligence Officer
Training and Operations Officer
Supply Officer
Civil Affairs Officer
Secretary of the Army; Security Assistance
Secretary of Defense
Sergeant First Class

Legal Support to Operations
SGLI SGT SIPRNET S JA
soco
SOCOM SO1 SOF SOFA SOP SOUTHCOM SPACECOM SPC SROE SRP SSCR SSCRA SSG SSORD STANAG STARC STRATCOM STX
TAACOM TAC CP TACCl TACON TACSOP TADSS TAJAG TDA
TDT

TOA TOC TOE TOR TJAG TJAGSA TRANSCOM TSC TTP
UCMJ UCO Soldiers' Group Life Insurance Sergeant Secret Internet Protocol Router Network Staff Judge Advocate Standards of Conduct Office Special Operations Command Signal Operation Instructions Special Operations Forces Status of Forces Agreement Standard Operating Procedures Southern Command Space Command Specialist Standing Rules of Engagement Soldier Readiness Program Processing Single-service Claims Responsibility Soldiers' and Sailors' Civil Relief Act Staff Sergeant Service Support Order Standardization Agreement State Area Commands Strategic Command Situational Training Exercises

Theater Army Area Command Tactical Command Post Tactical Command Post in a Digitized Division Tactical Control Tactical Standard Operating Procedures Training Aids, Devices, Simulators, and Simulations The Assistant Judge Advocate General Trial Defense Service Trial Defense Team Transfer of Authority Tactical Operations Center Table of Organization and Equipment Terms of Reference The Judge Advocate General The Judge Advocate General's School, Army Transportation Command Troop Support Command Tactics, Techniques, and Procedures
Uniform Code of Military Justice Unit Claims Officers UCP UN USACAPOC
USACCA USAID USALSA USAR USARCS USASOC US ATDS USC USCA USJFCOM
USFJ USFK
WARN0 WMD Unified Command Plan
United Nations

United States Army Civil Affairs and Psychological Operations
Command

United States Army Court of Criminal Appeals
United States Agency for International Development
United States Army Legal Services Agency
United States Army Reserve
United States Army Claims Service
United States Army Special Operations Command
United States Army Trial Defense Service
United States Code

United States Code, Annotated
United States Joint Forces Command (the successor organization
to ACOM)

United States Force, Japan
United States Forces, Korea
Warning Order Weapons of Mass Destruction
Executive Officer
Legal Support to Operations

References
These are the sources quoted or paraphrased in this publication.' AR27- 1. Judge Advocate Legal Services. February 1995. AR27-3. Legal Assistance. March 1989. AR27-10. Military Justice. June 1996. AR27-20. Claims. December 1997. AR27-26. Rules of Professional Conduct for Lawyers. May 1992. AR200- 1. Environmental Protection and Enhancement. February 1997. AR500-5. Anny Mobilization. June 1998. AR 600-20. Army Command Policy. April 1988. CJCSI 3 12 1-01. Standing Rules of Engagement for US Forces. October 1994. CJCSI 5810.01. Implementation of the DoD Law of War Program. August 1996. DA Pamphlet 27-1 -1. Protocols to the Geneva Conventions of 12 August 1949. September 1979. DA Pamphlet 27-162. Claims. April 1998. DoDD 5 100.77. DoD Law of War Program. December 1998. FM6-20-10. Tactics, Techniques, and Procedures for the Targeting Process. May 1996. FM25-100. Training the Force. November 1988. FM 25-101. Battle Focused Training. September 1990. FM27-1 00. Legal Operations. September 1991. FM 33-1. Psychological Operations. July 1987. FM 41 -10. Civil AfSairs Operations. January 1993.
FM 7 1-1 00. Division Operations. August 1996.
FM 100-5. Operations. June 1993.
FM 100-7. Decisive Force: The Army in Theater Operations. May 1995.
FM 100- 1 1. Force Integration. January 1995.
FM 100- 17. Mobilization, Deployment, Redeployment, Demobilization. October

1992. FM 100-20. Military Operations in Low Intensity Conflict. December 1990. FM 100-23. Peace Operations. December 1994. FM 100-23-1. Multiservice Procedures for Humanitarian Assistance. October
1994. FM 100-25. Doctrine for Amy Special Forces. December 1991 FM 10 1-5. StafS Organization and Operations. May 1997. JP 0-2. Unified Action Armed Forces. February 1995. JP 1-02. Department oLDefense Dictionary of Military and Associated Terms.
December 1989. JP 3-0. Doctrine for Joint Operations. February 1995. JP 3-05..Doctrine for Joint Special Operations. October 1992. JP 3-07. Joint Doctrine for Military Operations Other Than War. June 1995. JP 3-07.1. Joint Tactics, Techniques, and Procedures for Foreign Internal
Defense (FID). June 1996. JP 3-07.2. Joint Tactics, Techniques, and Procedures for Antiterrorism. March 1998. JP 3-07.3. Joint ~actics, Techniques, and Procedures for Peace Operations.
February 1999.

JP 3-07.4. Joint Counterdrug Operations. February 1998.
JP 3-07.5. Joint Tactics, Techniques, and Procedures for Noncombatant
Legal Support to Operations

Evacuation Operations. September 1997. JP 3-07.6. Foreign Humanitarian Assistance Operations. To be published. JP 3-53. Joint Psychological Operations Doctrine. February 1987 ST 100-9. The Tactical Decision-Making Process. Fort Leavenworth, Kansas:
United States Army Command and General Staff College, July 1993. STP 21-1-SMCT. Soldier's Manual of Common Tasks, Skill Level 1. October
1994. A National Security Strategy for a New Century. The White House, 1998. A Study of War. Quincy Wright. 1942. "American Strategy from its Beginnings through the First World War." Russell F.
Weigley. Makers of Modem Strategy From Machiavelli to the Nuclear Age. 1986. Army Vision 2010. Department of the Army. Code of Judicial Conduct. American Bar Association, 1972.
Deciding What Has to be Done: General William E. Depuy and the 1976 Edition of FM 100-5, Operations. Major Paul H. Herbert. Fort Leavenworth, Kansas: Combat Studies Institute, 1988.
Hague Convention (N)Respecting the Laws and Customs of War on Land, Annex to the Convention. 1 Bevans 63 1. 1907
In the Operations Center: A Judge Advocate's Guide to the Battle Command Training Program. Charlottesville, Virginia: Center for Law and Military Operations, 1996.
Into the Storm: A Study in Command. Tom Clancy and General Fred Franks, Jr. (Ret). 1997.
Joint Vision 201 0. Washington, DC: Office of the Chairman of the Joint Chiefs of Staff.
Judge Advocates in Combat. Colonel Frederic L. Borch.
Knowledge and Speed: Battle Force and the U.S. Army of 2025, The 1998 Annual Report on The Army Aper Next Project to the Chief of StafSof the
Amp Fort Monroe, Virginia; U.S. Army Training and Doctrine Command, 1998. Law and Military Operations in Haiti, 1994-1 995. Charlottesville, Virginia: Center for Law and Military Operations, 1995. Law and Military Operations in the Balkans, 1994-1 998. Charlottesville, Virginia: Center for Law and Military Operations, 1998. Legal Guide to Peace Operations. Carlisle, Pennsylvania: U.S. Army Peacekeeping Institute, 1998. "Legal Issues in Peace Operations." Captain Glenn Bowens. Parameters. Winter 1998- 1999. Legal Services Study Report. Washington, DC: Office of The Judge Advocate General, Department of the Army, 1998. Manual for Courts-Martial, United States. 1998. "Napoleon and the Revolution on War." Peter Paret. Makers of Modem Strategy From Machiavelli to the Nuclear Age. 1986. National Military Strategy of the USA. Washington,, DC: Office of the Chairman of the Joint Chiefs of Staff, 1997. One Team -One Fight -One Future. Department of the Army, 1999. "Operational Law (OPLAW): A Concept Comes of Age." Lieutenant Colonel David E. Graham. The Amy Lawyer. July 1987.
Operational Law Handbook. Charlottesville Virginia: International and Operational Law Department, The Judge Advocate General's School, U.S. Army, 1998.
Parker v. Levy, 417 U.S. 733 (1974).
Savage Peace: Americans at War in the 1990s. Daniel K. Bolger. 1995.
Tackling the Contingency Deployment: A Judge Advocate's Guide to the hint
Readiness Training Center. Charlottesville, Virginia: Center for Law and
Military Operations, 1996.

The Amy Lawyer: A History of The Judge Advocate General's Colps, 1775- 1975. Washington, DC; U.S. Government Printing Office, 1975.
Legal Support to Operations
The Army Lawyer. August 1995: 40-41.

The Dynamics of Doctrine: The Changes in German Tactical Doctrine During the First World War. Timothy T. Lupfer. Fort Leavenworth, Kansas: Combat Studies Institute, 198 1.
The Judge Advocate Warfighting Experiment (JA WE): Final Report.
Charlottesville,Virginia: Center for Law and Military Operations, 1997. The Management of Security Assistance. Defense Institute of Security
Assistance Management. 1998. Title 10, U.S. Code, Sections 401,1044, & 3062. 1998. Uniform Code of Military Justice. Title 10, U.S. Code, Chapter 47. 1998. United Nations Charter.
A
ABCS 2- 19,4-26,4-27
Acquisition and Cross-Servicing Agreements -3-9,5-6
Administrative Control. 4-7,4-8,410
Administrative Law .v, 2-3, 1,5-8
Advocate -i, iii, v, vii, ix,x, 1-1, 1-4, 1-9,2-1,2-2,2-

3,2-5,2-6,2-7,2-10,2-11,2-14,2-15,3-2,4-21,
4-33,4-40, i, 5-7,5-11,s-21,523, 5-25,8-9, 1-2,

1-3, 1-4, 1
Agency -iii,vi, 2-1,2-3,4-6, 7-1,7-5,7-8,7-12,7-13
MAG 2-3, 2-4, 2-5
Alliance 4-6
ALLS .2-5
A0 .4-3
Area Support Group .4-23
ARFOR 4-7
Arms Control .v, 1,6-7
Army Battle Command System. 2-19,4-26,4-30
Army Law Library Service .2-5, 2-12
Army National Guard -iii,x, 2-1,2-3, 2-6,2-7,7-3,7-

13

Army of Excellence .3-6,3-8,3-9,3-10,3-12.3-14,

5-10,5-15
Army Reserve iii,x, 2-1,2-3,2-7,2- 10,5-5
Army Service Component Command -v, 4-23,4-24,1,

5-9,5-13
ARNG -2-6,2-18,5-7
ASCC .4-7,4-23,4-25,5-9,5-13,5-14
Assistant Judge Advocate General -2-3,2-4,2-5
Automation iv, 2-19, 1,4-25,4-26

Battle Command Training Prograrn -5-26
BCTP 5-26
BOLT. 2-13,4-27,435,4-40,4-41,5-21,5-22,5-24
Brigade -v, 2-13,2-16,3-2,3-4, 1,5-12,5-16,5-17,

5-21,5-22,5-23, 8-9
Brigade Judge Advocate -5-21,5-23,8-9
Brigade Operational Law Team. 2-13,5-12,5-21

C2 -iii,,v,vi, 1-2, 1-6,2-16,3-1,426,4-27, 1,5-4,5-
5,5-12,5-13, 5-15,5-17,5-22,5-24, 1,6-5,6-6,6-
10

Center for Law and Military Operations .2-3,2-5,2-
16,2-18,2-19, 3-3,4-25,428,5-26, 1,7-3
Chairman of the Joint Chiefs of Staff 2- 15,4-4,6- 12,

6-13,7-11,8-2,s-7, 1, 1-6, 1-7
Chemical Weapons Convention .5-5
Chief Legal Noncommissioned Officer -2- 10,2- 12

Legal Support to Operations
..2-

Index
CINC 4-2,4-3,4-4,4-5,4-7,4-8,4-9,4-10,4-21,4-
36,5-9,7-9,8-10
Civil Affairs .iv, 1,4-38, 4-39, 6-14
Civil Disturbance .vi. 7-7. 7-9. 8-7
Civil Law .v, 2-3,2-5,4-21, 1,5-8
Civil Military Operations .3-13
Civil Military Operations Center -4-6, 6-6
Civilian. 2-12,2-14,4-41,7-8, 8-4
CJA 2-14,4-23,4-28,4-40,4-41,5-12,5-13
CJCS vi, 4-7,4-25,6-12,7-4,7-8,7-9, 1, 8-7, 8-8,

8-10
Claims. V, 1-3,2-1,2-2,2-5,3-11,3-12,3-13,4-33,

1,5-8,7-11
CLAM0 2-3,2-5,2-16,2-18,2-19, 3-3,4-25,4-28,
5-26, 1,7-3
CLNCO -2-8, 2-10, 2-12, 3-2, 4-27, 5-13, 5-14, 5-15,

5-17,5-18, 5-25
CMOC -4-6,6-6
COCOM .4-7,4-8
Combat Service Support .viii, 1-9
Combat Service Support Control System -1-9
Combat Zone iv, 1,43
Command. iii, iv, v, vii, x, 1-1,3, 1-6,2-1,2-8,2-11,

2-14,2-15,2-19, 3-9, 3-10,3-12,3-14, 1,4-2,4-4,
4-5,4-6,4-8,4-18,4-23,4-24,4-26,4-30,4-33,4-
34,4-38, 1,5-4,5-9,5-10,5-11,5-13,5-15,5-22,
5-24,5-26, 1, 6-3,6-5,6-8,6-10,6-11,6-12,6-15,
7-5,7-12, 8-10, 8-1 1, 1

Command and Control. iii, v, vi, 1-2, 1-6,2-16,3-1,
4-26,4-27, 1, 5-4,5-5,5-12,5-13,5-15,5-17,5-
22, 5-24, 1, 6-5,6-6, 6-10

Command Judge Advocate .iii, 2- 1,2- 14
Command Post .V,2-11,2-19, 3-2,4-27, 1,5-10,5-
11,5-12,5-15,5-18,5-22, 5-23, 5-24

Commander vi, 2-4, 2-15,4-5,4-11,4-20,4-23,4-
24,4-34, 5-10,5-11,5-12,7-9, 1,8-2, 8-8,8-11, 8-
13

Communications Zone iv, 1,4-3
Continental United States Army. 2-10, 2-18
Contract Law .2-3,4-21
CONUS 2-6, 2-7,2-10, 2-18,2-19,4-21,4-28,4-33,

5-7
CONUSA. 2-10,2-18
Core Legal Discipline .i, viii, 1-1

administrative law .viii, 1-2, 1-4,2-8,2-15,3-1, 3-

7,3-8,3-9,4-31,4-35,5-24
civil law .viii, 1-2, 1-4,2-8, 2-15, 3-1, 3-9,3-11,4-
31, 4-35, 4-42, 7-5

claims vii, viii, 1-2,4, 1-4, 1-9,2-2,2-5,2-8,2-11,
2-13, 2-14, 2-15, 2-19,2-20,3-1,3-11,3-12, 3-
13,4-27,4-29,4-31,4-32, 4-35,4-41, 1,5-6, 5-
8,5-24, 6-9, 6-1 1,7-6

international law -vii, viii, 1-2, 1-4, 1-8, 1-10,Z-2,
2-16, 3-1, 3-2, 3-6, 3-7, 3-9,4-22,4-31,4-35,4-
38,4-39, 5-4,5-5, 6-5,6-10,6-13, 1, 8-2,8-3,8-
5

legal assistance vii, viii, 1-2, 1-4,2-8,2- 11,2-12,
2-14,2-15, 3-1,3-13,3-14,3-15,4-27,4-29,4-
31,4-35,4-38, 1,5-6,5-7,5-24, 1

military justice. vii, viii, 1-2, 1-4, 2-1, 2-8, 2-11,2-
12, 2-13,2-14, 2-15, 2-20, 3-1, 3-3, 3-4, 3-5,4-
29,4-31,4-32,4-35,4-38, 5-6
Corps. i, vii, ix, 1-1,2-5,2-11,4-4,4-24,4-39, 5-14,
5-15, 5-21,7-12, 8-2, 1-2, 1-3, 1-4
Corps Support Command. 4-24
COSCOM .3-8, 3-9, 3-10,4-24, 5-14, 5-15
Counsel. iii, 2-1,2-8,2-15,3-4,3-5,3-15,5-14
Counselor .iii, 1-1, 1-5
Counter-Drug .v, vi, 1, 6-7, 7-10
Countertenorism. 4-36, 6-7
Country Team -4-6,6-6
Court-Martial .5-5
CP -3-2,4-27, 5- 10,5- 11,5- 12, 5- 15, 5- 18, 5-22, 5-
23, 5-24
CSS viii, 4-15
CSSCS . 1-9

Deep Operations Coordination Cell. 5-12, 8-2, 8-9, 8-
10
Department of Defense .2-2, 2-1 1, 2-18, 3-6, 3- 11, 3-
12,4-38,4-41, 5-5, 6-6,6-13,7-1, 7-4,7-5, 7-6,7-
8,7-9,7-10, 7-11, 7-12,7-13, 7-14, 8-2,8-4
Department of Justice .3-10,7-8,7-13,7-14
Department of State .6-6
Deputy StaffJudge Advocate .2-10, 2-11, 2-13, 2-19,
4-20,4-27,4-33,4-34,4-35,5-12, 5-13, 5-14,5-
15,5-17,5-21,5-25
Digitized Division .5- 10,5- 1 1
DOCC .5-12,8-9, 8-10
DoD -2-2, 2-1 1, 2-18, 3-6, 3-1 1, 3-12,4-41, 5-5, 6-6,
6- 13, 7- 1, 7-4,7-5,7-6,7-8, 7-9, 7- 10, 7- 11,7- 12,
7-13,7-14, 8-4
DoD Law of War Program. 2-2,2- 11
DoJ .3-10, 7-8, 7-13, 7-14
DoS .6-6, 7-1 1
DSJA .2-10, 2-11,2-13, 2-19, 4-20, 4-27,4-33,4-34,
4-35, 5-12, 5-13, 5-14, 5-15, 5-17,5-21,5-25
Duties. 7-6

Environmental Law. 2-3, 3-10
Exclusion Zones -v, 1, 6-7

Federal Emergency Management Agency. 7-5,7-13
FEMA .7-5, 7-13, 7-14
Field Operating Agencies .iii, 2-1, 2-3, 2-16
Fiscal Law .2-5
Force Projection .iv, 1, 4-21
Force XXI ix,3-6,3-8,3-9,3-10,3-12, 3-14, 4-26,
5-10

Foreign Claims .3-13,5-8
FORSCOM .2-6, 2-10, 2-18, 4-25, 5-25, 7-9
FRAGO .4- 15
Functional Areas .vii

GCSS-A . 1-9,2-19
General Order .vii
Geneva Conventions .i, 4-33, 5-8, 8-2, 8-13

Humanitarian Assistance .v, 1, 6-7

ICRC -3-7
Information Operations. ix, 2-16, 3-2, 5-5, 5-1 1.5-18,
8-2, 8-9
Intelligence .vi, 4-19, 5-13, 1, 6-15
Interagency iii, v, vi, 1-6, 4-6, 1, 6-6, 6-12, 8-4
International. iii, v, vi, 1-1, 1-7,2-3,2-5, 2-19, 3-6.3-
7,4-6,4-41, 1, 5-8, 1, 6-8, 6-12
International Committee of the Red Cross .3-7, 6-12
International law .3-6
Interpret-Draft-Disseminate-Train.8-9
I0 .5-5, 5-18

JAGC .i, viii, ix, 1-1, 1-9, 2-5, 2-6, 2-7, 2-10, 3-15, 4-
21, 4-25,4-28,5-9, 5-14, 5-17, 7-12
JAGS0 X, 2-7,2-8,2-9, 4-40
JCS .8-7
Joint Chiefs of Staff. iii, 2-1, 2-14,2-15, 4-4, 6-12, 6-
13, 7-4, 7-8,7-11, 8-2,8-3, 8-7, 1, 1-6, 1-7
Joint Command .6-6
Joint Force 3-4, 4-2,4-5,4-23, 1-7
Joint Force Commander. 3-4,4-5,4-23
Joint Military Commission. 2-19, 6-10, 6-12, 6-15
Joint Operations. 4-6,4-12, 8-11
Joint Strategic Capabilities Plan .4-7
Joint Task Force .iii, 2-1,2-15,4-5,4-23,4-25,4-36,
7-11, 7-12, 8-9, 8-10
JTF 2-15,4-5,4-25, 4-36,7-11, 8-10
Judge. i, iii, v, vi, vii, ix, x, 1-1, 1-2, 3, 1-3, 1-4, 1-5,
1-6, 1-8, 1-9.2-1,2-2, 2-3,2-4, 2-5, 2-6, 2-7, 2-9,
2-10,2-11,2-12,2-14,2-15,2-16,2-19,2-20,3-2,
3-4, 3-5, 3-15, 4-4,4-5,4-8, 4-20,4-21,4-23, 4-26,
4-29, 4-31,4-33,4-36,4-38,4-40,1, 5-4, 5-6, 5-7,
5-10, 5-11, 5-12, 5-13, 5-14,5-15, 5-17, 5-18, 5-
21, 5-22,5-23, 5-24, 5-25, 6-3, 7-1, 7-3, 7-5, 7-13,
8-9, 8-13, 1-2, 1-3, 1-4, 1

Judge Advocate. i,iii, v, vi, vii, ix, x, 1-1, 1-9, 2-1, 2-
2,2-3, 2-5,2-6,2-7, 2-10, 2-11, 2-14,2-15, 3-2,3-
3, 3-15,4-5,4-15,4-20,4-21,4-33,4-38.4-39,4-
40, 1, 5-7,5-11,5-12, 5-13, 5-17,5-18, 5-21,5-23,
5-24, 5-25,7-3, 8-9, 8-10, 1-2, 1-3, 1-4, 1

Judge Advocate General Service Organization. x, 2-7,
2-8, 2-9,4-40

Judge Advocate General's Corps -i, viii, ix, 1-1, 1-9,
2-6,2-7,2-10, 3-15,4-21,4-25,4-28,5-9,5-14, 5-
17,7-12

Judge Advocate General's Corps .1-1,2-5
LAAWS . 1-9,2-19,4-26,4-27, 5-13, 5-14, 5-17

Law of the Flag 6-1 1,6-12
Law of War i,vii, 2-2,2- 11, 3-6,3-7, 2,4-15, 5-4, 5-
11,X-12
Lead Agency .vi, 7- 1,7-5,7-8,7- 12
Legal Administrator -2-10, 2-12, 2-13,3-2,4-27,5-25
Legal Assistance .v, 2-2, 2-3, 3-13, 3-15,4-33, 1, 5-9
Legal Automated Anny-Wide System. 1-9,2-19,4-
26,4-27,5-13,5-14,5-17

Legal Organizations .iii, 2-1, 2-6, 2-7

Legal Specialist .2-8, 2- 13

Legal Support Organization 2-7,2-10,2-18, 4-33,4-
34,4-35,4-36,5-7,7-3
Legal Support Team. 2-7,2-8,2-10
Legitimacy.iii, 1-1, 1-2, 1-10
Lion. 4-8,4-10
LOGCAP. 3-9,5-6,6-14
Logistics Civil Augmentation Program. 3-9,5-6,6- 14
LOW. vii, 3-6, 3-7,4-15, 5-11
LSO .2-7,2-10, 2-18,4-33,4-34,4-35,4-36,5-7,7-3

LST .2-7,2-8, 2-10

Main CP .3-2,5-11
Maneuver Control System. 1-9,2-19
Materiel. 4-5

MDMP -iv, 1,4-12, 4-18,4-19,4-20,5-4, 5-12

METL -iv, ix, 1,4-32,4-33,4-34,4-35, 5-25

METT-TC .vi, 2-19,4-4,4-13,5-11,5-12,5-14,5-
16,5-17,5-21,7-3,8-4, 8-12

Military Decision Making Process 4-18,4-19,4-20,
5-4,5-12
Military Decision-Making Process -4- 18
Military Justice v, 1-4,2-1, 2-4,2-11, 3-3,4-29,4-

33, 1,5-8

Military Operations Other Than War -v, 5-3, 5-4,5-6,
5-7,5-17, 1,6-3,6-4,6-5,6-6,6-8,6-10,6-11,6-
12,6-13,6-14, 6-15,6-16, 1, 8-2, 8-5,8-14, 1

Military Support to Civil Authorities .vi, 7-4

Mission -iii, iv, v, vii, ix, 1-1, 1-2, 1-8, 3-5, 1,4-6,4-
11,4-13,4-17,4-20,4-32.5-17,1, 6-5,6-6,6-10,

Legal Support to Operations

Mission Essential Task List. iv, ix, 1,4-32,4-33,4-34,

4-35, 5-25
Mission Rehearsal Exercise .6- 16
Mobility. iv, 1,4-28
Mobilization Support Organization .2-8, 3-14, 3-15,

4-33,4-34,4-35,4-36, 5-7

MOOTW .V,5-3,5-4,5-6,5-7,5-17, 1,6-3,6-4, 6-5,
6-6, 6-8, 6-10, 6-1 1, 6-12, 6-13, 6-14,6-15,6-16,
1, 8-2, 8-5, 8-14, 1

MRE. 6-16
MSO .2-8,3-14, 3-15,4-33,4-34,4-35,4-36,5-7

Nation Assistance .v, 1,6-8 National Command Authorities. 3,2-15,4-4,4-41,6-
3, 6-5, 6-8, 6-11,7-5, 7-12, 7-13,8-8, 8-10, 8-11
National Guard Bureau .x, 2-6,7- 11
National Military Strategy .viii, 4-4, 1-6, 1-7
National Security Strategy. viii, 1-6,4-3,4-4,7-13, 1-

6

–    NCA. 3, 2-15,4-4,4-41, 6-3,6-5, 6-8,6-11, 7-5, 7-
12,7-13, 8-8, 8-10, 8-11

Office of the Judge Advocate General 2-1,2-3,2-16,
2-18,4-25, 6-12
Office of The Judge Advocate General .iii, 2- 1
OPCON .2-6,4-8,4- 17, 4-36, 4-40, 8-1 1
Operation .vi, 2- 18,4- 16, 1,6-6, 6-9, 6-1 1
Operation Plan .3-3, 3-8,4-15,4-18,4-19, 8-1 1, 8-13
Operational Control .2-6,4-8, 4- 17,4-36,4-40,8- 11
Operational Law .i, iii, vii, 1-1, 2-1,2-3, 2-5, 2-13,2-

16, 2-19, 2,4-29, 5-12, 5-21, 6-10, 6-12, 6-14, 7-3

Operations Law .iv, 2-16,2-18, 3-1, 3-2, 3-3, 3-9, 3-
15,4-5,4-15,4-20,4-21,4-22,4-23,4-27,4-28,4-
32, 4-36,4-38,4-39,4-40, 5-4, 5-6,5-7, 5-8, 5-1 1,
5-12, 5-13, 5-14, 5-15,5-l7,5-18,5-21, 5-22,5-
24, 5-25,5-26,6-10,6-11,6-12,6-13,6-14,6-15,
6-16,7-1, 8-2,8-9, 8-10, 8-15

Operations Order. 3-3,4-15,4-16,4-17,4-18,4-20,
8-11, 8-13
OPLAN .3-3,3-8, 4-15,4-18, 4-19, 8-11,8-13
OPLAW. i, iii, iv, vii, 1-1, 2-1, 2-3,2-5,2-13,2-16, 2-

18,2-19, 3-1, 3-2, 3-3, 3-9, 3-15,2,4-5,4-15,4-

20,4-21,4-22,4-23,4-27,4-28,4-29,4-32,4-36,
4-38,4-39,4-40, 5-4, 5-6,5-7, 5-8, 5-11,5-12, 5-
13, 5-14, 5-15,5-17,5-18, 5-21, 5-22, 5-24, 5-25,
5-26,6-10, 6-11, 6-12,6-13,6-14,6-15, 6-16,7-1,
7-3,8-2, 8-9, 8-10, 8-15

OPLAW Judge Advocate -3-2
OPORD .3-3,4-15,4-16,4-17,4-18,4-20,8-1 1,8-

13
Order .4- 16, 8-2
OTJAG .iii, 2- 1,2-3,2- 16,2-18,4-25, 6- 12
Overseas Presence .iv, 1,4-21

PDD .7- 13

Peace Enforcement .6-4,6-9
Peace Operations. v, ix, 1,6-8

Peacekeeping .6-4,6-9
Personnel Claims .5-8

Personnel Service Support v, 4-29, 1,5-4,5-6

Planning .iv, 2- 18, 1,4 1 1,4- 12,4 13,4-20,4-22,4-
35,4-41,8-9,8-10, 8-11
Plans .2-16,3-2,4-12,4-15,5-12
Presidential Decision Directive -7-13
Private Voluntary Organizations .1-7
PSS .V,4-29, 1, 5-4,s-6
PVO .1-7

RAMP. 8-14
RC 4-33,435, 5-7,5-25
RDL .X, 1-9,2-13,2-19,3-13,4-26,4-27,4-28,4-38,

5-13,s-14,5-17,6-16
Rear CP .3-2

Recovery Operations .v, 1, 6-9

Regional Support Commands -2-10,2-18,5-7
Reserve Component -433,435, 5-7,s-25
ROE .vi, 2- 16,3-2,3-3,4-15, 5-5,5- 11, 5-12,5- 18,
1,6-3,6-5,6-9,6-10,6-11, 6-12,6-13, 6-14, 6-15,
6-16,7-6,7-12, 1,8-2,8-3, 8-4,8-5,8-6,8-7, 8-8,
8-9,8-10,8-11,8-12,8-13,8-14,8-15

RSC 2-18

Rucksack Deployable Law Office and Library .x, 1-9,

2-13,2-19,3-13,4-26.4-27,4-28,4-38,s-13,5-
14,5-17.6-16
Rules of Engagement. vi 2-16,3-2,3-3,4-15,s-5,5-
11,5-12,5-18, 1,6-3,6-5,6-9,6-10, 6-11,6-12,6-
13,6-14,6-15,6-16,7-6,7-12, 1,8-2,8-3,8-4,8-
5, 8-6,8-7,8-8,8-9, 8-10, 8-ll,8-12, 8-13, 8-14,
8- 15

SECDEF .4-4,4-5,4-7, 7-4,7-10, 7-1 1, 7-12

Secretary of Defense -4-4,4-5,4-7,7-4,7-10,7-11,
7-12
Secretary of the Army. 2-1,2-2,3-12,4-7,5-5,7-4
Service .iii, v, viii, x, 1-1, 1-2,3, 1-9,2-1,2-2, 2-3, 2-

5, 2-7,2-8,2-9, 2-12,3-4, 3-12,4-18,4-23,4-24,
4-29,4-40, 1,s-4,s-6.5-9,5-13,5-15,6-9

Show of Force .v, 1,6-9
SJA. i,iii, iv, ix, 1-$2-1, 2-3.2-6, 2-9,2-10, 2-11,2-
12,2-13,2-14,2-15,2-16,2-19,2-20,3-3,3-4,3-
5, 3-6, 3-7,3-9,3-10,3-12,3-15, 1,4-20,4-21,4-
23,4-25,4-26,4-27, 4-28,4-29,4-31,4-32,4-33,
4-34,4-35,4-36.4-38,4-39,4-40,4-41,5-4,5-11,
5-9,5-12, 5-13,5-14, 5-15.5-16,5-17, 5-18,5-21,

5-24, 5-25,s-26,6-12,6-14,6-15,7-3, 8-9, 8-13,

8-14, 1
SOFA .5-6,6-9
Soldier Readiness Processing -2-10, 2-14,2-18, 3-14,

3- 15
SOP. 4-16, 4-18,4-20, 5-10, 8-13
Special Operations .iv, ix, 1,4-2,4-36,4-37,4-38,5-

24, 6-8, 6-15
SROE. 6-12, 6-13, 7-6,7-12, 8-3, 8-5, 8-7, 8-8, 8-9,

8-10, 8-11, 8-12, 8-14
SRP .2-10, 2-14, 2-18, 3-14, 3- 15
Staff Judge Advocate .i, iii, iv, ix, 1-9, 2-1,2-3,2-6,

2-9,2-10, 2-11, 2-12, 2-13, 2-14, 2-15,2-16,2-19,
2-20, 3-3, 3-4, 3-5, 3-6, 3-7,3-9,3-10, 3-12, 3-15,
1, 4-20,4-21,4-23,4-25,4-26,4-27,4-28,4-29, 4-
31,4-32,4-33,4-34,4-35, 4-36,4-38,4-39,4-40,
4-41,s-4,s-7,s-9, 5-12,s-13, 5-14, 5-15, 5-16, 5-
17,s-18,s-21,s-24,525, 5-26,6-12.6-14,6-15,
7-3, 8-9, 8-13, 8-14, 1

Standing Operating Procedure -4-16,4-18,4-20,5-
10,8-13
STARC .2-6,2-18, 5-7
State Area Command x, 2-6
Status of Forces .vi, 5-6, 1, 6-9, 6- 1 1
Status of Forces Agreement .6-9
Status of Forces Agreements -5-6
Strikes .v, 1,6-9
Sustainrnent .v, vii, 4-27, 1, 5-4,s-5

TAACOM 3-6, 3-10,4-23,4-24,s-13, 5-14
TAC CP 3-2,4-27,s-10,5- 11,5-12,5- 18, 5-23
TACON .4-8
Tactical Control. 4-8
Tailoring .iii, 2- 1, 2- 19
TAJAG * 2-3
Targeting. 3-2,4-5,4-41,5-12
TDS .2-3, 2-5,2-9, 3-4, 5-15
Technical Channel .iv, 1,4-24
Terrorism. v, vi, 1,6-7,7-13
The Assistant Judge Advocate General 2-3
The Judge Advocate General's School 2-1,2-5,2-6,

2-16,2-18,2-19,4-25,4-28,4-36.7-3
Theater .iv, v, vi, ix,3-6, 3-9, 3-10, 3-12,3-14, 1,4-5,
4-6, 4-23,4-24, 1,s-9, 6-5, 7-1, 8-2
TJAG .i, iii, vii, 2-1,2-3,2-5, 2-6,2-7,2-10, 2-20, 3-
3, 3-12, 4-21
TJAGSA . 2-1,2-5,2-6,2-16,2-18,2-19,4-25,4-28,
4-36, 7-3

Training. iv, vi, ix,2-6, 2-7,3-2, 3-12, 1,4-25,4-28,
4-30,4-31,4-35,5-25,s-26,6-8,6-13,6-15,6-16,
7-3, 1

Trial Defense Service ~2-3,2-5,2-9, 3-4,5- 15

Trial Judiciary. 2-1,2-4,2-7,2-9, 3-4,s-14
TSC .3-6,3-10,4-23,4-24,s-13,s-14
Legal Support to Operations

U US Army Legal Services Agency. 2-1,2-3,4,2-4, 2- 9,2-16,2-18,3-10,5-9 USAR 2- 18,5-6
Unified Command Plan -Uniform Code of Military Justice .1-4, 2- 1,2-4,2-9,
4-4

2-11, 3-3,4-29,4-33, 5-8 W
United Nations .2-15,6-6,6-10.6-12, 8-12

War Powers Resolution. 5-9

US Army Claims Service 2-1,2-5,2-18,3-12,3-13
Weapons of Mass Destruction .7-13

foreign criminal proceedings, coordinating with the ICRC repatriation of prisoners of war.  and for  
3.5  ADMINISTRATIVE LAW  

water  sources,  waste  management,  
hazardous  material  management,  
protection  of  flora  and  fauna,  
archeological  and  historical  

of  Transportation  Command  
(TRANSCOM),  Special  Operations  
Command  (SOCOM),  Strategic  

theater support  as  necessary.  JAGC  
personnel  are  embedded  in  the  
requirements  and  authorization  
documents  of  the  Army  Service  

Aviation Brigade 1 JAY 1 NCOIC (71 D)  Office of the Staff Judge Advocate Digitized Division  Division Artillery 1 JAY 1 NCOlC (71 D)  
3-5 Bn 71 Ds  1 st BCT  2d BCT  3-5 Bn 71 Ds  
1 JAY 1 NCOlC (71 D)  1 JAY 1 NCOIC (71 D)  
3-5 Bn 71Ds  3-5 Bn 71 Ds  

when necessary, Adversaries."lg6 The requires MOOTW.  to fmt  Defeat of these  
Components  of  these  objectives  

Legal Support to Operations

Endnotes
'In this manual, "operations" include war and MOOTW, but not garrison operations. See DEP'T OF ARMY, FTELD MANUAL 100-5, OPERATIONS
at v (1993).

3 See generally MAJOR PAUL H. HERBERT,COMBATSTUDIESINS^, LEAVENWORTHPAPERNO. 16, DECIDINGWHAT HAS TO BE DONE: GENERAL WILLIAME. DEPUY AND THE 1976 EDITION OF FM 100-5, OPERATIONS
3-9 (1988) (describing the function of doctrine in an army and charting the modem practice of publishing doctrine in manuals).
4 TIMOTHY T. LWFER, COMBATSTUDIES INSTTTUTE, LEAVENWORTH
PAPER NO. 4, THE DYNAMICS OF DOCTRINE: THE CHANGES TACTICAL DOCTRINE DURING ?'HE FIRST WORLD W.4R 55 ( !981).
IN GERMAN

KNOWLEDGE AND SPEED: BA'ITLE FORCE AND THE U.S. ARMY OF 2025, THE 1998 ANNUAL REPORTON THE ARMY AFTER NEXTPROJECT
TO THE CHIEFOF STAFFOF THE ARMY, Headquarters, U.S. Army Training and Docbrine Command, (7 December 1998). Major General Walter B. Huffman, Address at the Judge Advocate General's Corps World Wide Continuing Legal Education Plenary Session (October 1997). THE ARMYLAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL'SCORPS, 1775-1 975, 12- 13 (1 975). 417 U.S. 733,742 (1974) (quoting United States ex re]. Toth v. Quarles, 350 U.S. 11, 17 (1955), Orloff
v. Willoughby, 345 U.S. 83,93 (1953), and Burns v. Wilson, 346 U.S. 137, 140 (1953)).
DEP'TOF ARMY, ARMY VISION 2010,2. Represented by the acronym LDRSHIP. lo DEP'TOF ARMY, FIELD MANUAL 100-5, OPERA~NS
(June 1993).
l1 See THEARMY LAWYER: A HISTORY OF THE JUDGEADVOCATE GENERAL'S CORPS, 1775-1975,105
(1975).
l2 LTC Michelle M. Miller, Former Task Force Eagle Staff Judge Advocate, 1998-1999.
13 See, e.g., AMERICAN BAR ASS'N, CODE OF JUDICIAL at Canons 1 to 7 (1972).

CONDUCT 14 See DEP'TOF ARMY, REG. 27-26, RULES OF PROFESSIONAL CONDUCT at Rules 3.1 to 4.4 (1
FOR LAWYERS May 1992). 15 CHAIRMANOFTHE JOINT CHIEFS OF STAFF, JOINT VISION 2010,8. l6 CHAIRMANOF THE JOINT CHIEFS OF STAFF, NATIONAL MILITARY OF THE USA, Executive
STRATEGY Summary, The Strategy, Elements of Strategy, Responding to the Full Spectrum of Crises (1997).
l7 DEPARTMENT 2010,5.
OF THEARMY, ARMY VISION l8 See DEPARTMENT ONE FIGHT ONE FUTURE, 8; Search of Requirements
OFTHE ARMY, ONE TEAM –Document System, Department of the Amy (21 Sep 1999).
THE WHITE HOUSE, A NATIONAL ESTRATEGY 7 (October 1998).
S ~ FOR A NEW CENTURY, 20 See CHAIRMAN MILITARY STRATEGY OF THE USA, EXECUTIVE
OF THE JOINT CHIEFS OF STAFF, NATIONAL SUMMARY,
Executive Summary, The Strategy, National Military Objectives (1997). 21 See DEPARTMENT
OF THE ARMY, ARMY VISION 2010,8,9 22 See CHAIRMAN OF STAFF, NATIONAL MILFARY STRATEGY OF THE USA, The Joint
OF THE JOINT CHIEFS Force, Characteristics of a Full Spectrum Force (1997); CHAIRMAN OF THE JOINT CHIEFS OF STAFF, JOINT VISION 2010, 9.
23 CHAIRMANOF THE JOINTCHIEFSOF STAFF, NATIONAL STRATEGY
MILITARY OF THE USA, The Joint Force, Characteristics of a Full Spectrum Force, Interoperable (1997).
25 See CHAIRMAN MILITARY STRATEGY
OF THE JOINT CHEFS OF STAFF, NATIONAL OF THE USA, Executive Summary, The Strategic Environment -Opportunities and Challenges (1997).
26 TIIE WHITE HOUSE, A NATIONAL STRATEGY 13 (October 1998).
SEC~~ FOR A NEW CENTURY, 27 See THE WHITE HOUSE, A NATIONAL SECW STRATEGY
FOR A NEW CENTJRY, 14-22 (October 1998). "THE WHITEHOUSE, A NATIONAL STRATEGYFOR A NEW CENTCTRY,
SE~Y 22 (October 1998). 25' CHAIRMAN CHIEFSOF STAFF, JOINT VISION 20 10,3 1.
OF THE JOINT 30 DEPARTMENTOF THE ARMY,ONETEAM-ONE FIGHT -ONE FUTURE, 13. 31 CHAIRMAN CHEFSOF STAFF, JOINT VISION 2010, 11.
OF THE JOINT 32 See CHAIRMANOF rnJOINTCHIEFSOF STAFF, JOINT VISION 2010, 13- 15. 33 See DEP'TOF ARMY, REGULATION27-3, LEGAL ASSISTANCE, –
Paragraph 2-3 Legal Assistance Offices (10 March 1989).
34 See THE WH~IEHOUSE, A NATIONAL SEC~ FOR A NEW CENTURY,
STRATEGY 2 (October 1998). 35 THE WHITE HOUSE, A NATIONAL STRATEGY 13 (October 1998).
SEC~ FOR A NEW CENTURY,
36 See DEP'TOF ARMY,REGULATION 27-1, JUDGE ADVOCATE LEGAL SERVICES. Paragraph 2-1 -The Judge Advocate General (3 February 1995). 37 See DEP'TOF ARMY. REGLTATION27-1, JUDGE ADVOCATE Paragraph 2-2 –
LEGAL SERVICES, The

Assistant Judge Advocate General (TAJAG) (3 February 1995).
38 See DEP'TOF ARMY,REGULATION 27-1, JUDGE ADVOCATE LEGAL SERVICES, Paragraph 2-3 -The
Assistant Judge Advocate General for Civil Law and Litigation (AJAGICLL) (3 February 1995).

39 See DEP'TOF ARMY, REGULATION 27-1, JUDGE ADVOCATE LEGAL SERVICES, Paragraph 2-4 -The
Assistant Judge Advocate General for Military Law and Operations (AJAGIMLO) (3 February 1995). 40 See 10 U.S.C. section 806b; Dep't of Army, Field Manual 101-5, Staff Organization and Operations at 2-3 &4-32 (3 1 May 1997).
41 Dep't of Army, Field Manual 101-5, Staff Organization and Operations at 2-3 &4-32 (31 May 1997).
42 See 10 U.S.C. section 806b; Dep't of Army, Field Manual 101-5, Staff Organization and Operations at I-
3 (31 May 1997).
43 See DEP'TOF ARMY, REGULATION 27- 1, JUDGEADVOCATE LEGAL SERVICES,

paragraph 5-2, Responsibilities of supervisory judge advocates (3 February 1995).
44 See Joint Chiefs of Staff, Joint Publication 0-2, Unified Action Armed Forces (UNAAF) (24 February
1995); Joint Chiefs of Staff, Joint Publication 1-04, Joint Tactics, Techniques, and Procedures for Legal Support of Military Operations (detailing the organization and responsibilities of joint and joint legal organizations) (to be published).
45 See, e.g., ARMY LAW., August 1995, at 40-41 (describing the multinational headquarters and legal staff of the United Nations Miqsion in Haiti): and ~FNTF,RFOR T AW AND MTIJTARYOPE RAT TON^ TAW AND MILITARYOPERATIONS IN THE BALKANS, 1994- 1998, at 210-2 13 (diagramming multinational legal organizations in IFOR and SFOR) (1 3 November 1998).
46 See, e.g., U.N. Charter art. 43-53; Army Law., August 1995, at 40-42; Center for Law and Military Operations, Law and Military Operations in Haiti, 1994-1995, at 16,45, & n.32 (1 1 December 1995); and Center for Law and Military Operations, Law and Military Operations in the Balkans, 1994-1995, at 43, & 209-21 3 (1 3 November 1998).
47 See DEP'T OF ARMY, REGULATION 500-5, ARMY MOBILIZATION, (19 June
ANNEX L, LEGAL SERVICES 1998).
Endnotes-2
Legal Support to Operations

48 DEP'TOF ARMY, REGULATION27- 1, JUDGE ADVOCATE SERVICES,
LEGAL Paragraph 2- 1 v -Responsibilities for assignment and direction of members of the Judge Advocate General's Corps, and 3- 2b, Use of judge advocate officers (3 February 1995).
49 MANUALFOR United States (1995 edition), Part I (Preamble), Paragraph 3.
COURTS-MARTIAL,

50 DEP'TOF ARMY, REGULATION27-10, MILITARY JUSTICE, Paragraph 1-4 -Responsibiiities (24 June
1996).
51 See 10 U.S.C. A. section 806b (West 1998).
52 See 10 U.S.C. A. section 806,834, and 860 (West 1998); DEP'T OF ARMY, REGULATION
27-10, MILITARY JUSTICE, Paragraph 3-3 -Action by the superior authority (24 June 1996).
53 See DEP'TOF ARMY,REGULATION JUSTICE, Chapter 5 –
27-10, MIL~ARY Procedures for Courts-Martial; Paragraph 18-6 -General; and Paragraph 19-7 -Course development and Instruction (24 June 1996).
54 DEP7TOF ARMY, REGULATION27-10, MILITARY JUSTICE, Paragraph 6-3 -Organization (24 June 1996).
55 SeeDEP'TOF ARMY,REGULATION JUSTICE, Chief Trial Judge;
27-10, MIL~ARY Paragraph 8-ld -Paragraph 8-6 -Detailing of military judges; Paragraph 8-8 -Rules of court; Paragraph 9-4 –Supervision of military magistrates (24 June 1996).
56 SeeDEP'TOF ARMY,REGULATION 27-10, MILITARY Paragraph 8-4 Functions and duties of
JUSTICE, -military judges (24 June 1996).
57 See DEP'TOF ARMY,REGULATION27-10, MILITARY JUSTICE,Paragraph 9-3 -Powers of military magistrates (24 June 1996).
58 SeeINTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THE JUDGE ADVOCATE GENERAL'S UNITED STATES ARMY, OPERATIONAL Chapter 20 (1998); CENTER
LAW HANDBOOK, FOR LAW AND MILITARYOPERATIONS, OPERATIONS 1995-1998, at 170-181 (1998).
LAWAND MILITARY IN THE BALKANS
59 SeeINTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THE JUDGE ADVOCATE GENERAL'S UNITEDSTATES 20-1 through 20-3 (1998); CENTER
ARMY, OPERATIONAL LAW HANDBOOK FOR LAWAND MILITARYOPERATIONS, OPERATIONS
LAWAND MILITARY IN THE BALKANS 1995-1998, at 170-173 (1998).
SeeINTERNATIONALAND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL, UNITEDSTATES LAW HANDBOOK FOR LAWAND MILITARY
ARMY,OPERATIONAL 20-2 (1998); CENTER OPERATIONS, LAW AND MILITARYOPERATIONSIN THE BALKANS1995-1998, at 173-174 (1998).
61SeeCENTERFORLAW AND MILITARYOPERATIONS, LAW AND MILITARYOPERATIONSIN THE BALKANS 1995-1998, at 173-174 (1998).
62 SeeCENTERFOR LAWAND MILITARY OPERATIONS IN THE BALKANS
OPERATIONS, LAW AND MILITARY 1995-1998, at 178 (1998).
63 See DEP'TOF ARMY,REGULATION27-1, JUDGE ADVOCATELEGAL SERVICES, Paragraph 2-1 g -International and Operational Law responsibilities (3 February 1995).
SeeDEP'T OF ARMY,REGULATION ADVOCATE Paragraph 2- 1 g –
27- 1, JUDGE LEGAL SERVICES, International and Operational Law responsibilities (describing TJAG's international law responsibilities); Paragraph 5-2a -Responsibilities of supervisory judge advocates (stating in subparagraph a -General, that "the supervisory JA has responsibilities generally corresponding to those discharged by TJAG with relation to HQDA," and describing in subparagraph a(7) the international law responsibilities of the supervisory JA) (3 February 1995); DEP'TOF ARMY, FIELDMANUAL27-100, LEGAL OPERATIONS, Paragraph 1-9e -AND OPERATIONAL
International Law (3 September 1991); INTERNATIONAL LAW DEPARTMENT, SCHOOL, STATESARMY, OPERATIONALLAW
THE JUDGE ADVOCATE GENERAL'S UNITED HANDBOOK 2-1 (1998); CENTER FOR LAW AND MILITARY OPERATIONS
OPERATIONS, LAW AND MILITARY IN THE BALKANS 1995-1998, at 76 (1 998).
65 SeeCENTERFOR LAWAND MILITARY LAW AND MILITARY
OPERATIONS, OPERATIONS IN THE BALKANS 1995-1998, at 79 (1998).
66 See CENTERFOR LAWAND MILITARY OPERATIONS IN THE BALKANS
OPERATIONS, LAWAND MIL~TARY 1995-1998, at 121 (1998).
67See DEP'T OF ARMY REGULATION 27-1, JUDGEADVOCATE LEGAL SERVICES, The Judge
Paragraph 2-1 -Advocate General, subparagraph e (3 February 1995).
SeeDEP'TOFARMY REGULATION 27-1, JUDGEADVOCATELEGALSERVICES, –
Paragraph 2-1 The Judge Advocate General, Paragraph 2-12 -Ethics responsibilities, and Paragraph 5-2 -Responsibilities of supervisory judge advocates (3 February 1995).
69 See CENTERFOR LAW AND MILITARYOPERATIONS, LAW AND MILITARYOPERATIONS IN THE BALKANS,
1995-1998, Page 184 (13 November 1998).
70 SeeCENTERFOR LAWAND MILITARY AND MILITARY
OPERATIONS, LAW OPERATIONS IN THE BALKANS, 1995-1998, Page 182 (concerning family care plans) (1 3 November 1998).
7' SeeCENTERFOR LAWAND MILITARYOPERATIONS, LAW AND MILITARYOPERA'IIONS IN THE BALKANS,
1995-1 998, Page 185 (concerning foreign gifts) (1 3 November 1998).
72 See CENTERFOR LAWAND MILITARY OPERATIONS, LAWAND MILITARYOPERATIONS IN'THE BALKANS,
1995-1998, Page 185-6 (13 November 1998).
73 See CENTERFOR LAWAND MILITARY LAW AND MILITARY IN THEBALKANS,
OPERATIONS, OPERATIONS 1995-1998, Page 186 (13 November 1998).
74 See DEP'TOF ARMY REGULATION 27-1, JUDGEADVOCATE LEGAL SERVICES, -The Judge
Paragraph 2-1 Advocate General, subparagraphs h, i, k, m,n, o, and w, (describing patents, copyrights, inventions, trade secrets, procurement fraud, trademarks, and regulatory law, in addition to contract, fiscal, and environmental law) and Paragraph 5-2 -Responsibilities of supervisory judge advocates (3 February 1995).
75 See DEP'TOF ARMY,REGULATION 27-1, JUDGE Paragraph 5-2a(3)(a)
ADVOCATE LEGAL SERVICES, -Contracts (stating that the supervisory judge advocate's contract law responsibilities include "acquisition planning, contract formation, bid protests, contract performance, contract dispute litigation, fiscal law, procurement fraud and oversight of procurement fraud programs, taxation, government furnished property (GFP), labor standard compliance, real property, non-appropriated funds (NAFs), commercial activities and bankruptcy.") (3February 1995); OFFICE OF THEJUDGE ADVOCATE GENERAL, DEP'TOF ARMY,LEGAL SERVICESSTUDYREPORT,Volume I1 -Subcommittee Reports, Section C -Contract and Fiscal Law, Paragraph 6 -Functional Tasks (March 1998).
76 See DEP'TOF ARMY,REGULATION27-1, JUDGEADVOCATE LEGAL SERVICES, Principles
Paragraph 15-4 -of contract law practice (3 February 1995).
77 See DEP'TOF ARMY,REGULATION 200- 1, ENVIRONMENTAL AND ENHANCEMENT, Glossary
PROTECTION (citing the elements of the environment) (21 February 1997).
78 See DEP'TOF ARMY REGULATION 27-1, JUDGEADVOCATE LEGAL SERVICES,Paragraph 2- 1 -The Judge Advocate General, subparagraph w, and Paragraph 5-2 -Responsibilities of supervisory judge advocates (3 February i995); DEP'TOF ARMY, REGULATION 200-1, ENVIRONMENTAL
PROTECTION AND ENHANCEMENT,Paragraph 1.17 -The Judge Advocate General (21 February 1997).
79 See, e.g., DEP'T OF ARMY, REGULATION 27-1,JUDGEADVOCATELEGALSERVICES, –
Paragraph 15-1 General (stating, "it is important that commanders and their contracting officers receive the best possible legal support in planning, executing, and administering these contracts, from definition of the requirement through contract close-out, including disputes and contract litigation.") (3 February 1995).
Endnotes-4
Legal Support to Operations

See INTERNATIONAL AND OPERATIONALLAW DEPARTMENT,THEJUDGEADVOCATE GENERAL'SSCHOOL, UNITED STATES ARMY, OPERATIONAL Page 14-10 (1998) (citing DEP'T OF DEFENSE,
LAW HANDBOOK, JOINT PUEi. 4-04, JOINT DOCTRINE SUPPORT,
FOR CIVIL ENGINEERING 11-8 (26 September 1995)).
81 See CENTERFOR LAWAND MILITARY OPERATIONS, LAW AND MILITARYOPERATIONS IN THE BALKANS
1995-1998, at 168 (1998).
82 See CENTERFOR LAWAND MILITARY OPERATIONS, LAW AND MILITARY
OPERATIONS IN THE BALKANS
1995-1998, at 53 and 142-154 (1998).

83 See CENTERFOR LAW AND MILITARY OPERATIONS, LAW AND MILITARYOPERATIONS IN THE BALKANS
1995-1998, at 143-144 (1998).
See, e.g., DEP'TOF ARMY,REGULATION 27-1, JUDGE ADVOCATE Paragraph 15-5a
LEGAL SERVICES, -Disputes support (3 February 1995).
85 DEP'TOF ARMY, REGULATION 27-20, CLAIMS, Paragraph 1-1 -Purpose (quoted language relating to the purpose of the Army Claims System) (31 December 1997); see also OFFICEOF THEJUDGEADVOCATE GENERAL,DEP'TOF ARMY, LEGAL SERVICESSTUDYREPORT, Volume I1 -Subcommittee Reports, Section B -Claims, General Description of Function, subparagraph a (March 1998); DEP'T OF ARMY, FIELD MANUAL27-100, LEGAL OPERATIONS,
Paragraph 1-9b -Claims (3 September 1991).
86 SeeINTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THEJUDGE ADVOCATE GENERAL'S UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, Page 23- 1 (1 998).
87 See OFFICEOF THEJUDGE ADVOCATE GENERAL,DEP'TOF ARMY, LEGAL SERVICES
STUDY REPORT, Volume I1 -Subcommittee Reports, Section B -Claims, General Description of Function, subparagraph b (March 1998).
88 See DEP'TOF ARMY,REGULATION27-20, CLAIMS, Paragraph 1-5 -Command and organizational relationships (31 December 1997).
89 See DEP'TOF ARMY,REGULATION ADVOCATE LEGAL SERVICES, Claims
27-1, JUDGE Paragraph 2-lj -responsibilities (3 February 1995); DEP'T OF ARMY, REGULATION 27-20, CLAIMS, Paragraph 1-5 -Command and organizational relationships (3 1 December 1997).
90 See DEP'TOF ARMY,REGULATION ADVOCATE LEGAL SERVICES, Claims
27-1, JUDGE Paragraph 2-lj -responsibilities (3 February 1995); DEP'T OF ARMY, REGULATION 27-20, CLAIMS, Paragraph 1-9 -The Commander, USARCS (31 December 1997).
91 See DEP'TOF ARMY,REGULATION ADVOCATE –
27-1, JUDGE LEGAL SERVICES, Paragraph 5-2 Responsibilities of supervisory judge advocates (3 February 1995); DEP'T OF ARMY, REGULATION 27-20, CLAIMS, Paragraph 1-17 -Operations of claims components (31 December 1997).
92 See DEP'TOF ARMY,REGULATION 27-20, CLAIMS, Paragraph 1-17 -Operations of claims components (31 December 1997).
93 See DEP'TOF ARMY,REGULATION 27-20, CLAIMS, Paragraph 1-17 -Operations of claims components (31 December 1997).
94 See OFFICE OF THEJUDGEADVOCATE GENERAL, SERVICES
DEP'TOF ARMY, LEGAL STUDY REPORT, Volume I1 -Subcommittee Reports, Section B -Claims, Environment in Which Services Are Performed, subparagraph a (March 1998).
95 See DEP'TOF ARMY,REGULATION
27-20, CLAIMS, Paragraph 2-2d(l)(a) (3 1 December 1997); DEP'T OF ARMY, PAMPHLET27-162, CLAIMS, Paragraph 2-2c(4) -Unit Claims Oficers, and Paragraph 2-34a -Unit Claims Officer (1 April 1998); INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT,
THE JUDGE ADVOCATE GENERAL'S SCHOOL,UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, Page 23-6,18 (1998).
96 SeeINTERNATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
AND OPERATIONAL THE JUDGE GENERAL'S UNKED STATES ARMY, OPERATIONAL LAW HANDBOOK,
Page 23-19 (1998).
97 SeeINTERNATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
AND OPERAIIONAL THE JUDGE GENERAL'S UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, Pages 23-4,7, & 20 (1998); CENTER FOR LAWAND MILITARY OPERATIONS, LAWAND MILITARYOPERATIONSIN THE BALKANS, 1995- 1998, Pages 154-5,9 (describing the effect of international agreements concerning Bosnia on the investigation, processing, and adjudication of claims during Operation Joint Endeavor), and Page 162 (recommending establishment of policy concerning what property will be deemed reasonable to possess in theater for purposes of the Personnel Claims Act) (1 3 November 1998).
98 SeeINTERNATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
AND OPERATIONAL THE JUDGE GENERAL'S UNITEDSTATES LAW HANDBOOK,
ARMY, OPERATIONAL Page 223-6,18 (1998).
99 SeeINTERNATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
AND OPERATIONAL THEJUDGE GENERAL'S UNITED STATES ARMY, OPERATIONAL Page 23- 19 (1 998).
LAW HANDBOOK,
loo SeeINTERNATIONAL AND OPERATIONALLAW DEPARTMENT, THEJUDGEADVOCATE GENERAL'SSCHOOL, UNITEDSTATES LAW HANDBOOK,
ARMY, OPERATIONAL Page 23-19,20 (1998).
101 SeeCENTERFOR LAW AND MILITARYOPERATIONS, LAW AND MILITARYOPERATIONSIN THE BALKANS,
1995-1998, Page 161 (13 November 1998).

lo2SeeINTERNATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
AND OPERATIONAL THE JUDGE GENERAL'S UN~D FOR LAW
STATES ARMY, OPERATIONAL LAW HANDBOOK, Page 23-18 through 20 (1998); CENTER AND MILITARY OPERATIONS, IN THE BALKANS, 1995-1998, Page 158 (13
LAWAND MILMY OPERATIONS November 1998).
'03 SeeINTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
THE JUDGE GENERAL'S UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, FOR LAW AND
Page 23-8 (1998); CENTER MILITARY OPERATIONS, LAWAND MILITARYOPERATIONSIN THE BALKANS, 1995- 1998, Page 157-8 (1 3 November 1998).
lo4 CENTERFOR LAWAND MILITARYOPERATIONS, LAW AND MILITARYOPERATIONS IN THE BALKANS, 1995- 1998, Page 181 (quoting CPT Nicole Farmer, Chief of Legal Assistance, 1" Armored Division Fwd) (13 November 1998).
lo5See 10 U.S.C.A. section 1044 (West 1998).
'06 DEP'TOF ARMY,REGULATION27-1, JUDGE ADVOCATE Paragraph 2- 11-
LEGAL SERVICES, Legal assistance responsibilities (3 February 1995); see also DEP'TOF ARMY,REGULATION
27-3, ARMY LEGAL ASSISTANCEPROGRAM,Paragraph 2- 1 a -General (10 September 1995).
lo7INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, ADVOCATE SCHOOL,
THE JUDGE GENERAL'S UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, Page 22- l(1998).
lo8 See DEP'TOF ARMY,REGULATION27-3, ARMY LEGAL ASSISTANCE PROGRAM,Paragraph 3-2 -Types of legal assistance services (10 September 1995).
lo9SeeDEP'TOF ARMY, REGULATION 27-3, ARMY LEGAL ASSISTANCE PROGRAM. Paragraph 3-7 -Types of services (10 September 1995).
"O See DEP'TOF ARMY, REGULATION 27-3, ARMYLEGAL ASSISTANCE PROGRAM, Paragraph 3-6 -Types of cases (10 September 1995).
l'' See CENTER OPERATIONS, LAW AND MILITARY
FOR LAWAND MILITARY OPERATIONS IN THE BALKANS, 1995-1998, Page 181 (13 November 1998).
See DEP'TOF ARMY,REGULATION27-3, ARMY LEGALASSISTANCE Paragraph 3-3 –
PROGRAM, General, and Paragraph 3-4 -Preventiv~ law measures (10 September 1995).
Endnotes-6
Legal Support to Operations

'I3 See DEP'TOF ARMY, REGULATION 27-3, ARMYLEGAL ASSISTANCE
PROGRAM, Paragraph 2-1 b(1) -Readiness (10 September 1995).
114 See INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL, UNITEDSTATES HANDBOOK,
ARMY, OPERATIONALLAW Pages 13-3 and 13-10 (1998).
'I5 See INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
TI-E JUDGE ADVOCATE GENERAL'S UNITEDSTATES'ARMY, OPERATIONAL LAW HANDBOOK, Pages 22- 1 through 22-8 (1998).
l6 See CENTERFOR LAWAND MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS M THE BALKANS,
1995-1998, Page 183 (13 November 1998).

'See DEP'TOF ARMY,REGULATION 27-3, ARMY LEGAL ASSISTANCE PROGRAM, raragrapn 1-4c -(lU September 1995); see CENTERFOR LAWAND MILITARYOPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS, 2995-1998, Page 181 (noting Trial Defense Counsel support for legal assistance) (13 November 1998).
'I8 See CENTERFOR LAWAND MILITARYOPERATIONS,LAW AND MILITARYOPERATIONSIN THE BALKANS, 1995-1998, Page 183 (noting an extensive tax program despite the availability of filing extensions) (13 November 1998).
'I9 See INTERNATIONALAND OPERATIONAL THE JUDGE ADVOCATE SCHOOL,
LAW DEPARTMENT, GENERAL'S UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, Page 22-9 (1 998).
lZ0 See INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE SCHOOL,
GENERAL'S UNITEDSTATESARMY, OPERATIONAL LAW HANDBOOK, Page 22-9 (1998).
121 Daniel K. Bolger, Savage Peace: Americans At War In The 1990s 92 (1995).
Lieutenant Colonel David E. Graham, Operational Law (OPLAW):A Concept Comes of Age, Army L., Jul. 1987, at 9.
lZ3Unless otherwise noted, the terms used in this chapter are defined at various places in the following references. DEP'T OF DEFENSE, JOINT PUB. 1-02., DEP'T OF DEFENSE DICTIONARY
OF MILITARY AND ASSOCIATED TERMS (1 Dec. 1989) [hereinafter JOINT PUB. 1-02]; DEP'T OF DEFENSE, JONT PUB. 3-0, DOCTRWEFOR JOINT OPERATIONS
(1 Feb. 1995) [hereinafter JOINT PUB. 3-01; DEP'T OFARMY,FIELD MANUAL 100-7, DECISIVE FORCE: THE ARMY IN THEATER OPERATIONS(1995). There are frequently minor differences in the definitions cited, and the decision to side with one definition or another has been made based on factors such as specificity of context and currency of the publication or definition.
See generally FM 100-7, Chapter 1, supra note 123.

125 The dominant geographic characteristic of a littoral theater is a peninsula or coastline. See FM100-7, supra note 123, at 2-18; 90mT PUB. 3-0, supm note 3> at IV-17.
126 See FM 100-7, supra note 123, at v.
lZ7See generally FM 100-7, Chapter 2, supra note 123.

See JOINTPUB.1-02,supra note 123, at 89. The 1991 version of FM 27-100 discussed the COMMZ and the CZ in Chapter 5. See DEP'T OF ARMY,FlELD MANUAL 27-100, LEGAL OPERATIONS (1991) [hereinafter FM 27- 1001.
JOINTPUB 1-02, DEP'T OF DEFENSE OF MILITARY TERMS at 117 (23
DICTIONARY AND ASSOCIATED March 1994, as amended through 6 April 1999).
See FM 100-7, supra note 123, at 2-21.

This essential distinction appears in Chapter 7 of the May 1996 Draft FM27-100. See THE JUDGE ADVOCATEGENERAL'SSCHOOL, DEVELOPMENTS, DOCTRINE, DEPARTMENT,
AND LITERATURE FIELD MANUAL 27-100, LEGALSUPPORT 7-2 (May 1996) (Draft) [hereinafter MAY 1996 DRAFT].
OPERATIONS

13' This summary is adapted from FM 100-7, supra note 123, at 2-3.
133 See discussion of the METT-TC factors in FM100-7, Chapter 3 supra note 123.
134 See generally DEP'T OF DEFENSE, JOINTPUB. 0-2, UNIFIED ACTIONARMED FORCES (24 February 1995).
'35 JOINTPUB1-02, DEP'T OF DEFENSE OF MILITARY TERMS at 86 (23 March
DICTIONARY AND ASSOCIATED 1994, as amended through 6 April 1999).
136 Since the 1950s, Presidents have declared what is now enshrined as law in 22 U.S.C. 8 3927, namely that the Ambassador is in charge of all elements in the United States Government in a host country (excluding military forces under command of a United States military commander, such as military units in Korea and Germany). Some Ambassadors invoke this principle more aggressively than others, but almost all utilize the management device of the "country team." The country team, with the Chief of Mission at its head, is the principal means by which a mission bonds itself together as a cooperative, coordinated, well- informed staff: In its broadest sense, the "team" is all the elements-and all the men and women-of the American mission in a foreign country. More narrowly, it is a management tool-a council of senior officers, heads of the various sections of the mission, working together under the Ambassador's direction to pool their skills, resources, and problems in the national interest. United States Foreign Service Institute, The Team: The Ambassador Sets the Pace 1 (undated 3 page information paper widely disnibuted to individuals receiving Foreign Service training). No formal directive delineates the composition or functions of the Country Team. The Ambassador determines the type of team that best suits the needs of a particular country. Typical membership at large posts includes the Deputy Chief of the Diplomatic Mission, the chiefs of the political and economic sections of the embassy, the Security Assistance Offlcer, the Agency for International Development mission, and the United States Information Service (USIS). It also usually includes one or more of the military attaches and the agricultural attache. See generally DEFENSEINSIITIZTTE EASSISTANCE THEMANAGEMENT E
OF S ~ MANAGEMENT, OF S ~ ASSISTANCE
105-06 (18th ed., 1998) [hereinafter Management Of Security Assistance]; DEP'T OF ARMY, FIELDMANUAL OPERATIONS CO~ICT
100-20, MILITARY IN LOW INTENSITY (5 Dec. 1990).
'37 A simplistic view of the cycle conceives a circle consisting of four iterative stages: information; planning; decision; and execution. SEEUNmD STATES ARMYCOMMAND STAFF COLLEGE,
AND GENERAL STUDENTTEXT 100-9, THE TACTICAL DECISION-MAKING PROCESS at 1-1 (July 1993) [hereinafter ST 100-
91.
13* A course of action is defined as feasible if it will accomplish the mission, can be supported with available resources, and is consistent with ethical standards of warfare.
13' See FM 101-5, DEP'T OF ARMY, FIELD MANUAL 101-5, STAFF ORGANIZATION H-33
AND OPERATIONS, and H-34 (1997).
140 See ST 100-9, supra note 137, at 1-3 to 1-5.
141 See FM 101-5,supra note 139, at 5-27 to 5-28.
142 See FM 101-5,supra note 139, at 5-5.
143 See FM 101-5, supra note 139, at 5-7 to 5-8.
144 See, e.g., OFFICE OF THE STAFF JUDGE ADVOCATE,82~AIRBORNEDIV., SOLDIER'S HANDBOOK
AND OFFICE METL (13 June 1997); CHIEF, INTERNATIONAL AND OPERATIONAL LAW, V CORPS, DEPLOYMENT STANDING OPERATING PROCEDURE (1989); OFFICE OF THE STAFF JUDGE ADVOCATE, 25T~ INFANTRY DMSION (LIGHT), DEPLOYMENT STANDING AND OPERATIONALLAWHANDBOOK
OPERATING PROCEDURE (1987); OFFICE OF THESTAFF JUDGE ADVOCATE, ~O~STAIRBORNEDMSION (AIR ASSAULT),DEPLOYMENT STANDARDSAND PROCEDURES:A HANDBOOK THE TRANSITION
TO GUIDE TO WAR(17 Sept. 1992); OFFICE OF THE STAFF JUDGE ADVOCATE, 1ST CAVALRY
DMSION, DEPLOYMENT HANDBOOK (1993).
145 22 10 U.S.C. 8 3062.
146 This summary is adapted from FM100-7, supra note 123, at 6-15, and DEP'T OF ARMY, FIELDMANUAL 100-1 1, FORCE INTEGRATION, CHAPTER2, SECTION IV, Force Projection Operations (15 Jan. 1995).
Endnotes-8
Legal Support to Operations

147See genrnlly DEP'TOF ARMY, REG. 500-5, ARMY MOBILIZATION
(7 June 1996). See also DEP'TOF ARMY, FIELD MANUAL 100-17, MOBILIZATION, REDEPLOYMENT, (28 Oct.
DEPLOYMENT, DEMOBILIZATION 1992).
14'

Variations of this statement appeared in Chapter 6 of both the 1991 version and the 1996 draft version
of FM 27-100.
14'

See DEP'T OF ARMY, FIELD MANUAL 101-5, STAFF ORGANIZATION at 1-2 and 1-3
AND OPERATIONS

(1997).
150See id;DEP'T OF ARMY, REG. 600-20, ARMY COMMAND
POLICY, para. 2-2 (29 Apr. 1988) [hereinafter AR 600-201.
15' For further information on the material in this section, see generally CENTERFOR LAW AND MILITARY
OPERATIONS, ADVOCATE (JAWE): FINAL REPORT (1997).
THE JUDGE WARFIGHTING EXPERIMENT
152 Compare material in this part to DEP'T OF ARMY, FIELDMANUAL 27-100, Training the Force, Chapter 6
(15 Nov. 1988).
153 Material in the next three sections has been adapted from the following sources: DEP'T OF ARMY, FIELD MANUAL 25-100, TRAINING THE FORCE (15 NOV. 1988); DEP'T OF ARMY,HELD MANUAL 25-101, BAT~LE FOCUSED TRAINING (30 Sep. 1990); LIEUTENANT ARTHURS. COLLINS, JR., COMMON
GENERAL SENSE TRAINING (19??~~); FOR LAWAND MILITARY A JUDGE
CENTER OPERATIONS, IN THE OPERATIONS CENTER: ADVOCATE'S GUIDE TO THE BATTLE COMMAND PROGRAM (1996); CENTER
TRAINING FOR LAW AND MILITARYOPERATIONS, TACKLING DEPLOYMENT: A JUDGE GUIDE TO THE
THE CONTINGENCY ADVOCATE'S JOINT READINESS
TRAINING CENER (1996).

154 Do not confuse "combined" in this sense with the term "combined operation," which "involves the
military forces of two or more nations acting together in common purpose." See, e.g., DEP'T OF ARMY,
FIELD MANUAL 100-5, OPERA~ONS
5-1 (1993) [hereinafter FM 100-51. The lines of command for combined task forces created pursuant to formal, stable alliance relationships between nations will generally follow principles predetermined by the alliance agreement. The lines of command for combined task forces arising from a temporary coalition follow no set principles and are negotiated on an ad hoc basis. See id.
'" See to DEP'T OF ARMY, FIELDMANUAL27-100, Training the Force, at 2-4 (15 Nov. 1988).
156 See the discussion of the DSJA in THE JUDGE ADVOCATE GENERAL'S
SCHOOL, DEVELOPMENTS, DOCTRINE, AND LITERATURE DEPARTMENT, OPERATIONS, Chapter
FIELD MANUAL 27-100, LEGAL SUPPORT 2 (May 1996) (Draft).
lS7 See, e.g., 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. ,41321144, art. 82, reprinted in DEP'T OF ARMY, PAMPHLET27-1-1 [hereinafter DA PAM 27-1-1, PROTOCOL
I], also reprinted in 16 I.L.M. 1391 ("The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces in this subject.").
See BEP'T OF DEFENSE, DR. 5100.77, DOD LAWOF WAR PROGRAM (9 Dec. 1998); THE JOINT CHIEFS OF STAFF,CHAIRMANOF THE JOINT 58 10.0 1, IMPLEMENTATION
CHIEFSOF STAFF INSTRUCTION OF THE DoD LAW OF WAR PROGRAM
(12 Aug. 96); Memorandums, Joint Chiefs of Staff, MJCS 59-83 (1 June 1983) and MJCS 01 24-88, (4 Aug. 1988);subject: Implementation of DoD Law of War Program; Message, 2920302 OCT84, FORSCOM, subject: Review of Operations Plans.
159DEP'T OF ARMY,REG. 27-1, JUDGE ADVOCATE LEGAL SERVICE,paras. 2-1,3-2,4-2,5-2a(7) (1995).
160 A list of thirteen of these references appears at INT'L AND OPERATIONAL L. DEP'T, THE JUDGE ADVOCATE SCHOOL, UN~D ARMY, OPERATIONAL LAW HANDBOOK 1-2 (JA422) (7th
GENERAL'S STATES ed. 1998) [hereinafter OP. LAW HANDBOOK].
161 These training guidance documents ~lso freqliently describe the following: Commander's training philosophy, mission esseiltial task list and associated battle tasks, combined arms training, major training events and exercises, leader training, individual training, mandatory training, standardization, training evaluarion and feedback, new equipment training and other force integration considerations, resource dlocation, and Eaining management. See FM 25-100, supra note 153, at 3-5 to 3-6.
162 Id. at 3-17.
'63 The material contained in this section is closely adapted from the following sources: FM100-5, supra
note 154 at 2-20; JOINT CHIEFS OF STAFF, PLTBLICATION 3-05, DOCTRINE FOR JOINT SPECIALOPERATIONS
(Oct. 1992); DEP'T OF ARMY, FIELD MANUAL 33- 1, PSYCHOLOGICAL
OPERATIONS (Ju~. 1987); JOINT CHIEFS OF STAFF, PUBLICATION (Feb. 1987); DOCTRINE FOR
3-53, JOINT PSYCHOLOGICAL OPERATIONS DOCTRINE JOINTSPECIAL (Oct. 1992); DEP'T OF ARMY, FIELD MANUAL
OPERATIONS 41- 10, CIVIL AFFAIRS OPERATIONS (1 1Jan. 1993); DEP'T OF ARMY, FIELD MANUAL 100-25, DOCWE FOR ARMY SPECIAL FORCES(12 Dec. 1991).
164 "Depth" is one of the five tenets of Army operations. It is "the extension of operations in time, space, resources, and purpose.". What is "most important" about depth is "that in any operation the Army must have the ability to gain information and influence operations throughout the depth of the battlefield." See genemlly FM100-5, Chapter 3, .supm note 154.
165 Compare the material in this section with the 1991 Version of FM 27-100, DEP'T OF ARMY, FIELD
MANUAL27- 100, LEGAL OPERATIONS.
166 Compare the material in this section with the 1991 Version of FM 27-100, DEP'T OF ARMY, FIELD MANUAL
27- 100, LEGAL OPERATIONS.

167 DEP'TOF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM, paragraph 5.3.1 (9 Dec 98); CHAIRMAN OF THE JOINT CHIEFS OF STAFFINSTRUCTION, 5810.01, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM
(12 Aug 96).

168 Memorandum From Hays Parks to the U.S. Army Judge Advocate General (1 Oct 90).
16' DEP'TOF ARMY, FIELD MANUAL 2-6 (June 1993).
100-5, OPERATIONS,
170 Colonel Frederic L. Borch 111, Judge Advocates in Combat.
171 PETERPARET, NAPOLEON OF MODERN FROM
AND THE REVOLUTION IN WAR,IN MAKERS STRATEGY MACHUVELLI
TO THE NUCLEAR AGE 123, 129, 136 (Peter Paret ed. 1986) [hereinafter Makers of Modem Strategy] ("In [Napolean's] hands all conflicts tended to become unlimited, because openly or by implication they threatened the continued independent existence of his antagonists.").
17' QUINCY WRIGHT, A STUDY OF WAR 1322 (1 942).
'73 See, e.g., DEP'TOF ARMY,FIELDMAIWAL at 6-7 and 6-8 (June 1993).
100-5, OPERATIONS,
174 This paragraph closely follows the language of General Fred Franks in TOM CLANCY
AND GENERAL FREDFRANKS, JR. (RET.), INTO THE STORM:A STUDY IN COMMAND148 (1997).
175 PETER PARET, Clause~~it~, OF MODERN supra note 171, at 186,200 (quoting Carl
in MAKERS STRATEGY, vuuZI~USCWILL, bk. I, cii. I, PI).87 (i8i8) (Peter Paret ana Niichael Howard trans. and ed. 1984).
GII-%a-

176 Id. at 199. See nlso RUSSELL F. WEIGLEY,American Strategyfrom its Beginnings through the First World War, in MAKERS OF MODERNSTRATEGY, supra note 17 1, at 408,409- 10 ("Just as the limitations of eighteenth-century European war can be exaggerated, however-testimony about the restrained conduct of troops marching through a district does not often come from inarticulate peasants-so conversely, historians may tend to exaggerate the readiness of early Americans to tun toward absolute war. Colonial American sermons and political tracts reflect an awareness and acceptance of the European conception of the just and therefore limited war, which was becoming increasingly codified in such works AS EMERICH
DE VATTEL'SDROITDESGENS of 1758. On occasion, the standards of jus ad bellum andjus in bello were applied to even Indian wars, as when the Connecticut government refused to assist Massachusetts in an
Endnotes-10
Legal Support to Operations

18'

Indian conflict that Connecticut judged unjust. If it was much more common to consider the Indian
outside the protection of the Christian laws of wx, the Americans nevertheless explicitly acknowledged
those laws as applicable to their own conflicts with Europeans, even amid the violent emotions of the
American Revolution.").

177See FM 100-5, DEP'TOFARMY, 6-9 (June 1993).
FIELD MANUAL 100-5, OPERATIONS,
178THE JOINT CHIEFS OF STAFF, JOINT PUBLICATION 1-02, DOD DICTIONARY OF MILITARYAND ASSOCIATED TERMS, 452 (As amended through 29 June 1999).
179See DEP'TOF ARMY, STP 21-1-SMCT, SOLDIER'S OF COMMON
MANUAL TASKS, SKILL LEVEL 1 546 (1 Gc;. :9S4) (Tzsk YJi;. 181-906-1505: ("Ccndnct Combat G~erztinns.According to the Law of War")
Ia0See FM 100-5, DEP'TOF ARMY, FIELD MANUAL 100-5, OPERATIONS, 2-5 (June 1993).
18' See DEP'TOF ARMY,FIELD MANUAL 7 1- 100, DIVISION at 3-5 (28 Aug. 1996).
OPERATIONS,
See DEP'TOFARMY,FIELD MANUAL6-20- 10, TACTICS, TECHNIQUES,AND PROCEDURESFOR THE TARGETING PROCESS at 4-16 (8 May 1996) ("During certain operations, personnel and agencies that will support the targeting process could include the following: staff judge advocate. . . ").
'83 See FM 71-100, DEP'T OF ARMY, FIELD MANUAL 71- 100, DMSION OPERATIONS,
at 3-13 and 3-14 (28 Aug. 1996).
The final five paragraphs of this part of the chapter paraphrase observations made by BG John Altenburg, then Assistant Judge Advocate General for Military Law and Operations, "Training, Mentoring, and Teambuilding Within the Office of the Staff Judge Advocate," Presentation to the World-Wide Continuing Legal Education Conference, at The Judge Advocate General's School in Charlottesville, Virginia, in Oct. 1996.
CENTERFOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE SCHOOL,
GENERAL'S U.S. LAWAND MILITARY IN HAITI,1994-1995, 1-2 (1 1 December 1995) (footnotes omitted).
OPERATIONS

THE JOINT CHIEFSOF STAFF, JOINT OF DEFENSE AND
PUB.1-02, DEPARTMENT DICTIONARY OF MILITARY ASSOCIATED TERMS, 300, (23 March 1994, as amended through 7 December 1998).
Ig7 THE JOINT DOCTRINE OPERATIONSOTHER THAN
CHIEFSOF STAFF, JOINT PUB.3-07, JOINT FOR MILITARY WAR, vii (16 June 1995).
lS8 See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARY OPERATIONS OTHER THANWm, Chapter 111 (16 June 1995) (describing current joint doctrinal types of MOOTW); Compare
with U.S. DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS,
2-32 & 33 (Revised Final Draft of 23 March 1998) (describing emerging, but not approved Army doctrine that titles these operations Stability Operations and Support Operations).
189 See generally, e.g. THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07, JOINT DOCTRINE FOR MILITARY OPERATIONSOTHER THAN WAR (1 6 June 1995); THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07.1, JTTP FOR FOREIGNINTERNALDEFENSE(FID) (26 June 1996); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.2, JTTP FOR ANTITERRORISM (17 March 1998); THE JOINTCHIEFS OF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS TECHNIQUES CHIEFSOF STAFF,
AND PROCEDURESFOR PEACE OPERATIONS (12 February 1999); THE JOINT JOINTF'UB.3-07.4, JOINT COUNTERDRUG
OPERATIONS (17 February 1998); THE JOINT CHIEFS OF STAFF, JOINTPUB.3-07.5, JOINT TACTICS, EVACUATION
TECHNIQUES,AND PROCEDURESFOR NONCOMBATANT OPERATIONS(30 September 1997); U.S. DEP'T OF ARMY, FIELDMANUAL 100-5, OPERATIONS (14 June 1993) (pending revision); U.S. DEP'T OF ARMY, FIELD MANUAL 100-20, MILITARY OPERATIONSIN LOW IN TENS^ CONFLICT(5 December 1990) (pending revision); U.S. DEP'T OF ARMY, FlELD MANUAL100-23, PEACEOPERATIONS 100-23-
(30 December 1994) (pending revision); U.S. DEP'T OF ARMY, FIELD MANUAL 1, HA MULTISERMCE ASSISTANCE (31 October 1994).
PROCEDURES FOR HUMANITARIAN Ig0 THE WHITE HOUSE, A NATIONAL STRATEGYSECURITY FOR A NEW CENTURY, 1 (October 1998).
lgl THE WHITE HOUSE, A NATIONAL SECWUTY 1 (October 1998).
STRATEGY FOR A NEWCENTURY,
lg2 See generally THE WHITE HOUSE, A NATIONAL S ESTRATEGY FOR A NEW CENTURY,
~ 1-14 (October 1998).
Ig3 THE WHITE HOUSE, A NATIONAL SECURITYSTRATEGYFOR A NEW CENTURY, 2 (October 1998).
lg4 THE WHITE HOUSE, A NATIONAL STRATEGY 7 (October 1998).
SECURITY FOR A NEW CENTURY,
lg5 See, e.g., THE WHm HOUSE, A NATIONAL SECm STRATEGY FOR A NEW CENTURY, 8 (October
1998); THE JOINT CHIEFS OF STAFF, JOINT m.3-07.1, JTTP FOR FOREIGN INTERNAL DEFENSE (FID), 1-4
(26 June 1996); THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.2, JTTP FOR ANTITERRORISM,III-2,3 (17 March 1998); THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.4, JOINT OPERATIONS,
COUNTERDRUG 1-8 (Figure 1-3) & IV-6 (17 February 1998); THE JON CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, TECHNIQUES,AND PROCEDURES FOR NONCOMBATANT OPERATIONS, vii (30 September 1997).
EVA~ATION
lg6 CHAIRMAN CHIEFSOF STAFF, NATIONAL MILITARY STRATEGY OF THE USA, Executive
OF THE JOINT Summary, The Strategy, National Military Objectives (1997).
lg7 CHAIRMAN STRATEGYOF THE USA, Executive
OF THE JOINT CHIEFS OF STAFF, NATIONAL MILITARY Summary, The Strategy, Elements of Strategy (1997).
Ig8 See CHAIRMAN CHIEFS OF STAFF, NATIONAL
OF THE JOINT MILRARY STRATEGY OF THE USA, The Strategy -Shape, Respond, Prepare Now, Elements of the Strategy: Shape, Respond, Prepare Now, Promoting Stability (1997).
lg9 See THEWHITE HOUSE, A NATIONAL SECURITY FOR A NEW CENT~Y,
STRATEGY 15-18 (October 1998); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.2, RTP FOR ANTITERRORISM, 111-1,2 (17 March 1998); THE JOINTCHIEFS OPERATIONS,
OF STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG I-2,3 (17 February 1998).
200 See JOINTCHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN WAR, 111-12 (16 June 1995).
'01 See CHAIRMAN CHIEFSOF STAFF, NATIONAL STRATEGYOF THE USA, The
OF THE JOINT MILITARY Strategy -Shape, Respond, Prepare Now, Elements of the Strategy: Shape, Respond, Prepare Now, Preventing or Reducing Conflicts and Threats (1997); THE JOINT CHIEFS OF STAFF, JOINT FWB. 3-07, JOINT DOCTRINE OPERATIONS OTHER THAN WAR, HI- 1,2 (1 6 June 1995).
FOR MILITARY

202 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARY OPERATIONS OTHER THANWAR, 111-11 (16 June 1995); see also Headquarters, Department of the Army, Joint Plan for DoD Non-combatant Repatriation (1 1 August 1999).
203 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MaITARY OPERATIONS OTHER THAN WAR, 111-4 (16 June 1995).
204 See THEJOINTCHIEFS OF STAFF, JOINT m.3-07, JOINTDOCTRINE FOR MILITMY OPERATIONS OTHER THANWAR, 111-4 (16 June 1995).
205 U.S. DEP'T OF ARMY, FIELDMANUAL100-23, PEACE OPERATIONS
(30 December 1994) (pending revision).
Endnotes-12
Legal Support to Operations

"I6 THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARY OPERATIONS OTHER THAN WAR,1-2 (16 June 1995) (emphasis omitted).
207 See, e.g., CENTERFOR LAWAND MILITARY SCHOOL,OPERATIONS, THE JUDGE ADVOCATE GENERAL'S
U.S. ARMY,LAWAND MILrrARY OPERATIONS
IN H-m, 1994-1995, 12 (1 1 December 1995) (quoting the UN Security Council Resolution 940, authorizing member states "to form a multinational force . . .to use all necessary means to facilitate the departure from Haiti of the military leadership . . . the prompt return of the legitimately elected President . . . and to establish and maintain a secure,and stable environment . . . "
S.C. Res. 940, U.N. SCOR, 49Ih Sess., S/RES/940 (1994)); CENTER FOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, OPERATIONS IN THE
U.S. ARMY, LAWAND MILITARY BALKANS, 1995-1998,39-42 (13 November 1998) (describing the Dayton Peace Accord and UN Security Council Resolution 103 1 applicable in the Balkans).
'Ox See, e.g., THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR, 1-2 (16 June 1995) (noting DoD's supportive role to DoS in Humanitarian Assistance); THE JOINT CHIEFS OF STAFF, JOINT 111-2 (17 Mach 1998) (stating
m.3-07.2, JTTP FOR ANTITERRORISM, that DoS is the lead agency for terrorism outside the U.S.); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINTCOUNTERDRUG 1-8 (Figure 1-3) (17 February 1998) (noting DoS as lead agency for
OPERATIONS, coordinating US supply reduction strategies); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, TECHNIQUES, AND PROCEDURESFOR NONCOMBATANT OPERATIONS, 1-2 (30
EVACUATION September 1997) (noting that the Ambassador is the senior U.S. authority responsible for the evacuation).
'09 See THE JOINT CHIEFSOF STAFF, JOINT PUB.3-07.1, JTTP FOR FOREIGN INTERNAL DEFENSE (FID), 111- 9,10 (26 June 1996) (noting as military planning considerations host nation sovereignty, the requirement to identify political threats, and the impact of political concerns on rules of engagement).
See THEJOINTCHIEFSOF STAFF, JOINT PUB.3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR, 1-2 (16 June 1995).
'I1 THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARY OPERATIONS OTHER THAN WAR, 1-2 (16 June 1995).
'I2 See THEJOINT DOCTRINEFOR MILITARY
CHIEFSOF STAFF, JOINT PUB.3-07, JOINT OPERATIONS OTHER THANWAR,1-2 (16 June 1995) ("A single act could cause significant military and political consequences . . .Restraint requires the careful balancing of the need for security, the conduct of operations, and the political objective.").
See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARY OPERATIONS OTHER THAN WAR, IV-9 (16 June 1995); see also CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATEGENERAL'S SCHOOL, U.S. ARMY, LAWAND MILITARY
OPERATIONS IN HAITI, 1994-1995,12-24 (11 December 1995) (describing the Multinational Force and UN Mission in Haiti); CENTER FOR LAWAND MILITARYOPERATIONS, THE J~GE SCHOOL,
ADVOCATE GENERAL'S U.S. ARMY, LAWAND MILITARY OPERATIONS 1995-1998,41-42 (13 November 1998) (describing the framework and
IN THE BALKANS, composition of the Implementation Force in Bosnia).
2'4 See, e.g., CENTERFOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL,
U.S. ARMY, LAW AND MILITARY IN THE BALKANS,
OPERATIONS 1995-1998,58-61 (13 November 1998) (describing efforts to reconcile concerns between nations in the rules of engagement for the Implementation Force in Bosnia).
"5 See, e.g., THEJOINTCHIEFS OF STAFF,JOINT m.3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN WAR, IV-9 (16 June 1995); THE JOINT CHIEFS OF STAFF, JOINT Pm. 3-07.1, JTTP FOR FOREIGNINTERNAL (FID), 11-8 & App A (26 June 1996); THE JOINT CHIEFS
DEFENSE OF STAFF, JOINT PUB. 3-07.4, JOINTCOUNTERDRUG 1-8, IV-5, & App B (17 February 1998).
OPERATIONS,

216 THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT FOR MILITARY OPERATIONS 071IER THAN
DOCTRINE WAR, 1-6 (16 June 1995) (emphasis omitted); seealso, THE JOlNT CHIEFS OF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGN (FID), 1-5 to 1-14 (26 June 1996) (describing various types of
INTERNAL DEFENSE MOOTW that may support foreign internal defense).
217 See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR, ix, x, 1-7, & I- 1 1 (16 June 1995).
See CENTERFOR LAWAND MILITARY THE JUDGE SCHOOL,U.S.
OPERATIONS, ADVOCATE GENERAL'S ARMY, LAW AND MILITARYOPERATIONS
IN HAITI, 1994-1995,12-24 (1 1 December 1995).
"9 See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER
THAN WAR, IV-2 (16 June 1995).
"O See THE JOINT OF STAFF, JOINT OPERATIONS OTHER
CHIEFS PUB. 3-07, JOINT DOCTRINE FOR MILITARY THAN WAR, IV-6 & 7 (16 June 1995).
221 See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR, IV-11 (16 June 1995).
222 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGNINTERNALDEFENSE(FID), LU-7
(26 June 1996).
223 See THE JOINT CHIEFSOF STAFF, JOINT VI-6 (17 March 1998);
PUB. 3-07.2, JTTP FOR ANTITERRORISM, THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT OPERATIONS,
COUNTERDRUG 1-10 (17 February 1998).
224 See THE JOINT CHIEFSOF STAFF, JOINT Pm. 3-07.5, JOINT TACTICS,TECHNIQUES,AND PROCEDURESFOR NONCOMBATANT OPERATIONS,
EVACUATION VI-9 (30 September 1997).
225 See THE JOINT CHIEFSOF STAFF, JOINT PUB.3-07, JOINT DOCTRINE FOR MILITARY
OPERATIONS OTHER THANWAR, vii & ix (16 June 1995) ("MOOTW are initiated by the National Command Authorities . .." "Command and control are overseen by the joint force commanders (JFCs) and their subordinates . . ."); see also THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGN INTERNAL DEFENSE (FID), viii & ix (26 June 1996); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, TECHNIQUES,AND PROCEDURES FOR NONCOMBATANT
EVACUATION OPERATIONS, 11-6 (30 September 1997).
226 THE WHlTE HOUSE, A NATIONAL SEC~TY FOR A NEW CENTURY,
STRATEGY 21 (October 1998).
227 See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THANWAR, TV-5 (1 6 h~ne1995).
228 See CENTERFOR LAWAND MILITARY THEJUDGE ADVOCATE GENERAL'S U.S.
OPERATIONS, SCHOOL, ARMY, LAWAND MILITARYOPERATIONS
IN HAITI,1994- 1995,22-23 (1 1 December 1995).
229 See CENTERFOR LAWAND MILITARY ADVOCATE GENERAL'S
OPERATIONS, THE JUDGE SCHOOL, U.S. ARMY, LAW AND MILITARY IN THE BALKANS,
OPERATIONS 1995-1998,41 (13 November 1998).
230 See THE JOINT CHIEFS OPERATIONS OTHER
OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY THANWAR, ix (16 June 1995).
Endnotes-14
-Legal Support to Operations

''I See THE JOINT OF STAFF, JOINT PUB. 3-07, JO~NT FOR J\/IILITARY ~PER.~TIOI\IS
CHIEFS DOCTRINE OTHER THAN WAR. 11-3 (16 June 1995).
'"THE JOINT CHEFS OF STAFF, JONT P1,B. 3-07, JO.LWT DOCTRINEFOlc MIL~TARY
Oi'ERATiDNS OTH'HER THAN WAR, IV-8 (16 June 1995) (emphasis omitted).
"3 See THE JOINT CHEFS OF STAFF, JOINT PUB. 3-07, JONr DOCTRINE OTHER
FOR MILITARY OPERATIONS THAN WAR, IV-7 (16 June 1995); CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAW AND MJLITARYOPERATIONS11\1 HAITI, 1994-1995, 93-4 (11 December 1995); CENTER FOR LAWAND MILITARY ADVOCATE
OPERATIONS, THE JUDGE GENERAL'S SCHOOL,U.S. ARMY, LAW AND MIJJTARY IN TFEBALKANS,
OPEMTIONS 1995-1998,44 (13 November 1998) (discussing the Civil-Military Cooperation Tearn, or CIMIC, which performed the CMOC function).
234 See CENTERFOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S
SCHOOL, U.S. ARMY, LAWAND MILITARYOPEMrIONS W HAITI, 1994-1995,297-8 (1 1 December 1995).
'35 See CENTER OPERATIONS, THE JUDGE ABVOCATE GENERAL'S U.S.
FOR LAWAND MILITPXY SCHOOL, ARMY, LAW AND MILITARY IN THE BALKANS,
OPERATIONS 1995-1998,43-4 (13 November 1998). 236 See THE JOINT CHIEFS DOCTRINE FOR MILITARY OTHER
OF STAFF, JOINT PUB.3-07, JOINT OPERATIONS THAN WAR, ix & IV-8 (16 June 1995).
237 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT FOR MILITARY OPERATIONS
DOC~NE OTHER THANWAR, 111-1 (16 June 1995).
2'8 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE OTHER
FOR MILrI'ARY OPERATIONS THAN WAR, 111-2 (16 June 1995).
239 See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR, III-2 (16 June 1995).
240 See THE JOINT CHEFSOF STAFF, JOINT PUB. 3-07, JOEVT OPERATIONS
DOCTRINEFOR MILITARY OTHER THAN WAR, 111-2 (16 June 1995); THE JOINTCHEFS OF STAFF, JOINT PUB. 3-07.2, JTTP FOR ANTITERRORISM, I- 1 (17 March 1998).
'41 THE JOINT CHEFS OF STAFF, JOINT PUB. 3-07.2, JTTP FOR ANTIERRORISM, 1-1 (17 March 1998).
242 See THE JOINT CHIEFSOF STAFF, JOINT FUB. 3-07.2, JTTP FOR ANTITERRORISM,
IV-1,2 (17 March 1998).
'43 THE JOINT CHIEFS OF STAFF, JOINT V-1 (17 MXC~
PUB.3-07.2, JTTP FOR ANTITERRORISM, 1998).
'44 THE JOINT CHEFS OF STAFF, JOINT FUB.3-07.2, JTTP FOR ANTITERRORISM, 1-2 (17 March 1998); THE JON CHIEFS OF STAFF, JOINT FOR MIL~~ARY
PUB. 3-07, JOJNT DOCTRINE OPERATIONS OTHER THAN WAR, 111-3 (16 June 1995).
245 THEJOINT CHIEFSOF STAFF, JOINT OPERATIONS OTHER THAN
PUB. 3-07, JOINT DOCTRJNEFOR MILITARY WAR,111-2 (16 June 1995).
'46 See THE JOINT CHIEFS FOR MILITARY OTHER
OF STAFF, JOINT RJJ3.3-07, JOINT DOCTRINE OPERATIONS THAN WAR, 111-3 (16 June 1995).
247 SeeTHE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.4, JOINT COUNTERDRUG OPERATIONS, 1-3 (17 February 1998).
248 SeeTHE JOINT CHIEFS OF STAFF, JOINT OPERATIONS, 1-14 (17
PUB.3-07.4, JOINT COUNTERDRUG February 1998).
249 SeeTHE JOINT CHIEFS OPERATIONS,
OF STAFF, JOINT PUB. 3-07.4, JOINTCOUNTERDRUG 1-14 (17 February 1998).
250 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.4, JOINT OPERATIONS,
COUNTERDRUG IV-7,8 (17 February 1998).
251 SeeTHE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR, 111-3,4 (16 June 1995).
'"SeeTHE JOINT CHIEFS OF STAFF, JOINT PUB, 3-07, JOINT DOCTRINEFOR MILITARY OPERATIONS OTHER THAN WAR, 111-3,4 (16 June 1995).
253 SeeTHE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN WAR, UI-4 (16 June 1995).
254 THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR, 111-4 (16 June 1995) (emphasis omitted).
255 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOC= FOR MILITARYOPERATIONS OTHER THAN WAR, 111-4 through 8 (16 June 1995); see also THE JOINTCHIEFS OF STAFF, JOINTPUB. 3-07.6, FOREIGNHUMANITARIAN OPERATIONS,
ASSISTANCE (to be published) (The draft describes the types of missions as relief missions, dislocated civilian support missions, security missions, and technical assistance and support functions.).
256 THE JOINT CHIEFSOF STAFF, JOINT PUB.3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR, III-9 (16 June 1995) (emphasis omitted).
257 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MlLITARY OPERATIONS OTHER THAN WAR, 111-9 (16 June 1995).
258 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT OPERATIONS
DOCTRINEFOR MILITARY OTHER THAN WAR, 111-9 (16 June 1995).
259 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB.3-07, JOINT DOCTRINE OPERATIONS OTHER
FOR MILITARY THANWAR, 111-9 (1 6 June 1995).
260 SeeTHE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGNINTERNAL DEFENSE (FID), viii (26 June 1996).
THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER THAN WAR,111-10 (16 June 1995) (emphasis omitted).
262 See 10 U.S.C.A. section 401 (West 1998); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOClliINE FOR MILITARYOPERATIONS OTHER THAN WAR, 111-1 0 (16 June 1995).
Endnotes-16
Legal Support to Operations

See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN WAR, 111-1 1 (16 June 1995); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, TECHNIQUES, AND PROCEDURES OPERATIONS, vii (30 September 1997).
FOR NONCOMBATANT EVACUATION
264 THE JOINT CHEFSOF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, TECHNIQUES, AND PROCEDURESFOR
NONCOMBATANT OPERATIONS,

EVACUATION vii (30 September 1997).
265 See THE JOINT CHIEFSOF STAFF, JOINT TACTICS, TECHNIQUES,
PUB. 3-07.5, JOINT AND PROCEDURES FOR NONCOMBATANT OPERATIONS, V-12 through 14 (30 September 1997).
EVACUATION

266 See THE JOINT CHIEFSOF STAFF,JOINTPUB.3-07.5, JOINT TACTICS, TECHNIQUES, AND PROCEDURESFOR ;NONCOMBATANT OPERATIONS,
EVACUATION x (30 September 1997).
'267 See generally, THE JOINT CHIEFS PUB. 3-07.5, JOINT TACTICS, TECHNIQUES,
OF STAFF, JOINT AND PROCEDURESFOR NONCOMBATANT OPERATIONS,
EVACUATION Chapter VI (30 September 1997).
268 THE JOINT CHIEFS OF STAFF,JOINTPUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN
WAR, 111-12 (16 June 1995) (emphasis omitted); see also THE JOINTCHIEFS OF STAFF,JOINTPUB.3-07.3,
JOINTTACTICS, TECHNIQUES, AND PROCEDURES FOR PEACE OPERATIONS, I-6,7 (12 February 1999).
269 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE FOR MILITARYOPERATIONS OTHER
THAN WAR, 111-13,14 (16 June 1995); see also THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.3, JOINT
TACTICS, TECHNIQUES, AND PROCEDURESFOR PEACE OPERATIONS, vii (12 February 1999).

270 THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07.3, JOINT TACTICS,TECHNIQUES,AND PROCEDURES FOR
PEACE OPERATIONS, 1-6 (12 February 1999) (emphasis omitted).
271 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, TECHNIQUES, AND PROCEDURES
FOR PEACE OPERATIONS, 11-1 1 through 14 (12 February 1999).
272 See THE JOINT CHIEFSOF STAFF, JOINT PLB. 3-07.3, JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR
PEACE OPERATIONS, 11-17 through 24 (12 February 1999).
273 THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07.3, JOINT TACTICS,TECHNIQUES, AND PROCEDURESFOR
PEACE OPERATIONS, 1-7 (12 February 1999) (emphasis omitted).
274 THE JOINT CHIEFS OF STAFF, JOINT l'Ul3.3-07.3, JOINT TACTICS,TECHNIQUES,
AND PROCEDURES FOR PEACE OPERATIONS,
I114 (12 February 1999) (emphasis omitted), and 111-4 through 6 (describing each task and including internment and resettlement operations).
275 SeeTHE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, AND PROCEDURESFOR
TECHNIQUES, PEACE OPERATIONS,
In-7 through 13 (12 February 1999).
276 THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINE
FOR MILITARY OPERATIONS OTHER THAN WAR,ILI-14 (16 June 1995) (emphasis omitted).
277 See THEJOINT CHIEFSOF STAFF,JOINT IJUB. 3-07, JOINT DOCTRINEFOR MILITARY
OPERATIONS OTHER THANWAR, 111-14 (16 June 1995).
278 See THEJOINTCHIEFS FOR MIL~ARY
OF STAFF,JOINT PUB.3-07, JOINT DOCTRINE OPERATIONS OTHER THAN WAR, 111-14,15 (16 June 1995).
279 See THEJOINTCHIEFSOF STAFF, JOINT PUB.3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER
THAN WAR, 111-14,15 (16 June 1995).
THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCm FOR MILRARYOPERATIONS OTHER THAN WAR, 111-15 (16 June 1995) (emphasis omitted).
THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN WAR, 111-15 (16 June 1995) (emphasis omitted).
282 See THE JOINT CHIEFS FOR MILITARY OTHER
OF STAFF, JOINT PUB. 3-07, JOINT DOCTR~NE OPERATIONS THAN WAR, III-15 (16 June 1995).
I

'83 See THEJOINTCHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER
THANWAR, 111-15 (16 June 1995).
HAGUECONVENTION OFWAR ON LAND,ANNEXTO THE
(IV RESPEC~GTHE LAWS AND CUSTOMS CONVENTION,
1 Bevans 631 (signed Oct. 1907 at the Hague).
285 See THE JOINT CHIEFSOF STAFF, JOINT PLTB.3-07, JOINT DOCTRINEFOR MILITARYOPERATIONSO m
THANWAR, ix (16 June 1995); See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.6, FOREIGN
HUMANITARIAN x (to be published).
ASSISTANCE,

286 See CENTERFOR LAW AND MILITARY SCHOOL,
OPERATIONS, THE JUDGE ADVOCATE GENERAL'S U.S. ARMY, LAW AND MILITARYOPERATIONS
IN HAITI,1994-1995,25-30 (1 1 December 1995).
'87 See CENTER FOR LAWAND MILITARY THEJUDGE SCHOOL,U.S.
OPERATIONS, ADVOCATE GENERAL'S ARMY, LAW AND MILITARYOPERATIONSIN THE BALKANS, 1995- 1998,50 & 82-84 (1 3 November 1998).
See CENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, LAWAND MILITARY IN HAITI,1994- 1995,25 (1 1 December 1995) (noting the
OPERATIONS requirement for reserve component legal personnel to deploy, and describing requirements for home station support to emergency operations centers, predeployment legal assistance, and technical support to deployed legal personnel); CENTER FOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY,LAWAND MILITARYOPERATIONS IN THE BALKANS, 1995-1998,82 & 187-9 (13 November 1998) (noting the need for full-time legal support to the Joint Military Commission, for a permanent deputy staff judge advocate in Bosnia, and for reserve augmentation to perform the home station mission).
289 INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL,
UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK, Chapter 14 (1998).
seeINTERNATIONALAND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'SSCHOOL, UNITEDSTATES LAW HANDBOOK,
ARMY, OPERATIONAL Chapter 2 & Page 8-10 (1998).
291
:NTE&~ATIONHL AND OPERATIONALLAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'SSCHOOL, UNITEDSTATES LAW HANDBOOK,
ARMY,OPERATIONAL 2-1 (1998).
'92 INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THE JUDGE ADVOCATEGENERAL'S UN~IEDSTATES LAW HANDBOOK,
ARMY,OPERATIONAL 2-1 (1 998).
'93 See THEJOINT CHIEFSOF STAFF, JOINT PLB. 3-07, JOINT DOCTRINE FOR MILITARY OPERATIONS OTHER THAN WAR, II-5 (16 June 1995).
Endnotes-18
Legal Support to Operations

294 See CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL, U.S. ARMY, LAWAND MILITARYOPERATIONS IN HAITI, 1994-1995,48 (1 1 December 1995) (citing Security Council Resolution 940 as authorizing the multinational force to restore the Aristide government and establish a secure environment).
295 See THE JOINTCHEFSOF STAFF,JOLNT PUB. 3-07.3, JOINTTACTICS,TECHNIQUES, AND PROCEDURES FOR PEACEOPERATIONS,
1-21 (12 February 1999) ("In PO [peace operations], the force generally conducts operations based on a mandate that describes the scope of operations."); CENTERFOR LAWAND MILITARY OPERATIONS, THE JUDGEADVOCATEGENERAL'S SCHOOL,U.S. ARMY, LAWAND MILITARYOPERATIONSIN THEBALKANS, 1995-1998,76 (13 November 1998) (listing legal authorities and operational documents defining the scope of the Bosnia mission).
296 See CENTERFOR LAW AND MILITARY SCHOOL,
OPERATIONS, THE JUDGEADVOCATE GENERAL'S U.S. ARMY, LAWAND MILITARYOPERATIONS
IN HAITI, 1994- 1995,48 (1 1 December 1995) (regarding the timing of deployment); CENTER THEJUDGEADVOCATE GENERAL'S
FOR LAWAND MILITARYOPERATIONS, SCHOOL, OPERATIONS IN THE BALKANS, 1995-1998,76 (13 November
U.S. ARMY, LAWAND MILITARY 1998) (regarding timelines for action).

297 See INTERNATIONAL AND OPERATIONAL LAWDEPARTMENT, SCHOOL,
THE JUDGEADVOCATE GENERAL'S UNITEDSTATESARMY, OPERATIONALLAWHANDBOOK, 8-9 (1998); CENTERFOR LAWAND MLITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL, AND MILITARY
U.S. ARMY, LAW OPERATIONS IN THE BALKANS, 1995-1998,76-7 (13 November 1998) (noting that the GFAP provided broad justification for the use of force, and rules for controlling entity armed forces).
See INTERNATIONAL AND OPERATIONAL LAWDEPARTMENT,THE JUDGE ADVOCATE GENERAL'SSCHOOL, UNITEDSTATESARMY, OPERATIONAL LAWHANDBOOK, 8-9 (1998); CENTERFOR LAWAND MILITARY OPERATIONS, SCHOOL, U.S. ARMY, LAWAND MILITARY IN
THEJUDGE ADVOCATE GENERAL'S OPERATIONS THEBALKANS,1995-1998,76-7 (1 3 November 1998).
299 See THE JorNT CHIEFSOF STAFF,JOINTPUB.3-07.3, JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR PEACE OPERATIONS,
7-22 (12 February 1999) (noting that terms of reference describe command relationships and coordination requirements); CENTERFOR LAWAND MLITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S
SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN HAlTI, 1994-1995,48-9 (1 1 December 1995) (describing the Carter-Jonassaint agreement's provision regarding the relationship between U.S. forces in Haiti and the Haitian military and police); CENTERFOR LAWAND MILlTARY OPERATIONS, THE JUDGEADVOCATE GENERAL'SSCHOOL, U.S. ARMY, LAWAND MILITARYOPERATIONS PI THE BALKANS,1995-1998,76-7 (13 November 1998) (stating that the GFAP had provisions regarding the status of police forces, and mandating joint military commissions).
300 See INTERNATIONAL AND OPERATIONALLAWDEPARTMENT,THEJUDGEADVOCATEGENERAL'SSCHOOL, UNITEDSTATES LAWHANDBOOK, 8-9 (1998).
ARMY, OPERATIONAL

301 See, e.g., THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07, JOINT DOCTRWEFOR MILlTARY OPERATIONS OTHERTHANWAR,IV-9 (16 June 1995) (citing the prominence of logistics elements in MOOTW and their obligation to adhere to applicable status of forces agreements); THEJOINTCHIEFSOF STAFF,JOINTPUB. 3-07.1, JTTP FOR FOREIGN (ED), V-3 (26 June 1996) (noting the application of status of
INTERNAL DEFENSE forces agreements to foreign internal defense operations); THE JOINTCHIEFSOF STAFF, JOINT PUB. 3-07.3, JOINTTACTICS,
TECHNIQUES, AND PROCEDURES FOR PEACE OPERATIONS, 1-21 (1 2 February 1999) (noting the status of forces agreement as a key document in peace operations); THEJOINT CHIEFS OF STAFF, JOINT Pmi. 3-07.4, JOINTCOUNTERDRUG 1-10 (17 February 1998) (describing the affect of the
OPERATIONS, status of forces agreement on jurisdiction, taxation, and claims arising during counter-drug operations); THE JOINT CHIEFSOF STAFF,JOINTPUB.3-07.5, JOINT TACTICS,TECHNIQUES, AND PROCEDURES FOR NONCOMBATANT OPERATIONS, B-1,2 (30 September 1997) (describing the affect of status of
EVACUATION forces agreements on jurisdiction, procurement, and customs issues arising in noncombatant evacuation

operations).
302See INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT,THEJUDGEADVOCATEGENERAL'SSCHOOL, UNITEDSTATES LAWHANDBOOK, 12-9 to 12-26 (1998).
ARMY, OPERATIONAL

303 See CENTERFOR LAW AND MILITARYOPERATIONS, THEJUDGEADVOCATE GENERAL'SSCHOOL,U.S.
ARMY, LAWAND MILITARYOPERATIONS
IN HAm, 1994-1995,50-51 (1 1 December 1995) ("As soon as . . . the Aristide government had resumed power, some agreement became necessary to define the legal status of United States troops. . . Otherwise, these troops would be subject to Haitian laws that could impede their activities and frustrate the . . . objectives that impelled their deployment."); CENTERFOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY,LAWAND MILITARY OPERATIONS
IN THE BALKANS,1995-1 998,15 1 (13 November 1998) ("In Hungary . . . the demand for contractor compliance with host nation law was strong enough to cause the creation of a legal advisor position to the USAREUR liaison team. In response to Hungarian income tax claims, the contractor held five million dollars . . . Ultimately, the Hungarian government refunded the money . . .") (footnotes omitted).
See INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THE JUDGEADVOCATE GENERAL'S UNITEDSTATESARMY, OPERATIONAL LAW HANDBOOK, 12-1 (1998).
305 See INTERNATIONAL AND OPERATIONALLAWDEPARTMENT,
THE JUDGEADVOCATE GENERAL'S SCHOOL, UNITED STATESARMY, OPERATIONAL LAWHANDBOOK, 12- 1 (1 998) (citing DEP'TOF ARMY, REGULATION 550-5 1, FOREIGN COUNTRIES AND RESPONSIBILITY FOR NEGOTIATING,
AND NATIONAL:AUTHORITY CONCLUDING, AND DEPOSITING (1 May 1985)).
FORWARDING, OF INTERNATIONAL AGREEMENTS
306See INTERNATIONAL AND OPERATIONALLAW DEPARTMENT, SCHOOL,
THEJUDGEADVOCATE GENERAL'S UNmD STATESARMY, OPERATIONAL 12- 1 (1 998) ("SOFAS were concluded with
LAWHANDBOOK, Grenada and Kuwait after combat operations in those countries."); CENTERFOR LAW AND ~BLITARY OPERATIONS, THEJUDGEADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARYOPERATIONS IN HPsn,1994-1995,52 (11 December 1995) (noting that the SOFA with Haiti was concluded three months after the operation began); CENTERFOR LAWAND MILITARY ADVOCATE
OPERATIONS, THEJUDGE GENERAL'SSCHOOL, OPERATIONS IN THE BALKANS, 1995-1998,151 (13
U.S. ARMY, LAWAND MILITARY November 1998) (noting the resolution of contractor liability for income taxes through the Omnibus Agreement).
307 SeeINTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGEADVOCATE GENERAL'S
SCHOOL, UNITEDSTATESARMY, OPERATIONAL 8- 1 1,12 (1 998).
LAWHANDBOOK,

308 SeeINTERNATIONAL AND OPERATIONAL LAW DEPARTMENT,THEJUDGE ADVOCATEGENERAL'SSCHOOL, UNITED STATESARMY, OPERATIONALLAWHANDBOOK, 8-1 1 & 12-1 (1998).
309 See,e.g., THE JOINTCHIEFSOF STAFF, JOINT PUB. 3-07.2, JTTP FOR ANT~BRORISM, L-2 (17 March 1998) (containing a table listing the jurisdictional authorities for responding to terrorism at various phases of an incident); THEJOINT CHIEFS OF STAFF,JOINTPUB. 3-07.5, JOINT TACTICS,TECHNIQUES, AND PROCEDURES FOR NONCOMBATANT
EVACUATION OPERATIONS, 1-2 (30 September 1997) (describing the relative roles of the Ambassador and JTF Commander in noncombatant evacuation operations); CENTER FOR LAWAND M~ARY SCHOOL, U.S. ARMY, LAW AND
OPERATIONS, THE JUDGE ADVOCATE GENERAL'S MILITARYOPERATIONS
INTHE BALKANS,1995- 1998,76-77 (1 3 November 1998) (describing the IFOR commander's authority in relation to the Entity Armed Forces).
310 See,e.g., THE JOINTCHIEFSOF STAFF,JOINTPUB. 3-07.3, JOINTTACTICS, TECHNIQUES, AND PROCEDURES FOR PEACE OPERATIONS, X, 1-14 & 15, (12 February 1999) (noting coordination and liaison
Legal Support to Operations

requirements in peace operations with military organizations, international organizations, non-government
organizations, private voluntary organizations, & Department of State agencies); THE JOINT CHIEFS OF
STAFF,JOINT PUB. 3-07.5, JOINT TACTICS, AND PROCEDURES
TECHNIQUES, FOR NONCOMBATANT EVACUATION V-5, & B-1 (30 September 1997) (describing liaison and coordination
OPERATIONS, requirements with embassy and local officials, higher headquarters, Department of State agencies, non-government organizations, private voluntary organizations, and host nation government agencies).
311 See, e.g., US ARMY PEACEKEEPING INSTITUTE, LEGALGUIDETO PEACE OPERATIONS, 25 (1 May 1998)
(describing guidance to U.S. commanders supporting U.N. operations who receive orders that may violate
U.S. or international law); CENTER FOR LAWAND MILITARY THE JUDGE
OPERATIONS, ADVOCATE GENERAL'SSCHOOL, OPERATIONS
U.S. ARMY,LAWAND MILITARY IN Hm, 1994-1995,43,91,& 96-97 (1 1 December 1995) (describing concerns about consistency of rules of engagement with each nation's policies, fiscal constraints on logistical support for U.S. government agencies, and guarantees of loyalty from U.S. commanders to the U.N.); CENTER FOR LAW AND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARY IN THE BALKANS,
OPERATIONS 1995-1998,61 (13 November 1998) (describing concerns participating nations may have about riot control agents and the definition of hostile intent).
31' See CENTER OPERATIONS, SCHOOL,U.S.
FOR LAWAND MILITARY THEJUDGE ADVOCATE GENERAL'S ARMY, LAW AND MILITARY INTHE BALKANS,
OPERATIONS 1995-1998, 127-128 (13 November 1998) (describing the value of JAGC technical chain coordination, and innovative methods for effecting coordination of legal matters among all troop contributing nations -publishing the Joint Military Commission Handbook, weekly meetings of Judge Advocates, legal specialist work exchanges, and exchange of liaison officers).
313 See CENTERFOR LAWAND MIL~TARY ADVOCATE SCHOOL, U.S.
OPERATIONS, THE JUDGE GENERAL'S ARMY, LAWAND MILITARYOPERATIONS
IN HAITI,1994-1995,94-95 (1 1 December 1995) (noting Judge Advocate participation in Civil-Military Operations Centers and the value of Judge Advocate liaison with the ICRC); CENTER FOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, LAWAND MILITARY IN THE BALKANS, 1995-1998,60-61 & 131 (13 November 1998)
OPERATIONS (recommending Judge Advocate liaison with legal personnel of other troop contributing nations, and describing Judge Advocate participation in Joint Military Commission meetings).
314 See CENTERFOR LAWAND MILITARY THE JUDGE SCHOOL,U.S.
OPERATIONS, ADVOCATE GENERAL'S ARMY, LAW AND MILITARY OPERATIONS IN HAITI,1994- 1995,43-44 (1 1 December 1995) (recommending the Judge Advocates take the initiative in developing acceptable rules of engagement); CENTER FOR LAW AND MILITARY ADVOCATE SCHOOL, U.S. ARMY, LAW AND MILITARY
OPERATIONS, THE JUDGE GENERAL'S OPERATIONS
IN THE BALKANS, 1995-1998,59-62,112-114,& 153 (13 November 1998) (describing innovative methods for developing workable rules of engagement, procedures used to resolve questions about the legality of local entity checkpoints, and the solution for repairing vehicles used to support NATO).
315~TERNATIONALAND OPERATIONAL THE JUDGE ADVOCATE GENERAL'S
LAW DEPARTMENT, SCHOOL, UNITED STATES ARMY, OPERATIONAL
LAW HANDBOOK, Chapter 9 (1998).
316 See Captain Glenn Bowens, Legal Issues in Peace Operations, PWTERS, 58 (Winter 1998-1999).
317 See THE JOINT CHIEFS OF STAFF, CHAIRMAN OF THE JOINTCHIEFS OF STAFF INSTRUCTION
3 121.0 1, STANDING RULES OF ENGAGEMENT FOR US FORCES, Enclosure A, paragraph 2a (1 October 1994).
31QSee THE JOINT CHIEFSOF STAFF, JOINT COUNTERDRUG 1-10 (17
PUB.3-07.4, JOINT OPERATIONS, February 1998) (stating that counter-drug operations are conducted under the Standing ROE); THE JOINT CHIEFS OF STAFF, JOINT PUB.3-07.5, JOINT TACTICS, TECHNIQUES, AND PROCEDURES FOR NONCOMBATANT EVACUATION A-1 (30 September 1997) (noting the applicability of the Standing ROE in
OPERATIONS, NEO, as well as the existence of a specific section in the ROE on NEO); but see CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995-1998,58 (13 November 1998) (stating that the Standing ROE were not in effect for U.S. Forces in IFOR in Bosnia).
319 THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THAN WAR, 11-4 (16 June 1995).
320 See THE JOINT CHIEFS DOCTRINE OPERATIONS OTHER
OF STAFF, JOINT PUB.3-07, JOINT FOR MILITARY THAN WAR, 11-4 (16 June 1995); see also THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGNINTERNALDEFENSE(FID), 1-14 (26 June 1996) (stating the requirement for judicious use of force in foreign internal defense missions); CENTER FOR LAWAND MILITARYOPERATIONS,THE JUDGE ADVOCATE SCHOOL,U.S. ARMY, LAWAND MILITARYOPERATIONS IN HAlTI, 1994-1995,34-35
GENERAL'S (1 1 December 1995) (noting that either over-tentativeness or over-aggressiveness can hinder the mission); CENTERFOR LAWAND MILITARY ADVOCATE SCHOOL, U.S. ARMY,
OPERATIONS, THE JUDGE GENERAL'S LAWAND MILITARY IN THE BALKANS,
OPERATIONS 1995-1998,57 (1 3 November 1998) ("The ill-advised use of force could eliminate this perception of impartiality and re-ignite the conflict.").
321 See THE JOINT CHIEFS OF STAFF, JOINT Fm.3-07.1, JTTP FOR FOREIGN INTERNAL DEFENSE (FID), IV-
24 (26 June 1996); THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, TECHNIQUES, AND
PROCEDURESFOR PEACE OPERATIONS, 1-8 & 111-1 1 (12 February 1999).
322 See THE JOINTCHIEFS TECHNIQUES, FOR
OF STAFF,JOINT PUB. 3-07.3, JOINT TACTICS, AND PROCEDURES PEACE OPERATIONS,
1-22 (12 February 1999).

323 THEJOINTCHIEFSOF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS,TECHNIQUES,
AND PROCEDURES FOR NONCOMBATANT OPERATIONS,
EVACUATION 1-2 (30 September 1997).
324 See CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S.
ARMY, LAWAND MILITARY OPERATIONS IN THE BALKANS, 1995-1998,57 (13 November 1998).
325 See Captain Glenn Bowens, Legal Issues in Peace Operations, PARAMETERS,
59 (Winter 1998-1999); CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. AIUvlY, LAWAND MILITARYOPERATIONS
IN HAITI,1994-1995,37-39 (1 1 December 1995).
326 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, FOR
TECHNIQUES,AND PROCEDURES NONCOMBATANT OPERATIONS,V-5 (30 September 1997); CENTER
EVACUATION FOR LAWAND MILITARY OPERATIONS, GENERAL'S U.S. ARMY, LAWAND MILITARY IN
THE JUDGE ADVOCATE SCHOOL, OPERATIONS THE BALKANS, 1995-1998,69-70 (13 November 1998).
327 See Captain Glenn Bowens, Legal Issues in Peace Operations, PARAMETERS,
59-60 (Winter 1998- 1999); THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, AND PROCEDURES FOR
TECHNIQUES, PEACE OPERATIONS, 1-22,23(12 February 1999); CENTER OPERATIONS,
FOR LAW.AND MILITARY THE JUDGEADVOCATE SCHOOL, OPERATIONS IN HAITI, 1994- 1995,
GENERAL'S U.S. ARMY, LAWAND MILITARY 43 (1 1 December 1995); CENTER FOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL,U.S. ARMY,LAWAND MILITARY IN THE BALKANS, 1995-1998,61 (13 November
OPERATIONS 1998).
328 See Captain Parker, JAG Integration into OOTW TOC Operations (visited Feb. 23, 1999) <httv://cdl.annv.miUcdVnftf/feb94/~t3feb.h; CHIEFS PUB.3-07.3, JOINT
THE JOINT OF STAFF, JOINT TACTICS, TECHNIQUES, AND PROCEDURESFOR PEACEOPERATIONS,1-22 (12 February 1999); CENTER FOR
Endnotes-22
Legal Support to Operations

LAWAND MILIT~Y THE JUDGE GENERAL'S U.S. ARMY, LAW AND
OPERATIONS, ADVOCATE SCHOOL, MILITARY IN HAITI, 1994- 1995,36-39 (1 1 December 1995).
OPERATIONS

"'See CENTERFOR LAWAND MILITARY ADVOCATE SCHOOL,U.S.
OPERATIONS, THE JUDGE GENERAL'S ARMY, LAW AND MILITARY OPERATIONS
IN HAITI, 1994-1995,35 (1 1 December 1995) (citing Major Mark
S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lnwyering, 143 MIL. L. REV. 27,52-54 (1994); Colonel W.H. Parks, USCMR, No More Vietnams, UNITEDSTATESNAVAL INSTITUTE 27-28 (March 1991)).
PROCEEDINGS,

'"See :;;T"cZ:AX3;:X AX3 ~;'EPIAXC?JAL LAY; 3E?A?TKST, TIE JL9SE ?.DI!(?C,A.T 5E3EIl.lL9S SCII-OOL, UNITEDSTATES 8-9 (1998); CENTER
ARMY, OPERATIONAL LAW HANDBOOK, FOR LAW AND MILITARY OPERATIONS, THEJUDGEADVOCATE SCHOOL,
GENERAL'S U.S. ARMY, LAWAND MILITARY OPERATIONS IN THE BALKANS, 1995-1998,76-7 (13 November 1998) (noting that the GFAP provided broad justification for the use of force, and rules for controlling entity armed forces).
33 1
See CENTERFOR LAWAND MILITARY SCHOOL,
OPERATIONS, THE JUDGE ADVOCATE GENERAL'S U.S. ARMY, LAW AND MILITARY IN HAITI, 1994- 1995,43-45 (1 1 December 1995) (encouraging
OPERATIONS Judge Advocates to take the initiative in multinational ROE development); CENTER FOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE SCHOOL,
GENERAL'S U.S. ARMY, LAW AND MILITARY OPERATIONS 1995-1998,59-62 (13 November 1998) (describing concerns about specific
IN THE BALKANS, issues and definitions, and discussing a strategy of developing agreeable general ROE and allowing contributing nations to apply more restrictive provisions).
j3' See CENTERFOR LAWAND MILITARY ADVOCATE GENERAL'S U.S.
OPERATIONS, THE JUDGE SCHOOL, ARMY,LAWAND MILITARY IN HAITI, 1994-1995,36-39 (1 1 December 1995) (recounting an
OPERATIONS incident in Haiti in which delay was tragic:
[ROE] [clards containing the additional guidance [concerning protection of civilians, approved on 6 September] were not issued until 21 September. In the meantime, ROE had jumped into news headlines around the United States. . . . on 20 September Haitian police and militia brutally beat demonstrating Aristide supporters. Among the persons beaten was a coconut vender, who died after about five minutes of continuous clubbing, in view of United States soldiers, and after some of the fatal attack had been videotaped. Networks and newspapers in the United States widely reported the killing and the decision of the soldiers not to intervene.
footnotes omitted); CENTER FOR LAWAND MIL~ARY THE JUDGE GENERAL'S
OPERATIONS, ADVOCATE SCHOOL,U.S. ARMY, LAWAND MILITARY OPERATIONS IN THE BALKANS, 1995-1998,60,62,71 (13 November 1998) (recommending use of ROE matrices, ROE cards in each soldiers language, and ROE Battle Books as means to ensure responsiveness).
333 See Captain Parker, JAG Integration into OOTW TOC Operations (visited Feb. 23, 1999) <https://call.mv.mil/call/nftf/feb94/~t3febht;CENTERFOR LAWAND MILITARY THE
OPERATIONS, JUDGEADVOCATE SCHOOL, OPERATIONS 1994-1995,
GENERAL'S U.S. ARMY,LAWAND MILITARY INHAITI, 40-42 (1 1 December 1995); CENTER FOR LAWAND MILITARYOPERATIONS,THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY,LAWAND MILITARY
OPERATIONS IN THE BALKANS, 1995-1998,63-64 (13 November 1998).
334 See INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THEJUDGE ADVOCATE GENERAL'S UNITEDSTATES LAW HANDBOOK, CHIEFSOF STAFF,
ARMY,OPERATIONAL 1 1-2 (1998) (citing THE JOINT CHAIRMAN OF STAFF INSTRUCTION 5810.01, IMPLEMENTATION OF THE DOD LAW OF
OF THE JOINT CHIEFS WAR PROGRAM DIRECTIVE 5 100.77,DoD Law of War
(12 August 1996); see also DEP'TOF DEFENSE Program, 5.3.1. (9 December 1998).
335 See, e.g., THE JOINT CHIEFS TECHNIQUES,
OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, AND PROCEDURESFOR NONCOMBATANTEVACUATION 1-1 (30 September 1997); CENTER
OPERATIONS, FOR LAW AND MILITARYOPERATIONS, ADVOCATE SCHOOL,U.S. ARMY, LAW AND MILITARY
THEJUDGE GENERAL'S OPERATIONS IN HAITI,1994- 1995, 37-39 & 79-84 (1 1 December 1995); CENTER FOR LAWAND MILITARY OPERATIONS,THE JUDGE ADVOCATE SCHOOL, OPERATIONS
GENERAL'S U.S. ARMY, LAWAND MILITARY IN THEBALKANS,1995-1998, 102-4, 112-4, 125-6, & 139-41(13 November 1998).
336 See INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, GENERAL'S
THE JUDGE ADVOCATE SCHOOL, UNITEDSTATES LAW HANDBOOK,
ARMY, OPERATIONAL 10-7 to 10-10, & 11-3 to 11-14 (1998) (discussing civilian protection law applicable in MOOTW, citing The 1977 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3; and The 1977 Protocol Additional to the Geneva Conventions of 1949, and relating to the Protections of Victims of Non-International Armed Conflicts (Protocol 11), opened for signature Dec. 12, 1977, 1125 U.N.T.S. 1391; and reprinting the Universal Declaration of Human Rights).
337 See THE JOINT CHEFSOF STAFF, JOINT PUB.3-07.3, JOINT TACTICS, AND PROCEDURESFOR
TECHNIQUES, PEACE OPERATIONS, 11- 13 (1 2 February 1999); CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE SCHOOL, OPERATIONS n\T HAITI, 1994- 1995,37-39
GENERAL'S U.S. ARMY, LAWAND MILITARY (11December 1995).
338 See THE JOINT CH~FS TECHNIQUES,
OF STAFF, JOINT PUB.3-07.3, JOINT TACTICS, AND PROCEDURES FOR PEACE OPERATIONS, 111- 1 1 (1 2 February 1999).
339 See THE JOINT CHEFSOF STAFF, JOINT PUB.3-07.3, JOINT TACTICS, AND PROCEDURESFOR
TECHNIQUES, PEACE OPERATIONS, 11-14 (12 February 1999).
340 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, AND PROCEDURESFOR
TECHNIQUES, NONCOMBATANT OPERATIONS,
EVACUATION VI-3 to VI-5, & Appendix D (30 September 1997).
341 See CENTERFOR LAW AND MILITARYOPERATIONS,THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S.
ARMY, LAW AND MILITARY OPERATIONS IN HAlTI, 1994-1995,79-84 (1 1 December 1995); CENTER FOR
LAW AND MII~ITARYOPERATIONS, THE JUDGE GENERAL'S U.S. ARMY, LAWAND
ADVOCATE SCHOOL, MILITARYOPERATIONS INTHE BALKANS, 1995-1998,139-141 (13 November 1998).
342 See THE JOINT CHEFSOF STAFF, JOINT PUB.3-07.3, JOINT TACTICS, AND PROCEDURES
TECHNIQUES, FOR PEACE OPERATIONS, 11-24 (12 February 1999); THE JOMT CHIEFS OF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS, TECHNIQUES,
AND PROCEDURESFOR NONCOMBATANT EVACUATION OPERATIONS, VI-9 (30 September 1997).
343 See CENTERFOR LAWAND MILITARYOPERATIONS,THE JUDGE ADVOCATE GENERAL'SSCHOOL, U.S. ARMY, LAW AND MILITARYOPERATIONS 1995-1998,1024, 1 124,125-6, & 137-9 (13
IN THE BALKANS, November !998) (referin& tc enfcrcemea: of weagoas policies, monitoring of checlrpoints, apprehension of persons indicted for war crimes, and election support).
344 See THE JOINT CHIEFS TECHNIQUES,
OF STAFF, JOINT m.3-07.5, JOINT TACTICS, AND PROCEDURES FOR NONCOMBATANT OPERATIONS, B-1 & 2 (30 September 1997); CENTER
EVACUATION FOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARY OPERATIONSIN HAlTI, 1994- 1995,63-72 (1 1 December 1995); CENTER FOR LAWAND MILEARY OPERATIONS, THE JUDGE ADVOCATE SCHOOL, OPERATIONSIN
GENERAL'S U.S. ARMY,LAWAND MILITARY THE BALKANS, 1995- 1998, 109-1 10 (1 3 November 1998).
Endnotes-24
Legal Support to Operations

/
345 See INTERNATIONALAND OPERATIONALLAW DEPARTMENT, THE JUDGE GENERAL'S
ADVOCATE SCHOOL, UNITEDSTATESARMY, OPERATIONAL 11-5 (1998).
LAW HANDBOOK,
346 See CENTERFOR LAWAND MIL~TARY U.S.
OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, ARMY, LAW AND MILITARYOPERATIONS IN HAITI, 1994-1995,99-100 (1 1 December 1995).
347See THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.5, JOINT TACTICS,TECHNIQUES, AND PROCEDURES FOR
NONCOMBATANT OPERATIONS,

EVACUATION VI-3 to VI-5 (30 September 1997) (discussing evacuation center procedures, many of which require legal advice); CENTER FOR LAWAND MILITARY
OPERATIONS, T-W JUDGE ADVOCATFGENERAL'SSCHOOL, 1J.S ARMY, LAWAND MILITARY OPERATIONS HAm. 1994-1995,93-4 (1 1 December 1995) (recommending Judge Advocate participation in the CMOC); CENTER FOR LAWAND MILITARY THE JUDGE GENERAL'SSCHOOL,U.S. ARMY, LAW AND
OPERATIONS, ADVOCATE MILITARYOPERATIONS 1995-1998, 113 & 125-7 (13 November 1998) (noting that U.S.
IN THE BALKANS, forces sought legal advice as they came across checkpoints, and describing the immediate need for Judge Advocates upon apprehension of a person indicted for war crimes).
348 See CENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S.
W,LAWAND MILITARY IN HAITI,1994- 1995,63-72 & fn 203 (1 1 December 1995)
OPERATIONS (describing the legal authority for detention, the detention facility, and the extensive Judge Advocate role in the release determination process); CENTER FOR LAWAND MILITARY THE JUDGE
OPERATIONS, ADVOCATEGENERAL'S SCHOOL, U.S. ARMY, LAWAND MILITARYOPERATIONSIN THE BALKANS, 1995- 1998,109-110 (13 November 1998) (describing the legal authority and procedural safeguards).
349 See, e.g., THE JOINT CHIEFS OPERATIONS,
OF STAFF, JOINT PLTB.3-07.4, JON COUNTERDRUG 1-4 & 1-8 (17 February 1998) (citing Foreign Assistance Act provisions prohibiting U.S. personnel from conducting foreign law enforcement, and prohibiting security assistance to governments with records of human rights violations (22 U.S.C. A. sections 2291 & 2304 (West 1998))).
350INTERNATIONAL AND OPERATIONALLAW DEPARTMENT, GENERAL'S
THEJUDGE ADVOCATE SCHOOL, UNITEDSTATES LAW HANDBOOK,
ARMY, OPERATIONAL Chapter 25 (1998).
351 See CENTERFOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S.
ARMY, LAW AND MILITARYOPERATIONS IN THE BALKANS, 1995- 1998, 141 (13 November 1998) (quoting
Major Kurt Mieth, "[algain and again, especially in operations other than war, everyone wants to drink
from the American luxury logistical fountain." Interview with Major Kurt Mieth, SFOR Legal Advisor's
Office, at Sarajevo (2-23 Feb. 1998)).

352See, e.g., THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07, JOINT DOCTRWE OPERATIONS
FOR MILITARY OTHER THAN WAR, IV-9 (16 June 1995) ("Logistics personnel must also be familiar with and adhere to any legal, regulatory, or political restraints governing US involvement in the MOOTW.") (emphasis omitted); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGNINTERNAL DEFENSE (FID), II- 8 (26 June 1996) (noting 'legal restrictions and complex funding sources" involved in foreign internal defense); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, TECHNIQUES,
AND PROCEDURES FOR PEACE OPERATIONS,
11- 19 (1 2 February 1999) (discussing U.N. reimbursement procedures); THE JOINT CHIEFSOF STAFF, JOINT PLTB.3-07.4, JOINT COUNTERDRUG IV-3 (17 February 1998) ("There
OPERATIONS,
are many legal restrictions on the use of CD funds.").

353 See, e.g., THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGN INTERNAL DEFENSE (RD),
111-7, IV-21, A-1, & G-2 (26 June 1996) (relating to training, humanitarian and civic activities,
construction, and medical support); CENTER FOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE
GENERAL'SSCHOOL, OPERATIONS
U.S. ARMY,LAWAND MIL~ARY IN m,1994-1995, 129-139 (11 December 1995) (relating to medical care, post exchange privileges, military air requests, LOGCAP, construction, training, and humanitarian and civic assistance); CENTER FOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL, OPERATIONS
U.S. ARMY, LAWAND MIL~ARY IN THE BALKANS, 1995-1998, 143-153, & 184 (13 November 1998) (relating to morale and welfare, LOGCAP, construction, humanitarian and civic assistance, maintenance, post exchange privileges, and mess hall services).
3" See, e.g., THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.1,JTTP FOR FOREIGN INTERNAL DEFENSE (ED), IV-22 (26 June 1996) (relating to the host nation); CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGEADVOCATE U.S. ARMY, LAWAND MILITARY w HAITI,1994-1995,
GENERAL'S SCHOOL, OPERATIONS 141 (1 1 December 1995) (relating to U.S. agencies); CENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGEADVOCATEGENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARYOPERATIONS
IN THE BALKANS, 1995-1998, 141-154, & 184 (13November 1998) (relating to allies and coalition forces, local civilians, non-governmental organizations, NATO headquarters, and the Army's R&R program).
355 See CENTERFOR LAWAND MILITARY ADVOCATE SCHOOL, U.S.
OPERATIONS, THEJUDGE GENERAL'S ARMY, LAWAND MILITARYOPERATIONS
IN THE BALKANS, 1995-1998, 142 (13 November 1998) ("Fiscal and procurement issues were the most pervasive and time consuming of sustainment issues, and perhaps of all three categories of legal support to military operations (command and control, sustainment, and personnel service support).").
356 See THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.1, JTTP FOR FOREIGNINTERNAL DEFENSE (FID), 11-8 &El-7 (26 June 1996).
357 See, e.g., Captain Glenn Bowens, Legal Issues in Peace Operations, PARAMETERS,65-66 (Winter 1998-
1999) (recommending use of section 607 and acquisition and cross-servicing agreements, 22 U.S.C.
section 2357 & 10 U.S.C. section 2342, respectively); CENTERFOR LAWAND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARYOPERATIONSIN HAITI, 1994- 1995, 142 (1 1 December 1995) (relating to the value of a section 607 agreement); CENTERFOR L.4W AND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL,U.S. ARMY, LAW AND MILITARY OPERATIONS
IN THE BALKANS, 1995-1998, 142 (13 November 1998) (recommending broader use of NATO Basic Purchase Agreements and Basic Ordering Agreements).
358 See INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, SCHOOL,
THE JUDGE ADVOCATE GENERAL'S UNITEDSTATES LAW HANDBOOK,
ARMY, OPERATIONAL 25-5 (1998) (describing in detail this six-step process).
359 See, e.g., INTERNATIONALAND OPERATIONAL LAW DEPARTMENT, GENERAL'S
THE JUDGE ADVOCATE SCHOOL,UNITED STATES ARMY, OPERATIONAL 25-5 to 25-20 (1998) (discussing various
LAW HANDBOOK,
U.S. funding sources); THE JOINT CHIEFS OF STAFF, JOINT PUB. 3-07.3, JOINT TACTICS, TECHNIQUES,
AND PROCEDURES FOR PEACE OPERATIONS, 11-19 (12 February 1999) (discussing U.N. reimbursement procedures); CENTERFOR LAWAND MILITARY GENERAL'S
OPERATIONS, THE JUDGE ADVOCATE SCHOOL,
U.S. ARMY,LAWAND MILITARY OPERATIONS IN HAITI,1994- 1995, 142 (1 1 December 1995) (regarding section 607 procedures for U.N. reimbursement);CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGEADVOCATE GENERAL'S SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN THEBALKANS, 1995-1998, 142 & 153-4 (13 November 1998) (pro?osing consideration of other than 119 fi~nding sources, and citing an example of NATO funding).
360 See CENTERFOR LAW AND MILITARY GENERAL'S U.S.
OPERATIONS, THE JUDGE ADVOCATE SCHOOL, ARMY, LAWAND MILITARYOPERATIONS
INHAITI, 1994-1 995, 136 (1 1 December 1995) (noting that reliance on LOGCAP in Haiti was not always the way to meet requirements and recommending that commanders and staffs consider all options); CENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN THE BALKANS, 1995-1998, 143-4 (13 November 1998) (citing the joint acquisition board as "a success story from Bosnia" and describing its functions).
Endnotes-26
Legal Support to Operations

361 See, e.g., CENTERFOR LAWAND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL,
U.S. ARMY, LAWAND MILIT~Y

OPERATIONS IN HAITI, 1994-1 995,129- 13 1 & 141 (1 1 December 1995) (describing how Judge Advocates resolved requests for medical care, post exchange privileges, and military air travel requests, and recommending raising issues to higher headquarters for resolution); CENTERFOR LAWAND MILITARY SCHOOL,
OPERATIONS, THE JUDGE ADVOCATE GENERAL'S U.S. ARMY, LAWAND MILITARYOPERATIONS
IN THEBALKANS, 1995-1998,153-4 & 184 (13 November 1998) (describing how Judge Advocates resolved a NATO request for the U.S. to repair a NATO vehicle, and recommending early resolution of policy concerning access to the post exchange).
362

THE JOINT CHIEFSOF STAFF, OPERATIONS OTHER THAN
JOINT PJB.3-07, JOINT DOCTRINE FOR MILITARY WAR, IV-2 (16 June 1995) (emphasis omitted).
363 See, e.g., THE JOINTCHEFSOF STAFF,JOINTPUB.3-07.1, JTTP FOR FOREIGN INTERNAL DEFENSE(FID),
IV-20 & 21 (26 June 1996) (describing considerations involved in providing intelligence assistance during
foreign internal defense operations); THE JOINT CHIEFSOF STAFF, JOINT PUB. 3-07.2, JTTP FOR
ANTITJXRORISM, V-1 (17 March 1998) ("Intelligence and counterintelligence are the fnst line of defense in
an AT [antiterrorism] program.") (emphasis omitted); THE JOINT CHIEFS OF STAFF,JOINT PUB. 3-07.3,
JOINTTACTICS, TECHNIQUES, AND PROCEDURES FOR PEACE OPERATIONS, X (12 February 1999)
("Intelligence is critically important to a PK [peace-keeping] force, not only for mission success but to
protect the force.") (emphasis omitted); THE JOINTCHIEFSOF STAFF,JOINTPUB. 3-07.4, JOINT
COUNTERDRUG

OPERATIONS, IV-3 (17 February 1998) ("[Intelligence] is the foundation upon which the CD [counter-drug] operational effort is built.") (emphasis omitted); THEJOINTCHIEFSOF STAFF,JOINT PUB.3-07.5, JOINTTACTICS, TECHNIQUES, EVACUATION
AND PROCEDURES FOR NONCOMBATANT OPERATIONS,
1V-1 to 3 (30 September 1997) (describing intelligence products provided for noncombatant evacuation operations planning).
364THE JOINTCHIEFSOF STAFF, OPERATIONS OTHER THAN
JOINT ]PUB. 3-07, JOINT DOCTRINE FOR MILITARY WAR, IV-2 (16 June 1995) (emphasis omitted).
365 See THE JOINT CHIEFSOF STAFF,JOINTPUB. 3-07, JOINTDOCTRINE FOR MILITARY OPERATIONS OTHER THANWAR, IV-3 (16 June 1995).
366 See THE JOINT CHIEFSOF STAFF, JOINTPUB. 3-07, JOINTDOCTRWE FOR MILITARY OPERATIONS OTHER THAN WAR, IV-3 (16 June 1995).
367 See INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGEADVOCATEGENERAL'S
SCHOOL, UNmn STATES LAWHANDBOOK, 15-1 (1998) ("It is imperative that operational
ARMY, OPERATIONAL lawyers consider them [intelligence law aspects of operations] when planning and reviewing both operations in general and intelligence operations in particular.").
368 See INTERNATIONALAND OPERATIONALLAWDEPARTMENT, GENERAL'S
THE JUDGEADVOCATE SCHOOL, UNITEDSTATES LAWHANDBOOK, Chapter 15 (1998) (listing and discussing the
ARMY, OPERATIONAL principal references on intelligence law).
369 See CENTERFOR LAWAND MILITARY OPERATIONS, THE JUDGEADVOCATE GENERAL'S U.S.
SCHOOL, ARMY,LAWAND MILITARYOPERATIONS
IN THE BALKANS, 1995-1998, 170 (13 November 1998).
370 See CENTERFOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S U.S.
SCHOOL, ARMY, LAW AND MILITARYOPERATIONS (11 December 1995) (describing
IN H~1~1;1994-199558-63 issues arising in Haiti concerning interrogation of a U.S. person for force protection reasons, interrogation procedures for personnel in the detention facility, and use of intelligence contingency funds).
371 U.S. DEP'TOF ARMY, FIELD MANUAL25- 100, TRAINING THEFORCE(1 988); U.S. DEP'TOF ARMY, FIELD MANUAL25- 101, BATIZE TRAINING (1 990).
FOCUSED

372 SeeCENTERFOR LAWAND MILITARYOPERATIONS, THEJUDGEADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAW AND MILITARYOPERATIONS IN HAITI,1994- 1995,159 & 166-7(11 December 1995).
373 SeeCENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGEADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAW AND MILITARYOPERATIONSIN THE BALKANS, 1995- 1998,197 (1 3 November 1998)
(recommending uaining with supported units as means to build relationships with supported units and improve the soldier skills of legal personnel).
374 SeeTHE JOINTCHIEFSOF STAFF,JOINTPUB. 3-07.6, FOREIGN HUMANITAFUAN ASSISTANCE, IV-4 (describing the need for personnel with political-military skills to coordinate with numerous organizations and to liaison with policy-makers and the diplomatic community) & IV-15 (describing legal coordination required for ROE in multinational operations and legal advice and assistance required for relationships with non-military organizations) (to be published).
375 SeeCENTERFOR LAWAND MILITARYOPERATIONS, THEJUDGEADVOCATEGENERAL'SSCHOOL,U.S. ARMY, LAW AND MILITARYOPERATIONS IN THEBALKANS, 1995-1998,80-82 (13 November 1998).
376 SeeCENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGEADVOCATEGENERAL'SSCHOOL,U.S. ARMY, LAW AND MILITARYOPERATIONS IN THE BALKANS, 1995- 1998, (1 3 November 1998) 59-6 1 (describing coordination of rules of engagement), 125 (discussing persons indicted for war crimes), & 130-131
Consider one judge advocate major . . . for example. He liaisoned with the U.N. mission, the U.N. Office of the High Representative, the Organization for Cooperation and Security in Europe (OSCE), the International Police Task Force headquarters, the Pope's staff. ..the President of the Constitutional Court of Bosnia . . . and the Minister of Justice . . . He represented SFOR in two cases before local courts, and drafted memorandums of agreement between SFOR and Bosnian entity-level civil aviation authorities . .. .
377 SeeTHE JOINTCHIEFSOF STAFF,JOINTPUB. 3-07, JOINT DOCTRINEFOR MILITARYOPERATIONS OTHER THANWAR, IV-9 (16 June 1995); CENTER OPERATIONS, THE JUDGEADVOCATE
FOR LAWAND MILITARY GENERAL'SSCHOOL, OPERATIONS
U.S. ARMY, LAWAND MILITARY IN HAITI, 1994-1995,148-9 & 155-6 (1 1 December 1995); CENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGEADVOCATE GENERAL'S SCHOOL,U.S. ARMY, LAW AND MILITARY IN THE BALKANS, 1995-1998,79 (13 November
OPERATIONS 1998).
378 SeeINTERNATIONAL AND OPERATIONALLAWDEPARTMENT, THEJUDGEADVOCATEGENERAL'SSCHOOL, UNITEDSTATESARMY, OPERATIONALLAWHANDBOOK, 17-2 (1 998).
379 See CENTERFOR LAW AND MIL~ARY GENERAL'S U.S.
OPERATIONS, THE JUDGEADVOCATE SCHOOL, ARMY, LAWAND MILITARYOPERATIONS
IN m,1994- 1995,155-6 (1 1 December 1995).
380 See CENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGEADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARY OPERATIONS IN HAITI, 1994-1995,40-42,89-93 (1 1 December 1995); CENTER FOR LAWAND MILITARYOPERATIONS, THE JUDGEADVOCATE GENERAL'SSCHOOL,U.S. ARMY,LAWAND MILITARYOPERATIONS INTHE BALKANS, 1995-1998,63-67 & 130-131(13 November 1998).
381 See CENTERFOR LAWAND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAWAND MILITARYOPERATIONS IN HAITI, 1994-1995,89-93 (1 1 December 1995); CENTER
FOR

Endnotes-28
Legal Support to Operations

LAWAND MILITARYOPERATIONS, ADVOCATE SCHOOL,U.S. ARMY, LAWAND
THEJUDGE GENERAL'S MILITARYOPERATIONS 1995-1998,130-131(13 November 1998).
IN THEBALKANS,

382 SeeCENTERFOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, LAWAND MILITARYOPERATIONS 1995-1998,63-64(13 November 1998).
IN THE BALKANS,
383 SeeCENTERFOR LAW AND MILITARYOPERATIONS, THE JUDGEADVOCATE GENERAL'SSCHOOL,U.S. ARMY, LAW AND MILITARYOPERATIONSIN HAlTI, 1994-1995, 158-159 (1 1 December 1995); CENTERFOR LAWAND MILITARYOPERATIONS,THE JUDGE ADVOCATE SCHOOL,
GENERAL'S U.S. ARMY, LAW AND MILITARYOPERATIONS 1995-1998, 161,170, 179, & 192-198(13 November 1998).
INTHE BALKANS,

384 SeeCENTERFOR LAWAND MILITARYOPERATIONS,THE JUDGE ADVOCATE GENERAL'SSCHOOL, U.S. ARMY, LAWAND MILITARYOPERATIONS 1995-1998, 193-197(13 November 1998).
IN THEBALKANS,
FM 27-100 1 MARCH 2000
By Order of the Secretary of the Army:
ERIC K. SHlNSEKl

General, United States Army Official: Chief of Staff
Administrative Assistant to fhe
Secretary of the Army
0000502

DISTRIBUTION:

Active Army, Army National Guard, and U S. Army Reserve: To be distributed in accordance with the initial distribution number 114869,requirements for FM 27-100.

 

FM-41-10-1962

FM-41-10-1962

Cover page – front
II~ fiv-'a FM 41-10

r
IEPII1IIIIT••am IIlJ…
Cover page – front

CIVIL AFFAIRS
 
OPERATIONS
 

_1EPII1IIIIT••am
 

1I'1IIZ
FIELDMANUAL      HEADQUARTERS.
DEPARTMENT OF THE ARMY NO. 41-10 WASHINGTON
25. D. C.. 14 May 1962
I
CIVIL AFFAIRS OPERATIONS
Parngrnphs Page
 
CHAPTER1. INTRODUCTION ………………………………. ……………

2. CIVIL AFFAIRS FUNCTIONS ……………………..

3. ORGANIZATION FOR CIVIL AFFAIRS OP-
 ERATIONS
 Section I. General …………………………………. …………………………
I1. Organization of Staff Sections and Units ……….
I11. Cellular Teams ………………….. …………………….

IV.
Personnel …………………………………………………………

V.
Training …………………………………………………………..

CHAPTER 4. CIVIL AFFAIRS STAFF FUNCTIONS AND
 PROCEDURES ………………………………. ……….
5. THE ARMY IN THE COMMUNITY ………………

6. CIVIL AFFAIRS COLD WAR OPERATIONS
 Section I. General …………………………………………………………..
I1. Civic Action …………………………………………………..
I11. Unconventional Warfare (UW) ……………………

CHAPTER7. COMBAT AND POST COMBAT CA OPERA-
 . TIONS
 Section I. Employn~ent of CA Organization ……………………
1-9  3
 
10-14  18
 
15-22  39
 
23-34  45
 
35. 36  54
 
37-39  56
 
40-53  60
 
54-62  65
 
63-70  74
 
71-78  83
 
79-84  88
 
85-90  100
 
91-95  107
 

I1. Unit Operations  ………….  96-101  114
 
I11.  Displaced Persons. Refugees, and Evacuees …… 102-105  127
 
IV.  Civil Defense and Area Damage Control ………… 106, 107  136
 
V. Special Operations …………………. …………………….108-110  141
 
VI.  Other Agency Support of CA Operations …………
 111-119  .  148
 
CHAPTER8.  CONTROL MEASURES  
Section I.  Control and Supervision  120, 121  153
 
11.  Civil Affairs Tribunals  . 122-126  158
 
I11.  Published Regulatory Matter  …………………………  127-133  161
 
CHAPTER9.  INTELLIGENCE  
Section     I.  CA Requirement For Intelligence  …………………. 134-139  167
 
I1. CA Support In Intelligence Activities  …………….  140-144  172
 
111.  Operations Of The Intelligence Section  …………145-148  174
 
CHAPTER10.
 
Section I.  General …………………………………………………………….
149-153  178
 
I1. Requirements  ………………………………………………….
  15-1-160  184
 
I11.  Procurement  ……………………………………………………
161-172  187
 
IV.  Distribution ……………………………………………………..
 173-175  193
 
V. Hospitalization and Transportation ………………..
176, 177  196
 

*This manual supersedes FM 41-10, 2 May 1957 and FM 41-15,
 26 March 1954 .
TAGO 614TB-May
APPENDIXI. REFERENCES I1. FORM FOR CA UNIT COhIMANDER'S ESTIMATE OF THE SITUATION ……………………………………………….. I11. FORM FOR CA AKNEX TO OPERATION OR ADMIN- ISTRATIVE PLAN OR ORDER ……………………………..
IV. EXAMPLE OF CA ANNEX TO OPERATION ORDER -ARMY …………………………………………………………………..
V. FORM FOR CA POLICY CHECKLIST ……………………….
 

VI. FORM FOR CA ANNEX TO SOP ………………………………..
 

VII. FORM FOR COMBAT CHECKLIST ………………………. ….
 

VIII. EXAMPLE OF A CHECKLlST FOR CA INSPECTION
IX. FORM FOR CA INTELLIGEXCE COLLECTION PLAN
X. FORM FOR INITIAL CA PROCLAMATION FOR USE IN LIBERATED TERRITORY ………………………………..
XI. FORM OF INITIAL PROCLAMATION FOR USE IN OCCUPIED TERRITORY ………………………………………… XI1. EXAMPLE OF AN ORDINANCE PERTAINING TO THE CIRCULATION OF CURRENCY IN OCCU­PIED TERRITORY …………………………………………….. XI11. EXAMPLE OF AN ORDINANCE PUBLISHED IN OCCUPIED TERRITORY SPECIFYING PENAL­TIES FOR CRIMES AND OFFENSES …………………… SIV. EXAMPLE OF A NOTICE SPECIFYING HOURS OF CURFEW IN OCCUPIED TERRITORY ……………….. ..
XV. SOLOG AGREEMENT 29 …………………………………………….
 

XVI. SOLOG AGREEMENT 39 (STANAG 2056) ………………..
 
SVII. SOLOG AGREEMENT 40 (STANAG 2057) ………………..
 
ST'III. SOLOG AGREEMENT 41 (STANAG 2058) ………………..
 

XI9. SOLOG AGREEMENT 42
…………………………………..

?……..
 

XX. STANAG XO . 206.5 ……………………………………………………….
 

XXI. PERIODIC CA REPORT ………………………………………………
 

XXII. A CA UNIT CHECKLIST …………………………… ……………
 

XXIII. EXTRACTS OF TREATY IDRO\'ISIONS FOR PRO­TECTION OF PROPERTY …………………………………….
XXIV. TYPE TASK ORGASIZATIOSS ………………………………..
 
INDEX………………………………………………………………………………………………….
 

AGO 6147B
 

CHAPTER 1
 

1. Purpose and Scope
a.
This manual is published for use of all personnel concerned with civil affairs (CA) operations. It is intended for use in con- junction with FM 41-5. It is generally applicable to nuclear and nonnuclear, general or limited war, as well as to operations of the Army conducted during situations short of war, the cold war, and peacetime. It contains procedures employed by CA staff sections, units, and teams in furthering national policies of the United States, in fulfilling international obligations, and in pro- viding maximum support for military operations by the planning, conduct, and supervision of civil affairs operations and activities.

b.
Users are encouraged to submit recommended changes or comments to improve this manual. Comments should be keyed to the specific page, paragraph, and line of the text in which the change is recommended. Reasons should be provided for each comment to insure understanding and complete evaluation. Com­ments should be forwarded directly to the U.S. Army Civil Affairs School, Fort Gordon, Ga.

2. Definitions
In this manual terms will be used as defined below-
a.
Civil Affairs. Those phases of the activities of a commander which embrace the relationship between the military forces and the civil authorities and people in a friendly (including US home territory) or occupied area where military forces are present. In an occupied country or area this may include the exercise of executive, legislative, and judicial authority by the occupying power.

b.
Civil Affairs Operations. Those activities which directly support a commander's political-military mission. Any project or activity of a military unit involving points of contact with or designed to influence or control civilians and civil organizations outside the military establishment can be classified as a civil affairs operation regardless of the location of the activity or the size of the participating military unit. The legal aspects of CA operations may be governed by a provision of United States law, including the law of a state, territory possession or other political subdivision of the United States; a bilateral or multilateral agree- ment, including an agreement concluded without the formalities

AGO 6147U
required of treaties, a rule of law established by custom, or a provision of the law of a foreign state made relevant by a provision of United States law, the terms of an international agreement, or rule of international law. The scope of military authority or control in a civil affairs operation may extend from measures of liaison and coordination with appropriate local civil- ian agencies to the furnishing of assistance and support to local officials and populations or even to the assumption of responsi- bility for the exercise of some or all of the functions of govern- ment in the locality in question. The degree of authority or control necessary to assure the success of civil affairs operations will at all times be consistent with law and the factual posture of the civil affairs relation.
c. Civil Defense. All those activities and measures designed or undertaken to­
(1)
Minimize the effects upon the civilian population caused or which would be caused by an enemy attack,

(2)
    Deal with the immediate emergency conditions which would be created by any such attack and,

(3)
    Effectuate emergency repairs to, or the emergency resto- ration of, vital utilities and facilities destroyed or dam- aged by any such attack.

d.
Civil Emergency. Emergencies affecting public welfare as a result of enemy attack, insurrection, civil disturbance, earth- quake, fire, flood, or other public disasters or equivalent emergen- cies which endanger life and property or disrupt the usual process of government.

e.
Civil Affairs Agreement. Defines the relationship between a visiting force, on one hand, and the indigenous population and governmental authority of the host country, on the other hand, including the degree of control and the extent to which support is to be rendered or derived therefrom.

f.
Status of Forces. A term used to describe the legal position of a visiting military force deployed in the territory of a friendly state. Agreements delineating the status of visiting military forces may be bilateral or multilateral. Provisions of agreements de- fining the status of visiting forces may be grouped into a separate agreement or they may form a part of a more complex civil affairs agreement. These provisions describe how the authorities of a visiting force may control members of that force and the amena- bility of the force or its members to the local law or to the authority of local officials in such matters as civil and criminal jurisdiction, customs and imports, taxation, passports, vehicle registration and drivers' licenses, local procurements, etc. In-

AGO 6147B
asmuch as status-of forces agreements delineate matters affecting the relationship between a military force and the civil authorities and peoples in a friendly area, these agreements constitute a specific category of civil affairs agreement.
g.
Military Government. Form of administration by which an occupying power exercises executive, legislative, and judicial authority over occupied territory.

h.
General War. Conflict between international powers or coalitions of powers involving use of their total war-making abilities with national survival of both sides at issue.

i.
Limited War. Armed conflict in which objectives of the combatants do not constitute a direct threat to survival of the major opposing power blocs. Limitations invoked may be restric- tive on means employed or upon extent of area of operations.

j.
Situation Short of War. A state of international relation- ships, designed to alter or maintain the balance of power between contending power blocs. While it does not include armed conflict, the use of force or military operations is not precluded. Such operations may be conducted to counter or deter use of force by another nation, to encourage a weak or faltering government, to maintain or restore order, or to protect U.S. personnel or prop- erty.

k.
Cold War. A state of conflict between nations or coalitions of nations short of overt armed action and involving any or all means including ideological, political, economic, psychological, sociological, technological, and military operations.

3. Objectives
The basic CA mission includes-
a.
Implementation of National Policies. An objective of CA operations is to implement those aspects of United States national policy as pertains to a particular area for which the military commander is responsible. Support of the commander's military mission may involve participation in coordinated activities with other US., allied, or international military components or civil agencies.

b.
Fulfillment of International Obligations. Discharge of the commander's responsibilities pertaining to civil population, gov- ernment and economy of the area. It is U.S. policy to observe faithfully all international legal obligations. (See FM 27-10.)

c.
Support of Military Operations. Assist in the accomplish- ment of military missions through support or control of local agencies in implementing measures to-

(1) Maintain public order.
AGO 6147B
(2)
    Safeguard, mobilize, and utilize local resources such as labor, supplies, and facilities for tactical or logistical purposes.

(3)
    Control disease and epidemic conditions that might endanger the military force.

(4)
    Prevent civilian interference with military operations.

d.
Emergency Civil Assistance. When directed or requested by appropriate authority, CA operations to assist in civil emer- gency situations resulting from natural disaster, unrest, or enemy attack.

4. Principles
The general principles below apply to a CA operation. In the absence of specific directives, they are basic to planning.
a. Continuity of Policy. Continuity and consistency in policy are essential to the success of civil affairs operations. Therefore it is fundamental that comprehensive policy be developed at gov- ernmental or top command levels and transmitted through normal command channels. Civil affairs relations are influenced by the fact that diplomatic relations between the United States and the government of the area will ususlly be in existence. Since the Department of State is the U.S. government agency held respon- sible by the President for foreign policy, relations between the
U.S.
commander and the U.S. ambassador or diplomatic repre- sentative require close coordination and definite delineation of responsibilities and functions. Normally this will be accomplished by means of an Executive Order issued by the President of the United States.

b.
Command Responsibi'ity. The military nature of CA opera- tions requires that responsibility and authority for establishment and conduct of these activities be vested in the senior commander. The commander is guided by directives from higher authority, national policies, applicable agreements, and international law. Commanders may delegate their authority to the degree that subordinate commanders require such authority for the accom- plishment of the mission.

c.
Mission. All CA operations must support the commander's politico-military mission.

d.
Economy of Force. The commander's politice-military mis- sion must be accomplished effectively with minimum personnel. Whenever possible, CA operations are conducted through and with existing or reestablished civilian authorities utilizing the minimum number of military personnel required for advice or supervision.

e.
Continuity of Plans and Operations. Effectiveness of opera- tions depends upon-

(1)
Plans that contain appropriate guidance and direction to assure accomplishment of the CA mission.

(2)
    Execution adapted to the requirements of the situation and the capabilities of the organization.

(3)
    Coordination of CA and other operations of each com- mand.

f.
Integration in Combined Operations. In combined opera- tions an integration of effort may be achieved by exercising CA control through a combined command.

g.
Military Authority. The scope of military authority varies with the locale and the situation and for convenience of discus- sion is broken down into three general categories:

(1)
Occupied Territory (AR 320-5). The commander of an occupying force has the right, within limits set by inter- national law, to demand and enforce such obedience from inhabitants of an occupied area as may be necessary for the accomplishment of his mission and the proper administration of an area.

(2)
     The law of war places limits on

Combat Zone (320-5).
the exercise of a belligerent's power in the interest of protecting combatants and noncombatants from un­nec'essary suffering and safeguarding certain funda­mental human rights. Commanders are required to refrain from employing any kind of violence not actually necessary for military purposes and to give due regard to the principles of humanity and chivalry.
(3)
    Other Areas. The terms of international agreements, regulations, and national policy as promulgated or in- terpreted by higher authority dictate the scope of au­thority in all other areas.

h.
Military Limitations. Civilian inhabitants have a right to freedom from unnecessary interferences with their individual liberties and their property rights. Members of US Armed Forces are individually and collectively responsible for compliance with all requirements of law and regulation affecting their relations with civil authorities and populations.

i.
Humanity, The principle of humanity prohibits use of any violence not actually necessary for the purpose of the war. War is no excuse for ignoring established humanitarian principles. Since all these principles have not become legal rules, a military commander must consider whether a proposed course of action will be humane even though it is not specifically prohibited.

AGO 6147B
j. Benefit of the Governed. Subject to requirements of the situation, government should be for the benefit of the governed. The CA organization assists the commander in carrying out those obligations imposed by treaty or international law respecting the government and inhabitants of territory in which U.S. Armed Forces are deployed.
5. Environmental Factors
a. Determination of Patterw. The pattern and objectives of CA operations in any place or with reference to any sphere of activity depend primarily on U.S. foreign and domestic policies articulating the national interest of the United States as conceived by duly constituted policy making agencies of government in light of legal, political, economic, social, and military factors affecting the security and welfare of the nation. Factors influencing policy formulation are not static, and they reflect such divergent vari- ables as domestic, industrial and agricultural resources, military requirements, the participation of allies in defensive alliances, the nature of the enemy operations and iqtentions, and other related factors. In the formulation and implementation of policy, it is essential that primary consideration be given to U.S. national objectives. Although a commander's first task may be destruction
'
of an enemy's forces, his subsequent responsibility for building peace may be of greater importance. A military command may be operational under any condition extending from peace through general war. Within this spectrunl civil affairs operations may be required under a wide variety of conditions including, with re- spect to-
(1)     Control or assistance measures
Developmental factors.
pertinent to the exercise of governmental functions in a highly developed area, with complex political, economic, and social systems, to like measures in an underdeveloped area.
(2)
    Duration. Protracted assistance or control measures ex- tending over several years or decades, pending resolu- tion of major political, economic, or military problems, to operations lasting but a short time prompted by tran- sitory emergency situations.

(3)
    Location. Control or assistance measures undertaken in foreign territory as differentiated from measures insti- tuted in domestic territory.

(4)
    Popular Response. Operations involving a vehemently hostile population to measures receiving the enthusiastic support of a loyal and cooperative population.

(5) Military Factors.
(a)     Operations in a society which has suffered total devas-
AGO 6147B
tation and disruption to measures taken in one that has been undamaged by warfare and associated effects.
(b)     
The unlimited use of nuclear, chemical, and biological weapons to the employment of conventional weapons only.
(c)
    The use of Army groups of field armies in a general war to the use of small task forces in situations short of war.

(6)
     Control or assistance measures authorized

Legal Basec.
or required by express provision of positive law, as, for example, the Constitution, an Act of Congress, an inter- national agreement, a judicial decision, an executive order or departmental regulation having the force of law, to like measures undertaken under that unwritten prin- ciple of necessity known as "martial law" or equivalent legal principle made relevant because of the necessities of the case.
b. Implementation of Policy. The above environmental factors will require unprecedented flexibility and capabilities in CA or- ganization to assist Commanders. Implementation will require broad area and contingency planning and training in the entire range of CA command and functional operations, including-
(1)
    The conduct of CA activities such as civic action and support of contingency operations.

(2)
    Action to maintain public order or to provide for the welfare of the population, when requested by appropriate civil authority or by direction of the President, in civil emergencies resulting from enemy attack, disaster, epi- demic, disorder, or conditions threatening the successful functioning of duly constituted authority.

(3)
    Exercise of a minimal degree of authority granted by treaty or other agreement, express or implied, which may involve only a liaison relationship between the mili- tary commander and the civil population, government, and institutions of an area.

(4)
    Full or partial executive, legislative, and judicial au­thority over a country or area.

6. Range of Interest
a. A Continuing Factor. Civil affairs begin for a commander at the same instant a member of his command has contact with representatives of the civilian community, regardless of whether the contact is in continental United States or an oversea area and whether the United States is in a state of war, peace, or any of the in-between conditions categorized generally under the heading
AGO 6147B
of cold war. Organizations and emphases may vary, but the same general principles are applicable regardless of the situation. Mili- tary-civil relationships are a continuing factor of consideration in military operations. They may vary from a minimum of securing the least amount of civilian interference to obtaining a maximum of all-out civilian support for the military operation, but the de- gree of mutual cordiality, understanding, and support involved have a direct bearing on success or failure of the operation.
b. Diverse Relationships. Civil affairs relationships are varied and complex. No attempt will be made to summarize them all in this manual because, regardless of the situztion, similar criteria govern general military-civil relationships, and the variation is only in emphasis and degree. Among some of the military-civil status possibilities are-
(1)
Occupation of an enemy homeland.

(2)
    Occupation of liberated territory with or without a civil affairs agreement.

(3)
    Assignment in another country during peace or war on the basis of a status of forces, military assistance, or similar agreement.

(4)
    Disaster relief or invitational intervention on behalf of a foreign country, usually on the strength of a prior agreement.

(5)
    Show of force.

(6)
    Peacetime activities in the U.S. and possessions.

(7)
    Wartime activities in the U.S. and possessions.

(8)
    Assistance in civil defense, emergency, or disaster.

c.
Command Responsibility. It cannot be overemphasized that the conduct of civil affairs (military-civil relations) is as much a responsibility of command as the planning for and conduct of combat operations. Peacetime civil affairs, when regulations, laws, and agreements generally are more restrictive, impose prob- lems of coordination, liaison, and negotiation of greater difficulty and delicacy than more clearly defined wartime relationships.

d.
Aspects. Frequently the term "civil affairs" is misunder- stood, because in common usage it may have three distinct mean- ings: civil affairs concept, civil affairs operations, and civil affairs organization (staffs and units).

(1)
    The civil affairs concept (see definition in par. 2a) em­braces all military-civil relationships, whatever the locale, status of peace or war, or whether relationships involved are official or personal.

(2)
    Civil affairs operations (see definition in par. 2b) include activities of a military unit pointed toward support for, or the exercise of influence or control over, civilians and

10      AGO 6147B
civilian organizations outside the military establishment regardless of the participating section or unit. Some further amplification of the scope of civil affairs opera- tions follows in this section, but in general such key words as liaison, advice, negotiation, cooperation, super- vision, assistance, and control essentially summarize civil affairs operations.
(3)     Civil affairs organization, consisting of the staffs and units particularly designed and trained to supervise and conduct civil affairs operations, is an integral component of the military force. It supports army forces in the conduct of tactical military operations. It assists in ful- filling the military commander's legal obligations with respect to the inhabitants, government, and economy of the area. It serves as the military agency with primary concern for the attainment of ultimate national objec- tives and provides for the future transfer of certain CA activities to a designated agency of government. Other staff sections and units, in their dealings with civilian counterparts and representatives of the civilian commu- nity, also engage in military-civil relationships. This does not mean that the normal liaison and contractual functions of the technical and administrative services need necessarily constitute civil affairs operations, al- though some degree of civil affairs general staff interest will always be present and in oversea areas may be paramount.
7. Representative Military Activities in Civil Affairs
Since from a conceptual standpoint civil affairs is the inclusive total of all military-civil relationships no attempt will be made in this manual to enumerate every conceivable operational aspect of these relationships. As a guide for planning and training pur- poses, however, the following activities are typically representa- tive of civil affairs and constitute processes through which the functions are performed :
a. Liaison.
(1)
With staff sections and units within the command to which assigned or attached.

(2)
    With other Army units in the zone of CA responsibility of the command to which assigned or attached.

(3)
    With army units in contiguous zones of responsibility.

(4)
    With CA representatives of other services or allied mili- tary units.

(5)     
With other U.S. allied, and international governmental agencies in the area.

(6)
    With representatives in the apparatus of civilian gov- ernment.

b. Negotiation.
(1) With appropriate agencies of the civilian government over such matters as policing authority, legal jurisdic- tion, licensing, taxation, use of public facilities, registra- tions, applicability of laws and regulations, customs, religious practices, restrictions, and other similar phases of both personal and official relationships.
(2)         
With private civilian individuals and organizations con- cerning purchases, claims, contracts, rentals, member- ships, personal relationships between individuals, and other related matters.
(3)         allied and international military and
With civilian agencies over joint or parallel functions.
c. Participation.
(1)
    On joint military-civil councils and committees.

(2)
    In community relations and civic action type activities.

(3)         
In uni-service, joint, and combined exercises and train- ing programs insofar as CA instruction and emphasis are concerned.
d. Coordination.
(1) With other general and special staff officers and com­manders of subordinate units.
(2)         
Among functional civil affairs specialists and between
civilian counterparts and staff sections with related
interests.
(3)         
Between all military and civil agencies in areas of mutual concern.
(4)     With representatives of other U.S. governmental, allied, and international agencies and between these agencies and military command of assignment or attachment.
e. Support.
(1)
    For military forces from civilian labor and material re- sources.

(2)
    For civilians from military personnel, equipment, facili- ties, and supplies.

f. Advice.
(1)     To the commander on-
(a)         
Relationships with civil authorities and population.
(b)         operations or activities or contemplatedEffects of
operations or activities on civilian welfare and morale.
AGO 6147B
(c)
Effects     of      civilian laws, regulations, administrative processes, habits, activities, needs, and capabilities on his operations, missions, and subordinate personnel as individuals.

(d)
    ~elationshi~s'with

U.S. and allied agencies in civilian governmental capacities.
(e)
Procedures for handling non-U.S. labor.

(f)
    Treatment of civilians coming under his jurisdiction or control such as visitors, violators of regulatory documents, refugees, displaced persons, and evacuees.

(g)
All other matters concerned with affairs of his com- mand in respect to civilian relationships.

(2)
    To civil authorities on-

(a)
Needs and requirements of the military forces.

(b)     
Capabilities of military forces in cooperative ventures.
(c)
Rehabilitation procedures and processes.

(d)
    Civil defense and disaster measures.

(e)
Technical methods calculated to improve civilian econo- mies and social structure.

(3)
    To other staff sections and to subordinate units of the command on civil affairs matters.

g.
Control (when authorized) of-

(1)
The circulation of civilians.

(2)
    The agencies of government.

(3)
    Economic processes and civilianactivities or conditions which may affect operations.

8. Application of International Law
a. International law is usually regarded as having two branches, one dealing with the peaceful relations between states and the other concerned with armed hostilities between states. This division is not, however, absolute, and there are many facets of international relations that are difficult to regard as belonging to the law of peace or the law of war. Both branches as well as the undefined grey area in between apply to civil affairs relations. The law of peace deals with such matters as recognition of states and governments, jurisdiction, nationality, diplomatic protocol, the prerequisites for and construction of international agreements, and, generally, the practices and standards observed by friendly states in their mutual relations. Evidence of the law of peace is to be found in law making treaties, the decisions of interna- tional and national judicial bodies, the writings of jurists, diplo- matic correspondence, and other documentary material concern- ing the practice of states. The law of peace is particularly rele- vant to define the rights and obligations of a military force that
AGO     

6147B
 
is deployed in the territory of an allied state not only where there is a civil affairs agreement, but also where there is no applicable agreement or with respect to matters on which such agreement is silent.
b. The law of war governs such matters as the conduct of hostilities on land, in the sea, and in the air; the status and treatment of persons affected by hostilities, such as POW'S, the sick and wounded, and civilian persons; the occupation of enemy territory, flags of truce, armistices and surrender agreements, neutrality, and war crimes. The law of war is derived from two principal sources, law making treaties, such as the Hague and Geneva Conventions, and custom, a body of unwritten law that is firmly established by the practice of nations and well defined by recognized authorities on international law. Ordinarily, a pro­vision of an international agreement is binding on a state only to the extent that it has consented to be bound. However, a humanitarian principle enunciated in a law making treaty is bind- ing on a state even though it may have never agreed to or has repudiated the agreement containing the humanitarian rule in question. The law of war is inspired by the desire to diminish the evils of war by-
(1)
Protecting both combatants and noncombatants from unnecessary suffering;

(2)
    Safeguarding certain fundamental human rights of per- sons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick and civilians; and

(3)
    Facilitating the restoration of peace.

c.
In furtherance of these objectives, the law of war imposes limitations on the exercise of a belligerent's power and 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. The law of war is binding not only upon states as such but also upon individuals and, in particular the members of their armed forces. The law of war is particularly relevant to civil affairs operations affecting an enemy population, not only during an occupation and a period of hostilities preced- ing an occupation, but also in situations in which an occupation of territory is not an objective of the conflict.

d.
The most important treaties and agreements applicable to civil affairs operations, to which the United States is a party, include the following:

(1)
With respect to agreements to which provisions of the law of peace are particularly relevant:

14      AGO 6147B
(a)
The Charter of      the United     Nations     (59 Stat. 1031, TS 993).

(b)
The NATO Status of Forces Agreement (4 UST 1794; TIAS 2846).

(2)
With respect to agreements to which the provisions of the law of war are particularly relevant:

(a)
Hague     Convention     IV of     October 1907, Respecting the Laws and Customs of War on Land (36 Stat. 2277, TS 539), and Annex Thereto, Embodying the Regula- tions Respecting tl e Laws and Customs of War on Land (36 Stat. 2295, TS 540), popularly known as the Hague Regulations.

(b)
The      1949 Geneva      Civilian     Conventions (Wounded and Sick-GWS) (TIAS 3362) ; (Wounded and Sick at Sea-GWF Sea) (TIAS 3363) ; (Prisoners of War -GPW) (TIAS 3364) ;Civilian Persons-GC) (TIAS 3365). For an interpretation of these and other pertinent law making treaties as well as an explanation of United States practice, see FM 27-10, The Law of Land Warfare (1956) ; for the text of the more im- portant agreements (see DA Pam 27-1,) Treaties Governing Land Warfare (1956) .

e.
Of these' agreements, the NATO Status of Forces Agreement is particularly significant because of the precedent it has estab- lished concerning the law applicable to visiting military forces when they are in the territory of a friendly state. The Hague Regulations are important because they are regarded as declara- tory of law applicable between belligerents. The 1949 Conven- tions supplement the Hague Regulations, which by their literal terns applied only to a "war" between parties signatory thereto, by broadening the scope of the Treaty law to cover not only "war" but also "any other armed conflict" and "any partial or total occupation," involving their signatories (see FM 27-10). An international agreement of particular significance to CA personnel is the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The United States became a signatory to this agreement at the Hague in 1954. This Convention outlines the measures which armed forces shall take in the preservation of historical, cultural, and scientific properties in any enemy ter- ritory. As CA personnel will have principal responsibility for measures to be taken concerning cultural property, they should be thoroughly familiar with the legal obligations of the United States respecting artistic objects, archives, monuments, shrines, and other types of cultural property.

AGO 6147B     
9. Phasing of Civil Affairs
a.
Responsibility for the conduct of civil affairs is an integral aspect of military command (see par. 6 and 7). The degree of emphasis and the nature of activities in which military forces become directly involved are as diversified as the scope of func- tional and geographical areas, political climate, and national policy. Figure 1, graphically demonstrates the varying parameters of the civil affairs function, depending upon the varying politico- military aspects of the international scene. Transition from peace to war or from war to peace is a process that influences the character of military-civil relationships and affixes responsibilities for the performance of those specific civil affairs functions covered in chapter 2.

b.
During a static period of peace military relationships with the civilian population fall primarily in the area of liaison and co- ordination necessary to effect long and well established mutual support with civilian authorities retaining paramount authority and control. When hostilities are in progress, the civilian govern- mental apparatus frequently requires military reenforcement to insure continuity of those normal civilian functions requisite for the maintenance of civilian order, livelihood, and institutions and, reciprocally, expanded military forces need increased civilian support.

c.
The military organization diverts only those resources and takes only those measures in its dealings with civil authorities and population essential to its mission and dictates of national policy. As hostilities cease or the emergency is terminated and the agencies of civilian government and administration are re- constituted, responsibility for many civil affairs functions is transferred to civilian authorities and agencies (transition "A" in fig. 1). This entails an ultimate, if not a parallel, shift in responsibility for proponency and liaison and from the military to the State Department or other U.S. governmental agency in matters of policy and functional relationships between govern- ments and people concerned.

d.
When U.S. Armed Forces are stationed in oversea areas on training, security, or emergency assignments, particularly where political and economic stability is lacking, the divisive potential among different U.S. agencies present is considerable during the grey area of Transition "B". If several U.S. governmental de- partments are involved in such matters as budgeting, program- ming, and supervising, vital problems can only be prevented or resolved by complete objectivity, a mutual understanding of capa- bilities, and the closest of coordination among agencies concerned.

16 AGO 614iB
CIVIL AFFAIRS IN
 
TIME PHASES
 

PEACETIME
RELATIONSHIP TO CIVIL GOVERNMENT (POLITICAL -ECONOMIC-
SOCIAL MATTERS)- A PRIMARY RESPONSIBILITY OF DESIGNATED
 
US AGENCIES SUPPORTED BY THE MILITARY
 

Figure 1. Civil aflairs in lime phases..
AGO 6147B
 

CHAPTER 2
 
CIVIL AFFAIRS FUNCTIONS
 
10.     General
a.
For purposes of training, research, planning, and opera- tional effectiveness CA is administered on a functional basis, with areas of specialization arranged into categories generally adap- table to the diverse socio-politico-economic ramifications of civilian communities. Each function is related to a certain extent to every other function, and their interlocking relationships do not permit assignment of exclusive interest to any one functional area. Extensive liaison and coordination are also required with other military units, particularly Intelligence, Military Police, Engi- neers, Signal, Medical, and Quartermaster. In CA operations, aside from purposes of organization and training, the functional breakdown is not arbitrary but is designed to provide sufficient flexibility to fit the special requirement of any area or situation.

b.
In applying these functions in any foreign land, commanders must be constantly alert to avoid projection of an organizational concept from U.S., state, or local forms previously encountered. By way of illustration, in many foreign countries the following functions are commonly assigned to postal ministries in addition to responsibility for "carrying the mails":

(1)
    Telephone service.

(2)
    Telegraph service.

(3)
    Radio service.

(4)
    Bus transportation. This is a mechanized retention of the original postal service-the stage coach.

(5)
    Commercial banking. This includes checking accounts, fund transfers, and other transactions in addition to sav- ings deposits.

c.
Included in the areas of specialization are those functions normally related to government; utilities and services, whether private or public; the range of economic matters covering such categories as manufacture, distribution, and sale of goods, in- cluding agriculture products, money and banking; and other as- pects of civilian communities associated with communications media, displaced persons, cultural and documentary collections, education, religion, and the gamut of sociological institutions. For purposes of discussion in this manual twenty-one separate functions are considered, although the number could be increased or contracted depending on the mission and operational circum- stances.

18      AGO 6147B
d. Reflecting a type organization, individual functions more nearly related are consolidated into four general categories, Gov- ernmental, Economic, Public Facilities, and Special. The break- down of activities within each function is predicated upon situa- tions where the military commander exercises full control to illustrate complete application. Lesser degrees of authority and scope of mission will entail correspondingly lesser activity in each function, but to some extent, in a11 conditions of peace and war, commanders are directly concerned with the following func- tions:
(1)
Governmental.

(a)
Civil Government

(b)
Legal

(c)
Public Safety

(d)
Public Health

(e)
Public Welfare

(f)
Public Finance

(g)
Public Education

(h)
Labor

(2)
Economic.

(a)
Economics

(b)
Commerce and Industry

(c)
Food and Agriculture

(d)
Price Control and Rationing

(e)
Property Control

(f)
Civilian Supply

(3)
Public Facilities

(a)
Public Works and Utilities

(b)
Public Communications

(c)
Public Transportation

(4)
Special

(a)
Civil Information

(b)
Displaced Persons

(c)
Arts, Monuments, and Archives

(d)
Religious Affairs

1 1. Governmental Functions
Included in this grouping of functions are those dealing with matters customarily involving governmental activity or control. The general areas of concern include the organization and con- duct of local government, political activities; review, advice, or correction of civil officials in accordance with competent directives, and implementation of policy decisions with respect to control or other relationships with government in the area of operations.
a. Civil Government. This function is concerned with the
AGO 6147B
structure and conduct of local government. It encompasses methods of establishing legislative and executive agencies from national to local levels and the processes of these agencies in the administration of civil government. Included are such considera- tions as political. parties, eligibility for franchise, elections, ten- ure, and all other aspects of the development and operation of the apparatus of government. Commanders having area respon- sibility, their staffs, and CA units are charged, as appropriate, with­
(1)
Surveying governmental organization at all levels.

(2)
    Surveying lines of authority and influence having im- pact on political matters.

(3)
    Analyzing effectiveness of existing agencies of govern- ment or social control.

(4)
Studying effectiveness of governmental officials and em- ployees and of other community leaders; removing per- sons who are inimical to the United States or who are not in sympathy with its policies and objectives, and securing the appointment of leaders who will further desired programs.

(5)
Negotiating to gain support or cooperation for United States forces.

(6)
    Recommending organization, functioning, staffing, and authority of agencies of government or social control.

(7)
    Advising, conducting liaison with, supervising, control- ling, or replacing organs of government.

(8)
    Participating on joint commissions, committees, or coun- cils concerned with governmental affairs.

b.
Legal. This function is concerned with the legal system of the area and the application of international law in CA operations. Commanders having CA area responsibility, their staffs, and CA units are charged, as appropriate with-

(1)
Translation of the legal aspect of CA operations into plans and directives.

(2)
    Analysis and interpretation of the civil and criminal laws of the territory, particularly restraints imposed upon the civil populace.

(3)
    Study of the organization of the judicial system includ- ing determination of legal status and jurisdiction of civil courts and law.

(4)
Review of the local organization of the bar and deter- mination of reliability of its members.

(5)
Examination of locally accepted forms of judicial pro- cedure including rules of evidence and rights of. the accused.

AGO G147B
(6)
    Assistance to commanders and staffs in the preparation of proclamations, ordinances, orders and directives, and as otherwise may be required.

(7)
    The establishment of necessary civil affairs tribunals and other judicial and administrative agencies, includ- ing their number, types, jurisdiction, procedures, and delegation of appointing authority.

(8)
    The closure or reopening of local tribunals, including courts, boards, and commissions; their jurisdiction, or­ganization and procedure, and the class of cases triable therein.

(9)
    Recommendations concerning the suspension or abro­gation of laws and procedural rules applicable to local courts.

(10)
    Recommendations concerning the alteration, suspension, or promulgation of laws to include civil legislation for the government of the area in which military forces are deployed. It may be necessary to deny enforcement effect to local legislation or to adopt new laws essential to the control of the area in question and the protection of

U.S. forces. Such legislation must conform to applicable provisions of U.S. law and international law as, for example, the 1949 Geneva Civilian Convention.
(11)
    Supervision of the administration of civil and criminal laws by local officials.

(12)
    Provision of members for civil affairs tribunals.

(13)
    Review or administrative examination of cases tried in CA courts before referral to higher headquarters for final review.

(14)
    Arrangements for transmittal of civilian claims against the United States to the proper agency.

c.
Public Safety. This function is basic in CA operations and includes, in addition to the establishment and maintenance of public order and safety, the coordination of civil defense plans and measures with the military plans for rear area defense and damage control. Commanders having area responsibility, their staffs, and CA units are charged as appropriate, with-

(1)
Examination of the customary method of announcing regulations concerning conduct of the people and of those law enforcement methods having traditional re­spect among the civilian population.

(2)
    Study of the organization, capabilities, equipment, and functioning of existing law and order agencies, confine- ment facilities, civil defense, and fire-fighting agencies.

AGO 6117B     
(3)     
Analysis of the character of the population with respect to orderliness and obedience to law.

(4)
    Coordination with counterintelligence elements of the Intelligence Corps in the prevention and detection of espionage, sabotage, subversion, and civilian aid to guer- rilla activities.

(5)
    Preparation of plans, procedures, and recommendations for restoring law and order.

(6)
    Supervision of those civilian agencies which enforce law and maintain order with particular attention to looting, rioting, control of liquor and narcotics; collec- tion and disposition of weapons, explosives, and imple- ments of war in the hands of civilians, and the enforce- ment of regulatory and other measures of the occupant.

(7)
    Assurance of proper posting of proclamations and notices.

(8)
    Enforcement of orders relating to security control of the civil population, including, as necessary, establish- ment and operation of a pass system, registration of individuals, check points, curfew, communications, regu- lations, control of assembly, and arrest of wanted per- sons.

(9)
    Establishment, supervision, and strengthening of exist- ing local organizations for civilian safety and protection in order to provide for natural disaster, air raid warn- ing, blackout shelter, fire fighting, evacu~.tion, demoli- tion, and related activities.

(10)
    Coordination and integration of civil defense measures with rear area security and damage control plans and supervision over civilian activities in integrated plans.

(11)
    Arrangements for warning service and other military assistance for civilian protection and recovery.

(12)
    Supervision of administration of jails and prisons.

(13)
    Requisition and issuance of required police and fire de- partment equipment in accordance with approved poli- cies.

(14)
    Activities regarding impounding or safeguarding sup- plies, materials, equipment, buildings, or areas as may be required for any civil affairs function or activity.

(15)
    Determination of suitability of government employees and public officials.

d.
Public Health. This function is concerned with measures to preserve or restore the state of public health and to protect the health of military forces. Due to the changed nature of mod- ern war, it has now been provided by the Geneva Civilian Con-

AGO G147B
vention of 1949 that belligerents must protect the wounded, sick, aged, children, and expectant mothers from the effects of war. This Convention also provides that civilian hospitals and medical transportation facilities are entitled to the same protection from attack as is provided for military medical units and facilities. Commanders having area responsibility, their staffs, and CA units are charged, as appropriate, with-
(1)
    Analysis of organization and functions of public health and sanitation agencies.

(2)
    Survey of adequacy of medical, paramedical, and aux- iliary personnel, medical, and sanitation facilities.

(3)
    Preparation of estimates of requirements for additional medical personnel, medical supplies, and materials re­quired to maintain minimum facilities.

(4)
    Provisions for the prevention, control, and treatment of endemic and epidemic diseases, e.g., malaria and insect control.

(5)
    Measures for the restoration and protection of food and water supplies.

(6)
    Measures for the disposal of sewage and waste.

(7)
    Arrangements for the treatment of sick and wounded civilians, including provisions for medical assistance by military units when required for humanitarian reasons.

(8)
    Promulgaton of local orders directing that civilians observe such other medical and sanitary measures as are deemed necessary.

(9)
    Supervision of civilian public health officials in the en- forcement of public health laws and the performance of public health services.

(10)
    Retention, removal, or appointment of public health officials.

(11)
    Plans and recommendations for rehabilitation or recon- struction of hospitals and other civilian medical facili- ties.

(12)
    Requisitions pursuant to established policy and issuance to civilian medical facilities and sanitation agencies of military medical and sanitary supplies.

(13)
    Recommendations regarding safeguarding supplies and facilities.

(14)
    Collection and burial of civilian and animal dead and maintenance of necessary records.

(15)
    Supervision, restoration, and maintenance of public health facilities and records.

e.
Public Welfare. This function is concerned with emergency and continuing relief measures essential to public order and wel-

AGO 6147B     
fare, including supervision and coordination of relief activities and welfare measures, supervision and control of public and pri- vate welfare institutions. Included are public and private insti- tutions for the care of children, the aged and handicapped, and miscellaneous charitable and relief organizations. Commanders having area responsibility, their staffs, and CA units are charged with such matters as the following:
(1)
    Analysis of public and private welfare institutions and applicable public law.

(2)
    Estimate of requirements for public welfare activities.

(3)
    Supervision of administration of public welfare laws and the regulation of public and private charitable insti- tutions.

(4)
    Plans for military assistance in public welfare activities.

(5)
    Supervision over voluntary agencies and contributions from such sources.

(6)
    Preparation and coordination of the public welfare por- tions of area defense and evacuation plans.

(7)
    Estimation of requirements, requisitions according to established policy, and supervision of distribution of relief supplies from military sources.

(8)
    Supervision of emergency shelter and feeding centers for indigenous civilians.

(9)
    Recommendations far safeguarding appropriate estab- lishments.

f.
Public Finance. This function is of vast importance in the conduct of economic welfare and economic stabilization measures and assists in reducing support contributions by the United States. It includes control, supervision, and audit of fiscal resources; budget practices, taxation, expenditures of public funds, currency issues, and the banking agencies and affiliates. It is essential that the function be performed in an integrated and uniform manner within each national area. Commanders having area responsi­bility, their staffs, and CA units may be charged with tasks such as­

(1)
Analysis of taxation systems and other sources of reve- nue, governmental expenditures, and estimates of ade- quacy of public funds for performance of governmental functions.

(2)
    Review of public laws and agencies regulating banking and financing.

(3)
    Analysis of financial structures including types and conditions of financial institutions.

(4)
    Analysis of types and amounts of circulating currencies,

AGO 6147B
acceptance by population of such currencies, and current foreign exchange rates.
(5)
    Recommendations as to designation of type of circulat- ing local currency.

(6)
    Recommendations as to provisions for military currency.

(7)
    Recommendations as to establishment of currency ex­change rates.

(8)
    Establishment and enforcement of restrictions on ex­portation of currencies.

(9)
    Recommendations for control of foreign exchange.

(10)
    Establishment of controls over budget, taxation, expendi- tures, and public funds and determination of appropriate fiscal accounting procedures.

(11)
    Reestablishment or revision of taxation systems in ac- cordance with policy directives.

(12)
    Liquidation, reorganization, opening, or closing of banks.

(13)
    Supervision over credit and provisions for credit needs.

(14)
    Regulation or supervision of governmental fiscal agencies, banks, credit cooperatives, and other financial institutions.

(15)
    Recommendations for advances of funds to governmental or private financial institutions.

(16)
    Recommendations as to emergency declaration of debt suspensions for specific types of debis.

(17)
    Recommendations for protection of public and private financial institutions and safeguarding funds, securities, and financial records.

g.
Public Education. This function is concerned with the super- vision of educational programs and institutions and public librar- ies within the area of operations. This includes the closing or establishment of public or private schools, determination of curric- ula, and selection of administrative and instructor personnel. Commanders having area responsibility, their staffs, and CA

,
units are charged, as appropriate, with-
(1)
Survey and analysis of school facilities, applicable laws, courses of study, procedures for training and selection of teachers, and text books.

(2)
    Recommendations for changes necessary to comply with national policy, e.g., screening teachers or changing text- books.

(3)
    Determination and enforcement of restrictions on the utilization of school facilities, e.g., prohibition against billeting in school buildings when other facilities are available.

AGO 6147B     
(4)
    Supervision of administration, safeguarding of records, and conduct of inspections of schools.

(5)
    Requisition and issuance of materials and supplies for use in schools.

(6)
    Removal of civilian personnel engaged in public educa- tion who are inimical to the United States or are not in sympathy with its policies and objectives.

h.
Labor. This function is concerned with assistance to, liaison and coordination with and, in appropriate cases, supervision, con- trol, or operation of governmental and private agencies and institutions concerned with labor. In addition to activities in the labor field directed primarily to the local economy, the CA or- ganization effects arrangements .to provide labor needs of the military forces in accordance with policies established by higher authorities and applicable provisions of law. Procurement of labor, training, relocation, housing, safety standards, policies respecting wages and hours, unemployment subsidies, compensa- tion for injuries and the like, may be governed by an applicable civil affairs agreement. Civil affairs operations subject to the provisions of the Hague Regulations and the 1949 Geneva Con- ventions, particularly the Civilian and POW Conventions, will pose special problems for civil affairs officers (see FM 27-10). Also of possible application are provisions of United States law and of local lzw relating to labor. The varying legal norms that may be applicable to civil affairs activities concerned with labor and the dual nature of the commander's responsibility as it re- lates to his own and the local economy's labor requirements combine to make the labor function of major importance. All facets of the labor function require the maximum of coordinating and planning effort. Commanders having area responsibility, their staffs, and CA units are charged, for example, with-

(1)
Plans for use of labor.

(2)
Determination of labor availability and procedures for procurement of labor for authorized types of work.

(3)
    Review of applicable laws and policies respecting labor and review of status, operation, and effectiveness of local agencies, institutions, and organizations concerned with labor matters.

(4)
    Analysis of labor relations including studies of labor organizations and labor relations between employers and employees.

(5)
    Determination of extent and means of control or super- vision over labor markets and labor organizations.

(6)
Recommendations     as to priority of utilization of labor in rehabilitation of the economy.

26      AGO G147B
(7) Recommendations concerning utilization of civilian labor
to include-
(a) Wage controls including pay scales and schedules of hours of work.
(b)     
Labor relations including medical care and compensa-
tion.
(c)     
Payment of wages.
(8)
Recommendations as to changes in pertinent labor laws, regulations, policies, and practices.

(9)
    Coordination with governmental labor procurement agencies.

12.     Economic Functions
This grouping of functions includes those particularly con­cerned with the economic aspects of an area. The functions are of significance in considerations respecting support rendered the military effort and requirements for military support to the civilian economy. They require decisions from governmental agencies concerned and coordinated planning to insure integration of the functions in overall operations.
a. Economics. This function includes the general matters per- taining to the economy of an area, including specialized economic functions of civil affairs for which appropriate specialized person- nel are not otherwise available. Commanders having area re­sponsibility, their staffs, and CA units are charged, for example, with­
(1)
Development of plans for the maintenance, preserva- tion, rehabilitation, or restmation of the local economy.

(2)
    Determination of the availability of local resources for military use.

(3)
    Determination of location, type, and availability of na- tural resources.

(4)
    Economic stabilization measures.

(5)
    Preparation or implementation of economic warfare plans.

(6)
    Surveys of legal provisions applicable to economic mat- ters and public and private agencies and institutions concerned with economic activities.

(7)
    Determination of those business activities essential to the

continued production and distribution .of essential goods and services.

(8)
Compilation and analysis of statistics on domestic and foreign trade.

(9)
    Information and advice to local business and commercial

AGO 6147B     
institutions concerning policies of the military com­mander.
(10)
    Preparation of requirements for materials to be diverted to military use in accordance with policy guidance pub- lished by higher headquarters and applicable require- ments of law (see FM 27-10 and DA Pam 27-1).

(11)
    Determination of specific types of business enterprises including brokerage houses, markets, and banks to be opened or closed, taking into account policies of higher headquarters and applicable provisions of law.

(12)
    Recommendations on allocation of resources between military and civilian needs and between areas, indus- tries, and plants.

(13)
    Provisions of bonuses, subsidies, and price adjustments to encourage production and movement of required goods and materials.

(14)
    Restrictions on exports or imports.

b.
Commerce and Industry. This function is concerned with developing local commerce and industry in accordance with an- nounced objectives, thus coordinating the commercial activities and industrial production of the area. Commanders having area responsibility, their staffs, and CA units are charged, as appro- priate, with-

(1)
    Surveys of basic and essential commercial activities and industries of the area.

(2)
    Surveys of industrial potential.

(3)
    Determination of means of production and distribution considered essential for military or civilian use in ac- cordance with policy directives.

(4)
    Determination of requirements for machinery, raw ma- terials, and supplies from other than local sources.

(5)
    Determination of means for the development and use of natural resources.

(6)
    Measures to insure production of desired products.

(7)
    Supervision of commercial and industrial activities in- cluding foreign trade.

(8)
    Supervision of natural resources extraction.

(9)
    Recommendations for safeguarding materials, equip­ment, and facilities.

c.
Food and Agriculture. This function is concerned with the stimulation of food production and processing so as to eliminate or reduce requirements for shipment of food products for con- sumption both by military forces and the civil population. Long range planning may of necessity be subordinated to the need for early production. In general, local customs and farming

28      AGO 6147B
practices should be considered together with sound agricultural principles. Commanders having area responsibility, their staffs, and CA units are charged, as appropriate, with-
(1)
    Surveys of agricultural production, farming methods conservation of lands and forests, food storage, marine food resources, and food processing.

(2)
    Surveys to determine the location of food surplus and deficit areas.

(3)
    Recommendations on degree of control of all govern- mental food and agriculture offices.

(4)
    Estimate of food requirements, agricultural production, and probable deficit during the period of operations.

(5)
    Estimate of requirements for food, fertilizer, and farm machinery from other areas or military sources.

(6)
    Measures to encourage earliest possible resumption of agricultural production.

(7)
    Recommendations as to restrictions on civilian circula- tion and transportation of non-essential supplies to per- mit distribution and movement of required agricultural supplies and equipment.

(8)
    Recommendations as to measures to avoid requisitioning the labor of farmers during critical periods, e.g., seeding and harvesting of grain crops.

(9)
    Recommendations for safeguarding supplies and equip- ment.

d.
Price Control and Rationing. This function includes meas- ures to insure the equitable and effective distribution of essential commodities. Control of prices, rationing, and other related restrictions may be required, from the initiation of operations in occupied territory, to prevent hoarding, inflation, black-market- ing, and diversionary activities injurious to the objectives sought. Commanders having responsibility, their staffs, and CA units are responsible for-

(1)
    Examination of price control and rationing measures instituted by the existing government to determine ex- tent and effectiveness thereof.

(2)
    Supervision of policies and officials in price control and rationing.

(3)
    Procedures to control and allocate imported supplies to uses which will further the objectives of the occupa- tion.

(4)
    Measures to prevent exportation of supplies needed in the occupied area.

(5)
    Restrictions to prevent purchases by troops of supplies required by the civilian population and to prohibit the

AGO 6147B     
sale by troops to civilians of items which harm the local economy.
(6)     and enforcement of measures for the
Determination control of rent and rationing of dwelling space and other scarce real estate.
e. Property Control. This function serves to protect property within established limits and to preserve negotiable assets and resources. It is based on a uniform and orderly system for the custody and control of property. Commanders having area re- sponsibility, their staffs, and CA units may be charged with-
(1)
Recommendations as to policies and procedures concern- ing the custody and administration of property.

(2)
    Review of types or classes of property to be taken into custody and analysis of civil laws pertaining to such property.

(3)
    Preparation of schedules of property to be placed under military controls as determined by policy directives, including­

(a)
    Property owned by enemy governments or nationals of those governments.

(b)
    Property of allied governments over which temporary control will be assumed.

(c)
    Private property susceptible of military use.

(4)
    Control and administration of certain categories of prop-

erty designated for control, appointing custodians where necessary.

(5)
    Protection of all records of title, transfers, and other property transactions.

(6)     
Review of evidence available to determine ownership.
(7)     Maintenance of registers for supplies and property transferred from civilian sources to military units.
f . Civilian Supply.
(1) Civilian supply will ordinarily be a primary problem in any civil affairs operations; it is related to virtually every other function of civil affairs. Because of the close interplay between the military and the civilian communities, the success of the military effort will fre- quently depend upon the degree to which a civilian pop- ulation affected by military operations can sustain itself or even contribute to the military effort. In a civil affairs relation governed by a specific civil affairs agreement, the military commander's responsibilities for logistical support to the civilian economy and, correspondingly, the measure of the local population's contribution to the military effort will be defined by the agreement. Even
AGO 6147B
30     
 

where the scope of the civil affairs operation is clearly defined by agreement there will be instances where the necessities of the case will require additional measures to ameliorate civilian supply deficiencies. Operations conducted in friendly territory in the absence of an agreement, or in domestic territory, or in hostile terri- tory, will in each case present problems in civilian sup- ply peculiar to the circumstances. The measure of a military commander's duty to assist in the maintenance of food and medical supplies and other commodities essential to the health and well being of the inhabitants is circumscribed by the necessities of the case taking account of the commander's own resources and capa- bilities.
(2)     Specific treaty requirements may cast upon a com­mander the burden of bringing in to an area affected by military operations necessary foodstuffs, medical stores, and other articles essential to the sustenance of life if the local resources are inadequate. (See Articles 55 and 56 of the 1949 Geneva Civilian Convention.) Like obligations may be imposed by provisions of United States law or policy directives from higher authority. For civilian supply activities involving procurement with appropriated funds, see DA Pam. 27-153, Procurement Law .(1961). Efficient and resourceful civilian supply measures will advance all other objectives of the civil affairs operation. In addition to emergency relief sup- plies of whatever source, this function concerns supplies for use in or the enhancement of the civilian economy. Goods and services may be obtained from governmental organizations and individuals by voluntary contributions, purchase, requisitions, confiscation, seizure, condemna- tion, or other method sanctioned by law and applied to such military or civilian needs as may be authorized or required by applicable provisions of law. Civilian supplies may be obtained from adjacent surplus areas within the country in which the military forces are de- ployed, from neighboring countries, or from the Zone of the Interior. Types of supplies that may be approved for issue from military stocks consist principally of food, clothing, engineer equipment to insure operation
of essential utilities, medical supplies, transportation equipment, fuel, and lubricants. Commanders having area responsibility, their staffs, and CA units are charged, for example with the following:
AGO 6147B     
(a)     
Planning activities on the basis of strategic-logistic
studies.
(b)     normal standards of living, including
Surveying
health and dietary factors.
(c)
    Reviewing agricultural and industrial patterns of the area to determine the effects of administrative poli- cies on civilian supplies.

(d)
    Estimating adequacy of available civilian supplies.

(e)
    Making recommendations as to movements of essen­tial civilian supplies, particularly food and fuel, from surplus to deficit areas.

(f)
    Recommending supplies which should be made avail- able from military sources and allocations to be made of such supplies.

(g)
    Making recommendations as to supplies available for military use from civilian sources in accordance with the rules of international law.

(h)
    Negotiating with civilians to obtain support for mili- tary units.

(i)
Insuring coordination of transportation facilities for the distribution of civilian supplies.

(j)     
Analyzing the organization of collecting and distrib- uting agencies handling essential supplies.
(k)
    Purchasing, requisitioning, drawing, or otherwise ac- quiring, warehousing, and accomplishing distribution of civilian supplies in accordance with established policies and applicable requirements of law.

(1)
    Establishing and maintaining civilian supply records.

(m)
    Conducting liaison with supply agencies to insure that military supplies are provided for civilian use as approved by the commander.

(n)
Assuring adequate safeguarding of essential civilian supplies.

13.     Public Facilities Functions
Included in this group of functions are three related fields which generally can be considered on a national scale, although important subsidiary activities, particularly in utilities and trans- port, may be of special interest on the local level. These areas are of marked importance because of the probable direct utiliza- tion of their resources and support by military forces.
a. Public Works and Utilities. This function is concerned with the supervision and operation, where required, of such facilities as buildings, dams, water, gas, waste disposal, electrical, and other power systems, and restoration or introduction of such
32      AGO G147B
services. Commanders having area responsibility, their staffs, and CA units are charged, as appropriate, with-
(1)
Survey of the organization and capabilities of key in- stallations including extent of damage.

(2)
    Analysis of the organization, functions, and authority of regulatory agencies.

(3)
    Recommendations as to the desired extent of operation of civilian facilities by military agencies.

(4)
    Determination of requirements of public utilities for labor, technical assistance, replacement parts, and fuel.

(5)
    Recommendations as to the allocation of public utilities for civilian and military use.

(6)
    Recommendations regarding police protection of essen- tial facilities.

(7)
    Requisitions of military supplies and materials through civilian supply channels to aid in rehabilitating public works and utilities.

(8)
    Supervision over facilities released from military to civilian control.

(9)
    Acquirement of essential public utilities services from military sources.

b.
Public Communications. This function is concerned with the supervision of the postal services and of those civil communi- cation facilities not under the direct military control of the signal officer. Commanders having area responsibility, their staffs, and CA units are charged, as appropriate, with-

(1)
Analysis of the location, functions, means, and tech- niques of communication facilities and postal services existing in the territory.

(2)
    Study and supervision of the organization and adminis- tration of civilian communications. For example, postal services are often organized and administered in con­junction with telephone and telegraph services.

(3)
    Review of existing international agreements relative to communications.

(4)
    Analysis of requirements for communication parts and material and determination as to whether such require- ments can be supplied locally or whether other sources must be utilized.

(5)
    Review of the organization, authority, and functions of regulatory bodies.

(6)
    Study of requirements for and availability of civilian technical specialists.

(7)
    Recommendations as to the extent communication fa- cilities should be controlled, supervised, or operated by

AGO 6147B     
the technical services, the CA organization, or other units.
(8)
    Recommendations, in accordance with policy directives, as to the allocation of communication facilities between military and civilian use and determination of alternate means of communications available to support the local administration in the event facilities are required for military use.

(9)
    Control, supervision, or operation, in accordance with established policies, of civil communications facilities and postal services.

(10)
    Requisitions, in accordance with policy directives, of military supplies and equipment for rehabilitation and operation of communications facilities.

(11)
    Recommendations as to measures for protection of es­sential communications facilities.

(12)
    Supervision of return to civilian control of facilities no longer required for military use.

c.
Public Transportation. This function is concerned with supervising those transportation facilities which remain under or are transferred to the civil government or private operators. The railways, highways, airways, and waterways form a system of public transportation, and this system must serve our armed forces as well as the civilian economy of a country. Commanders having area responsibility, their staffs, and CA units are charged, as appropriate, with-

(1)
    Survey of the organization, routes, and capacities of the transportation system including extent of damage and requirements for restoration.

(2)
    Analysis of the organization, powers, and functions of regulatory agencies.

(3)
    Recommendations as to the desired extent of operation of the civilian transportation system by the military agencies.

(4)
    Determination of requirements of civilian transporta- tion system for labor, technical, engineer or other assist- ance, replacement parts, and fuel.

(5)
    Recommendations as to the allocation of transportation facilities for civilian or military use and coordination of such recommendations with the appropriate military agencies, e.g., operation of railways by the area military railway service or airlines by the Air Force.

(6)
    Arrangements for police protection of essential trans- portation facilities and installations.

(7)
    Requisitions, in accordance with policy directives, of

AGO 6147B
military supplies, fuel, and materials for use in rehabili- tating and operating transportation facilities.
(8)
    Acquirement of minimum essential transportation facili- ties for civilian use and assessment of civilian facilities available for military use.

(9)
    Supervision over facilities released from military to civilian control.

14.     Special Functions
These functions are concerned with people, their rights as individuals; their culture, religion, care, protection, and control. Planned direction and constant supervision are essential to uni- formity of operations and to the successful accomplishment of activities within this category.
a. Civil Information. The function of civil information is con- cerned with the operation of public communication media, such as the press, radio, motion pictures, and postal services. To assist in the conduct of this function, psychological warfare personnel may be attached to CA units to support CA operations (see FM 33-5). Commanders having area responsibility, their staffs, and CA units are charged, as appropriate, with-
(1),Survey and analysis of available information media.
(2)
    Studies of the facilities employed to disseminate infor- mation to the people, the type and extent of the informa- tion disseminated, and the degree of its acceptance by the people.

(3)
    Preparation, distribution, and dissemination of informa- tion through Armed Forces radio stations and civilian information media.

(4)
    Recommendation of procedures for and supervision of civilian information media, including review and censor- ship of material to be disseminated.

(5)
    Removal of those civilian personnel, engaged in the op- eration of information media, who are inimical to the United States or not in sympathy with its policies and objectives.

(6)
    Recommendations regarding measures for protection of physical facilities of information media, e.g., newspaper plants and radio stations.

(7)
    Requisition, protection, and issuance of supplies includ- ing newsprint, ink, and radio parts.

(8)
    Coordination of civil information activities.

b.
Displaced Persoas, Refugees, and Evacuees. This function is concerned with the control, care, repatriation or resettlement of displaced persons, refugees, and evacuees. Consideration must

AGO 6147B     
be given during the course of military operations to the deliberate movement by the enemy of refugees, evacuees, and displaced per- sons into friendly areas of operations. Failure to control the movement of such persons may seriously interfere with the ac- complishment of the tactical mission. Commanders having area responsibility, their staffs, and CA units are charged, as appro- priate, with-
(1)
Survey and analysis to determine-

(a)
Estimated numbers      of      displaced persons, refugees, and evacuees together with routes of movement to selected assembly points.

(b)
    Languages, customs, and attitudes of the people con- cerned.

(c)
Adequacy of facilities and local supplies in the area in which such persons will be found.

(d)
    Probable desires of such persons.

(e)
Attitudes and policies of the governments of the native countries toward such persons.

(f)
    Acceptability of such persons as immigrants to other nations.

(2)
    Preparation of plans for control and supervision of the welfare of refugees, displaced persons, and evacuees (movement, housing, feeding, and medical service) and administrative processing thereof.

(3)
    Operation and administration of refugee camps and planning for required construction.

(4)
    Requisition and issuance of supplies for support of refugee camps.

(5)
    Maintenance of liaison with appropriate agencies regard- ing plans to repatriate, resettle, or move displaced per- sons and refugees.

c.
Arts, Monuments, and Archives. This function, in its broad aspects, seeks to protect the traditional culture, customs, and arts of an area. It is specifically concerned with maintenance or estab- lishment of protective measures for cultural property such as important religious edifices, monuments, and movable objects including archeological, historic, scientific, and artistic objects and collections. (See FM27-10, DA Pam 27-1, and App XXIII.) This function also includes duties and tasks concerned with safe- guarding and accounting for archives and official public records. The function may include concern with cultural patterns and respect for local customs and traditions. Commanders having area responsibility, their staffs, and CA units are charged, as appro- priate, with-

AGO 6147B
(1)
    Surveying and preparing-

(a)
    Lists of individual objects of fine arts and monuments known or believed to be in the territory, showing their location and the names of persons or organizations having custody thereof.

(b)
     of repositories of archives, museums of art,

Lists
libraries, and collections of archives and objects of fine
arts showing their locations and caretakers.
(c)
    Lists of names of known authorities on fine arts and archives within the country.

(2)
    Preparing and publishing directives and instructions concerning the care and protection of fine arts, monu- ments, libraries, archives, and other objects of historical and cultural value.

(3)
    Advising commanders and other staff sections concern- ing fine arts, monuments, libraries, archives, and records that are or will be uncovered.

(4)
    Locating, identifying, ascertaining ownership, and safe- guarding objects of fine art, monuments, libraries, archives, and records.

(5)
    Requesting technical services for such logistical support and technical assistance as may be required and author- ized.

(6)
    Recommending return of property to rightful owners.

I———­
' Signature of bearer
I Photo of or fingerprints or
r bearer 1 both
I I
I
I

w     v
IDmmm          I
 I
 I
 
for personnel engaged in the
 protection of cultural property
 
,E665s&d
stamp',Surname bf authorit$
First names \ issuing I Date of Birth \, card ,'Title or Rank
..
Function      –1'
 
is the bearer of this card under the
 terms of the Convention of the JIague,
 
Height Eyes Hair dated 14 May, 1954, for the Protection of Cultural Property in the event of Armed Conflict.     
Other distinguishing marks
…………………………………

Date of issue Number of Card
…………………………………
 

——————————–…………………………………
 

…………………………………
 

…………………………………
 

Figure 2. Identity card of persons engaged i?a protection of cwlt~rral property. The emblem alone may be afioed to protected property.
AGO 6liiB     
(7)
    Marking protected property with such identifying sym- bols as may be designated by appropriate authority or international agreement.

d.
Religious Aflairs. Personnel charged with this function seek to foster or preserve religious freedom ;protect shrines, buildings, symbols, and devices associated with religion ; support and en­courage clergy of all faiths and creeds in their practices except those facets of a religion inimical to the U.S. war effort or any rites detrimental to the life or health of the practitioners. Com­manders having area responsibility, their staffs, and CA units are charged, as appropriate, with-

(1)
    Continuing studies on religious practices, structures, physical symbols and devices, hierarchies, and major personalities.

(2)
    Fostering and encouraging religious freedom except where the beliefs or practices pose a security threat to

U.S. forces or endanger the lives of participants.
(3)
    Developing areas of compromise and arbitration to lessen friction and hostility between diametrically opposed religious groups.

(4)
    Determining restrictions on the use of religious fa- cilities. Religious buildings, shrines, and consecrated places employed for worship may be used only for aid stations, medical installations, or for the housing of wounded personnel awaiting evacuation, providing that a situation of emergency exists.

(5)
    Seeking methods of effecting compromise between dietary habits, based on religious beliefs, and the production and distribution of foodstuffs.

(6)
    Developing codes of behavior and educating troops to reduce possibilities of offensive acts contrary to religious customs and practices of the area including any mission- ary activities on the part of U.S. Armed Forces personnel.

AGO 6147B
 

CHAPTER 3
 
ORGANIZATION FOR CIVIL AFFAIRS OPERATIONS
Section I. GENERAL
15. Basic Concepts
a. The CA organization serves as an agency at the disposal of the military commander to assist in the accomplishment of his assigned mission and to combat enemy action which may be either planned or unplanned. In addition to assisting the commander in combating enemy action, the civil affairs organization is available to support him in accomplishing other missions which might be assigned. Examples might include training indigenous allied forces; supporting civilian authorities in the United States in emergencies ; supporting activities of field representatives of the Department of State in negotiating and implementing provisions of civil affairs agreements, and developing supplemental agree- ments between allied military commanders during deployment of
U.S.
forces in friendly foreign countries. Planned enemy action may consist of driving refugees into friendly lines to disrupt mili- tary operations ; sending infiltrators into friendly lines to gather information and attack vulnerable lines of communication and administrative installations, and disrupting the political, economic, and sociological structures of countries under enemy occupation in order to weaken the will of population to resist. Unplanned enemy action may include the damage to civilian economies and centers of population which normally accompanies full scale mili- tary operations. Resulting chaos and confusion must be reduced in the shortest possible time in order to lessen interference with the conduct of military operations.

b.
The CA organization must be flexible and adaptable to local political, economic, and sociological conditions. It must be pre- pared to implement policies transmitted by proper authority. It is responsible for recommending changes or modifications to policies and providing substantiation for such recommendations through the observation of results in the field.

c.
The CA organization is concerned with the regulation of those social processes which represent the changing ways in which human beings relate themselves to others. Social processes are complex and unpredictable. Detailed prior planning enables the commander to employ the CA organization in the regulation of social processes and in the control, supervision, or influence of

AGO 6147B
the local population, government, and economy. In order to utilize fully the capabilities of the CA organization, military commanders must provide adequate direction to the CA units, teams, or detach- ments placed under their control, and must insure that such units, teams, or detachments are effectively employed, adequately supported, and properly supervised. (For information on the doctrine and principles employed in military operations, see FM 100-5.)
d.
Fundamental justification for the civil affairs organization is found in the military principle of ECONOMY OF FORCE. One trained civil affairs officer or a small but qualified detachment working through and with civil authorities and population can accomplish what might be difficult, or even impossible, for a com- pany or battalion of troops.

e.
General principles of U.S. Army CA organization are appli- cable to any U.S. Army force, regardless of size or type, and will be applied to the extent possible within joint or combined commands.

f.
A considerable degree of CA area authority is usually dele- gated or sub-delegated to tactical commanders down to and in- cluding division commanders. CA area authority, when delegated, is normally given to the highest U.S. Army command in the area of operations. Decentralization of CA authority to other com­mands is usually required during fluid or rapidly moving or changing situations. In static or stable situations, as early as the situation permits, centralization of CA area authority normally is effected to relieve commanders to the maximum extent possible and to facilitate conformance of civil affairs areas of responsibili- ties with existing political boundaries.

g.
For field operations, commanders will require CA elements organized and trained for tasks indicated by assigned missions. Emphasis to be given each of the wide variety of functions will fluctuate with the progress of military operations and changes in national policy.

16. Theater Commander (U.S. Forces)
a. Conduct of relationships between foreign national govern- ments and the senior U.S. military commander in a theater of operations depends upon the degree of authority delegated to him. This policy will be decided at the highest level.
(1) When U.S. diplomatic representatives are in the area and functioning, relations between the senior military commander and such diplomatic representatives usually will be delineated by Executive Order and may include the organization of a Country Team.
AGO 6147B
(2)
    When U.S. diplomatic representatives are not in the area, the senior U.S. military commander is normally given full authority within national policy, to contact, advise, assist, coordinate, or exercise controls, as re­quired. Extent of such authority will vary.

b.
The theater commander implements his policy directives in planning, directing, and coordinating CA operations of all forces under his command, and in coordination with U.S., allied, and UN civilian agencies. He is authorized, but not required, to delegate CA authority. Such delegation will normally be to the senior U.S. Army commander in the area directly subordinate to the theater commander.

c.
In the conduct of his relations with the civil government of the area, the theater commander, within the designated limitations of his authority, establishes and delineates policies which are to be implemented, and assigns missons to major subordinate com- mands. However, he does not normally furnish detailed instruc- tions on the manner of execution. G5 staff sections and CA units within the theater of operations are appropriately employed at the various levels of civil government as the focal points of contact with local officials. CA elements of the military force are not used in substitution for agencies of civil government ex- cept where local government has ceased.

d.
In the conduct of civil affairs activities in friendly territory, the theater commander may exercise some or all of those func- tions normally exercised by the local government. The degree of control exercised by the military commander may be limited by a civil affairs agreement. Since it is normally desirable to restore governmental functions to the recognized central govern- ment of the area at the earliest practicable date, the military commander transfers the exercise of controls to the local govern- ment as rapidly as the military situation permits. It is desirable, prior to the initiation of civil affairs activities in friendly ter- ritory, to conclude a formal civil affairs agreement. Where an adequate civil administration is in existence, the theater com­mander's civil affairs activities may be limited to the conduct of proper relations between his forces and the civil population and such procurement or utilization of local resources or facilities in support of his military operations as may be authorized.

17.    Political Advisor
a. As the agency within the United States Government pri- marily charged with the development and implementation of foreign policy, the Department of State may furnish a political
AGO 61473     
advisor to the staff of the theater commander having civil affairs responsibilities.
b.
The duties of the political advisor are limited to advising the commander on established policies in such matters as govern- mental affairs and relations with other allied and neutral coun- tries and to furnishing informal contact with the Department of State.

c.
Contact between personnel of the CA staff section and of the office of the political advisor should be habitual, informal, and characterized by mutual confidence.

18. Subprdinate Commander
a.
Each commander of a military unit, regardless of its size or subordinate position, must comply with the applicable pro- visions of international law with respect to the inhabitants, gov- ernments, and economies of occupied, liberated, or host territory.

b.
Ordinarily, a commander will depend upon CA units and personnel to deal with local civilians and governmental agencies and to secure for him necessary assistance, supplies, and facilities from local sources.

c.
He may be required to perform CA missions in the field in the absence of CA personnel or units.

19. Combined Operations
When United States forces operate in conjunction with allied troops, the responsibility for conduct of CA operations may be assigned to a combined command.
a.
Directives covering broad aims and policies for initiation or conduct of CA operations by combined or separate allied commands are promulgated preferably by a higher international policy-forming body. If such an organization is not in existence or if international representation is not supplied at the head- quarters of a combined or allied command, an advisory or con- sultative body may be established for the purpose of furnishing policy guidance and effecting coordination with the governments concerned. The composition of this body is not limited to repre- sentatives of allied nations responsible for conduct of the operation; it may include representatives of other nations not participating in, but concerned with, the operation.

b.
A United States officer commanding a combined command complies with CA operational instructions, formulated at inter- allied governmental or command levels, which are transmitted to him through normal command channels. He not only insures adequate CA coverage in his operation plans and in plans of his subordinate commanders, but he also makes an equitable allocation

42 AGO 6147B
of responsibilities for the implementation of CA plans among na- tional forces under his command, to include, when appropriate, provisions for CA units and personnel. Responsibilities of the senior United States commander serving under a combined com- mand are similar to those described above. In addition, he brings to the attention of appropriate authority those policies or actions in the field of CA operations that are believed to be contrary or prejudicial to international law, United States law, United States national interest, United States war objectives, or the postwar international position of the United States.
c.
When United States and allied forces are employed under a single commander, staff representatives from each force are provided. Although the organization of the CA staff section and the principles of staff operations are the same as in unilateral operations, it may be necessary to develop common staff proce- dures. Methods of representation on combined staffs are similar to those for joint staffs and are described in FM 101-5.

d.
In the conduct of combined operations, reference will be made to the various intergovernmental agreements which have been concluded for the purpose of standardizing civil afTairs operations, organization, training, procedures, and methods. (See apps. XV through XX, and FM 41-5.)

20. Delegation of Authority
a.
A theater commander is authorized but not required to delegate his authority for CA matters in all or a part of the theater of operations to a designated deputy or to the theater army, navy, or air force commander. In a theater containing army units of significant size, the army component commander is normally the officer to whom this delegation is made. He, in turn, except as limited by the theater commander, may in his discretion subdelegate this authority to subordinate commanders. Each commander who delegates authority to conduct CA operations will define the extent and degree to which this authority may be subdelegated. All delegations of authority are accompanied by the transmission of appropriate policy guidance, orders, and in- structions.

b.
A commander delegated CA area authority is responsible for CA operations within his assigned area. He may subassign areas of responsibility to subordinate commanders in accordance with the overall theater plan.

21. Requirements for CA Units
On the basis of politico-military objectives, the task organiza- tion, and detailed study of target areas theater requirements for
AGO 6147B
CA staffs and operating units should be determined sufficiently in advance of an operation that personnel and units can be organized and trained for their specific assignments. Criteria for estimat- ing requirements include-
a.
Number and types of tactical and administrative echelons of command to which CA authority will be delegated.

b.
Attitude of target population.

c.
Geographical size and population distribution.

d.
Complexity of economic development and socioethnic struc- ture.

e.
Type of mission.

f.
Length of time operations will continue.

22. Coordination
a.
Theater Army G5 is responsible for general staff supervision of CA matters within the theater army (TA). Under guidance and directives of the TA commander, CA aspects of plans and operations are coordinated at all echelons between Theater Army Civil Affairs Command (TACAC), when established, and other major subordinate commands of theater army by exchange of liaison officers, command and staff liaison, or both. Lateral com- mands are mutually responsible for exchange of information, requests for supporting action, and coordination of activities in areas of mutual concern.

b.
Operations of Theater Army Logistical Command (TALOG) and TACAC are very closely related and mutually supporting in many fields. Continuous liaison must be maintained at all levels. CA staff sections within TALOG will be the normal point of con- tact for informal communications with CA units that support and are supported by TALOG.

c.
TACAC will normally be required to conduct relationships with external commands and agencies through theater army head- quarters. Theater army may authorize TACAC to establish and maintain liaison with theater air, theater navy, allied commands, or other agencies engaged in CA operations or supported by theater army in CA operations. Activities of external agencies directly affecting the civilian population, its government, economy, and institutions, conducted within the area for which TACAC has civil affairs responsibility, are normally subject to coordina- tion and control by TACAC.

d.
The theater commander may authorize other U.S. govern: mental or private agencies to conduct activities of a CA nature. As the principal operating agency available to the theater com- mander for handling relations with the civilian population, its government, economy, and institutions, TACAC should usually be

44 AGO 6147B
given the authority and responsibility for control and coordina- tion of such activities.
e. Commands and agencies under the control of the U.S. Navy, U.S. Air Force, allied forces, or theater headquarters may be authorized to conduct civil affairs operations, or such organi- zations may be stationed within the area for which TACAC is responsible. On matters pertaining to civil affairs, TACAC should be authorized direct communication for interchange of informa- tion, requests for action, and coordination of activities affecting the local population.
Section II. ORGANIZATION OF STAFF SECTIONS
 
AND UNITS
 

23. Elements of Organization
The CA organization consists of staffs, units, and teams. Through these staffs, units, and teams commanders discharge their CA responsibilities. Technical channels of communication will normally be established between CA staff sections and com- parable echelons of higher and subordinate commands to insure uniform implementation of plans and policies and maximum co- ordination of overall CA operations. Due to the extraordinary scope of CA activities, CA elements require great flexibility. Every effort should be made, however, to plan organizational structure, to select personnel, and to train individuals and units for employment at specific echelons of command or levels of gov- ernment. CA units, as such, are not organized for and cannot simultaneously perform the functions of a staff section and an operational command.
24. Staff Sections
a.
The Assistant Chief of Staff, G5, is established as a general staff officer at all echelons of command down to and including the division and comparable units. On a directorate staff, the CA staff officer is designated Director of Civil Affairs. In lower com- mand echelons a CA subsection, operating as an element of the G3 Section, can perform the required functions until a G5 has been made available.

b.
The G5 Section has primary staff responsibility for planning, coordinating, and supervising CA operations to include relation- ships, between the civil population, its government, economy, and institutions and the military forces. In a large command, or where CA may become a major or primary mission of the com- mand, the commander may appoint a deputy for CA operations or may make the CA staff officer a member of his personal staff. The.G5 or CA staff section must be of sufficient size and flexibility

AGO 6147B
to meet the needs of its command echelon and the situation. The nature of CA operations at levels below division normally does not impose a requirement for separate staff sections. At these levels, military-civil relationships become a matter of more im- mediate and personal concern of the commander. Staff responsi- bility for CA activities is assigned to a coordinating staff officer, normally S3, designated by the commander.
c. In joint or combined commands, the CA staff section will be given an appropriate designation. Standardization agreements provide that armies of NATO countries will accept responsibility for appropriate CA administration and support and will have CA staffs and units. See appendixes XC-XX, inclusive.
25. Composition of CA Units
a. The organization of CA units is based on the following con- siderations:
(1)
Efficient command and control.

(2)
Utilization of improved technological means.

(3)
Flexibility with associated economy of personnel.

(4)
Pooling of critical specialist personnel at the highest echelon consistent with centralized control or decentralized opera- tions.

b.
Each element of CA organization is specifically designed to conduct CA operations at a specific echelon of command or level of government. Each CA unit is organized on a cellular basis, with a headquarters administrative and command team supple- mented by appropriate functional teams and service teams. The flexible composition of this organization permits varying require- ments to be met without the creation of special units or the sub- division of fixed units. However, for the purpose of simplifying training and providing guidance for unit organization and for calculating requirements for units, type organizations for the CA units are prescribed by the Department of the Army.

26. Command Support Units
a.
CA command (tactical) support units are those provided for operational use to army groups, field armies, corps, divisions, and other commands, as required to perform recurring CA tasks. Units may be either assigned or attached and accompany the command in movement. Size of command support units will vary, but the following will normally be the minimum:

b.
CA support for a brigade, task forces, and special com­mands will vary greatly, and units assigned or attached, if any, will be tailored for specific circumstances.

S~~pportedOrganization  CA Unit  
Army Group  Area Hq Unit  
Field Army  CA Group  
Corps  CA Company  
Division  CA Platoon  
AGO 6147B  

27. Area Support Units
CA units which provide area support are attached to major tactical or administrative units to augment the units which pro- vide command support and to perform continuing CA functions in specific geographic areas.
28. CA Command
a.
Any commander delegated authority to conduct CA opera- tions normally will exercise these activities through a single CA command consisting of a headquarters unit and its subordinate units and teams.

b.
CA commands are flexible organizations capable of perforrn- ing command or area support operations, which may vary widely in scope and complexity. Flexibility is based on availability of cellular type functional teams from which appropriate combina- tions can be selected to form the CA command organization required.

c.
A CA command structure, with central control over all subordinate area support units, provides maximum continuity and minimum fragmentation of supervision, policy, and authority. In the interest of economy of personnel, stability, and efficiency a CA command normally should be activated at the highest com­mand level.

d.
The smallest CA command is a platoon assigned or attached to a division or comparable headquarters. Next, in order of size, is the CA company, followed by the CA group and the area head- quarters units, B (reduced strength) and A (full strength), each with attached or assigned subordinate units.

e.
In civil affairs operations the issue of centralized versus de- centralized control is particularly significant. It is apparent that commanders to whom CA area responsibility has been delegated require the organization and authority to accomplish their mis- sion. This may involve at the apex a theater CA command, par- ticularly where there are combined operations (see app. XV), and, on a descending scale, a theater army civil affairs command (TACAC) or a TALOG civil affairs command with additional commands established at lower levels where authority is sub- delegated. The further delegation of authority is extended the greater will be the difficulties in effecting coordination and con- formity of national policy guidance. It is essential, even where decentralized CA operations are authorized, that strong central

AGO 6147B 47
direction be exercised through command channels. This neces- sitates CA staff sections possessing the size, functional breadth, and flexibility imperative for the development and dissemination of advisory guidlines to insure the implementation of national goals.
f. CA units required by a command for area support are nor- mally attached. Upon displacement of that command or when the CA units are no longer required, control of these units will pass to the commander designated to exercise CA authority in that area. To the maximum extent practicable, area support units will be organized and trained for deployment in specific areas well in advance of commitment.
29. CA Group
The CA group may be employed in either command or area support roles; group headquarters may be used alone or it may command up to ten companies. It may be assigned responsibility for CA operations of theater army, an army group, a field army, or for CA area support in a province or a very large city. When used in a province, its functional teams would advise, assist, supervise, or direct appropriate departments of the provincial government, with its attached companies and their functional teams performing a similar role in political subdivisions. It may receive and hold for training or deployment individuals, teams, and smaller units. It may conduct schools or other training.
COMMANDING OFFICER
I
 

EXECUTIVE 0mcER
I 1
 

ADCWISWTION OPERATIONS
FUNCTIONAL TEAMS
SECTION SECTION
I
 
Figure 3. Type organization civil affairs platoon.
AGO 6147B
 

30. CA Company
The CA company may be employed in either command or area support roles; a company headquarters may be used alone or it may command up to fifteen platoons and the necessary functional teams. It may be assigned responsibility for CA operations of a corps, or for CA area support in a large city, a major subdivision of a province, or function as part of a CA group. Its organization generally parallels that of a CA group headquarters. The com- pany is the smallest CA unit that can adequately conduct its own supply, mess, and personnel operations.
31. CA Platoon
The CA platoon may be employed in either command or area support roles; it may be used alone or may be augmented with a
=
COMMANDING omcm
I
ADMINISTRATION OPERATIONS SLPPLY AND IvKixmmAI?CE SECTION SECTTON SECTION

I I I
 
PUBLIC SPECIAL ECONOMIC GOVERNMENTAL FACILITIES FUNCTIONS SECTION SECTION
SECTION SECTION
Figure 4. Type organization civil affairs company.
AGO 6147B
 

variety and number of functional teams. It may be assigned responsibility for CA operations of a division, or other command with comparable CA responsibility, or for CA area support in a city, a subdivision equivalent to a county, or function as part of a CA company; It is the smallest CA command. It includes no organic specialists except a public safety NCO but may be aug- mented with those functional teams required for its specific mission.
32. CA Area Headquarters (Type A-Full Strength)
The Type A Area unit may be employed as the national head-

COMMANDING OFFICETI

L
I
mmVE OFFICER
I

A'ITACHED
 
COMPANIES FUNCTONAL TEAMS
 

Figwre 5. Type organization civil affairsgroup.
50 AGO 6147B
quarters unit for a country or as the headquarters of a Theater Army Civil Affairs Command (TACAC) .
33. CA Area Headquarters (Type B-Reduced Strength)
The Type B Area unit may be employed as the national head- quarters unit for a small country or as the headquarters of a
ECONOMIC DIVISION
Economics Commerce and Industry Food and Agriculture Price Control & Rationing Froperty Control Civilian Supply
I
m C FACILITIES DIVISION
BRANCW Public Works and Utilities Public Comunications Public Transportation
OPERATIONS mUARTERS

1
 
LOGISTTCS COMMANDANT SECTION
GO-DIVISION
BRANCHES Civil Government Public Finance
Public Safety Public Welfare Legal Lzbor Public Education Public Health
SPECIAL FtJNCTTONS DMSION
BRANCHES Displaced Persons Public Information Arts, Monuments, & Archives Religious Affairs
Figure 6. Type organization civil affairs area headquarters "A" (full strength) or 'dB''(redr~ced strength).
AGO 6147~
.

..

DECEWEKLZED CHAIN OF COMMAND
,,-POLITICAL BOUNDARY NOTES: 1. Additional units attached by size and nmber required.
2. Other Corps and Divisions not shown.
Figure 7. Command and area stcpport chains of command in a field armv area.
AGO 6147B
 
~
o
THEATER ARMY
…….0…­'" ~
HEADQUARTERS
G-5
….         I
b:I
II         I
TACAC TARS
TALOG
DIRECTOR TACTICAL
~

HEADQUARTERS HEADQUARTERS OF CA
COMMANDS
I     I
I
I I II         2.
r1.
BALOG         ADLOG
CA OPERATING
CA OPERATING AREA
THEATER
II
Figure 8
UNITS
CA SCHOOL
UNITS
COMMA.N1lS
I
,..——­
OF CA II DIRECTOR OF CA IS-5
3·         3.
i,
AREA COMMANDS AREA COMMANDS
S-5
S-5
 
NOTES:
 

1. G-5 staff sections in Army Group, Field Army, Corps , Division and comparable command headquarters.
2.         CA operating units assigned or attached for combat and administrative support to Army Group, Field Army, Corps, Division and comparable units.
3. As required.
(,1'1         Figure 8. Theater army civil affairs organization.
Co)
Civil Affairs Command (CACOM). It is also adaptable for spe- cial type missions which may be assigned by theater or theater army commander such as an advisory staff for a restored national government or a government-in-exile and may serve as a sub­ordinate unit of a CA command.
34. CA Schools and Training Centers
a.
School units serve as administrative and instructional or­ganizations. In a theater of operations they provide special area and refresher training to CA units and personnel and develop and present instructional courses to other units and personnel, as required. In the continental United States, training may be broader in scope, although area and language training may be in- cluded. All instruction will adhere to established doctrine and principles of both civil affairs and general military subjects. (See AR 350-25 for standardization agreements on civil affairs train- ing.)

b.
Training centers receive, activate, organize, equip, and dis- patch CA units. Training may be individual or unit. They may hold units or individuals until they are sent overseas, committed, or reassigned.

Section Ill. CELLULAR TEAMS
35. Types of Teams
Cellular teams of various sizes and capabilities are provided to permit their combination into organizations appropriate for CA command support or area support missions of distinctive character. The teams are of four types-
a.
Administrative and command teams. Providing platoon, company, group or other headquarters personnel (TOE 41-500 and appropriate TD's) .

b.
Functional teams. Each specially qualified in one of the functional areas of civil affairs as previously described in chapter 2 (TOE 41-500).

c.
Language teams. With personnel qualified to provide trans- lator-interpreter services appropriate to the area (TOE 41-500).

d.
Service teams. Food service, automotive maintenance, and signal personnel (TOE 41-500, TOE 29-500, and TOE 11-500).

36. Functional Teams
a. Specialization. Functional teams in different sizes are or- ganized to deal with every facet of the socio-politico-economic life
54 AGO 6147B
of the civilian community. They are formed as cells for attach- ment or assignment to any CA unit where their services have application. Teams are organized for each function discussed in chapter 2 except civil government which is a general unit task.
These teams are-
(1)
Arts, Monuments, and Archives

(2)
Civil Information

(3)
Civilian Supply

(4)
Commerce and Industry

(5)
Displaced Persons

(6)
Economics

(7)
Food and Agriculture

(8)
Labor

(9)
Legal

(10)
Price Control and Rationing

(11)
Property Control

(12)
Public Communications

(13)
Public Education

(14)
Public Finance

(15)
Public Health

(16)
Public Safety

(17)
Public Transportation

(18)
Public Welfare

(19)
Public Works and Utilities

(20)
Religious Affairs

b.
Assignments. Teams are capable of assisting, supervising, or directing civilian offices performing the same or related func- tions at the level of government at which their headquarters operates. Functional teams are attached or assigned to units on the basis of organization and need, and the size of the unit and the nature of its mission determine to a large degree the employ- ment of the teams. Personnel assigned to an area headquarters unit, for instance, may be employed more generally in advisory, planning, and supervisory roles, whereas specialists assigned to groups and companies are more likely to be engaged directly in field operations. Teams are similarly composed but vary in size and in rank of personnel concerned.

c.
Flexibility. Organizational flexibility, based on requirements of the situation, is essential to all CA operations. For purposes of training and operational control the functional teams may be grouped into general categories. Separation into groups does not

AGO 6147~
necessarily reflect essential functional relationships, since each function is related to a certain extent to every other function. In the interest of operational expediency and administrative effi- ciency, the commander of the CA unit may consolidate functional teams into operating echelons on the basis of common interest, rank, or individual capabilities of personnel under his command.
d.
Command representation. Functional teams may, when au- thorized by their commander, represent him in direct contact with civilian officials of their corresponding function. All official com- munications are made in the name of the commander. The teams give technical advice and assistance as needed and evaluate the results. If the commander is authorized to exercise control over civilian officials, the teams supervise and coordinate the execution of orders and instructions issued.

e.
Military liaison. Teams maintain close liaison with military agencies having corresponding functions; for example, public safety with the provost marshal and military police, public health with the surgeon, and legal with the judge advocate.

f.
Team chiefs. The chief of each functional team directs the activities of the team members and keeps them informed as to the general mission. Through close cooperation and observation he keeps himself acquainted with the progress and problems of the unit to which his team is attached or assigned.

g.
Relationship to platoons. In order to maintain flexibility and to make full use of the capabilities of functional teams it is usually preferable to retain command of the teams at the company level, assigning team missions in support of specified platoons. If func- tional teams are attached to a platoon, it is normally preferable that team leaders not be superior in rank to the platoon com­mander. In the event a team leader is superior in rank, the com- pany commander should prescribe relationships and authority.

Section IV. PERSONNEL
37. Qualifications
Since personnel assigned to CA duties act as representatives of the United States in political, economic, and sociological aspects of military operations, extreme care in selection of personnel is essential to assure that representation is of the highest quality. It is desirable that personnel selected for CA duties be familiar with the basic principles and institutions of the United States; it is equally essential that such personnel possess and demonstrate complete loyalty and fidelity to the United States. The extent of
AGO 6147B
authority exercised by CA personnel, the far-reaching conse­quences of their routine decisions, and the lack of close supervision that is inherent in their functions necessitate that such personnel possess a high degree of integrity, judgment, initiative, ingenuity, and decisiveness.
a.
Integrity. CA personnel must possess absolute personal honor and integrity. Since they may be authorized to remove and appoint officials and to grant privileges and licenses, they are subject to various influences and temptations in the conduct of their activities. They must, therefore, act with propriety and must possess a high degree of personal dignity. Under no circum- stances should CA personnel allow themselves to become in the slightest degree compromised or indebted, socially or otherwise, to any local individual or group. Integrity must be rezdily ap- parent as well as actual in practice.

b.
Judgment. CA personnel must deal wisely with the local inhabitants, individually and collectively. They must be able to act with sound judgment and discernment in confused and un­familiar situations and be able to analyze intelligently the various elements of a complex problem, to foresee the long range effects of taking various courses of action, and to make sound recom­mendations. They must possess a mature attitude and avoid an appearance of conspicuous luxury in the midst of desolation and human want. Judgment must also include a ready comprehension that what is best in the United States is not necesszrily always best in other social, political, and economic circumstances and thzt the United States is less concerned with making over other nations in its own image than in helping countries to help themselves.

c.
Initiative. CA personnel must possess initiative. Manuals, directives, and policy decisions usually do not provide detailed instructions on the diverse types of situations which may be pre- sented. CA personnel may have to make decisions on matters of an urgent nature that cannot await referral to higher hesdquar- ters. They may, likewise, find it necessary to motivate the local inhabitants of the area into taking the initiative. When local officials are newly appointed to their positions, CA personnel must imbue them with the desire to act, whenever possible, on their own initiative in the accomplishment of desired objectives.

d.
Ingenuity. In the field of civil affairs the need for ingenuity must be specially stressed. Pressure and demands upon the civil populace may accomplish short-range goals but will seldom stimu- late long-range developments and solutions in a relatively un­familiar cultural setting. Sensitivity to local values and a creative imagination will be necessary to accomplish the CA mission. Un-

AGO 6147B 57
usual ways and means may have to be devised and often introduced in ingenious ways.
e. Decisiveness. The CA unit commander is responsible for operations of his unit. He meets his responsibilities by planning, by timely decisions and orders, and by personal supervision. Exercise of his authority must be based on a thorough understand- ing of the administrative and functional elements of his command, its capabilities and limitations, and proper methods of its employ­ment. It is important that decision responsibilities be discharged in such a way as to build confidence among CA personnel and civilians alike.
38. Assignment
a.
In assigning personnel to CA duties, it must be recognized that there is a scarcity of individuals qualified to conduct the various specialized functions. Every effort must be made to em- ploy the most technically qualified personnel at those echelons and in those positions for maximum utilization of capabilities.

b.
Consideration is also given in the assignment of personnel to such factors as age, military experience, and physical qualifica- tions. Personnel assigned to CA units or to the staffs of tactical commands employed in the combat zone should be 'physically capable of serving under combat conditions.

c.
Chiefs of G5 staff sections and their deputies assigned to the headquarters of major tactical and administrative commands should possess broad military education, experience, and back- ground. They not only should be familiar with correct staff pro- cedures and the operations of army forces in the field but should also have a thorough knowledge of the principles, doctrine, poli- cies, techniques, and procedures of the organization which con­ducts CA operations.

d.
Officers assigned as commanders and executive officers of CA units should have a thorough knowledge of military operations in the field, army administration, and specific training in CA principles, doctrine, policies, techniques, and procedures. Other unit officers, not assigned to the various functional teams, must be trained or experienced in general military subjects and in the conduct of CA operations and be qualified by military occupational specialty to perform their principal duties.

e.
Functional specialists assigned to the staffs of major tactical or administrative commands or to CA units should by reason of education, civilian occupation, or previous experience have a specific working knowledge of the specialty to which assigned and possess the appropriate military occupational specialty. All

58 AGO G147B
specialists assigned to CA duties should possess previous military training or experience. Personnel who have demonstrated out- standing competence should be assigned to high level staffs and commands in order to facilitate the furnishing of guidance and advice to other less qualified individuals assigned to subordinate elements. Personnel must have current knowledge of local condi- tions that might affect operations in their areas of specialization.
f.
Enlisted personnel assigned to special functions must possess, in addition to general military training, military or civilian ex- perience or training in the specialty to which assigned. Enlisted personnel assigned to general military duties must be qualified in the appropriate occupational specialty. Qualifications outlined in paragraph 37, apply to enlisted personnel as well as officers.

g.
For further information on personnel, see FM 41-5 and AR 350-25. Military occupational specialties for officers and warrant officers are contained in AR 611-112 and AR 611-101. Enlisted occupational specialties are contained in AR 611-201. For utiliza- tion of scientific and engineering assistants see AR 611-211.

39. Civilian Specialists
a. Civilians possessing acceptable qualifications in the various CA functional specialties may be procured in accordance with ap- plicable authorizations and policies for employment on the staffs of theater headquarters, CA area headquarters type units, or on staffs of other comparable levels of ~m~loyment
command. of foreign civilian personnel depends on the extent of allied partici- pation in the operation, the availability of United States military and civilian personnel, the level of command, and applicable policies.
b. In many oversea areas U.S. civilians living in the place, who possess a wealth of current information with respect to the area, specialized functional knowledge, and language capabilities, may be hired or temporarily transferred from another governmental agency to supplement the CA organization. Sources for these per- sonnel may be any other governmental agency which has tem- porarily suspended operations in the area because of hostilities, civilian employees of the armed services, commercial representa- tives, exchange students or professors, expatriates, or representa- tives of private or religious organizations who have the necessary qualifications. Personnel thus selected will require a certain amount of formal or on-the-job training for assignment varying with their age, education, occupation, and previous military experience.
AGO 614'iB
Section V. TRAINING
40.     General
a.
The ultimate purpose of all CA training is to prepare per- sonnel in CA assignments to carry out efficiently and expeditiously their CA missions.

b.
CA training comprises the training of individuals and units. See ATP 41-200.

c.
Trainees progressively receive individual basic combat, MOS, and CA training. In CA training, the trainees are first trained in basic subjects; then, the individuals are trained within the teams; next, the teams are merged and trained as units; finally, the units are given training tests to measure their proficiency.

41.     Continental United States
CA training is normally accomplished in the continental United States. The U.S. Army Civil Affairs School furnishes the training for individuals. Reserve units receive training as U.S. Army Re- serve units during peacetime and at CA unit training centers upon mobilization.
42.     Theater of Operations
In a theater of operations, CA units and personnel awaiting assignment receive supplementary training with emphasis on the area of operation. When it is necessary to procure additional personnel from theater forces, such personnel are normally trained in the theater of operations.
43.     Categories
CA training encompasses the following broad categories: gen- eral CA training, functional CA training, area CA training, and lznguage training.
44.     General Training
a. All Army personnel on active duty will be given a basic orientation in civil affairs matters. Instruction will be given on the following subjects:
(1)
The mission of civil affairs.

(2)
    The individual soldier's key role in civil affairs.

(3)
    Rules and conventions governing war, with emphasis on the enforcement of law, preservation of order, and the prevention of wanton destruction of civilian property, communications, records, and other items of value which are a part of the civilian economy or civilian institutions.

AGO 6147B
(4)     
Organization and functions of civil affairs staffs and units.

b.
Additional general instruction will be given to all Army offi- cers on active duty to impart a knowledge of civil affairs organi- zation and operations equivalent to that required for officers of the combat arms with respect to the organization and operations of administrative and technical services.

c.
Advanced instruction, as appropriate, will be given at the

U.S. Army War College and the U.S. Army Command and General Staff College to include the following subjects:
(1)
Comparison of systems of government.

(2)
Training     and     employment     of civil affairs units and personnel.

(3)
    Civil affairs planning.

(4)
    The combined or inter-allied aspects of civil affairs operations.

(5)
The methods of including civil affairs problems in in- structional and training exercises.

d.
Personnel assigned or selected for assignment to civil affairs staff sections or units will be given training to include the follow- ing special subjects:

(1)
History of civil affairs.

(2)
Comparison of systems of government at the national, state or provincial, and lower levels.

(3)
    National policy concerning civil affairs operations.

(4)
    Rules of land warfare and appropriate maritime law.

(5)
Civil affairs organization and functions.

(6)
    Local procurement in support of military operations.

(7)
    Logistical organization and procedures of the Armed Forces as pertains to civil affairs.

(8)
    The nature of inter-allied civil affairs operations.

(9)
(On mobilization) Area Training to include language. In this category of training, emphasis should be placed on the similarities of peoples and their institutions. Stress should be placed upon the similarities between various geographical and national areas, rather than upon their dissimilarities, such as in the outward forms of institutions, languages, or governmental structures. In addition, attention will be given to sociological consideration of the persons and institutions composing a complex modern society and of the techniques available to manipulate them for the accomplishment of the CA mission.

AGO 614713     
45. Policies
a.
Maneuvers and other training exercises will when practicable include problems requiring the participation of civil affairs units and staff sections.

b.
Instruction on civil affairs organization and operations will include principles contained in STANAG7s and SOLOG Agree- ments on these subjects (apps. XV-XX).

46. Functional CA Training
It is contemplated that functional personnel will have had prior professional or technical training appropriate to the specialty for which they are selected. Such functional personnel and teams receive additional specialized instruction and training in their various functions at appropriate Army installations and civilian institutions.
47. Area CA Training
a.
Students are trained in area study techniques to develop an understanding of the principles involved in area studies. Regard- less of the place of employment, a CA unit must be able to adjust itself, with a minimum of effort, to operate efficiently in any area.

b.
When the area in which units and personnel are to operate is known, area training is given in the history, geography, econ- omy, psychology, customs, institutions, government, and language of the area.

c.
When for political or security reasons it is not possible to train units and personnel for a specific area operation, training in the techniques of collecting and applying information is accom- plished through the study of the United States, of the areas of previous CA operations, or of fictitious areas prepared by the training authority.

48. Language Training
a.
Language specialists are trained in language training facili- ties available to the Armed Forces.

b.
Language training given to other than language specialists during the unit training program is conducted concurrently with area training for the primary purpose of providing familiariza- tion rather than fluency.

49. Enlisted Personnel
a.
All enlisted personnel must have some training in the CA principles, policies, organization, operations, and procedures.

b.
The additional training of enlisted men varies with their assignment:

62 . AGO fj147B
(1)
Administrative and service personnel are qualified by military occupation specialties acquired through attend- ance at appropriate military schools or on-the-job training.

(2)
    Enlisted specialists, selected by reason of military and civilian background and experience, are given additional training in their functional specialties at appropriate military schools and training centers.

50.      Objectives
Among the objectives of unit CA training are the following:
a.
Prepare the CA unit for the accomplishment of its assigned mission.

b.
Stress the importance of the CA activity in assisting military operations.

c.
Promote knowledge and skill in the controlling and govern- ing of the inhabitants of an occupied area.

d.
Provide a working knowledge of the drafting, promulgation, and enforcement of proclamations, laws, ordinances, and orders.

e.
Develop an understanding of the principles of area study.

f.
Develop an understanding of the factors involved in the restoration of civil government and the cessation of the CA operation.

g.
Provide practice'in coordinating procedures for the effective administration of CA functions in an occupied area.

51.     Conduct
a.
In training, emphasis is placed on the practical application of the principles and policies presented.

b.
Instruction in a subject once completed is applied, whenever possible, to other training.

c.
All instructional personnel must be qualified instructors. When required, appropriate courses in methods of instruction are provided.

52.     Standards
CA training is designed to promote knowledge and skill in in- fluencing, controlling, or governing populations. Standards for this objective require the development of a high sense of responsi- bility which is characterized not only by the attainment of exemplary deportment, manners, and morale, but also of technical branch knowledge.
AGO 614iB     
53. Supervision of Training
a.
The quality and efficiency of training is directly proportional to the amount and degree of continuous personal supervision of the unit commander and his supervisory staff. Interference with the training schedule by such activities as administrative, service, and housekeeping duties should be kept to the minimum.

b.
Records of training completed are kept timely and accurate in order that personnel may be promptly and properly accredited with such training.

c.
Observation, inspection, periodic tests, and exercises are utilized to determine the progress of training. Though modifica- tions in training schedules may be necessary, no part of the in- struction prescribed by the appropriate army training program is omitted.

AGO 6147B
 

CHAPTER 4
 

CIVIL AFFAIRS STAFF FUNCTIONS AND PROCEDURES
54. CA Staff Officer (G5)
a.
The general staff acts as a single agency in the coordination of all of the principal functions of the commander. Each general staff officer is charged with primary responsibility for assisting the chief of staff in the coordination of those activities included within a specified functional field. For functions and relationships of various general and special staff officers within a headquarters, see FM 101-5.

b.
The Assistant Chief of Staff, G5, is the principal staff assistant on matters pertaining to the civil population, its govern- ment, economy, and institutions.

c.
G5 is assigned primary general staff responsibility for preparation and execution of CA policies, plans, orders, and direc- tives, and is charged with keeping the commander and members of the staff informed on all matters of CA interest. Other general staff sections of the headquarters likewise keep the G5 informed, as appropriate, on personnel, intelligence, planning, and logistical matters. Since activities of one general staff section have a bear- ing on the activities of other sections, close mutual coordination and support are essential to the preparation of plans, policies, and programs.

55. Staff Supervision
a.
The G5 insures that CA plans, orders, letters of instruction, and other documents are received by subordinate units of agencies. He makes certain that the documents are correctly understood and, when necessary, advises on methods of imple­mentation. Close supervision is necessary to assure carrying out the intent of orders and instructions. Supervision is effected by visits and by study and analysis of special and routine reports of subordinate units. G5 staff section officers, in their inspections, determine whether policies of the commander are being followed and advise subordinate units and their staff sections on actions they should take to assure conformance with these policies. Staff supervision of civil affairs units is of particular importance to insure proper conduct and effective coordination of various func- tional specialties.

b.
Staff visits are made in the name of the commander as his designated representative. Visiting staff officers conduct them-

AGO 6147B
selves in such a manner as to promote cordial relations and cooperation with the commander and staff of subordinate units and refrain from criticism of, or interference with, the responsi- bilities of the subordinate commander.
c. Personnel of G5 sections are advisors, planners, coordinators, and supervisors. As members of the coordinating staff, they should not allow themselves to become too engrossed with the details of administration and operation. A general staff officer
(G5) has no authority to command subordinate elements of the command. He conducts staff supervision of those activities for which he has primary general staff responsibility.
d. In those CA units not possessing a staff of sufficient size to administer and coordinate unit activities the unit commander may find it advantageous to assign certain of his functional specialists additional duties as unit staff officers. This procedure is especially warranted where the unit is employed as a CA com- mand with control over subordinate units, and, under any cir- cumstance, it provides a standard and workable structure for internal administration and coordination of the functional teams.
56. Command and Staff Relationships
a.
Relationships between the G5 of a major tactical or adminis- trative command and CA units operating in the particular area are primarily dependent on whether the commander of such major echelon has the responsibility for CA operations within his area.

b.
When the commander of a major tactical or administrative command is delegated CA area authority, the commander of the unit assigned or attached to form a CA command normally should be authorized to exercise command over subordinate CA units attached to the major echelon. The commander of the CA com- mand receives his orders and instructions through command channels. His contacts on matters of plans, policies, and pro- grams are primarily with G5; however, he may also deal with G1 on matters of personnel, with G2 on intelligence, with G3 on the , organization for and conduct of tactical operations, and with G4 on the logistical support of his operations.

c.
Although contacts with the CA commands of higher or sub- ordinate major echelons niay be extensive, such contacts are normally confined to technical matters for the exchange of special- ized information, techniques, and procedures, and are always in accordance with the commander's policy on use of such channels. Prescribed command channels between higher headquarters and subordinate CA units are followed except in emergencies. In such emergencies, bypassed commanders are promptly informed of any instructions that have been issued. When the commander of a

AGO 6147~
major tactical or administrative command is not delegated CA authority, the G5 section coordinates mutual support with CA units operating in the area.
d. While the G5 has primary general staff responsibility for the coordination of matters involving military-civil relationships, this in no way subordinates the specialized interest and activities of other elements of a command, particularly certain of the special and administrative staff sections. Examples can be cited in every area of staff interest-e.g. the responsibilities of the provost marshal with respect to mtitual problems of military and civilian law and order, traffic control, and the circulation of individuals, and the responsibilities of the transportation officer in operations and allocations of the means of public transport used for the movement of military personnel, supplies, and equipment (figs. 16-27, FM 101-5).
57. Estimates of the Situation
a.
The commander's decision is influenced by the political, economic, and sociological characteristics of the area of opera­tions in addition to other considerations. A CA estimate, accord- ingly, assists the commander in reaching a decision by evaluating for him political, economic, and socioIogical conditions and weighing the effects of these conditions on differing courses of action.

b.
FM 101-5 contains detailed information on preparation of estimates of the situation and a form and example of a CA esti- mate for use as guides. The form of CA estimate described therein is particularly suited for use by the G5 of a major tactical or administrative command in selecting the actions that best support the accomplishment of the mission of the command as a whole and in determining the major CA features that must receive the commander's attention. In the analysis and compari- son of appropriate CA actions, the various functional specialties are grouped in such a manner as best to facilitate their considera- tions.

c.
Appendix I1 shows a sample form or format for a CA unit commander's estimate of the situation suitable for use by the commander of a CA area headquarters, group, or company. This guide for preparation of an estimate is a modification of the basic form contained in FM 101-5; it is a logical and orderIy examina- tion of the factors affecting the accomplishment of the mission to determine the most suitable course of action for the unit as a whole. The basic form for the commander's estimate is arranged to insure investigation of all pertinent factors. When time per- mits, a complete written estimate may be made. When time does

AGO 6147B
not permit, as is usual in smaller units, the form may be used as a checklist to insure consideration of all factors essential for a decision.
58.     Plans
a.
General. The successful accomplishment of national objec- tives in military operations in which United States Armed Forces participate depends in large part on recognition of the necessity for prior planning at the theater level for conduct of CA opera- tions. Since detailed prior planning is also essential at all echelons of command within the theater, the theater or senior United States commander must provide an overall CA plan for guidance of his subordinate commanders in order to prescribe the objectives of operations and insure continuity of policies and uniformity of their application. Authority and responsibility for CA activities during military operations should be vested in mili- tary commanders and not divided between military and civil agencies.

b.
Policzj Guidance. Since planning at all echelons of command is dependent on the receipt of adequate and timely policy guidance, each headquarters within the theater concerned with planning for CA operations must incorporate policy guidance in its plans and disseminate applicable instructions to its subordinate units. Such guidance must relate not only to ultimate objectives but also to pertinent operational phases and functional specialties.

c.
Planning Proceclu~es. Planning procedures to include the formulation of plans, coordination in the preparation of plans, assignment of planning tasks, determination of planning phases and programs, and the preparation of outline plans are fully described in FM 101-5. Planning for the conduct of CA opera- tions, which is a continuous process, consists primarily of three basic steps :

(1)
Compilation of essential information and data relative to missions and proposed actions of the commands con- cerned.

(2)
    Analysis and evaluation of assembled information to determine feasibility, capability, and method of accom­plishing the stated objectives.

(3)
    Preparation and dissemination of plans, directives, orders, and instructions necessary for subordinate units to plan for and execute the functions involved in their CA operations.

d.
Planning Considerations. At all echelons of command plan- ning considerations include, but are not limited to­

68      AGO 6147B
(1)
Manner in which CA operations may best contribute to the overall mission of the command.

(2)
    Coordination of CA operations with other operations.

(3)
    Requirements of CA operations for unit and administra- tive support.

(4)
    Capability of the command to support CA operations.

e.
Development of Theater Plan. The military force serves primarily as an instrument of national policy in the attainment of political objectives. Accordingly, the theater or senior United States commander insures that primary attention is given in the preparation of his plan to the politico-military objectives which he has been directed to attain and to limitations which may be imposed by the rules of customary international law, terms of treaty or agreement, and policy guidance received from higher authority. Preparation of the overall CA plan necessitates a determination of the precise depth of area to which the military operation will penetrate. A detailed study mu'st be made of area intelligence to include geographical and economic features; the density and composition of the population; forms and levels of government and attitudes, customs, and traditions of the people. Information on sources of area intelligence is contained in chapter 9.

f.
Content of Theater Plan. The overall theater CA plan prescribes the objectives of operations; specifies the depth and extent of the area to be cove;ed by projected operations; provides information on the anticipated phasing of the operation; assigns CA missions and furnishes guidance on the delegation of CA authority to commanders of major tactical and administrative commands ;establishes the CA organization and requirements for units, and includes direction on deployment of command and area support units. The overall plan furnishes general instructions on relationships with national or local civilian authorities and the degree of control, influence, or supervision to be utilized. Policies are set forth pertaining to conduct of the various functions and levels of government at which they will be conducted. Guidance is also included on the extent of procurement of local supplies, equipment, and services for military use, the furnishing of civilian relief and economic aid from the United States or other countries, and on other matters essential to the conduct of CA operations. When projected operations are to extend into the territories of two or more nations, variations of objectives and policies with respect to each nation necessitate clear differentiation in plans. Planning for deployment of units should stress simplicity and flexibility so that unforeseen requirements can be met readily with

minimum disruption of the planned organization. Each Theater
AGO 6147B     
CA plan involving operations in countries with which suitable civil affairs agreements have not been negotiated should include drafts of agreements which are essential to the accomplishment of the plan as a basis for agreement negotiations.
g. Implementation of Theater Plan. Since army forces have the unique capability of providing control of land areas and the popu- lation therein, implementation of CA portions of the theater plan is normally an army responsibility. The theater or senior United States commander is responsible for insuring that subordinate commanders receive the means for implementing the theater plan by insuring that qualified personnel are provided for staffs of subordinate commands, providing command and area support units for deployment at the required time and place in accordance with the overall theater plan, and insuring the timely issuance of the theater plan.
59. Orders
a.
The CA plan is put into effect by issuance of appropriate orders and instructions. The five-paragraph form of operation plan or order prescribed in FM 101-5 is particularly suitable as a guide in the preparation of the CA annex to the operational or administrative orders of a major tactical or administrative com- mand. Since the preparation and issuance of an operation order is the staff responsibility of G3, other staff officers concerned, including G5, furnish G3 with drafts of paragraphs or annexes pertaining to their activities for inclusion in the resulting order. As the preparation and issuance of an administrative order is the responsibility of G4, G5 submits to G4 paragraph 5 and other related subparagraphs and annexes pertaining to CA functions for inclusion in the complete order.

b.
Determination of whether CA instructions are to be included in the operation or administrative order, or both, and the manner of their inclusion is normally made by the chief of staff. This determination is based on type and level of the command con­cerned, nature of the operation, and necessity for direction of subordinate elements on such matters as objectives, delegation of CA authority, deployment of CA units, and policy guidance per- taining to the various CA functional specialties.

c.
In continuing situations, CA instructions previously issued in orders may be included in standing operating procedures with additional instructions issued in fragmentary form.

d.
Since annexes to operation and administrative orders are authenticated by the general staff officer having primary responsi- bility in the field of the annex, G5 authenticates annexes, appen- dixes, tabs, and inclosures pertaining primarily to CA activities.

70 AGO G147B
e.
CA units publish their instructions in appropriate orders.

f.
Form and example of a CA annex are shown as appendixes I11 and IV.

60. Standing Operating Procedures
a.
The purpose, scope, and form of standing operating proce- dures (SOP) are set forth in FM 101-5. In general, standing operating procedures prescribe routine methods. Their prepara- tion or development frequently requires prior operational experi- ence. Standing operating procedures should not repeat matters already specifically covered in field manuals. They are intended to simplify orders, assist training, promote understanding and teamwork, and make operations more effective.

b.
The standing operating procedures of a major tactical or administrative command may be supplemented by staff section standing operating procedures and may include references thereto. Standing operating procedures may be prepared to govern pro- cedures used by assigned or attached CA units or by subordinate commands. Standing operating procedures of a division or higher echelon may contain a CA paragraph or separate annex. An annex should not repeat matters otherwise covered in the standing operating procedures but may include reference thereto.

c.
Standing operating procedures applicable to CA operations may include a statement of application ; appropriate instructions pertaining to the delegation of CA area authority; assignment or attachment of units; sources of area intelligence; procedures for area surveys; measures for handling suspected personnel and documents of intelligence value; establishment of civilian check- points; measures and procedures on conduct of the various func- tional specialties; handling and issue of civilian supplies; per- sonnel matters not otherwise covered in standing operating pro- cedures of the command concerned; instructions pertaining to the location of command posts ;establishment of liaison ;responsi­bility for communications, and submission of reports.

d.
The form shown in appendix VI may be used as a guide.

61. Handbooks
a. CA handbooks may be published by the theater headquarters or, in combined operations, by the senior allied headquarters to serve as a basis for the training of personnel assigned to CA duties and to provide information and guidance on applicable policy directives for the use of all concerned with the planning for and conduct of CA operations. Due to variations in objectives and
AGO 6147B
policies, it is normally desirable to provide separate handbooks for each country in which CA operations are to be conducted. Hand- books of a general nature setting forth basic policies pertaining to the general organization and conduct of CA operations and containing basic documents such as initial proclamations, laws, and ordinances, or the provisions of civil affairs and other agree- ments, as applicable to the situation, are of particular value to non-specialist officers. Such handbooks may be supplemented with other technical handbooks containing detailed procedural guidance on the various functional specialties primarily for the use of specialist personnel. Although handbooks must include sufficient information on the political, sociological, and economic structure of the area of concern to permit an understanding of the actions which are to be taken, they do not constitute a primary source of area intelligence.
b. A handbook for commanders of units other than CA units may be published by the theater headquarters or, in combined operations, by the senior allied headquarters for each country in which operations are to be conducted to furnish general informa- tion and guidance which will be of assistance to tactical or admin- istrative unit commanders in the conduct of their relations with the inhabitants of the area. Such handbooks should be prepared in the form of ready reference guides and may contain informa- tion on the historical background and social and economic develop- ment of the country ; governmental structure at national, provin- cial, and local levels; organization of political parties; police, security, and legal systems; banking and monetary systems; civil service system; treatment of civilians ;establishment of courts, as appropriate; anticipated problems of a unit commander in the area, and measures for the protection of United States and allied elements of the military force. Handbooks for tactical or adminis- trative unit commanders provide only limited assistance to CA unit commanders, since the latter require information and guid- ance of a more detailed and comprehensive nature.
62. Reports
a. The periodic CA report is valuable to commanders and staffs for providing an accurate picture of the situation at regular inter– vals. .It furnishes information relating to areas of jurisdictiol,, locations of units, results of operations, area and political intelli- gence, actions taken, outstanding problems pertaining to the various functional specialties, and special recommendations and requests for actions necessary to accomplish objectives. When the periodic report is prepared by divisions and higher echelons, portions of the report included in the periodic intelligence, per-
72 AGO 6117B
sonnel, and logistics reports of the command may be summarized or deleted to prevent repetition.
b. A specific form for the periodic CA report is not required by regulations. The headquarters requiring the report prescribes the form, content, and frequency of submission. Regardless of the format, clarity and accuracy must be carefully considered in prep-
'aration of the report to prevent misunderstanding or misinter- pretation and to insure reliability. Annexes consisting of maps, overlays, and other data, should be used whenever practicable to shorten the body of the report.
c. The format and example of a periodic CA report provided in appendix XXI and in FM 101-5 may be used as guides.
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CHAPTER 5
 
THE ARMY IN THE COMMUNITY
 
63. Military-Civil Relations
a.
Introducing a military unit or installation into a civilian community, either on foreign or domestic soil, has a social, economic, and often political impact on civilians in the area. From the standpoint of both civilian and military personnel, plus and minus values develop from the relationship. Civilians who cater to supporting the military unit in goods and services profit eco- nomically, but dislocations and a high friction potential are inher- ent in the relationship. Competition develops for real estate, goods, labor, and other area resources. Civilian facilities may be crowded by military personnel ;there is an increase in traffic con- gestion; prostitutes, gamblers, and purveyors of alcoholic bever- ages gravitate to the vicinity of military installations, offending citizens and creating new problems of discipline, control, security, and troop welfare. Military forces in cantonments occupy ground which may have been previously in civilian possession, and in maneuvers and training they destroy or damage crops, livestock, forests; fencing, roadways, and other civilian facilities and pos- sessions.

b.
It is important that the commander inculcates in his per- sonnel a sense of civic responsibility and, simultaneously, attempts to develop new reserves of civilian good will. The extent of par- ticipation in the affairs of the civilian community is as diverse as the varied situations of locale, mission, and political climate. When civil administrative machinery is rendered incapable of functioning, the commander may have complete responsibility for administering the affairs of a normal civilian jurisdiction. In the United States and its possessions or in a friendly foreign country he may command a unit or an installation where he not only encounters almost complete jurisdictional limitations outside the physical bounds of his installation, but, also to some degree, shares internal jurisdiction with constituted civilian authorities.

64. Programming Relationships
a. Contacts between military personnel and civilians run the gamut from individual, person-to-person relationships, informal and by chance in nature, through multiple degrees of official guid- ance. In some cases the individual relationships are given some pattern and direction through loosely organized programs where
74 AGO 6147B
successful achievements are geared to a large extent to individual initiative and voluntary effort. Married military personnel, because of common interests, housing, and facilities, often tend to isolate themselves to a considerable degree from the civilian popu- lation, and the civilians are more exposed to, and formulate their opinions of a military unit from younger soldiers who seek recrea- tion away from their installation during off-duty hours.
b. To promote better understanding and warmer military-civil relationships, various programs are used to encourage more inti- mate contacts between military units, personnel, their families, and civilians. Discussion of military-civil relationships in cold war and during hostilities will be treated in greater detail in chap- ters 6 and 7, respectively, but following are some of the programs, projects, and activities in which military units may participate in CONUS or overseas during peace or war:
(1)
Information activities. Normally the Information officer is charged with developing a good public image of the Army by information activities which tend to place the Army in a favorable light and insuring fair and impar- tial news coverage. Normally the Army has no censor- ship over media of public expression in the U.S., its possessions, or in friendly foreign countries, therefore cooperation obtained often reflects cooperation extended.

(2)
    Open houses, exhibits, and demonstrations. Within limi- tations imposed by security and operational considera- tions, good will and community understanding are stimu- lated by opening military facilities to visitors, showing informative and educational exhibits, and giving demon- strations which simultaneously provide entertainment and emphasize the posture of U.S. military strength. An extension of the same general program can be conducted in the civilian community by participation in parades, providing concerts by military bands, demonstrations by drill teams at public functions, and furnishing speakers for appearances before selected opinion-influencing groups.

(3)
    Participation in athletic leagues OY events. Joint mili- tary-civilian participation in athletic contests or leagues, if properly handled, can engender good will, but undue partisanship will destroy any advantages accrued.

(4)
    Orientation of personnel going abroad. Orientation pro- grams vary in scope from passing out circulars contain- ing helpful hints and short orientation lectures to more sophisticated orientation programs such as the instruc-

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tion given at the Military Assistance Institute for per- sonnel assigned to MAAGs and missions. The institute provides concentrated briefings on the area and country to be visited, supplemented by kits of material for indi- vidual reference and study. In many cases, further orientation of personnel is conducted on the ground during the first days after arrival in a foreign country.
(5)
Joint civil programs. Military participation in such pro- grams as support for orphanages or similar indigent groups, cooperation in the sponsorship of youth organi- zations, and fund drives develops warmth and approba- tion. In general, it can be said that making personnel, facilities, and equipment available in programs of general or specific welfare within limitations imposed by capa- bilities and policy directives promotes friendly attitudes proportionate to efforts expended.

(6)
    Counterpart cooperation. Many general and special staff officers in military units, including CA functional special- ists, have counterparts in the civilian community. Close liaison and cooperation in programs of mutual interest to military and civilian agencies are advantageous to both. Where a G5 is assigned to the military unit these relationships should be coordinated through his office; otherwise civil affairs considerations should be focalized through one office, that of the commander himself or of his chief of staff or executive.

(7)
Armed forces disciplinary control boards. Armed Forces Disciplinary Control Boards are established under AR 600-10 with membership normally composed of the sur- geons and provost marshals from military installations in a designated area. In meeting with invited civilian representatives from nearby communities they make a major contribution toward improving the health and moral climate of the civilian community in the vicinity of the military installation to the advantage of both military personnel and the community.

(8)
U.S. Information service program. The USIS, operating under direction of the American Embassy and conduct- ing a broad program of information, cultural, and edu- cational services for the population of a foreign country, usually will have an activity located in the vicinity of

large U.S. military installations. Where such activities are located in the vicinity of a military headquarters, the military units normally have representation on plan-
76      AGO 6147B
ning committees for liaison purposes and to provide support from the military for the USIS program.
(9)
    Bi-national associations. In most areas there are organi- zations, associations, or committees with joint military and civilian membership, some of which are organized primarily to improve relationships. Meetings may be held in which mutual problems are discussed, and sup- port for various charitable, patriotic, cultural, educa- tional, and recreational programs, events, and facilities may be made matters of joint sponsorship.

(10)
    Unit and individual projects. Individual military units may organize a program of support for some orphanage, school, hospital, or similar facility on a continuing basis or in connection with specific events or holiday periods. Individual personnel may be encouraged to accept invi- tations to visit with local families. and to reciprocate with invitations to meals in unit messes on special occasions. Military equipment and volunteer manpower may be used to assist civilian communities in the de- velopment of playgrounds, athletic fields, or other com- munity facilities. Families may be encouraged to accept children guests in their homes for extended periods particularly during summer school vacation. Many mili- tary personnel and members of their families are well qualified to lend assistance with local education programs in English and in other subjects. Assistance with local USIS programs and other educational and social welfare activities is one of the most important individual means of building good will in lands where people are still thirsting for knowledge and where social needs are fre- quently great.

65.     Advisory Councils
Aside from civil affair units, the apparatus by which military- civil relationships are conducted differs from command to com- mand. Frequently community relations organizations are estab- lished which may include as members the commander, selected members of his staff, and representatives from national or re- gional (depending on the locale) governmental and civic organi- zations (see AR 360-55). These committees, which may be set up either in CONUS or oversea areas, can serve any or all of the following purposes:
a.
Medium of official liaison.

b.
Action agency for joint programs.

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c.
Sounding board for official and unofficial civilian and military reactions to specific incidents and conditions.

d.
Agency through which diverse requirements and counter- requirements can be weighed and compromised.

e.
Policy group for the allocation of aid and assistance.

66. Joint Commissions and Committees
To achieve essential coordination in the resolution of mutual problems and the drafting of status of forces and similar agree- ments when U.S. forces are stationed in oversea areas, Civil Affairs Commissions may be established. The commission mem- bership should include the senior civil affairs officer of the com- mand, representation from the embassy and other U.S. organiza- tions, and central government level official(s) of the host country. The same organization can be expanded in scope by the formation of regional committees with comparable local level representation. Additionally, closer cooperation and unity of purpose can be ob- tained between G5 and embassies by the establishment of a liaison office or offices.
67. Cold War Activities
In the interest of promoting security, political stability, and economic development of other nations the United States since World War I1 has been committed to an extensive program of foreign military and economic aid. These programs have neces- sitated the stationing of U.S. troops on the soil of other sovereign powers under the authority of negotiated bilateral and multilateral agreements either as security forces or to provide training assist- ance for foreign military units. The terms of agreements involved and the scope of missions assigned are diverse, but, in every instance, U.S. commanders and their personnel have significant capabilities for furthering U.S. foreign policy and fostering deep- er appreciation in host countries for the essentiality of mutual military-civil understanding, cooperation, and support. Within the limitations of primary mission, funding, terms of assignment agreement, and national policy, U.S. military units possess equip- ment, facilities, supplies, technologically qualified individuals, and labor resources which provide a direct capability for improving the image of the United States among people in the locale of their assignment. Personnel in the units and their dependents, as indi- viduals, have an even greater potential for favorable influence by their personal conduct, courtesy, and attitude of friendly coopera-
tion toward citizens of the host country. Except in those cases where relatively large security forces are involved, however, the greatest contribution which can be made by U.S. military
78 AGO 6147B
organizations abroad is in the nature of guidance, advice, and planning assistance for numerically superior host country forces in the promotions of military-civil rapport. Results will be mea- sured in strengthened economic and political bases, divorcenlent of the general population from dissident elements, and reduction in underprivilege and tension. Chapter 6 contains more detailed discussion of army cold war activities.
68. Disaster Relief
Nature on the rampage can promote destruction and suffering comparable to the ravages of war. Floods, earthquakes, storms, and tidal waves on a large scale produce devastation, dislocation, and untold human misery. At the same time the sophisticated in- dustrial and transportation equipment of modern civilization in- volves hazardous by-products of explosions, fires, and other accidental destruction. Military units with their disciplined man- power, technical experts, emergency equipment, stockpiled supplies, and transportation and communication capabilities normally receive first call for disaster relief missions. Operations vary with the locale and nature of the emergency. In the initial phases, certainly, there will be rescue operations, distribution of relief supplies, care for the injured, burial of the dead, prevention of the spread of disease, preclusion of looting, control of traffic, and restriction on the circulation of individuals. The situation and the terms of any agreement entered upon may involve control measures, some degree of civil administration, or important con- siderations of liaison and coordination when relief forces are international in character or involve several U.S. agencies. Dis­aster relief teams usually are composite organizations consisting primarily of technical service personnel, while civil affairs units possess specialists with training and skills appropriate and adaptable to provide either staff planning and direction or operat- ing elements. (See Public Law 875, as amended, and AR 500-60.)
69. Civil Defense
a. The U.S. homeland, except for one aerial attack on Hawaii during World War 11, has been largely inviolate from external threat for a century and a half. Modern day missilry, rocket bearing submarines, and high performance aircraft have neu­tralized the invulnerability of distance, and today continental United States is geographically only minutes away from the danger of hostile operations with incomprehensibly destructive weapons. Nuclear bombs and rocket warheads have the capability of destroying the largest cities and contaminating thousands of
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square miles of contiguous area with lethal, radiological fallout. New developments in chemical and biological warfare can spread death and lingering pollution. Civilians, civilian agencies, facili- ties, and resources are potential targets in any future conflict.
b.
All military units of the regular and reserve establishment are charged with planning and training for a possible civil defense mission and have been assigned zones of responsibility for em- ployment. Any military organization with its disciplined man­power, equipment and capability for quick reaction toward emergency can be usefully employed in civil defense operations, but of particular value, because of special skills and equipment, are civil affairs, military police, and all of the technical service troops. Reserve forces, because of their wide dispersal, have exceptional possibilities for employment in civil defense support, and, because active forces will likely be preoccupied with immedi- ate active defense and retaliation, the reserve structure may carry primary responsibility for passive defense, recovery operations, and reconstitution of civilian processes and administration.

c.
Civil Affairs units represent the only organizations in the military establishment which have planning, operational, and ad- visory capacities in most, if not all, aspects of civil defense. The functional structure of civil affairs organizations covering such important activities as safety, health, communications, transporta- tion, utilities, refugee handling, and governmental administration not only provides operational support capabilities but the organi- zation and ability to administer required military control pending the reestablishment of any segments of government rendered temporarily impotent by attack. The character and degree of military participation in affairs normally reserved to the civilian population will be a matter for decision on the highest govern- mental level and will be based on an assessment of considerations of both national survival and the preservation or reinstitution of civil democratic government. Following the initial chaos and dis- ruption involved in a massive attack, civilian lawyers, bankers, doctors, engineers, industrialists, educators, administrators, and all the other rank and file of the civilian economic socio-political apparatus will return from shelters and evacuation areas. They will possess a far more extensive aggregate capability for re­construction and reconstitution than military agencies, but civil affairs units have greater initial cohesion and discipline, can implement emergency controls, and can act as the nucleus force upon which civilian institutions may be reestablished.

d.
As a corollary to civil defense commitments, agencies of the regular military establishment should review passive defense plans and programs with a view toward placing more emphasis

80 AGO 6147B
on shelters and less on evacuation to escape anticipated fallout patterns. Where fallout is the primary planning criteria, there would be less military casualties, a higher commitment potential, and an immediate framework for mobilization if active units re­mained in place with their facilities, equipment, and supplies. Aside from the tactical advantages of adequate defensive meas- ures, a program of shelter construction within the military establishment would provide a psychological stimulus for family and institutional shelters in the civilian community. Costing for a program of this nature could be held within modest bounds, since most installations possess ample supplies of timber, earth, tools, engineering skills, and manpower. Commitments of per­sonnel to construction projects could be charged to physical fitness and important training for passive defense.
e. For more detailed information on civil defense see Public Law 920, AR 500-70, and FM 20-10. Civil defense in oversea areas is covered in section IV, chapter 7.
70. Martial Law
a.
Among the domestic emergency situations that may, depend- ing on the necessities of the case, justify recourse to a regime of martial law are flood, earthquake, windstorm, tidal wave, fire, epidemic, riot, civil unrest, or other extraordinary circumstances beyond the control capability of normal governmental officials. In such circumstances, a military commander may, on instructions from higher authority, or on his own initiative, if the circum- stances do not admit of delay, take such action necessary to main- tain law and order and assure the performance of essential governmental services. As government in the United States is a civil responsibility, the degree of military intrusion into the field of government, and correspondingly, the scope of military au­thority, is circumscribed by the necessities of the case. Civil and military officials in foreign states have similar powers with the extent of authority varying from country-to-country and regime- to-regime.

b.
Although, in the U.S., no declaration of martial law is necessary, it is customary for the President, the governor of a state or territory, comparable officials of other political subdivi- sions, or the military commander in question, to publish a Proclamation informing the people of the nature of the emergency and the powers which the military authorities feel justified in assuming. Such proclamation by itself confers no authority on the military commander. It does serve, however, to define the area of military control and the specific governmental functions and responsibilities to be exercised by the military authorities.

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c. As martial law is a temporary, extraordinary regime, great care must be taken in drafting proclamations, orders, instruc- tions, regulations, or any other martial law directives, lest such pronouncements assert more authority than is justified under the circumstances, fail to particularize the powers to be exercised, or have the effect of perpetuating the emergency or enlarging its scope. For more detailed information concerning martial law,
(see DA Pam 27-11), Lectures on Martial Law (1960), FNI 19-15, and AR 500-50. To the extent that they are applicable to domestic emergencies the control techniques outlined in chapter 8 may be utilized.
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CHAPTER 6
 
CIVIL AFFAIRS COLD WAR OPERATIONS
 
Section I. GENERAL
71. Definitions
a.
Cold War. The term cold war has been variously defined (par. 2k). Most of the definitions interpret cold war as involving the use of political, economic, technological, sociological, and military measures, short of armed conflict between regular forces, by which one nation seeks to gain an advantage over another. More simply, cold war in essence covers all aspects of the struggle between the Communist bloc and the free nations other than active hostilities between regular forces.

b.
Civic Action. Civic action, an aspect of civil affairs, is any function performed by military forces in cooperation with civil authorities, agencies, or groups through the use of military man- power and material resources for the socio-economic well-being and improvement of the civil community with a goal of building or reinforcing mutual respect and fellowship between the civil and military communities.

c.
Irregular. Irregular is a term applied to all types of non-conventional forces, persons, organizations, operations, and methods, including guerrilla, partisan, insurgent, subversive, resistance, terrorist, and revolutionary. Irregular activities in- clude acts of a military, political, psychological, and economic nature, conducted predominantly by inhabitants of a nation for the purpose of eliminating or weakening the authority of the local government or an occupying power.

72. Mutual Security
a. Purpose. The purpose of the mutual security program is to help develop and strengthen the nations of the free world in a common effort to maintain peace and achieve progress. The mutual security program is a major instrument of United States foreign policy. It reflects the fundamental fact that the security and prosperity of this nation cannot be separated from that of other nations. The United States Congress recognized this fact when it passed the Economic Cooperation Act of 1948. During the intervening period this ,country has worked through the normal channels of diplomacy and through international con-
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ferences of many kinds to reach solutions of new problems, thus increasing international responsibilities of the United States. A series of treaties of friendship, commerce, and navigation have been negotiated. A program of investment guaranties and special tax measures with respect to oversea profit has encouraged United States investments in foreign economies. Participation in the General Agreement on Tariffs and Trade (GATT), the Inter- national Bank for Reconstruction and Development, the Export- Import Bank, and the Development Loan Fund has sponsored trade and industry in many lands.
b.
Military Assistance. A major part of the United States mutual security program is military assistance. To deter general or local war, the United States has military alliances with a large number of the nations of the free world-bilateral treaties with a few and multilateral agreements with others through NATO, SEATO, the Rio Treaty, and ANZUS. In addition, the United States works with committees of CENTO. The Military Assist- ance Program (MAP) may be divided into two broad areas, materiel and training. The system of defensive alliances, coupled with MAP has built up a total strength which is several times larger than the United States armed forces. If the United States had to supply an equivalent amount of manpower and armament, the drain on American resources would be enormously increased.

c.
Training. The training program provides the following specific types of CA assistance to foreign military forces sup- ported by MAP on either a grant aid or military sales basis, or both.

(1)
    U.S. Schools and facilities. All U.S. Army schools and units include instruction in civil affairs (see AR 350-25) ; the U.S. Army Civil Affairs School presents courses to both American and allied students.

(2)
Mobile training teams. Mobile training teams are com- posed of U.S. military or civilian personnel on temporary duty in a foreign country to provide instruction to cadres of that country. Civil affairs teams may hc designed to emphasize one of the following: Academic Instruction, Civic Action (see pars. 79-84), Civil Defense (see pars. 69 and 106-107), Survey of Country, and Survey of Military Force.

(3)
    Technical representatives. Technical representatives are provided to assist recipient countries as advisors on the operation and maintenance of specific items of equip­ment. While such persons are used more in other activi- ties, they are not unknown in civil affairs. For example,

84      AGO 6147B
equipment used in language instruction and in mass communications often requires the services of technical representatives.
(4)     Missions and groups. This part of the program which provides for personnel assigned to MAP is very im­portant and is discussed in paragraph 77.
73.     Nationalism
Especially vulnerable to encroachment by the international Communist conspiracy are the underdeveloped countries. The forces of nationalism are gaining momentum as is the concurrent drive to modernization, wherein national interest and individual interests are torn between commitment to the old and familiar way of life and the attractions of a modern way of life. United States policy is dedicated to assuring that new nations are able to go forward in independence, with increasing degrees of human freedom and greater political and economic stability within the sociological fabric of cultural heritage and aspirations peculiar to each political sovereignty or coalition. To this end, economic aid, technical assistance, and military assistance programs are negotiated and implemented.
74.      Civil Affairs Organization
a.
Cold war operations of the civil affairs organization develop good working relationships between U.S. military forces and the local population as well as between host military forces and their own people. Individual civil affairs functional specialists and teams are available for assignment to assist in the development and implementation of a definite program for the conduct of relationships with the people, both as individuals and as members of the community. Fostering satisfactory military-civil relation- ships in a country is an effective means of utilizing military capabilities in fighting and winning the cold war. Civil affairs personnel dedicate themselves to techniques which will achieve this purpose. Proper attitudes, programs, and methods of opera- tions of military forces which provide for the rights and welfare of the population not only generate confidence and'cooperation on the part of the population but also have the effect of bringing together the military and the people into an effective composite working team. To accomplish this, civil affairs personnel must analyze and solve problems deriving from the political impact of military forces in the area; the use by military forces of local areas, facilities, goods, and manpower; the application of local laws and customs to the military forces, and the social relations between military forces and civilians.

b.
Planning for civil affairs cold war operations is comparable to other civil affairs plans in that policies and objectives must be clearly defined to provide operational guidance and instructions to the military commander. Provisions should be made for a draft civil affairs agreement which considers the political as well as the military aspects of the planned operation. Thus, as the need for such an agreement arises, it can be negotiated without delay with such modifications as may be required. Also provided in plans are procedures for procurement and training of civil affairs personnel to support operations. When U.S. diplomatic representatives are present and functioning in a country, an executive order delineates the authority and responsibilities of the commander and the diplomatic representatives, respectively.

75. Other U.S. Military Units
U.S. military units, wherever they are stationed and particularly in foreign areas, have a dual capability of participating in civic action projects and assisting host country military personnel with planning, technical assistance, and available resources in the development of their civic action ventures. Technical service units, in view of their equipment and training, are especially adaptable to performing many civic action type functions, but all elements of the army have capabilities for assistance in the form of labor, subsidiary skills, and loans or donations of equipment and supplies. Similarly, indvidual contributions of funds, sup-' plies, and effort cumu!atively may total impressive assistance. To the extent that the U.S. through its representatives abroad, both individuals and organizations, wins the trust, confidence, and gratitude of foreign peoples it will have contributed to the con- struction of another bastion of defense in the cold war. Personal friendships, individual and collective, strengthen diplomatic, economic, and military alliances ; provide sources of intelligence, and facilitate accomplishment of primary missions.
76. Country Teams
In every foreign country where U.S. troops are stationed, other governmental departments and bureaus, international agencies, church groups, and private institutions may be working toward common ends in at least some aspects of providing assistance and stimulating development in the host country. The number of U.S. government agencies alone is impressive, and close cooperation and cordial liaison are essential if optimum results are to be achieved. Coordination, not only on the policy but also at operating levels, will reduce costs, prevent duplication of effort,
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lessen the friction potential, and increase tangible results. Gen- erally in peacetime the ambassador is the coordinating authority for civil assistance programs. Country Teams are often established consisting of representatives of various national agencies, includ- ing the Chief of MAAG or Mission or senior military commander as the Department of Defense member, and with the Ambassador functioning as head of the team. In all of these civil and military relationships a CA officer and, in major operations, CA units are equipped to furnish essential liaison, develop plans, and provide functional aid and guidance.
77. MAAGs and Missions
a.
Military personnel, and their families, assigned to Military Assistance Advisory Groups and similar missions in countries of the free world have significant capabilities, disproportionate to the relatively small size of units concerned, to promote under- standing, cooperation, and kinship not only between their own personnel and the civilian population but also (through example, demonstration, and guidance) between the military forces and civilians of the host country. In many countries there is an unsatiated demand for education and development in various voca- tional and technical skills, and in every military unit and their associated families there are untapped reservoirs of knowledge and skills which can be channeled through voluntary efforts into programs of education and assistance. The very nature of the advisor's role-his daily and intimate contacts with host unit personnel, participating in their daily activities, sharing in their ceremonies, bringing them a better understanding of the United States, and showing a sincere interest in their language, culture, and welfare-goes far toward building bonds of mutual respect and loyalty.

b.
Much of the effectiveness obtained from individual and informal efforts of personnel in missions and advisory groups stems from their spontaneity, but no program can attain maxi- mum results without some degree of fixed responsibility within a unit. To that end, a section, even if it involves only one officer, should be established to coordinate military-civil relationships in each military unit, and assist in the development of similar pro- grams in the military forces of host countries. No less important than providing instruction in training procedures, the techniques of warfare, and the handling of military equipment is the con- current requirement for promoting an awareness in the host country forces of the necessity for military-civilian affinity and furnishing procedural guidance directed toward securing better relationships.

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78. Limited Actions
a.
The interplay of power politics, mutual security pacts, inter- national organization commitments, and considerations of national security may produce a situation at any time in which U.S. Army Forces will be committed under limited circumstances as to area, mission, type of operation, or weapons used. These actions may be variously categorized as police action, intervention, show of force, truce enforcement, retaliation, mutual assistance, preventive action, protective custody, blockades, or any of a number of other designations. Troops will be committed to active operations, including possible combat, within the bounds of whatever restric- tive policies may be in force, and the ever-present military-civilian relationships will be an important and continuing consideration for commanders concerned.

b.
Prior to commitment, in every case practicable, commanders engaged in operations of this nature should endeavor to obtain a signed agreement with host governments covering relationships between military forces and the civilian authorities and popula- tion. These agreements are normally negotiated at national gov- ernmental level, but where long-range agreements have not been reached prior to commitment or in any circumstance where iriitial agreement details are left to commanders, draft agreements covering command requirements should be prepared in advance as a recommended basis of negotiation. Expeditious concord in writing will go far toward preventing operational handicaps, pro- viding a basis for troop education and orientation and fixing positions of host governments in areas of possible friction. Regard- less of whether a government-to-government agreement has been reached, it is mandatory that commanders develop necessary func- tional working arrangements to establish coordination and har- mony between military forces and local governments.

Section II. CIVIC ACTION
79. Civic Action-General
a. Current U.S. military assistance legislation and directives provide that military assistance programs should encourage the use of local military and paramilitary forces in developing coun- tries on projects helpful to economic and social development, pro- vided such activities do not detract from capabilities to perform primary military missions. Military Assistance Advisory Groups (MAAG) or Military Missions assure that host military forces realize the importance of good military civil relationships.
88 AGO 6147B
b.
Contributions in facilities and services of military units can often meet the needs of a community or province in ways beyond the capabilities of the civilians and their authorities to supply. Military forces oftep possess better resources of manpower and material, organization, and communications, than do local civil- ians. Military participation in public projects with the civilians not only contributes materially toward socio-politico-economic progress in the area but builds up cumulative civilian good will for the military unit.

c.
By strengthening the socio-economic posture of the country, the military forces are able to reduce sources of civilian discontent and add materially to political stability. Even more highly developed areas provide a potential for military programs of joint military-civilian benefit especially in time of war or disaster when destruction has disrupted normal administration and activities. In some cases civic action may be a well-developed program involv- ing an established organization and careful planning.

80.     Civic Action Projects
The civic action program by the military forces of a nation can encompass everything from an individual imparting his par- ticular technical skill to another in order to help him solve a problem or better his condition, to the organization and function- ing of a duly authorized quasi-military organization for opening up and settling remote areas by providing security and aid in developing living needs. Care must be exercised not to impair the military effectiveness of participating units and that the projects should complement those of other U.S. agencies, such as the Agency for International Development (AID). Examples of civic action projects and objectives are listed below together with the type military individuals or units which might assist. These are to be considered representative and not all-inclusive.
a. Agriculture and Natural Resources.
(1)
Increase or improve production of animals, grain, or vegetable food products-individuals with farming experience, unit transportation, veterinary personnel.

(2)
    Insect and rodent control-troops or units with land or aerial spraying devices, medical, veterinary, and certain chemical warfare personnel.

(3)
    Transportation of agricultural produce, seeds and fer- tilizers-units with transport facilities.

(4)
    Construction of simple irrigation and drainage systems

(5)     
Clearing areas-units with equipment or tools or labor potential.

(6)
    Grading operations-engineer units.

(7)
    Forestry activities such as planting, thinning, and har- vesting-troop units with labor potential.

(8)
    Setting up and operating saw mills-engineer units.

(9)
    Devising and constructing flood controls–engineer units and troop labor.

(10)
    Reclamation of land and draining of swamps-troop labor units.

(11)
Harvesting of crops-all troop units.

-units  with equipment or tools, engineer units, or troop  
labor.  
AGO 6147B  89  

b. Industry and Communication.
(1)
    Assessment and development of acceptable sand and gravel resources for road work and general construction –engineer units.

(2)
    Installation, operation, and maintenance of telephone, telegraph, and radio systems-signal units.

(3)
    Construction of housing and buildings–engineers for designing and supervising, troop units for construction.

(4)
    Setting up and operating emergency communication centers, especially in times of disaster-signal units par- ticularly and any unit with communications equipment and personnel generally.

c. Transportation.
(1)
    Construct, repair, or improve roads and bridges-engi- neer- and troop units with labor or trucks available.

(2)
    Construct, repair or improve railway equipment-trans- portation, ordnance, and engineer units, and troop units with labor available.

(3)
    Construct, repair, or improve inland waterways, wharves, and harbors-engineer, transportation, and Navy units.

(4)
    Construct, repair, improve, or operate airfields-Air Force, transportation, engineer, army aviation, and troop units with labor available.

(5)
    Removal of individuals from disaster areas-all units with land, sea, or air transportation facilities and a capability for controlling circulation of individuals.

d. Health and Sanitation.
(1)
    Improve sanitary standards-medical and engineer units.

(2)
    Set up and operate dispensary units for outpatient treat- ment or to give first aid-medical units.

(3)
    Devise acceptable methods of disposing of human waste-medical units and engineer units.

(4)     
Provide safe water supply systems-engineer units, medical units, and troop labor.

(5)
    Eradicate malaria and other insect-transmitted diseases -medical units and troop labor.

(6)
    Teach sanitation, personal hygiene, and first aid-medical units and military units that train and operate under field conditions.

e.
Education.

(1)
    Give basic education training (i.e., reading and writing) to military personnel-all military units.

(2)
Provide technical training to military personnel which will be useful when individuals return to civilian status- all military units, especially technical service units.

(3)
Provide instructors for schools for basic education to youth and technical training for adults-all military units.

f.
Public Administration.

(1)
Provide guidance and assistance to public administrators in fields of organization, personnel selection, work proce- dures, etc.-civil affairs units and personnel and qualified personnel throughout military units.

(2)
Inspire confidence in and enthusiasm for the government the Army represents-psychological warfare units, public information units, military bands, and any organi- zation with a capability for public demonstration of esprit and military effectiveness.

(3)
Provide guidance and assistance to public safety admin- istrators in their police, fire protection, and civil defense activities, including disaster relief-civil affairs, military police, and engineer units and personnel, and qualified personnel throughout military units. Agencies or func- tions carrying heritages of notoriety, such as reputa­tions for arbitrary arrests, unethical or harassing investigations, or irresponsible property management, should be considered very cautiously.

g.
Community Development, Social Welfare, and Housing.

(1)
Preparation of plans, surveying, and construction super- vision and assistance for houses and community build- ings such as schools, civic centers, churches, orphanages, medical centers, etc.-engineer units particularly and all military units generally.

(2)
    Sponsorship of worthy community projects such as orphanages, schools, and medical centers-all military units.

AGO 6147B     
h.
Mass Communication. Provide advice and assistance on best methods of informing the people through such devices as publications, film, or broadcasting-public information, intelli­gence, and psychological warfare units.

i.
Mapping and Project Surveys.

(1)
Preparation of such necessary maps and charts for-

(a)
Planning road and railroad projects.

(b)
Irrigation and land development.

(c)
Political subdivisions and geographical features.

(d)
    Land use. engineer and individuals with ability in the fields of surveying, geodetics, and charting.

(2)
Preparation     of      nautical     charts and coastal surveys-Navy units.

j.
Paramilitary Organization.

(1)
Analysis of      mission, structure, functioning, equipping, and training of any existing paramilitary organization- civil affairs units and personnel.

(2)
Consideration     of      possible application     of para-military organization in accomplishment of national objectives in any of the fields mentioned in a through i, above- persons or units named in a through i above.

(3)
    Guidance and assistance in planning, organization, per- sonnel selection and training, project selection and imple- mentation and administration-civil affairs units and personnel.

81.     Criteria for Civic Action Projects
Experience has proved the guidelines listed below to be sound. Local circumstances may impose other standards.
a.
A project originated by the local people is much more desirable than one that developed elsewhere even though the latter seems obviously superior to an outsider.

b.
A project must have a fairly short completion time or have phases that provide frequent opportunities to evaluate its effec- tiveness.

c.
Results should be observable, measurable, or tangible. They should also lend themselves to publicity designed to inspire emulation by other military units.

d.
Results should make visible to the public eye the benefits that spring out of association of the military authority and civil government. Credit for results should be attributed to both the local military and the local civil administration.

92          AGO 6147B
e. ~achproject should be initiated in the name of the ministry having jurisdiction over the particular function, assisted by local military units or persons.
82.      Civic Action Operations
a.
While some civic action operations entail a major effort and funding, in general the emphasis is on assistance, guidance, and the initiation of self-help programs within the scope of existing resources. Teams of specialists with appropriate technical skills are established and work directly with the population and with civilian agencies. Military units join with other agencies of their government such as public health, public welfare, education, agriculture, and interior ministries. Individual members of a unit or their dependents who possess special skills and are motivated by humanitarian reasons, patriotism, or desire to pursue off-duty avocations may engage in independent civic action projects of significant benefit to a community or some segment of it.

b.
Civic action operations involve two avenues of approach, directed national activities and voluntary efforts on the local level. Both have generally similar goals, and the major dissimilarity hinges upon whether the activities are directed or are voluntary.

(1)
    Directed activities usually involve specific assignments, central government funding, and authorization to use indicated military resources.

(2)
    Voluntary activities may follow some general stimuli or guidelines from the national government, but they involve greater initiative and resourcefulness on the local leveI. Unit equipment and facilities may be utilized in projects undertaken, however major effort is directed toward encouraging, directing, and supporting self-help programs.

(3)
    Regardless of the approach and whether the civic action operations are directed or are voluntary, activities must be coordinated closely among all action agencies to avoid duplication of effort, to channel misdirected idealism, and to secure maximum benefits from skills, labor, sup- plies, equipment, and funds involved.

83.      Civic Action Teams-General
a. Military Assistance Advisory Groups (MAAG) and Military Mksions. Military assistance is furnished to friendly nations in order to promote the foreign policy and international security of the U.S. and to facilitate the effective participation of such nations in arrangements for individual and collective defense. To accomplish this objective MAAGs and Missions have a training
goal for the armed forces of their host nations. Military Civic Action Mobile Training Teams have been formed (see AR 551-50) for specialized assistance to other nations. When deployed, these teams become a part of and work through the MAAGs and Mis- sions. Requests for a team will originate with the MAAG or Mission. The work of a team may include :
(1)
Orientation of      the MAAG     or Mission staffs and other members of the Country Team as appropriate on the civic action concept and the role of the MAAGs and Missions in the program.

(2)
    Survey of the country for needs which can be met through civic action.

(3)
    Development of a civic action program for the specific country.

(4)
    Training and guidance of local forces and specific technical assistance on projects.

b.
Organization. Military Civic Action Mobile Training Teams will normally consist of from one to five people. In some cases more than five are justified. The teams may be composed of military officers, enlisted personnel, civilians from one of the serv- ices, or civilians from any governmental agency. One officer, usually the senior military person or civilian, will be designated as chief of the team and furnish team leadership. The team chief will be responsible for seeing that proper procedures are followed, necessary contacts are made, reports are prepared and forwarded, and that his team functions as a unit. Team composition is determined by the needs of the area requesting the team. Mem­bers of a team should be qualified by an aggregate of training, knowledge, or experience in the following fields :

(1)
Government (Political-Economic Affairs).

(2)
    Military-Civil Relations.

(3)
    Engineering.

(4)
    Sanitation.

(5)
Medicine or Public Health.

(6)
    Community Development.

(7)
    Commerce and Industry.

(8)
    Agriculture.

(9)
    Education.

(10)
Psychological Operations.

(11)
Public Relations.

c.
Functions. Examples of functional areas within the above fields, which may impinge on planning or implementing a civic ac- tion program, follow to illustrate the breadth that may be en- countered.

94      AGO 6147B
(1)
    Government.

(a)
     

Relations with neighboring nations and membership in international bodies.
(b)     
Structure, stability, bases of support and opposition.
(c) Public administration and local government.
(d)     
Influence of nongovernmental organizations.
(e)     
Loyalty and respect for government.
(f)     U.S. Embassy, AID/USOM, USIA/USIS, and other
U.S. governmental agencies, international agencies, private foreign agencies.
(2)     Military-Civil Relations.
(a)     or customary class or occupational attitudes
Legal
or distinctions.
(b) Ethnic, linguistic, educational, or other differences between military and civilian communities.
(c)     
Official and unofficial relationships at all social levels.
(3)     Engineering.
(a)     bridges, highways, Construction and maintenance of
railroads, and waterways.
(b)     
Construction, maintenance, and operation of dams and irrigation canals.
(c)     
Construction and repair of buildings.
(d)     Construction, repair, and operation of utilities.
(e)     
Elimination of fire and flood hazards.
(f)
    Insect and rodent control.

(g)
    Mapping and surveying.

(4)
    Sanitation.

(a)
     

Design and operation of water and sewage disposal plants.
(b)     
Insect and rodent control.
(c)     
Food inspection.
(d)     
Training of sanitation personnel.
(5)     Medicine or Public Health.
(a) Hospital and dispensary needs.
(b)     
Preventive medicine program.
(c) Requirements for drugs, vaccines, and equipment.
(d)     
Use of drugs, vaccines, and equipment.
(e)     
Instruction in sanitation, first aid, and hygiene.
(6)     
Community Development.
(a)     
Promotion of community councils.
(b)     
Sponsorship of projects for schools, children's homes, civic centers, churches, dispensaries.
(c)     
Plans for construction of buildings for community use and for domiciling those who are inadequately housed.
AGO 6147B     
(d)     Development of community interest on common ethnic, occupational, recreational, or cultural bases.
(7)
    Commerce and Industry.

(a)    
     

Encouraging exchange of local products.
(b)         
Developing transportation.
(c)         
Fostering local production.
(d)         
Instructing in trades.
(8)
Agriculture.

(a)    
     

Best crops and livestock for area.
(b)     Irrigation and water storage.
(c)         
Fertilizer and feed requirements.
(d)         
Prevention of destruction by game, pests, and disease.
(e)     Harvesting and marketing.
(9)
Education.

(a)    
     

Training military personnel in civilian occupations and for citizenship.
(b)     Requirements for school buildings, equipment, and teachers.
(c)         
Sponsoring basic education programs.
(10) Psychological Operations.
(a)
Recognizing and countering adverse propaganda.

(b)    
     methods of exploiting

Effective accomplishments through information media.

(c)
Training in use of mass communications equipment.

(d)
Requirements for mass communications equipment.

(11)
Public Relations.

(a)    
     

Consideration of MAAG or Mission image (usually no publicity regarding the team is desired).
(b)         
Open houses and similar type programs.
(c)         
Observation and analysis of trends in public opinion.
(d)         
Proper dissemination of information.
d. Assignment.
(1)    A    team assigned to a MAAG or Mission for temporary duty is requested by and provided for by the MAAG or Mission in accordance with normal procedures for Mobile Training Teams, as outlined in AR 551-50. The team is considered for all purposes of jurisdiction and responsi- bility to be a part of the MAAG or Mission and subject to the direction of its Chief. Team activities are carried out under the supervision of the Chief, in coordination with representatives of the other U.S. agencies making up the Country Team, and are subject to all regulations concerning conduct and duty of official U.S. personnel stationed in that country.
AGO 6147B
(2)     Unless     time or other circumstances prevent, the team is assembled prior to departure for the country concerned, for briefing and orientation by appropriate service, Army, Defense, State, AID, USIA, and other govern­mental agencies. Current political, social, and economic conditions prevailing in the country to which the team is assigned are given.
84.     Civic Action Teams-Procedures
a. Unified Command Headquarters. En route to the country where the team will work, a stop normally is made at the head­quarters of the unified command which supervises the MAAG or Mission of that country. The team briefs the unified commander and his staff on the mission of the team and receives instructions, guidance, and information concerning the target area. The unified command staff should be prepared to brief the team and provide essential information on the latest political, economic, and military situations. Methods of operation will vary from country to coun­try depending on the customs, social make-up, and political character of the nation as well as current U.S. objectives and policies for that nation.
b. MAAG or Mission Headquarters.
(1)     On arrival in the country the team reports at once to the MAAG or Mission Chief. The normal SOP for adminis­trative processing, quarters, messing, and transportation are followed. The team acquaints itself with the local SOPs, policies, and procedures.
(2)     As early as possible the MAAG or Mission Chief is briefed on the proposed plan of procedure for accom­plishing the civic action mission. Objectives of the team are stated clearly and positively. The MAAG or Mis­sion Chief either approves the proposed plan of proced­ure or directs modifications. The MAAG or Mission Chief is informed of progress and problems on a periodic basis. It is also necessary that the U.S. Embassy or Legation and the remainder of the Country Team clearly understand the objectives and progress of the team and that the team possess their support; therefore, it is essen­tial that other interested persons be kept informed. The MAAG or Mission Chief determines how best to accom­plish this.
c. Team Activities.
Local situations and conditions govern .procedures in each case. Actions given below are not considered to be all that is
AGO     6147B
required, and the sequence 'is suggestive only. It is considered, however, that the following are of major importance :
(1)
Determining what is being done or has been done by local forces in the civic action field. It is necessary to know the attitude of the local military forces toward the people and how the people feel about the military forces and what projects and programs, if any, have been undertaken by the military forces to gain the respect and confidence of the people.

(2)
Understanding the organization and capabilities of the , military forces to perform civic action type projects.

(3)
    Becoming acquainted with key military officials and other governmental officials.

(4)
    Learning the basic economic needs of the country. Each team member can concentrate on the needs in his specific field.

(5)
    Visiting all possible sections of the country to observe-

(a)
    Social conditions.

(b)
    Economic status.

(c)
    Conduct of military forces and any civic action or related programs.

(d)
    Support or lack of support given by the people to the military forces and to the governmental administration in general.

(e)
    Basic needs of the area.

(6)
    Preparing the portion of a program pertaining to the activities which each specialist on the team is qualified to judge and analyze. Some of the things which should be considered in such a program are-

(a)
What the military high command needs to do in the way of instructing the lower echelons.

(b)
What organization would be required to carry out a civic action mission.

(c)
    The training required in order to accomplish civic action projects or prepare personnel for useful roles in civilian life for-

1.
Key military personnel.

2.
All forces.

(d)
    The basic needs of the local areas with which the military can assist. These needs should be grouped into functional fields such as public health, transporta- tion, sanitation, engineering, public administration, agriculture, mass communications.

(e)
Specific projects in specific areas which the military forces can undertake with little or no additional funds.

AGO 6147B
(Primary responsibility for funding military civic action programs in a country rests with the host gov- ernment. Civic action projects which require major funding should be carefully evaluated.)
(f)
    Whether the military has traditions of participating in public affairs that bring the military and civilians to a cIoser understanding of each other.

(g)
Whether     local     community     councils of military and civilian representatives are used, and, if not, the desirability of instituting such a program.

(7)
    Discussing and coordinating the program or plan of action with the MAAG or Mission staff and other ele- ments of the Country Team staff members.

(8)
    Presenting the completed program or plan to the MAAG or Mission Chief and recommending its presentation to the Country Team for approval and implementation of those projects which may be undertaken at the Country level. Projects which require funding are presented to the Country Team for consideration and funding in accordance with current MSP proceiures. The MAAG or Mission Chief determines manner of presentation of the plan to the proper local military officials and assists in the development of required directives to subordinate commands.

d.
Reports.

(1)
    Interim reports are submitted monthly or oftener as indi- cated by progress, to the Office of the Chief, Civil Affairs, Department of the Army, with a copy to Commandant,

U.S. Army Civil Affairs School.
(2)
A final report is prepared by the team as prescribed in AR 551-50.

e.
Debriefing.

(1)
On completion of the assignment the team returns to CONUS by way of the unified command headquarters, where the staff is briefed on results of the team efforts, answers questions, and makes recommendations.

(2)
The team returns to CONUS and reports to the Chief of Civil Affairs for inter-agency debriefing to Defense, Army, Navy, Air Force, State, AID, USIA, and other interested personnel. The team gives consideration to-

(a)
Recommendations for courses of action to be taken in the country.

(b)    
     Recommendations on procedures for use of future teams.

AGO 6147B     

Section Ill. UNCONVENTIONAL WARFARE (UW)
85.     Subversion and Political Instability
a. During their transition to modernization developing coun- tries are highly vulnerable to subversion and insurrection. This susceptibility may be prevented, neutralized, or even eliminated, by civil affairs operations. People develop a personal stake in the survival of their countries when they experience a sense of direct participation in the process of government. Populations of newly independent or developing countries have learned to demand manifestations of human dignity, freedom, and opportunity. If their desires are not gratified they may become sufficiently dis- satisfied that they provide primary targets for corruption of their governmental structures and social institutions. Subversive ele-
ments adapt their strategy to take advantage of growing political instability. Consequent guerrilla operations further exploit un­stable conditions.
b. Guerrilla forces are dependent upon support of the people which represent their main source of manpower, supply, and information. Guerrillas, therefore, need to gain long term support from the population. This political factor has special significance in the three fundamental aspects of counterguerrilla operations:
(1)
    Combat operations against guerrillas.

(2)
    Establishment of governmental authority in the area.

(3)
    Separation of guerrilla forces from civilian support

through joint political-military activities. To the recognized government the people are the strongest poten- tial force for combatting guerrillas. For the government forces, gaining influence over the people means insuring effective civil administration. Political and military matters are inseparable, and local military forces are engaged, to varying degrees, in sup- port of local governmental activities. Thus, gaining and main- taining control over the population is a primary objective of both sides. All of their activities are different shades of civil affairs.
c. Problems in such activities rarely involve a single civil affairs function. They involve parts of many functions in differing de- grees. Problems are resolved by taking appropriate action in each of the various civil affairs functions and coordinating the efforts of all to influence the outcome in the direction of overall policy guidelines. Representative of these civil affairs functions are the following:
(1)     Civil Governm~nt.Providing civil administrators at all levels of local government-village, district and region; installing officials; providing management and technical
AGO 6147B
guidance to officials; demonstrating interest in the wel- fare of the people; opening new areas for resettlement and rural development.
(2)
    Legal. Martial law administration; military courts to invoke punishment on terrorists; special rehabilitation system for former guerrillas; records of property own- ership.

(3)
    Public Safety. Police administration; coordination of actions of local police and civil guard with antiguerrilla forces; population, travel, and border control; anti­smuggling; fire protection.

(4)
    Labor. Movement and employment of available man­

power; furnishing military personnel to augment labor supply.

(5)
     Procurement of power and supplies;

Civil Information.
acquisition of news and information; dissemination of news and cultural material.
(6)
    Public Welfare. Orphanages and other institutions; care of refugees and displaced persons; organization of dis- aster areas.

(7)
    Education. Reduction of illiteracy rate among military and civilian personnel; vocational, youth and home eco- nomics programs; support of religious leaders may be cultivated.

(8) Economic.
(a)
Commerce and Industry.      Operation of factories for production of hardware, leather goods, woodenware, shoes, utensils, auto parts, clothing, cottage industries; assisting in procurement of raw materials and market- ing of products.

(b)
    Food and Agriculture. Advice on farming, fishing, poultry and livestock raising, forestry, and harvesting; furnishing farm tools, seeds and fertilizer.

(c)
Civilian Supply.      Establishment and maintenance of a system for distribution of essentials to the popula- tion and of materiel furnished from the local economy.

(9)
Public Health. Dispensaries and clinics are opened; sanitation measures are taken, and medical supplies are provided.

(10) Public Facilities.
(a) Public Works.     Dams, bridges, water supply, flood con- trol, irrigation, mapping, reconstruction, civic build- ings, temples, schools, markets, land reclamation,
AGO 6147B      101
sawmills, sanitary facilities, well digging, harbor dredging.
(b)
Public      Communications.      Postal service, radio, tele- phone, and telegraph constructed, improvised, recon- structed; or extended.

(c)
Public Transportation.     Trail, road, and railroad con- struction or repair; water transportation; airfield maintenance; navigation aids.

d.
The U.S. civil affairs organization is trained to exercise minimum necessary interference in maintaining stability and order among a population; civil affairs organizations of the host countries can be trained in a similar manner. By using a mini- mum degree of interference appropriate to the situation, rights of individuals and respect for democratic processes can be safe- guarded. Such a sensitive capability does not come about by chance. It results from organization, training, and supervision. The military furnishes support or conducts civil administration only as long as necessary and turns back to civilian control when a competent civilian organization and officials are in place and ready to carry out essential governmental functions.

86.     Operations Against Irregular Forces
Operations against irregular forces may occur in either cold or hot war. Methods of conducting such operations in both circum- stances are based on the same principles. See paragraph 110.
87.     CA Support of Evasion and Escape Activities
a.
Through contacts with persons in local communities who have relatives, friends, business associates, or organizational col- leagues in enemy territories and through interrogation of line- crossers, civil affairs elements may gain considerable information on disaffection which, after collation with leads from G2 sources, may give valuable insight into the underground potential. Such intelligence on the underground may constitute a basis for a net for returning evaders or escapees to friendly control.

b.
Favors to or controls exercised over persons in friendly ter- ritory can be used to gain trust and cooperation of their counter- parts in enemy territory.

c.
Through its area research activities the CA organization becomes an excellent source of information on factors of geog- raphy, weather, wildlife, vegetation, agricultural produce, cover, transportation, language, customs, evaluation of deception mea­sures, and identification of potentially safe contacts which can be provided special forces personnel for utilization and transmission to the Air Force or other interested agencies.

102      AGO 6147B
88.     Subversive and Clandestine Operations
a.
In contacts with professional, sports, religious, commercial, or ideological organizations, civil affairs elements may develop rosters for screening by specialized agencies desiring to recruit undercover operatives, interpreters, or other technically qualified craftsmen or workers. The same sources will also supply primary or confirmatory data on attitudes and reactions of various popu- lation categories and biographical data.

b.
Civil affairs units are also able to acquire needed material items listed in chapter 9.

89.     Political and Economic Warfare
a. General.
(1)
Political warfare has been defined as the framing of national policy to assist propaganda or military opera- tions, whether with respect to the direct political rela- tionships of governments with one another or in relation to groups of people possessing a political character. Political warfare also includes the implementation of some phases of national policy. Policy is sometimes formulated in actions and then crystallized into state- ments or declarations; therefore, acts having political consequences, including the indirect, may determine as well as express policy.

(2)
    Economic warfare has been defined as defensive use in peacetime as well as during war of any means of military and civilian agencies to maintain or expand the economic potential for war of a nation and its (probable) allies, and, conversely, the offensive use of any measure in peace or war to diminish or neutralize the economic potential for war of the (likely) enemy and his allies. Military operations are not possible in an economic vacuum. In domestic and foreign territories, friendly or enemy, military and civilian populations have eco­nomic relationships which may be mutual or divergent or even conflicting.

(3)
    In a broad sense, political and economic warfare are important aspects of unconventiona1 warfare. Military forces have been major instruments of national political and economic policy implementation throughout the course of history. A commander's political and economic missions affect his tactical and logistical operations un- avoidably and thus occupy much of his time and that of his staff and subordinate units. Civil affairs organiza-

AGO 6147B
tions are inherently involved in the political, economic, and sociological problems of their commanders and have marked capabilities for contributing to the implementa- tion of political and economic warfare programs.
b. Military Participation.
(1)
During combat and occupation phases military com­manders, their staffs, and subordinate units find it necessary to determine whether to retain current struc- tures and functions of agencies of civil government at various levels of administration. Criteria for decisions are indicated by basic policy emerging from the highest executive level of the United States Government, but mechanics of implementation of any policy invariably require a multiplicity of decisions. Organization struc- tures are influenced by and influence the amount and kind of control the commander desires to exercise. Com- manders may also change assignments of functional jurisdiction to civil agencies without altering the or­ganization in being. Still another area of authority open to a military commander is that of retention, removal, or appointment of officials and employees of civil gov- ernment.

(2)
    A commander's interest in economics is no less im­portant. Some enterprises he exploits for the benefit of his command. Others he protects for the sustenance of the civilian population to avoid having to divert military supplies or deplete CONUS resources. Still others are emphasized because of policy decisions from higher authority. Activities include finding, assessing, con­trolling, expanding, suppressing, developing, and exploit- ing economic resources as appropriate. This involves determining (and often amending) the amount and kind of emphasis to give to different industries, different products, and geographical areas.

(3)
    Civic action (see pars. 79-84) is one of the most im- portant approaches to political and economic warfare.

(4)
    In situations short of war the operational objective is to influence a political decision, which usually has economic implications. Whatever form the operation may take, if it is merely the presence of a few troops or even if no

physical troop movement occurs, some impact on the civilian population of affected countries is inevitable.

(5)
    In addition to their own normal operations, civil affairs staffs and units are able to render support to other

104      AGO 0147B
agencies in this effort. The following examples illustrate this:
(a)
Preparation of detailed, localized area surveys por- traying institutions, population groups, commercial establishments, and industrial developments sus­ceptible to attack or constituting a hazard to friendly operations.

(b)
    Surveys of attitudes and reactions to friendly pro- grams aimed at political or economic targets.

(c)
    Surveys of 'substantive effects of operations to disrupt or destroy governmental administration, economic production, commerce or trade.

(d)
    Intelligence on significant personalities or industrial capabilities.

(6)
    Political and economic warfare are inherent in uncon- ventional warfare conducted behind enemy lines in furtherance of military as we11 as political objectives. UW also includes guerrilla warfare, evasion and escape, subversion of hostile government and forces, and other clandestine or irregular activities. Usually such opera- tions are conducted principally by indigenous persons responsive in varying degrees to friendly control or direction, more particularly so in operations of a U.S. sponsored government-in-exile.

90.      Government-in-Exile Operations
The chronology of history includes many examples of plots, plans, and campaigns of former dynasties which sought to regain thrones usurped by others, of peoples deprived of their home- lands, and of adventurers who would found new nations. Some present day nations, including the United States, owe some parts of their development to similar activities. The current period is equally marked with similar efforts, some successful, some still potential and undetermined.
a. Recognition of a government-in-exile is a grave and delicate diplomatic act. Recognition in itself does not necessarily imply t,hat the United States will render any assistance to that govern- ment. If the framers of national policy decide to help a govern- ment-in-exile, such help might be restricted to advice and liaison necessary for preparing officials to perform duties to which they aspire. Civil affairs staffs and teams are especially qualified for assignment to the task of advising and assisting a government-in- exile. The responsibility may be given to a single liaison officer or to any size unit up to and including an Area Headquarters
AGO 614'1~     
depending on the degree and detail of guidance required and the complexities involved.
b. Resistance, rebellion, or civil war are other aspects of such operations. They begin in a nation where political, sociological, economic or religious division has occurred. They are caused by the desire of individuals to end conditions forced upon them by invasion, occupation, economic distress, sociological fragmenta- tion, or by an unpopular political regime. Success of these opera- tions depends upon the degree of support obtained from the civilian population in the area. Military operations are conducted to liberate the country for the benefit of the government-in-exile and may include tactical support and economic assistance as well as technical guidance.
AGO 6117B
CHAPTER 7
 
COMBAT AND POST COMBAT CA OPERATIONS

Section I. EMPLOYMENT OF CA ORGANIZATION
91. Civil Affairs Support
a.
While civil affairs operations, military-civil relationships, cover the spectrum between peace and general war, it is during combat and post combat periods that operations reach their zenith of essentiality, complexity, and organizational require- ments. Combat and post combat operations may occur in foreign or domestic territory, may involve friendly or hostile populations, and will be concerned with broad variables in policy and legal considerations. Except as otherwise directed, the commander of any unit of the U.S. armed forces will look to appropriate CA organizations to deal with local civilians and government on his behalf and to obtain necessary assistance, supplies, and facilities from indigenous sources.

b.
The scope of operations conducted by CA units vary accord- ing to the specific mission assigned in orders published by higher headquarters. In a fluid or moving situation, a command support unit normally initiates only limited emergency activities in an area prior to movement. The continuance or extension of these activities is carried out by designated area support units. In a static situation, a command support unit may perform many or all of those activities normally conducted by an area support unit.

c.
The various activities that are described in this section are primarily of an emergency nature directed toward the prevention of civilian interference with military operations and discharge of the commander's legal obligations toward the civilian population. In a fluid or moving situation, measures for the rehabilitation or restoration of the local economy are undertaken only when local resources in the form of labor and materials are available or when the objectives of the military operation necessitate the diversion of necessary supplies from military stocks.

92. CA Responsibilities
a. Relationships on the national level between military forces and established governments are as diverse as the potential range of situations. In the case of an occupied and previously hostile area the commander normally directs and controls officials of the central government and may relieve them of authority. In cases
AGO 6147B 107
of friendly governments the activities of the area headquarters unit may be limited to liaison and measures for providing support, advice, and assistance.
b.
In order to utilize fully the capabilities of his CA units the military commander must provide adequate direction to them to insure that they are effectively employed, adequately supported, and properly supervised. A commander delegated CA authority normally establishes a subordinate CA command, consisting of all assigned or attached CA units, to assist him in the direction of the CA effort.

c.
Relinquishment of CA area authority does not of itself deprive the relieved commander of his G5 staff section nor of his responsibilities for compliance with legal requirements with respect to the inhabitants, government, and economy within his area of concern and for the observance of humanitarian principles by his troops. A commander of a major unit, not delegated area authority, supports and assists the CA units operating in his area, and, in turn, is supported and assisted by them. He must be pre- pared at all times to assume the direction of CA operations in his assigned area in the event he is delegated CA area authority. To assure uniformity and continuity of operations, it is essential that plans for the relinquishment of CA area authority include such matters as liaison between responsible commanders, channels of command, augmentation of units, and other related matters.

d.
When one CA unit is directed to relieve another, the com- mander and principal members of the staff of the relieving unit make a personal reconnaissance of the area and confer with the staff of the headquarters to which the unit will be assigned or attached and with the commander and staff of the unit being relieved. The commander of the unit being relieved insures that necessary actions are taken to familiarize the relieving unit with the current situation. These actions include but are not limited to­

(1)
Acquainting the commander and staff of the relieving unit with designations, locations, and commanders of higher, subordinate, adjacent, and supporting units in the area.

(2)
    Acquainting the commander and staff of the relieving

unit with the characteristics and peculiarities of the area.

(3)
    Furnishing copies of current operational directives, standing operating procedures, and policy checklists.

(4)
    Furnishing copies of reports and records summarizing previous activities in the area of the unit being relieved.

(5)
    Describing activities in progress, their relative impor-

108      AGO 6147B 1
tance, and pointing out additional measures that must be taken.
(6)
    Documenting commitments made to civilians or civilian officials.

(7)
    Furnishing a list of individuals, not appointed as officials, but of value to the CA unit.

(8)
Furnishing information and recommendations on other items outlined in the periodic CA report shown in FM

101-5.
 

e.
In order to effect economy of units and personnel, there should be a continuous process of consolidation. For instance units that were deployed in the course of combat may be regrouped or redeployed according to the requirements of the situation ;as local governmental agencies become increasingly able to function with decreasing support or control, the number of CA units required can be reduced. Disposition of units made surplus by consolidation is accomplished in accordance with the theater plan.

f.
Whenever feasible, CA command and area support units employed in the combat zone are allocated areas of responsibility based on local political boundaries. When such a procedure is not feasible, areas of responsibility are based on applicable tactical boundaries. In areas to the rear of field army rear boundaries, where the situation is normally nlore stable, CA areas of responsi- bility are based on political rather than military boundaries. In the initial stages of a military operation or campaign, military boundaries usually cut across the borders of provinces or states, and it may not be feasible to establish complete units of civil administration therein. However, military boundaries should be relocated to coincide with political limits as soon as the military situation permits the consolidation of political entities. During static conditions or after the cessation of hostilities, authority for conduct of CA operations is normally withdrawn from subordinate tactical and administrative commanders. Consolidation of political segments increases efficiency of operations, requires less military personnel, and provides for greater continuity of policy.

g.
When enemy territory is occupied by allied forces of which United States troops form a part, control over CA operations is centralized in a combined command as rapidly as practicable to avoid division of occupied territory into national zones. Other­wise, national zonal boundaries may later become international boundaries and the occupied country partitioned in contradiction to the policies of the United States. In addition, the consequent disparities in policies and practices may severely prejudice the success of the occupation.

AGO 6147E      109
93. Need for Flexibility
a.
The CA organization within a military command must be flexible and adaptable to local political, economic, and sociological conditions. It must be prepared to implement policies transmitted by proper authority. It is responsible for recommending changes or modifications to policies and providing substantiation for such recommendations through observation and reports of results in the field. Economic, sociological, and political situations within the area of operations will often be complex and may be unpredict- able. Detailed prior planning, however, enables the commander to employ his CA organization to exercise effective control, super- vision, or influence over the local population.

b.
CA units must initiate activities in the combat zone as soon as an area comes within the control of the military force.

(1)
During fluid situations in forward areas, CA activities primarily support tactical military operations.

(2)
    In fluid or unsettled situations, authority for conduct of CA operations must be decentralized to the tactical commander within the area in which he conducts his tactical operations.

(3)
    Since uniformity and continuity of policies and opera- tions are essential to success, tactical commanders exercising CA area authority conform to available guidance and directives issued by higher authority.

c.
During static situations, a realignment of priorities among the activities of the various functional specialties may occur. Cer­tain activities, such as the restoration of public order and safety, control of refugees and displaced persons, and furnishing of emergency relief, which may have received primary attention during a fluid situation, will share importance with such func- tional specialties as public works and utilities, public transporta- tion, and civil information.

d.
In a static situation or when political entities are consoli- dated, primary attention may be given to long range policies for the restoration of local institutions. Consideration may be given to reformation of institutions and the adoption of more liberal policies in the control of the inhabitants, depending on the provi- sions of applicable treaties or agreements and United States objectives. It is essential to establish a stable government and to confirm its exercise of authority.

94. Command Support Units
a. A CA command support unit performs recurring operations that are generally similar in nature, regardless of the level of
110      AGO 6147B
command at which the unit is employed. The commander of a command support unit is responsible for performing the following recurring tasks and functions :
(1)
    Furnishing his superior commander and staff with infor- mation, estimates, and recommendations pertaining to civil affairs activities.

(2)
    Planning and supervising the training of his own unit and the training of other attached CA units.

(3)
    Exercising command over CA units that have not been assigned or attached to subordinate units.

(4)
    Receiving, holding, and orienting CA area support units to be deployed in the area.

(5)
    Recommending employment of CA units designated to provide area support.

(6)
    Establishing liaison with CA units assigned or attached to higher, lower, or adjacent commands.

b.
In order to insure the success of CA operations, directives of higher headquarters must provide detailed policy guidance on the initiation of the various functional activities with which the divi- sion may be concerned. Since all personnel are to some extent concerned with CA functions, major units, such as a division, must provide adequate direction, support, and supervision to its subordinate elements.

95.      Area Support .Units
a.
Units providing area support are deployed for operations in designated areas in accordance with the overall theater CA plan. Plans for the allocation and deployment of area support units are based primarily on the number of inhabitants within an area, their political organization, the economic environment, and the nature of the operation. In determining requirements, consideration is also given to levels of government, number of localities, size of area ; degree of economic, social, and political development; the required degree of control, and other related factors. Area support units normally focalize their activities in centers of population, cities that are seats of government, or control points of industrial complexes.

b.
To the maximum extent practicable, area support units are informed in advance of their deployment regarding the specific areas where they are to be employed to permit their making detailed analyses of pertinent area intelligence. When area train- ing is not provided prior to the departure of these units from the continental United States, it should be furnished upon their arrival in the theater by a theater school.

c.
Since a command support unit normally accompanies in movement the major unit to which assigned or attached, it is the responsibility of a commander delegated CA area authority to call forward an area support unit of the type designated in the theater plan in time to permit its deployment prior to the movement of the command support unit from the area.

d.
As rear boundaries are moved forward, area support units deployed in designated areas in accordance with the theater plan pass from the control of the subordinate major commander dele- gated the authority for that area. For example, when division or corps rear boundaries are moved forward, area support units deployed therein remain in place and pass to the control of corps or field army. As the rear boundary of a field army is moved for- ward, area support units remain in place and pass to the control of headquarters theater army, parent unit, or TACAC.

e.
While a certain amount of shift in responsibility from unit to unit may be necessary as boundaries displace forward, particu- larly in rapidly moving situations, the theater commander should strive for minimum disruption and maximum stability by moving pre-designated and pre-trained area support units into their specific areas or assignments as quickly as practicable. ~hese organizations normally would have been activated, trained, oriented toward their future assignment, and moved to theater assembly areas as required. It is recognized that this ideal situa- tion may not always be obtained, and, under some circumstances, area support operations may be conducted indefinitely by the command support units of successively higher echelons. In other instances, area support units previously planned for other assign- ments or interim composite organizations developed from theater personnel resources may be used.

f.
Upon entry into his assigned area or city, the commander of an area support platoon confers with personnel of the command support platoon, the commanders of units remaining in the area, and with local officials in order to obtain information that will enable the platoon to continue effectively any CA functions initi- ated prior to its arrival. Area surveys are conducted promptly with assistance from personnel of the command support platoon in order to verify information previously received and to provide a basis for adjustment of area requirements. An attached area support unit remains under control of the supported command until the command rear boundary is moved forward of the area in which the CA unit is employed or the commander is relieved of CA authority in the area. When CA area support units required are not provided by higher headquarters, the area commander utilizes

112 AGO 6147B
his command support unit to conduct CA activities in his area and requests necessary augmentation from higher headquarters.
g.
CA operations at a provincial or comparable level of govern- ment involve a higher degree of specialization and a greater need for supervision and policy direction than operations at a municipal level. An area support unit, usually a CA group, is deployed as soon as the military situation permits in order to serve as a pro- vincial headquarters. The group commander directs or supervises CA activities at the provincial level through his functional teams. He is normally directed to assume area jurisdiction of activities in the lesser political subdivisions of the province as soon as condi- tions therein become sufficiently static to permit conformance with political boundaries. He controls or supervises activities in the political subdivisions through previously deployed area sup- port units which are attached to his command. He provides tech- nical support and assistance to his attached units or furnishes such functional teams or specialists as the subordinate elements may require from his headquarters.

h.
CA activities are generally similar in nature, regardless of the size or complexity of the area. However, the sequence of actions to be taken varies according to local conditions. Priority is generally given to the most essential activities. Operations in a small city are normally conducted by a CA platoon augmented as necessary with functional teams or specialists. Operations of a CA unit in a large city such as the capital city of a country or state or a principal center of population cover the various functions in greater detail and are of a more complex nature than the opera- tions in a small city.

i.
The size, composition, and number of units required depend on the size and attitude of the population, extent of destruction, availability of services and supplies, and complexity of the area. When a large city is not divided into geographical subdivisions, the commander employs both his functional specialists and subordi- nate units at the center of government. In the event that the large city is divided into geographical subdivisions, the commander may find it advantageous to employ his principal functional specialists in the supervision of the major administrative functions of the city government and his subordinate units in the various geo- graphical subdivisions.

j.
Since it is desirable to focalize the conduct of CA operations at seats of local government or centers of population, the overall theater CA plan normally provides for the deployment of area Support units in cities. When an area support unit in a division area, such as a platoon, is initially deployed in a city during a

AGO 6117~ 113
moving or fluid situation, the jurisdiction of the unit may include surrounding rural areas. As the unit comes successively under the control of higher echelons, the extent of area over which the unit exercises jurisdiction is adjusted in accordance with the overall plan, modified by the exigencies of the situation. The extent of area over which an area support unit may effectively exercise control or supervision varies according to such factors as the size and geographical nature of the area; locations of politi- cal boundaries; attitude of the local population and amount of guerrilla activity; extent of agricultural and industrial develop- ment; condition of routes of transportation; existence of com­munications facilities, and other pertinent considerations.
k. Activities of CA units in rural areas devoted to agricultural production include initial surveys to determine the location of food surplus and deficit areas and continuing studies of agricul- tural production, farming methods, reclamation, conservation of lands; food processing and marketing systems, forestry, and fisheries. Estimates are made, as necessary, of requirements for food, fertilizer, and farm machinery. Measures are normally taken to facilitate and encourage the earliest possible resumption of agricultural production. When authorized by higher head- quarters, military assistance may be provided during the course of operations in the form of supplies such as fertilizers and farm machinery. Appropriate recommendations may be forwarded by the CA unit to higher headquarters on the imposition of restric- tions on civilian circulation and transportation of nonessential supplies in order to permit the movement and distribution of required agricultural supplies and equipment. During critical periods involving the seeding and harvesting of crops, it may be undesirable to requisition the labor of farmers for the perform- ance of other tasks. When any area includes extensive lands devoted to agricultural production or contains significant quanti- ties or types of natural resources, the CA unit should be aug- mented with appropriate functional teams or specialists by higher headquarters.

Section II. UNIT OPERATIONS
96. Platoons in Support of Divisions
a. CA activities in division operations are primarily directed toward the support of military missions and the fulfilment of the division commander's legal obligations. The complexity of CA operations, which are principally concerned with the control and care of the local inhabitants, varies according to such factors as the mission of the division, fluidity of tactical situation, density and attitude of the population, partial or complete disruption of normal civil law and order, extent of interference with military operations by refugees, and use of mass destruction weapons.
b.
A CA platoon is attached or assigned to its division for training prior to commitment and remains with the division throughout a campaign. The platoon normally consists of a platoon headquarters, a language team, and required functional teams. The command support platoon headquarters usually op- erates in general support of the division. The size of the unit and the principle of command integrity do not favor fragmenta- tion of the organization, although under certain circumstances the platoon or a portion of the unit may be employed temporarily in direct support of a subordinate tactical command of the division in the interest of operational expediency. Regardless of method of employment, personnel of the command support platoon will conduct essential reconnaissance and surveys of forward areas and furnish advice and assistance necessary for the initia- tion of CA activities required to control or provide emergency relief for the civilian population.

c.
Additional CA platoons will be requested and attached to the division either to supplement the operations of the command support platoon or for a specific task such as initial administra- tion of an urban area, a political subdivision, a refugee collecting point, or to perform a direct support mission for a subordinate command of the division. These additional platoons are employed as an augmentation to the command support platoon in accordance with the CA tasks to be performed and area to be covered. When such platoons are required they will normally be attached for administration and logistical support to and under operational control of the division commander.

d.
Division orders will specify and establish responsibility for initial tasks to be performed by subordinate tactical commanders. Among these tasks may be-

(1)
Locating officials.

(2)
    Posting proclamations.

(3)
    Establishing and maintaining guards over civilian warehouses, supplies, and facilities for civilian or mili- tary use.

(4)
    Maintaining guard over local records, archives, libraries, and cultural objects and installations.

(5)
    Controlling civilian circulation.

(6)
    Requesting required CA unit support.

AGO 6147B
 

e. Planning by the Division G5 for the conduct of CA activities in areas that will come under division control must be coordinated with other interested staff officers and adjacent units. Timely planning provides ,a determination of requirements for area sup- port platoons, regulates phasing forward of such platoons in advance of operations, and facilitates the application of measures necessary for the control of local population upon entry into the area. Development of the division plans should allow sufficient time for preparation of supporting CA unit plans.
97. Reconnaissance, Surveys, and Estimates
The CA unit commander conducts a preliminary reconnaissance of his area upon arrival. He becomes thoroughly familiar with the area as soon as possible and instructs the members of his unit to conduct area surveys to determine area requirements. Higher headquarters is notified promptly of the results of the recon­naissance and initial survey. As detailed information is obtained, comparison is made with conditions described in preliminary area studies. Differences serve as a basis for revision of previous estimates of requirements. The commanding officer of the CA unit continues to revise his previous estimate of the situation; he reviews the effects of the significant factors described below on implementation af the course of action previously selected. He promptly advises higher headquarters of those changes which are necessary and requests policy guidance, as appropriate.
a.
Own Situation. In revising his estimate the commander considers changes in the friendly situation. During his recon­naissance he verifies the number, types, and locations of friendly military units in the area in order that he may plan for the security of his unit. He requests necessary assistance in the initial guarding of essential civilian installations and provides support to the military f.orce in the form of services and supplies from local resources.

b.
Enemy Capabilities. Enemy capabilities for interfering with the accomplishment of the mission of the unit through use of mass destruction weapons, conventional weapons, sabotage, espionage, subversion, and passive resistance are reviewed on the basis of information obtained from friendly units already in the area and from local inhabitants.

c.
Characteristics of the Area. The commander gives further consideration to the effect on the implementation of his course of action on significant characteristics of the area that differ from those which had been considered previously or on which specific information was not available prior to entry into the city. These

116 AGO 6147B
charqcteristics may include such matters as the extent of war damage in the city; availability of food, clothing, medical sup- plies, and shelter for the civilian population; numbers of refugees and displaced persons requiring care and control, state of repair of public utilities, present status of government, attitude and state of health of the civilian population.
d. Operations to be Supported and Special Factors. Considera­tion is given to the effect of changes in the nature of tactical operations on the activities of the CA unit and to special factors such as the possible employment of mass destruction weapons.
98.     Initial Actions
a. Upon entering an area or city, the CA unit commander insures that the necessary proclamations and ordinances are posted in public places frequented by the inhabitants. The CA unit accomplishes the initial or supplementary posting and main- tains an official record of the time, date, and place of such posting. Local officials who have been retained in office may be directed to post additional copies or make further distribution. Proclama- tions and ordinances may cover such matters as-
(1)
Authority exercised by the military command over civil matters.

(2)
    Collection of weapons and ammunition.

(3)
    Imposition of curfew regulations.

(4)
    Control of civilian movement and establishment of zones of circulation.

(5)
    Establishment of law and order and enforcement of public laws.

(6)
    Implementation of public health and sanitation measures,

including identification and burial of civilian dead. (For content and format of proclamations and ordinances, see ch. 8 and apps. X through XIV.)
b.
The unit commander makes frequent inspections to insure that operations are being conducted in accordance with established policies and applicable provisions of law. The commander insures that all essential measures are taken to maintain law and order and to prevent disease and unrest. He insures that local officials, agencies, and installations are functioning in compliance with CA directives and in a manner which best achieves the objectives of the operations.

c.
The headquarters of the CA unit is located where it can best control or supervise activities within its assigned area of jurisdic- tion. The location of the headquarters is marked by a sign designating the unit, its area of jurisdiction, and the hours dur-

ing which local inhabitants may visit. Since it is essential that both military personnel and local civilians be able to locate and identify the CA headquarters readily, the approaches must be clearly marked by signs in English and the language of the area.
d. The location of the headquarters is determined from prior reconnaissance and is coordinated with the headquarters exercis- ing military control of the area. In determining the exact location, appropriate consideration is given to-
(1)
Availability of necessary space, undamaged facilities, and all-weather hard standing.

(2)
Locations of governmental offices.

(3)
Local security.

(4)
Proximity to designated transportation routes.

(5)
Availability of communications facilities.

(6)
Location of higher headquarters.

e.
In the selection of a location for the command post of the unit, appropriate consideration is given to the advantage of security furnished by local troops in the vicinity. The presence of a sizable armed force near the CA headquarters enhances law and order and minimizes the threat of hostile measures from civilians, guerrillas, and partisan forces. In appropriate circumstances, other military units in the area may be directed by the area military commander to afford security to the unit.

f.
U.S. policy may require that public officials with undesirable backgrounds be removed from office. Retention of other public officials is normally a matter within the discretion of the CA unit commander. The latter selects and appoints persons to govern- mental positions vacated by officials who have disappeared or who have been removed for political reasons, inefficiency, or uncooper- ativeness. Selection of new officials is made in accordance with policy directives published by higher headquarters and is normally based on professional or occupational competence and the posses- sion of satisfactory political backgrounds. All appointments to key positions are usually temporary in duration and are subject to the approval of higher military authority. Individuals to be appointed to public ofice may have been designated in advance. Control or supervision of activities is conducted through local civil officials and designated agencies, whenever possible. Personnel of the CA unit act as operators rather than supervisors only when suitable officials cannot be found and then only until local per- sonnel can be located or trained.

g.
The major initial tasks of a CA unit upon arrival in an area or city in addition to the appointment of civilian officials and establishment of the local governmental structure include-

118 AGO 6147B
(1)
Civil information. Media of mass communication dis- semination, such as TV and radio stations, newspaper and periodical publishing plants, motion picture houses, central loudspeaker systems, or any other device employed to gain public attention, are brought under immediate control. Physical plants will be surveyed, and although the nature and degree of censorship imposed will be outlined in theater directives, the CA unit nor- mally will maintain continuing surveillance over com­munication agencies. Essential information with respect to policies and programs of the military forces can be disseminated, and enemy propaganda can be countered, by use of conventional communication media. Appro­priate psychological warfare consolidation company per- sonnel may be attached to the CA unit to support the information program or to prepare, disseminate, and evaluate friendly propaganda.

(2)
     A survey of available food resources,

Civilian supply.
means of transportation and distribution, and amount of
food consumption is promptly initiated. Unless changes
are required, existing systems of rationing and distribu-
tion are continued. Essential quantities of civilian relief
supplies, such as food, clothing, and medical supplies
required to supplement local stocks, are obtained through
prescribed military supply channels. The commander
supervises the establishment of local organizations for
the administration and distribution of civilian supplies.
In appropriate conditions, he may make arrangements
to obtain from civilian or military sources essential sup-
plies that are necessary to conduct those agricultural,
industrial, and commercial activities which may be of
direct benefit to the military force. Locations, types, and
quantities of locally available supplies surplus to local
needs, are reported to higher headquarters. See chapter
10.
(3)
    Displaced persons and refugees. If there are large groups of refugees and displaced persons, concentration camps are uncovered, or, if the local population is to be evacuated, a displaced persons team will be required to plan, coordinate, and supervise measures for care, con- trol, and movement. The CA unit to which the displaced persons team is attached requisitions such civilian relief supplies as are needed for operation of civilian collecting points and assembly areas.

(4)
    Labor. The CA unit commander initiates surveys to ascertain the amount and type of available local labor. He makes recommendations on local requirements for labor, arranges with local officials to provide labor for employment by the military force, and assists in direct- ing labor to the using military unit. In the event that existing registration practices are inadequate, a system for the registeration of local labor according to age, sex, skills, physical condition, and mobility is initiated. Direc- tives of higher headquarters are implemented with respect to such matters as the organization of labor; settlement of labor relations problems; wage rates, hours and working conditions, and medical care and compen- sation in cases involving disability. Measures to provide security screening of labor employed by the military force are coordinated with counterintelligence elements of the Intelligence Corps.

(5)
     The CA unit initiates surveys and

Natural resources.
analyses of natural resources in the area, such as mineral deposits, forests, water resources, and wild life. Meas­ures are promptly taken to provide maximum practicable protection of such resources from exploitation and to safeguard the records pertaining to their administration.
(6)     Public facilities. Initial activities include surveys of water supply and sewage disposal systems and deter- mination of requirements for the operation of essential services. Coordination is effected with the various mili- tary technical services in the reestablishment, control, and supervision of those public utilities, transportation facilities, and local communications systems needed for military or essential civilian use.
(7)
Public Health.

(a)
     

Initial basic and continuing public health activities will be directed toward determining what epidemics or other health hazards are present or developing which may adversely affect the health of troops, advising the surgeon of the command promptly, and taking neces- sary action to control these conditions.
(b)     
Local public health administration will be reviewed to include the principal legislative features, budget, and personnel, with considerations for retention or replace- ment of personnel. Appointment of a completely new emergency administration may be necessary when the local government is disrupted to the extent that no
120      AGO 6147B
public health administration exists. Through the administration, but with close supervision, the follow- ing activities are initiated:
1.     
Establishment of a system for the continuing review of communicable diseases (including animal dis­eases) and measures to control them.
2.
    Establishment of a system for continuing review of civilian casualties; survey of conditions, capacities, and locations of civilian hospitals, and availability of buildings as substitutes, and quantitative and quali- tative survey of medical, paramedical, and auxiliary personnel. (Supportive measures will be imple­mented to organize local resources to the maximum so that the local government and people can handle their own medical care problem.)

3.
Establishment of a system for continuing review and control of environmental sanitation. The public health staff will provide constant technical guidance to the other CA functional staffs having primary operational or supervisory responsibility in these areas. This guidance may relate to the provision of minimum sustaining diet, housing, fuel, clothing, soap, garbage and sewage disposal, removal and burial of the dead, water supply, management of displaced persons camps, and movement of masses of people.

4.
    Survey of existing civilian medical supplies and of civilian pharmaceutical industry potentials plus availability of civilian transportation to support essential health and medical activities. Action will be taken through appropriate CA functional staffs to provide necessary supporting measures.

5.    
Nutritional surveys may be indicated. If so, these should be initiated as early as possible by United States nutritional teams available from the theater level. (Inherent in all the above actions is the con- tinuation or establishment of a satisfactory system of reporting according to higher directives, local capabilities, and the local situation.)

(8) Public welfare. The CA unit initiates emergency and continuing relief measures essential to public order and safety, such as provisions for emergency shelter for civilians. It coordinates local relief activities and welfare measures, supervises and assists operation of public and
AGO 6147B      121
private charitable institutions and relief organizations, and monitors distribution of contributions from volun- tary agencies.
(9)     Public safety. Conferences are held with senior civilian police and fire department officials as soon as possible after arrival so that the status and capabilities of local systems may be ascertained and such reorganization as is immediately necessary may be accomplished. The police are instructed on the extent of authority which they may exercise under applicable proclamations, ordi- nances, or agreements, as appropriate, and on their re- sponsibility for enforcement of local laws. In order to insure the effective maintenance of law and order, plans are formulated for the coordination of civil and military police activities. When appropriate, arrangements are made to secure arms or special equipment for the civil police. Civil defense activities are initiated as soon as practicable upon entry.
(a)     
Curfew. When curfew regulations are imposed upon local inhabitants, they are informed by posted ordi- nances and by dissemination through civil information media. When local police are incapable of enforcing a curfew, it may be necessary for higher headquarters to provide assistance from military police or other units.
(b)     The CA unit issues passes to allow essential
Passes.
movement to doctors, midwives, key officials, utility repairmen, and other persons whose occupations may require special consideration. The unit commander may authorize key officials, such as the mayor or police chief, to issue passes to designated classes of civilians.
(c)     Travel. When it is necessary to impose travel restric- tions, military or civilian police establish checkpoints at road barriers, bridges, railway stations, airports, and docks to enforce such restrictions.
99.     Marches
a. General. The CA unit makes both administrative and tactical types of marches. Administrative marches are normally made prior to deployment when contact with an enemy ground force both en route and after arrival at the destination is a remote pos- sibility, or in neutral or friendly areas where enemy action is not an immediate consideration. When deploying for operations and when contact with an enemy ground force is possible, the unit
122      AGO 6147B
makes a tactical type of march. Marches may be made by infil- tration, close column, or open column depending 011 such factors as the mission of the unit, visibility, condition of the roads, traffic conditions, enemy air activity, and proximity to front lines.
b.
Organization for the March. The order and composition of the march column depend on the mission, terrain, the probable order of need of the subordinate elements, and any differences in relative mobility. In the movement of a CA unit larger than a platoon, reconnaissance or quartering parties usually precede the movement of the main body of the unit. The main body of the unit, which may move under the command of the executive officer, consists of the remaining members of the unit staff, the majority of functional teams, and the administrative teams. In appropriate situations, the administrative teams may be formed into a rear echelon and marched behind the main body under command of the motor officer or other designated individual. When sufficient organic transportation is not available to move all personnel and equipment of the unit in one tri~. and additional transportation is not furnished by other units, the unit moves its personnel and equipment successively by echelon until the entire movement has been completed.

c.
Reconnaissance Party. The unit commander's reconnaissance party consists of personnel and equipment needed to assist the commander in his reconnaissance, formulation of his plan, issu- ance of orders, and establishment of the unit headquarters. Com­position of the party varies according to the situation and the size of the unit. In a unit of group size, the party may consist of the group commander, S2, S3, public safety officer, sergeant major, interpreter, and messenger. Additional members of the unit to include the remainder of the public safety team are included ac- cording to the requirements of the situation.

d.
Quartering Party. The quartering party of a CA group may consist of the headquarters detachment commander (in charge), the communication officer, the assistant S4 (for assistance in bil- leting and local procurement), guides, route markers, and such other personnel as may be required by the situation. Composition of quartering parties for other type CA units varies according to the availability of personnel. The quartering party locates and lays out bivouac areas, selects and prepares actual command post sites for occupancy, and allocates space for the staff section, func- tional teams, messes, motor pools, and other facilities. It also provides guides to meet the column upon arriv81, performs route

AGO 6147B
reconnaissance and pioneer work, and prepares plans for defense of the area.
e.
Orders. A warning order for the march is issued by the unit commander as early as possible to give personnel of his unit ade- quate time for preparation. The warning order includes informa- tion that a movement is to be made, how it is to be made, and the approximate time it will begin. Any other pertinent information which is available and which does not conflict with secrecy re- quirements is also included. The march order for the unit may be written or oral. The amount of detail to be included in the march order depends on the tactical and traffic aspects of the situation, the state of training of the unit, and the amount of detail already included in standing operating procedure.

f.
Order Detail. A complete march order describes the situa- tion ;designates the mission, destination, formation of the column, initial point, control point, regulating or release point, times of arrival or clearance at these points, rate of march, route or routes of march; furnishes instructions to security detachments, recon- naissance, pioneer, quartering, route marking, and traffic control parties; prescribes restrictions on the use of roads, maximum speed of march, alternate routes and detours, restrictions on lights, halts, precautions during halts, special instructions on march discipline, and instructions on defense against air or ground attack, and furnishes instructions on administrative de- tails and communications.

g.
Route Reconnaissance. Route reconnaissance is made from maps, aerial photographs, or airplanes. Whenever practicable, map reconnaissance is followed by driving over the route. Route reconnaissance serves to determine the most suitable route, alter- nate routes, available cover and concealment, road conditions, locations of mine fields, road blocks, defiles, gassed areas, or other obstacles, condition and capacity of bridges, selection of sites for halts, bivouacs and assembly areas, and plans for route marking and pioneer work.

h.
March Security. March security necessitates the establish- ment of a warning system within the unit to include ground observers, security detachments, reconnaissance elements, and effective signal communication, when available. Unless augmented with air defense weapons, the CA unit commander relies primarily on passive defense measures for defense against hostile air attack. Passive security measures include marching at night, dispersion in column, concealment and camouflage, movement of march ele- ments by bounds, and mobility. Alternate routes and vulnerable points are determined by reconnaissance. At halts, vehicles are dispersed and march outposts established. March discipline in-

124 AGO 6147B
dudes the observance and enforcement of rules which govern a unit on th'e march, especially those involving correct formations,
'     distances, speeds, and the effective use of cover. March discipline is acquired through training and experience in marching. Effec­tive march discipline enables CA units to enter forward areas with combat forces and to take such action as is necessary to establish control of the civilian population.
100. Security and Communication
a.
The unit commander takes both active and passive security measures to protect the unit headquarters from hostile ground action, air action, covert threats, atomic attack, and CBR weapons. These measures, which are normally set forth in the unit SOP, are integrated in the consolidated defense and warning system which may be established for all military units in the area. Passive defensive measures against CBR attack include the use of protec- tive masks, special clothing and other protective equipment, use of protective shelters, immunization procedures and field sanita- tion, decontamination, self aid, and first aid. For information on the defense against CBR attack, see FM 2140 and FM 21-41.

b.
As conditions require, a guard system is established utilizing local civil police augmented, when directed by the area military commander, with Troops. Whenever practicable and as required, a perimeter defense is established, utilizing subordinate elements in assigned sectors of the perimeter. Effective utilization is made of terrain, fields of fire, individual cover, defensive works, and obstacles. Mutual support measures are closely coordinated with other units in the vicinity. In areas where only very limited sup- port can be provided by other military units, it may be necessary for the unit commander to request that higher headquarters aug- ment the defensive capabilities of the unit with automatic and other type weapons.

c.
Guards and outposts supplemented by motorized reconnais- sance patrols, within the capabilities of the CA unit, may be employed to give early warning of attack. In addition, contact is maintained with friendly civilians who are in a position to supply information. Effective communications are maintained with patrols, guards, outposts, other military units in the area, and higher headquarters.

d.
The unit commander insures that personnel of his unit are Prepared at all times during the conduct of its normal CA opera­tions to repel a security threat. Weapons are kept at hand in condition for use.

e.
The commander exercising control over the CA unit is responsible for including the unit in his communications network.

AGO 6147B      125
The CA unit commander insures that his unit is appropriately tied into the military signal communications system and is re- sponsible for the establishment and maintenance of signal com- munications with his subordinate units.
f.
Local civilian communications facilities are used for com- munications between the agencies of civil government. When local facilities have been damaged or have been taken over for military use, the unit commander requests an allocation of mini- mum military facilities or supplies to permit the conduct of emergency governmental services. When it is not possible to furnish military supplies or equipment, the unit commander arranges for the transmission of essential messages through the military communications system. The CA unit commander con- ducts the necessary liaison and coordination between military signal corps units and local officials. For information on the principles of tactical employment and techniques of operating the most commonly used signal equipment see FM 24-18 and FM 24-20.

g.
The unit commander is responsible for communications security including the imposition of all measures which prevent or delay the gaining of information by the enemy from friendly means of communications. Arrangements for the censorship of civil communications are made with G2 of the staff of the area military commander. See AR 380-83, AR 380-5, and the JANAP and ACP-122 series.

101. Retrograde Movement
a.
Primary CA tasks during a retrograde movement include control of the local inhabitants to prevent interference with mili- tary operations and evacuation of designated civilian personnel, essential resources, assets, supplies, and equipment. Prior to a retrograde movement, flow of civilian supplies to forward areas is reduced and rearward evacuation of supplies that may be of use to the enemy is accomplished with civilian transportation being used to the maximum. In order to neutralize the value of the area to the enemy, it may be desirable to destroy resources, assets, supplies, equipment, and local facilities that may be of use to his forces. However, this destruction is accomplished only in accordance with international law and upon the authorization of the commander directing the retrograde operation.

b.
Detailed plans for retrograde movements must be made in advance in accordance with overall plans. Effective liaison be- tween the CA unit and higher headquarters, adjacent, and sup- porting units is essential to the control and movement of civilians,

126 AGO 6147B
including establishment of checkpoints, the prevention of inter-
ference with tactical operations, and the utilization of all available
roads.
c, Commanders of major tactical units are responsible for
directing the movement of CA units assigned or attached to their
headquarters. In order to provide for continuing control of the
civilian population in forward areas, it is desirable for the com-
mand of designated CA units to pass to the last friendly major
tactical commander operating in the area. Thus, designated
area support units deployed in the army service area may come
under the successive control of commanders of corps and divi-
sions; orders for their rearward movement are issued by the
latter commands.
Section Ill. DISPLACED PERSONS, REFUGEES, AND
 
EVACUEES
 

102. Movement Control
a. Purpose. During combat operations effective control of the movement of civilians is of primary importance. Disorganized masses seriously impair the maneuverability of military units, endanger security, and threaten the health of the military force. In addition, refugees and displaced persons constitute a potent weapon which the enemy may use to disrupt friendly military operations. To prevent interference with military operations from the movement of the local population, it is essential that civil administration be reconstituted at the earliest practicable time and that constructive direction be given through civil authorities to the local population.
b. Definitions.
(1)
A displaced person is a civilian who is involuntarily outside the boundaries of his country in time of war, who may or may not be desirous of repatriation, and may require assistance in obtaining food, shelter, and clothing.

(2)
    A refugee is a civilian who by reason of real or imagined danger has left his home to seek safety elsewhere within his own country.

(3)
    An evacuee is a civilian removed from his place of residence by military direction for reasons of his own security or the requirements of the military situation.

c.
Responsibilities. The theater commander is responsible for planning policies and procedures for care, control, and disposition of refugees, evacuees, and displaced persons in accordance with

AGO 6147B     
directives of Department of Defense. subordinate commanders prepare detailed plans based on policies of the theater commander. All commanders are under the legal obligation imposed by the rules of international law, including the Geneva Convention of 1949, to provide a minimum standard of humane care and treat- ment, to establish law and order, and to protect private property. Additional humanitarian considerations are observed whenever possible providing they do not result in interference with military operations.
d. Planning Considerations. Detailed planning for the care and control of refugees, evacuees, and displaced persons should include consideration for such matters as the authorized extent of migration and evacuation, location and establishment of camps, sources of materials and personnel to construct camps, standards of care; status and ultimate disposition of refugees and displaced persons from allied, neutral, or enemy countries; extent of local governmental authority over nonnational civilians, designation of routes for refugee movement, military police units to provide traffic control, intelligence detachments to screen personnel, and CA units to operate camps.
e. Disposition.
(1)
During a fluid situation, it is desirable to billet refugees with the local population in nearby communities to the greatest practicable extent rather than to move them to the rear through assembly areas to camps. When frontline tactical units have advanced rapidly, it is advantageous to permit the early return of refugees to their homes. Logistical support requirements may, however, delay the return of refugees to centers of population. In a static or slow moving situation, it may be necessary to collect and move all refugees to the rear rather than to billet them in nearby communities.

(2)
    In either a fluid or a static situation, displaced persons are formed in groups and moved through assembly areas to displaced persons camps as soon as the tactical situation permits. All movements of refugees, evacuees, and displaced persons to the rear are made on designated secondary roads. Maximum utilization is made of local

transport.

(3)
    The ultimate disposition of refugees is to allow them to return to their homes as quickly as tactical and logistical considerations permit in order to lessen the burden on the military force and the civilian economy for their support and to lessen the danger of disease

128      AGO 6147B
which accompanies the grouping of peoples in restricted
areas. When refugees are returned to their homes, they
can assist in the restoration of their towns and con­
tribute to their own support. Continuing attention is
given by all commanders exercising control over refu-
gee camps to the early return of refugees to their homes.
(4)
    The ultimate disposition of displaced persons is to reset- tle them, preferably in their own country or in any area of their choice consistent with United States policy and international agreements. The early resettlement of such displaced persons shortens the period of time during which they are a responsibility of the military commander.

(5)
    The ultimate disposition of evacuees will vary with the reasons for evacuation, but generally they will be re- turned to their places of residence or other areas of their choice within the scope of United States policy and the terms of existent or negotiated international agreements.

f.
Screening. To prevent infiltration by guerrillas, enemy a.gents, and escaping members of the hostile armed forces, it is essential to screen refugees, evacuees, and displaced persons, set up control points, issue passes and other identification documents, search suspected individuals, enforce curfews, and impose restric- tions on movement. Although screening activities may be per- formed initially by military police, intelligence, or other type units, they are most effectively conducted by using friendly and reliable local civilians under the supervision of CA units. Ad­ministrative controls to prevent infiltration must be conducted with care to prevent the alienation of people who are sympathetic to United States objectives.

103. Evacuation
a. Whenever possible, the rearward evacuation of communities in forward combat or other areas is avoided. Evacuation removes civilians from areas where they can maintain themselves, provides material for enemy propaganda, arouses resentment, affords civil- ians an opportunity to observe valuable military installations, complicates the control of their movements, increases the difficul- ties of maintaining adequate security; necessitates the use of military transport and the expenditure of additional food, fuel, clothing, and medical supplies, thereby increasing the burden upon military resources, and may create epidemic conditions and de- crease availability of facilities to support military operations. Instructions may be disseminated by air dropped leaflets, airborne
AGO 6147B      129
loudspeakers, or portable speaker units. In appropriate situations, uroclamations, orders, and instructions are posted by advancing troops. Repeating evacuations because of unanticipated reverses or for other reasons is wasteful of personnel and equipment. It is also a source of irritation and unrest to the civilians. Repeated evacuation may also present a hazard to the security of the troops and interfere with military operations.
b. If tactical considerations so require, civilians may be re­moved from forward areas and not be permitted to return to their homes until the advance of friendly elements has resulted in the establishment of a new forward zone. The removal of civilians may be partial or complete, as security considerations require. If practicable, livestock may be evacuated with the civilians. In any event, provision should be made for protecting property, both real and personal, of the absent civilians, the feeding of remaining livestock, guarding of mines, and performing other essential services. When civilians have been removed from an area, they are not permitted to return to their homes until authorized. How­ever, when the military situation permits, civilians may be returned to their homes under escort in order to rescue livestock or minimize personnel losses which may impair the local economy.
(1)
The decision for such action must be made by the divi- sion or higher commander. For example, a rearward evacuation beyond the division rear boundary is made only after coordination with the corps or field army commander.

(2)
    Civilians are evacuated to the rear only when necessary to­

(a)
Remove them as a hindrance to military operations.

(b)
    Provide for increased security of troops and installa- tions and to safeguard information.

(c)
    Provide for their safety and welfare by removing them from the fontlines.

(3)
    Civilians may be evacuated when-

(a)
There is time for the evacuation to be accomplished.

(b)
    Density, character, and composition of the population render such evacuation necessary.

(c)
    Means are available to accomplish the evacuation.

(d)
    Routes are available for the evacuation.

(e)
    Areas are available to absorb the evacuees.

(f)
    Distances involved are not prohibitive.

(g)
    Fallout from nuclear attack has not made movement impracticable because of lethal radioactivity over escape routes.

AGO 6147B

130     
c. Duties of a CA unit commander in an evacuation include–
(1)
Executing plans for evacuation.

(2)
    Utilizing civilian transportation to the fullest extent pos- sible for the transport of civilians.

(3)
Establishing and maintaining feeding stations along routes.

(4)
    Insuring that plans for reception have been made.

(5)
Establishing civilian collecting points and civilian assem- bly areas or refuge evacuation centers.

d.
When a decision is made to accomplish the mass evacuation of a community, detailed plans are made to prevent stragglers or uncontrolled groups from disrupting forward movement of mili- tary units and supplies. Mass evacuation planning includes con- sideration of the following:

(1)
Transportation. Maximum use will be made of civilian transportation. If this is not available, military vehicles should be requested for the old, the very young, and the sick.

(2)    
     Distance. The distance of the move from the point of departure should be no greater than is necessary to meet the minimum objective for which the movement is planned.

(3)
Fallout. Where radioactive fallout has occurred, or is anticipated, precautions are taken to avoid moving civil- ians downwind from the actual or anticipated nuclear attack.

(4)    
     Security screening documentation of

Screening. and evacuees should be accomplished at the earliest possible moment-preferably not later than their arrival in as- sembly areas.

(5)
Identification. If possible, every evacuee is provided with and required to wear visibly on his person a tag identifying him by name, or is provided an official iden- tification card indicating the locality from which evac- uated and bearing other pertinent information.

(6)
    Briefing of evacuees. Briefing to explain the purpose of the move and the methods of passive air defense is accomplished by leaflets, loudspeakers, posters, or other means available prior to beginning the movement.

(7)         
Impedimenta. Each person is allowed to take a prede- termined allowance of personal effects.
(8)     Rations. If the move will require not more than two days, rations may be issued at the time of departure to
AGO 6147B          131
each person evacuated, or rations may be issued at desig- nated points enroute,
(9)     Housing should be such that
Holding areas and camps.
it will not endanger the health of the evacuees, nor unnecessarily increase the suffering caused by the evacu- ation. Issues of food, fuel, clothing, and medical supplies are furnished in advance to the holding area receiving the evacuee. .
(10)
Medical care. The health and physical well-being of the evacuees are difficult problems. Use of civilian medical personnel is highly desirable. Civilian medical personnel are supplemented by military medical personnel, if neces- sary and available, to assure meeting standards of medi- cal care required, to protect the health of military per- sonnel, and to comply with international law. Particular attention is given to elderly persons, pregnant women, the blind, crippled, and feeble, and very young children. Appropriate health measures will be taken prior to move- ment to prevent spread of infectious diseases and de- velopment of epidemics.

(11)
    ~eligiousneeds. When practicable, the religious needs of the evacuees are ascertained, and facilities are made available for worship, through the use of civilian religious personnel assisted by military chaplain personnel, if available and required.

(12)
    Duration. The duration of the evacuation should be no greater than that necessary to meet the maximum objec- tive for which the movement is planned.

(13)
    Return. Plans for mass evacuation also include pro- vision for the return of the evacuees as well as criteria for determining the duration of their absence. Areas subjected to CBR warfare are carefully screened for safety of occupancy before return movement is accomplished.

e.
In a retrograde movement, standfast orders normally are issued to civilians in order to prevent interference with military operations and to preclude disclosure of the plan of operation. However, experience has shown that such orders are ineffective if a population fears the enemy; therefore, the rearward evacuation of civilians in special categories and priorities may be authorized by policies of higher headquarters. Policies pertaining to evacua- tion are implemented by subordinate tactical commanders as the military situation permits. Evacuation priorities may include persons and resources according to the following priorities :

(1)
Civil officials and resistance leaders who have worked for the military forces of the United States and its allies and their immediate families who may be subject to reprisals.

(2)
Other civilians including medical and religious personnel, as policy directs and the military situation permits.

(3)
Civil police (other than (1) above).

(4)
    Items of immediate value to the enemy forces except such material as medical supplies and foodstuffs essential for civilian needs, personal property, or any other material covered by international law or humanitarian considera- tions. Equipment or materiel in certain categories, ca- pable of immediate conversion to military use by hostile forces and not capable of evacuation, such as petroleum products, weapons, means of heavy transport, and public communications equipment may be destroyed.

132      AGO G147B
104. Roads and Collecting Points
a.
Civilian collecting points are temporary areas designated for the assembly of small numbers of refugees, evacuees, and displaced persons prior to their evacuation to assembly areas, or refugee camps, or to their resettlement in local communities. At collecting points only minimum emergency relief for limited periods to in- clude food and medical treatment is provided. Appropriate dis- position of civilians held in collecting points is made as rapidly as the military situation permits. Collecting points should be in de- filade, accessible by road, and near water.

b.
Whenever practicable, civilians are searched for documents of intelligence value and unauthorized possessions. Prisoners of war are separated from refugees, evacuees, and displaced persons, and are turned over to military police for delivery to prisoner of war collecting points. Refugees, evacuees, and displaced persons are screened against listings furnished by G2 describing enemy civilians whose internment as "civilian internees" is considered necessary in the interests of security. Civilian internees are also segregated and turned over to military police.

c.
In the movement of refugees, evacuees, and displaced persons from collecting points in a division forward area to assembly areas in the division service area, corps rear area, or army service area, maximum utilization is made of civilian police in providing con- trol. Every effort is made to hold family groups together. Move­ment is made on secondary roads selected in consultation with interested staff officers including G3, G4, and the provost marshal.

AGO 6147B      133
105. Assembly Areas and Camps
a.
An assembly area or refugee evacuation center provides a temporary assembling place for refugees, evacuees, and displaced persons in preparation for further movement to refugee camps or for resettlement in local communities. Assembly areas, which are generally designed to accommodate a larger number of persons than a civilian collecting point, provide additional emergency re- lief to include food, clothing, medical supplies, medical treatment, and limited shelter. In assembly areas, the process of screening to segregate prisoners of war and civilian internees for separate han- dling by military police units is continued. In addition, action is commenced, whenever the requirements of the military situation permit, to segregate civilians by nationality or ethnic groups in preparation for movement to designated camps. A continuous effort must be made to identify and segregate individuals whose interests are inimical to those of the U.S. and its allies.

b.
Refugee or displaced persons camps or collection centers serve as temporary or semipermanent places for the grouping of refu- gees, evacuees, and displaced persons prior to the return of such persons to their normal places of habitation, resettlement in local communities, repatriation to their own countries, or other desig- ated disposition. They are normally located in communications zones. Camps may utilize available civilian accommodations or consist of military construction. In either instance, it usually is de- sirable to limit the size of camps to a maximum of 5,000 persons to facilitate care and control and to preclude requirements for military personnel to provide medical care, sanitation, and the preservation of order.

c.
In these camps a further segregation of refugees and dis- placed persons takes place according to nationality or ethnic group. Continuing action is taken to detect enemy civilians who should be interned, examine civilians for communicable and other diseases, prepare individual identification records, reestablish in- dividual family groups; provide food, clothing, and additional medical care, and prepare individuals for future disposition.

d.
Refugees, evacuees, and displaced persons may be accom­modated in hotels, schools, halls, theaters, unused factories, or any type of public buildings; they may occupy blocks of unoccu­pied houses or workers' camps. Local facilities are utilized when- ever practicable to reduce the requirements for engineer construction materials. In the designation of locations, care is taken to avoid those which are in the vicinity of such profitable targets as vital communications centers and large military instal- lations. In the selection of local facilities, general consideration is given to the temporary or semipermanent nature of the

134 AGO 6147B
facilities to be established and such factors as weatherproof roofing, solid floors, necessary ventilation, provisions for water supply, sewage, and waste disposal, and proximity to local soprces of food supply. Another factor in camp location is whether inhabitants will be a source of indigenous labor.
e.
The specific type of authorized construction, which is the minimum necessary to satisfy the requirements of the particular situation, varies according to local climate, anticipated perma­nency of the particular camp, number of camps to be constructed, extent of local sources of labor and materials, and the availability from military resources of engineer materials and assistance. Whenever possible, construction is accomplished by the refugees, evacuees, or displaced persons, themselves, or by local agencies of government employing civilian labor; local sources of ma­terials are utilized to the maximum practicable extent in accord- ance with legal limitations.

f.
The administration and operation of a refugee or displaced persons camp usually are directed by a CA platoon under the supervision of its company headquarters. The parent CA com- pany provides technical advice, support, and assistance, and may furnish additional platoons and functional teams or .specialists, such as displaced persons, public health, public welfare, or public safety, at any particular camp according to the requirements of the particular situation. In the event that additional functional teams or specialists are required beyond the capabilities of the CA company, the company commander requests the minimum necessary assistance from the CA group or major echelon to which assigned or attached. Because of the large numbers of refugees and displaced persons for whom control and care normally must be provided, maximum attention must be given to self-administration or the utilization of local civilian personnel to provide the cadre for camp administration. This cadre should be organized and trained prior to the opening of the camp. Whenever practicable, civilian personnel should be obtained from public and private welfare organizations and employed under military supervision.

g.
Inmates of camps should be required not only to establish and maintain the organization for internal camp administration but also to provide for security of the installation. Within the limitations imposed by international law, camps should provide the necessary labor for their own operations and within applicable limitations should be looked to as a source of essential labor. Allied liaison officers and representatives of international organi- zations and of local governments are conducted on visits to camps as required.

AGO 6147B

Section IV. CIVIL DEFENSE AND AREA DAMAGE CONTROL
106. Relationship and Mutual Support
a.
Civil defense includes the mobilization, organization, and direction of the civil population, designed to minimize by passive measures the effects of enemy action against all aspects of civil life. Because of the extensive damage to civilian populations and economies that may result from use of mass destruction weapons, careful development and effective implementation of civil defense plans are essential to preserve the stability and security of civil government. In addition, civil defense contributes to the protection of military installations from related damage, may minimize military casualties, permits the continuance of local support to military operations, and generally reduces the extent of disruption to military operations.

b.
Area damage control in military operations consists of the preventive and control measures taken prior to, during, and after an attack or natural disaster to minimize the effects on administrative support. It serves to assist in the continuation or reestablishment of administrative support. Responsibility for reestablishing administrative support rests with the command and the technical and administrative service officers, however, and is not a part of area damage control. Generally rear service areas are divided into sub-areas for damage control purposes, and a rear area security control center is established by the respon- sible commander to implement and coordinate rear area defense and damage control. Similar subordinate control centers are established in each sub-area. Area damage control planning is a general staff responsibility of G4, while rear area security plans are prepared under the supervision of G3, and civil defense is within the purview of G5.

c.
In territory assigned to a logistical command the deputy commander of the logistical command is given responsibility for general supervision of the planning and conduct of rear area security and damage control, and plans for these operations are prepared by the director of security. Execution of area damage control and rear area security plans is a responsibility of com­mand which may be delegated to a subordinate commandel* Civil defense is the responsibility of civilian authority, where it exists, coordinated by or under the supervision of civil affairs units.

d.
Civil defense and area damage control planning and opera- tions should be closely correlated and mutually supporting. Not only will hostile operations be of immediate security concern to the civilian populations and agencies and area troop units

136 AGO 6147B
and facilities, but passive defense measures must be coordinated for successful implementation. Some of the same personnel and equipment may be employed dually in civil defense and area damage control operations. Pre-attack planning will give consideration to such matters as camouflage, circulation of traffic, movement of individuals, blackouts, construction of shelters, warning systems, labor, fire-fighting and decontamination procedures, equipment, and personnel. In post-attack recovery operations radiological survey and decontamination processes will benefit both military personnel and civilians. Civilian and military fire-fighting equipment and labor potential can be co- ordinated or pooled, where advantageous, as can medical services. Any major movement of civilians as the result of an attack will have a direct bearing on the circulation of military traffic. In repair and reconstruction activities, equipment, technicians, labor, and materiel of troop units concerned and the civilian population should be coordinated and directed toward serving the maximum advantage of both.
107. Implementation
a.
Responsibilities. G5 is assigned general staff responsibility for civil defense planning and measures for the control of the civilian population. He coordinates his plans with appropriate staff officers in their respective fields of interest. In his assigned area of jurisdiction, the CA unit commander is responsibile for implementation of civil defense plans and for coordination of control measures with local agencies of government and with sub-area control centers, as appropriate. Within the CA unit, the public safety officer has primary staff responsibility for planning and supervision of all activities pertaining to civil defense. To the maximum practicable extent, local officials are held responsible for organization of local civil defense activities and effective conduct of civil defense measures.

b.
Planning. Civil defense planning is not confined to pro­tective measures against nuclear weapons in the mass destruction category but must include protection against all types of warfare, and against all forms of natural disaster such as floods, fires, and earthquakes. G5 submits to G4 those paragraphs of the area damage control plan pertaining to CA operations, prepares civil defense annexes to operation and administrative orders, and plans for related control measures applicable to the civil population. In development of civil defense plans, consideration is given to­

(1)
Correlation with the area damage control plan.

(2)
    Provisions for emergency repair of vital installations, fire prevention and protection, disposal of enemy ex­

plosive ordnance, and emergency hospitalization of civil- ian personnel.
(3)
    Maximum utilization of existing local plans, organiza- tions, and facilities.

(4)
    Mutual support provisions to enable both military and civilian rescue and working parties and their equipment to be employed, in emergency, in the installations and facilities of the other.

(5)
    Establishment of civilian control centers in the vicinity of sub-area control centers, whenever feasible, in order to receive air raid warnings, dispatch orders, direct emergency services, and coordinate measures for mutual assistance between military and civil organizations and facilities.

(6)
Coordination of neighboring civil defense organizations particularly when the boundaries of military sectors for damage control cross political boundaries.

(7)
    Establishment in towns and cities, where no operating civil defense organizations exist, of civil defense organ- izations with directors subordinate to the mayors or chief executive officers.

(8)
    Establishment of civil defense organizations at provin- cial and national levels as soon as the situation permits..

(9)
    Organization and training of fixed support installations, facilities, and personnel for emergency hospitalization, housing, mass feeding, and traffic control and of mobile reserves containing combined teams capable of rapid mobilization and movement for the purpose of perform- ing police, fire, medical, rescue, and engineering services.

(10)
    Provisions for the evacuation of cities and towns rendered unsafe as a result of contamination, radiation, flood, or other disaster to include the supply of necessary transportation, control of allocated transportation, and alternate traffic circulation plans. Such provisions must stress flexibility and mobility. In planning for any evacuation to avoid the blast and thermal effects of nuclear weapons, consideration must be given to the availability of shelter or cover, the speed of movement which can be achieved, and the difficulty of identifying areas of safety with reasonable accuracy.

(11)
    Development of protective measures against guerrillas, infiltrators, and subversive elements who can be ex­pected to take advantage of the disruption or disorgan- ization of local government.

AGO 6147B
(12)
Education of      the local population and provisions for the dissemination of information, orders, and instruc- tions requiring group action and assignment of in­dividual responsibilities to avoid extensive casualties that may result from mass panic.

c.
Operations. Provisions for civil defense are required from the instant operations are initiated. In order to establish tem- porary measures for the control of damage and to provide higher headquarters with a basis for planning, the CA unit, upon entry into its assigned area, promptly gathers information on the structure and capabilities of any existing civil defense organiza- tion and on the availabilities of local supplies and equipment. Sources, including neighboring communities, from which addi- tional equipment may be obtained are also explored. Under the direction of the CA unit commander, the public safety officer or other individual designated to act in this capacity, coordinates the activities of the various functional specialists. Functional specialists supervise those local agencies of government and civil defense services that normally are most closely related to their respective specialties. Organization of or augmentation to the following types of services is desirable in most situations :

(1)
Police services, consisting of community police organiza- tions and supplemented by an auxiliary corps of volun- teer policemen to restore public order and safety, prevent and detect crime, protect life and property, enforce civil defense orders, and control the movement of people.

(2)
    Fire services, consisting of existing fire-fighting units and supplemented by an auxiliary corps of volunteer firemen to combat large conflagrations and to perform rescue work related to fire fighting.

(3)
    Warden services to maintain liaison between locaI civil defense organizations and civilian populations and to assist in the dissemination of information, orders, and instructions to the public.

(4)
    Public health services augmented with nurses, aid work- ers and stations, and mobile casualty units to provide first aid treatment; to classify, evacuate, and hospitalize casualties; to operate blood banks and perform labora- tory services, to test the potability of water supplies, and to conduct other activities related to public health and sanitation.

(5)
    CBR defense services to minimize the effects of enemy attacks, conduct surveys to detect and establish bound- aries for CBR hazards, and advise civil defense workers

AGO 6147~     
on the maximum period of time they may remain in specific areas without risk of injury.
(6)
    Rescue and engineering services to release living persons trapped in debris or damaged buildings and to provide for a potable water supply, the disposal of garbage and sewage, and the clearance of debris from roads to permit the movement of essential traffic.

(7)
    Communications and transportation to provide services required for civil defense activities and to mobilize, organize, and deploy available civilian transportation facilities for the purposes of providing emergency ambu- lance and evacuation services in event of disaster and of facilitating such evacuation of cities and towns as may be directed.

(8)
    Public welfare services to assist in the supply and dis- tribution of food and clothing and to provide shelter for those who are homeless.

(9)
    Local information bureaus to prepare and disseminate information and instructions. To discourage local work- ers employed by the military force from leaving their jobs, .it is desirable to give assurances to workers that actions are being taken to provide care for their families and protection for their homes.

d.
Supplies. Logistical portions of operation plans should in- clude provisions for anticipated requirements of civil defense equipment and supplies so that later diversions from military stocks of supplies needed for the support of military operations will not be required. Civil defense equipment and supplies, which should be available for issue to the local government as soon as the reliability and capability of that government have been estab- lished, may include fire-fighting and heavy equipment, tools, chemicals, industrial gases, and civilian relief supplies.

e.
Training. All CA personnel should receive training in area damage control prior to operations and possess a working knowledge of the application of their respective functional special- ties to the planning for and implementation of civil defense measures. Public safety officers should receive intensive training in area damage control. The CA unit supervises the conduct of general and specialized training of all local civil defense personnel to provide a working knowledge of assigned duties and of the capabilities of civil defense equipment, devices, and materials. In the training of local personnel, flexibility and versatility should be stressed to permit the utilization of personnel both in their assigned duties and in the varied emergency tasks required under disaster conditions.

140      AGO 6147B ,
Section V. SPECIAL OPERATIONS
108. Airborne, Amphibious, and Armored Operations
a.
Although the conduct of special operations normally requires specially trained troops, special techniques, tactics, material, or an emphasis upon certain considerations, the CA principles, con- cepts, and techniques described in this manual generally apply. The flexible composition of CA TOE units permits the addition or deletion of specified functional teams to meet the requirements of particular operations.

b.
Following an airborne operation and when linkup with friendly forces has been accomplished, authority for the conduct of CA operations may be transferred to the commanders of those major tactical units effecting the linkup. To assure continuity of operations, particular attention must be given to providing information and making records available to other commanders who will subsequently enter the area.

c.
In the planning for and conduct of CA activities in support of airborne operations, the commander of a major tactical unit must provide, as a minimum, for the establishment of public order and safety, the discharge of his legal responsibilities, and such additional activities as the nature of the operations may require. These additional activities, which may be undertaken after the airhead is secure, may include the local procurement of motor and other forms of transportation to increase the mobility of airborne units; the utilization of local labor, supplies, and equipment, and the protection of local resources.

d.
CA planning, which is based on the tactical plan of opera- tions, necessitates accurate, detailed, and timely intelligence of objective areas on such matters as the attitude of the local popu- lation; movement by the enemy of inhabitants from the landing area; extent of disease, privation, and unrest among the inhab- itants which may necessitate the use of civilian relief supplies fro& military stocks; availability of local labor for military use, and availability of local supplies and equipment for military pro- curement.

e.
In airborne operations, the CA command support platoon, augmented as necessary with functional teams or other command support platoons, moves to the objective area with the assault echelons. Since the CA units normally will not be able to assume control over civilians in the airhead until some degree of stability is established, personnel of the unit act in advisory capacities to the commanders who are responsible for the control of civilians in their respective areas. As specified in division directives, initial actions may include measures to freeze the civilian population in

AGO 6147B
 
place in order to prevent interference with military operations; to establish law and order and prevent sabotage, and to provide shelter, rations, clothing, and medical care for civilians. In inde- pendent type operations, designated CA area support units should be deployed in the airhead prior to the exploitation phase. In linkup operations, area support units may enter the area with the force effecting the linkup.
f.
In amphibious operations, personnel of the division command support platoon, as augmented, are attached to the landing teams to advise and assist the commanders in initiating CA operations. In planning for amphibious operations, particular consideration is given to the vulnerability of beachhead operations; to activities by local inhabitants which may cause congestion or confusion; to the need for absolute control over civilian circulation so that movement from and to the beachhead areas will not be impeded, and to problems which may be created by refugees. Since econ- omy of force is a vital consideration, maximum permissible use is made of local resources. To the extent authorized by international law and when security considerations permit, it is desirable to employ local inhabitants for cargo handling, warehousing, and related activities.

g.
In armored operations, it may be necessary to accord priority to public order and safety measures at the expense of other CA activities because of the longer lines of communication and the extent of the area in which operations may be conducted. When an armored division is empIoyed in pursuit or exploitation mis- sions and is supported by an infantry division, coordination must be effected by commanders concerned on the conduct of CA activ- ities to include the initial establishment of public order and safety in order not to delay the advance of the armor and still to provide for full discharge of legal or treaty obligations. When an armored division is in a static situation or occupies a frontline defensive sector, its CA activities are conducted in the same general manner as those of an infantry division.

h.
Specialized operations require specialized training if CA personnel are to function at maximum efficiency. Airborne oper- ations require training in loading and unloading of equipment and personnel in aircraft and landing by parachutes or assault air- craft; amphibious operations require specialized training in em- barking and debarking procedures and special considerations of cover, security, and communications, while operations in the jungle, mountains, arctic, and in deserts necessitate training in procedures appropriate to the areas of operations in the interest of personnel survival and immediate and effective ability to sup- port the combat forces. Special operations in certain instances

142 AGO 6147B
require special equipment, and whether the operation is in the jungle, mountains, arctic, desert, or in areas with more conven- tional terrain and weather features, advance plans will cover specialized individual and unit equipment essential to the area of operations. Within limitations imposed by time and availability of source material intensive area study prior to any specialized operation is necessary.
109. Guerrilla Operations
a.
Guerrilla warfare is conducted in enemy held territory by independent or semi-independent forces, usually indigenous, organ- ized on a paramilitary or military basis for the purpose of reduc- ing combat effectiveness, industrial capacity, and morale of the enemy. It is usually conducted to hinder, harass, sabotage, or delay operations of enemy forces. It may be employed in friendly areas which are to be liberated from enemy occupation or in enemy territory which is to be seized and occupied by friendly forces. For details on the conduct of guerrilla operations, see FM 31-21.

b.
Operations of friendly guerrilla forces located in enemy con- trolled territory are closely coordinated with those United States political objectives and policies which are to guide the conduct of CA operations as the area of concern comes under friendly con- trol. Since friendly guerrilla forces endeavor to gain and maintain civilian support and to organize and control civilians, they pro- vide a valuable basis for subsequent CA operations to gain control of the civil population. Guerrilla forces may be employed to fur- nish valuable information about political, economic, and sociolog- ical conditions. Such current information, which supplements or modifies area intelligence previously obtained, is of particular value in planning for the conduct of CA operations. When guer- rilla forces are assigned a mission by the conventional force to collect data for intelligence, specific CA items of information, such as the suitability of individuals for appointment as local officials, are included.

c.
Since it may be necessary to provide CA trained personnel to assist in the collection of information, qualified CA personnel or reliable civilians may be introduced into guerrilla units. Dis­patch of such persons by the conventional force may provide valuable guidance to guerrilla forces with respect to United States objectives and may assist in gaining early control of the popula- tion after linkup is effected.

d.
CA units can provide effective support to special forces de- tachments in guerrilla warfare programs. Prior to linkup, infor- mation secured from local officials, political opposition groups,

AGO 6147B 143
civilian documentary matter, refugees, and other sources within
the civilian community may be useful to guerrilla forces. Pros­
pective recruits for guerrilla units will be uncovered in normal CA
Nonstandard supplies and equipment of civilian origin
required in guerrilla operations can be obtained, and other support
in the way of facilities, equipment, technicians, and labor for
special forces bases in non-denied areas can be provided.
e.
Subsequent to linkup, civil affairs units will have a major interest in the disposition and rehabilitation of former guerrillas. The nature of guerrilla activities and personality characteristics of many individuals attracted to guerrilla forces, present serious problems both of acceptability in the community and willingness for assimilation on the part of the former guerrillas. In many instances relocation will be the only solution where deep-rooted animosities and political friction have developed. When guerrilla forces are demobilized there will be administrative problems of record, final pay, decorations, collections of equipment, claims, in- vestigations of alleged atrocities, and protection of individuals.

f.
Work must be found for those persons who need work. Some guerrillas may be absorbed in conventional military units ;others may be retained in paramilitary organizations for security and counterguerrilla operations, while individual personnel can be em- ployed in various capacities, depending on their capabilities and requirements of the area, by local governments and as civilian employees of the armed forces. Those who return to civilian occu- pations may need assistance in training and economic support. In some instances, where the political climate is favorable, out-stand- ing guerrilla leaders may be nominated or selected for important assignments in the reconstitution of civilian administrations.

g.
The degree of foresight, planning, initiative, and good judg- ment brought to bear on the problem by CA units will go far to- ward determining the amount of success they will achieve. From the outset of any organized guerrilla operations, plans for the eventual disposition of the force should be prepared on the theater level and kept current with changes in tactical and political situations.

h.
Prior to linkup guerrilla organizations can assist future civil affairs operations in the area when it is uncovered by providing supplementary information on socio-politico-economic conditions in denied areas, developing personality files on the ability and re- liability of local leadership, identifying possible trouble makers and resistance groups, and reporting locations of hidden commodi- ties, funds, records, and other essential assets. Most important, if guerrilla forces have built up an attitude of good will on the part of civilians through the manner in which they have conducted

144 AGO 6147B
their operations, that good will can be exploited by civil affairs units particularly in initial phases of their operations.
1 10. Counterguerrilla Operations
a.
Since combat forces normally are not used in rear area security roles unless absolutely required, it is essential that initial CA operations be directed primarily toward gaining early control of the population in land areas occupied or liberated by the military force. Guerrillas depend on the active support of the local in- habitants for food, medical supplies, shelter, intelligence, and per- sonnel. No effective guerrilla movement can exist without, as a minimum, the passive sympathy of the local population ;therefore, a basic objective of counterguerrilla operations is to separate guerrilla forces from civilian support. Since guerrillas thrive on confusion and the disorganization of government, CA operations are so conducted as to engender stable conditions which are un- favorable to guerrilla activities through the relief of local destitu- tion, restoration of law and order, resumption of agricultural production, reestablishment of local government, and measures to enlist the active support and sympathy of the local population.

b.
It is essential to induce the local population to support the conduct of CA operations and to establish good will between the population and the military force. Appropriate consideration is given to the use of rewards for friendly assistance, imposition of punishment for collaboration with guerrillas, ultilization of propa- ganda followed by the implementation of promises, and the utili- zation of necessary restrictive measures. The threat of hostile guerrilla operations necessitates extensive security measures to safeguard troops, military installations, lines of communications, local institutions, and the resources of the area from guerrilla attack, and to protect the local population from guerrilla coercion and exploitation.

c.
When the local population collaborates with hostile guerrilla forces, rigid controls and restrictions are imposed. Such controls and restrictions may be relaxed subsequently according to the requirements of the situation. Punishment for violation of regu- lations and restrictions must be just and deserved to prevent ex- ploitation by guerrillas. Maximum publicity is given to those offenses for which punishment is imposed. In order to reduce collaboration with guerrillas, it may be desirable to impose strict rationing controls on the production, distribution, and consump- tion of food, clothing, and medical supplies.

d.
Planning for rear area security is initiated without delay, is continuous, and includes plans to prevent, minimize, and combat

enemy guerrilla activities. Planning for defense against guerrilla action necessitates a detailed analysis of intelligence of the area of operations including the enemy, weather, terrain, national charac- teristics, customs, beliefs, and desires of the people. In planning, consideration is given to political and economic policies that are necessary to gain control of the area and its population and to pre- vent development of an enemy resistance and guerrilla movement. Policies must be intelligently conceived and wisely executed to gain the respect and cooperation of the civil population. Plans must be effectively coordinated with adjacent commands and vigorously implemented in all areas to prevent the movement of guerrillas into such other areas.
e.
Since hostile persons disguised as civilians may mingle with refugees passing through frontline areas and operate as guerrillas upon arrival in rear areas it is essential to effect systematic con- trol of all civilians moving toward the rear, strict channelization of their movement, and the establishment of collecting points for detailed processing.

f.
Local and national police security detachments and other formations of local personnel are organized and utilized to guard critical installations against sabotage by infiltrators and guerrillas and to function as information collecting agents by the com­mander charged with rear area security. In rear areas local civilians who are dependable and sympathetic are employed to the maximum practicable extent in security units and as agents and informers to infiltrate guerrilla units and report their move- ments and locations. Labor and service units may be utilized in the storage and distribution of supplies and the preparation of defensive works.

g.
Screening of local civilian employees is essential to prevent accurate information of military operations and troop movements from falling into the hands of guerrillas and infiltrators. Use of enemy nationals to combat guerrillas not only requires the careful screening of individuals based on reliable intelligence but demands that particular attention be given to measures which will prevent treachery and exploitation of such units by the guerrillas them- selves. Civil information activities supported by consolidation psychological operations are essential to widen differences between opposing factions. In liberated areas, CA operations must furnish maximum support and assistance to the reestablished government and facilitate the use of the organized forces of the government to combat and destroy guerrillas.

h.
It may be necessary to provide essential items of supply to portions of the civilian population including victims of resistance force attacks, groups which have been relocated or concentrated

AGO 6147B
for security reasons, and any other civilians whose receptivity to resistance may be increased by hunger and distress. These sup- plies initially will be limited to such survival items as food, medi- cal supplies, clothing, fuel, and construction material. Emergency supplies must be safeguarded and controlled to insure equitable distribution and their denial to hostile elements.
i. No resistance movement will achieve any marked success without the willing or coerced support of a portion of the civilian population. Means of securing separation between guerrillas and sources of civilian support are covered in detail in FR'I 31-15 and chapter 8 discusses general control measures. The following list will suggest some methods of control or division which may be adopted by CA units :
(1)
Confiscate weapons to reduce their availability to guer- rilla seizure and set up an accountability system for those weapons retained by civilians.

(2)
    Register all civilians and set up an identity card sys- tem.

(3)
    Established a curfew with due consideration for civilian needs.

(4)
Set up circulation controls.

(5)
Suspend such personal rights     as     may be necessary to allow searches and arrest on suspicion.

(6)
Evacuate designated areas.

(7)
    Provide security for friendly civilians and their families.

(8)
Establish      a      reporting system covering     treatment of wounds and administration of designated medical aid.

(9)
    Furnish relief supplies to resistance force victims and other indigent persons.

(10)
Conduct      educational      forums     to counter resistance propoganda and outline positive programs.

(11)
Secure reports on absentee employees.

(12)
    Maintain     control     and accountability over foodstuffs, medicine, livestock, raw material, or other matter which may be of assistance to guerrillas.

(13)
Establish      price      control     and rationing systems for critical items.

(14)
Confiscate property of adjudged collaborators.

(15)
Censor media of public communication.

(16)
License all forms of transportation.

(17)
Establish an information program with the support of psychological warfare personnel to publicize measures taken, reasons therefore, and punishments for non­compliance.

AGO 6147~
 

(18)
Reward civilians who contribute actively to counter- resistance programs.

(19)
Restore normal community procBsses of public health, safety, education, communications, transportation, waste disposal, water supply, legal processes, and other expres- sions of civil government and administration.

(20)
Introduce necessary governmental and legal reforms.

(21)     
Stimulate      production      of agricultural products and other essential goods.

(22)
Increase development and utilization of local resources.

(23)
Improve community relations activities.

(24)
Encourage civic action programs (see ch. 6).

j.
Counterguerrilla operations present legal and political prob- lems of great complexity and sensitivity. Guerrillas, depending upon their status under international law, may be equated to regular armed units of the enemy or be regarded simply as brigands and bandits. For information concerning legal rules applicable to guerrillas and the use of local inhabitants in counter- guerrilla operations, see FM 27-10.

Section VI. OTHER AGENCY SUPPORT OF CA OPERATIONS

11 1. General
As the situation may require, military services such as preven- tive medicine, signal, psychological warfare, engineer, ordnance, chemical, intelligence, military police, and transportation units, may be assigned or attached to, or directed to support the opera- tions of CA units. Technical and administrative support is pro- vided CA units in the same manner as other military units are supported.

1 12. Engineers
a.
Constructing camps and billets for civilians, particularly refugees and displaced persons.

b.
Making necessary repairs to essential public utilities, such as water reservoirs or filtering plants, essential bridges, dams, locks, and similar structures.

c.
Maintaining essential public transportation facilities such as roads and railways.

d.
Supporting rehabilitation projects as the situation permits and as directed by higher authority.

AGO 6147B
148     
113. Army Medical Service
a.
Supplementing inadequate civilian medical supplies and facilities within the scope of U.S. policy and international law.

b.
Augmenting civilian capability for control of disease.

114. Military Police
a.
Securing and protecting such critical supplies, equipment, and facilities as may be determined by the responsible commander.

b.
Protecting records or archives.

c.
Enforcing circulation restrictions and curfews.

d.
Maintaining order and quelling frays or disturbances.

e.
Controlling traffic.

f.
Controlling movements of displaced persons, evacuees, and refugees.

g.
Investigating serious crimes.

115. Intelligence Corps, ASA, and MPCl Elements
a.
Screening civilian officials.

b.
Locating and apprehending war criminals and enemy mili- tary personnel masquerading as civilians.

c.
Detecting and preventing sabotage.

d.
Detecting and preventing the transmission of information to enemy forces, unfriendly partisans, or guerrillas.

116. Psychological Warfare Units
a.
As an integral part of CA operations, civil information and public education activities are conducted in areas under friendly control to render direct assistance to military operations, gain the support of civilian populations, and facilitate the control and reorganization of occupied and liberated territory. United States policies and objectives are disseminated to the inhabitants through the use of persuasion, education, and orientation. All available media of information are utilized. As areas come under friendly military control, psychological warfare units provide essential support and assistance to CA operations through the conduct of consolidation activities. In these consolidation activities PSYWAR and CA units are mutually supporting, since PSYWAR units will have to draw heavily on the detailed and intimate knowledge of an area and its people possessed by CA personnel, and the com- munication facilities and techniques of PSYWAR will substan- tially aid CA.

b.
Detailed planning by all interested staff officers is essential to avoid confusion and duplication and to insure the effective integra- tion of consolidation psychological warfare activities in the plan- ned CA operation. Coordination with G2's and free exchange of

basic intelligence and close coordination in the determination of essential elements of information (EEI) also must be accomplished between CA and psychological warfare officers.
c.
G5 has general staff responsibility for internal affairs and governmental functions in occupied and liberated areas to include civil information, public education, and consolidation psychologi- cal warfare operations directed toward the civil population therein, G5 coordinates with G3 on the deployment of consolidation psy. chological warfare units and on their attachment to CA units for operational control.

d.
The two principal types of psychological warfare troop units are Psychological Warfare Company (loudspeaker and leaflet) and the Psychological Warfare Battalion (broadcasting and leaflet).

(1)
Psychological Warfare Company (loudspeaker and'leaf- let). The mission of the company is to conduct psycholo- gical warfare operations in support of a field army. One company normally is assigned to each field army and consists of a publications platoon, an operations platoon, and a loudspeaker platoon. A mobile radio detachment may be attached to the company by the psychological war- fare battalion (broadcasting and leaflet) for specific op- erations in which radio is essential.

(2)
    Psychological Warfare Battalion (broadcasting and leaf- let). The mission of the battalion is to conduct psycho- logical warfare operations in a theater of operations. Although one battalion normally is assigned to each thea- ter of operations, additional units may be authorized if required. The battalion normally consists of a headquar- ters and headquarters company, a PSYWAR radio broad- casting company, reproduction detachment, and the required PSYWAR administrative service and operations teams of the PSYWAR consolidation company and platoons.

(3)
    Consolidation Company and Platoons. The mission of the consolidation company, mentioned above, is to conduct consolidation psychological operations in support of CA through the use of still and motion pictures, newspapers, periodicals, loudspeakers, radio, and other appropriate media of communication. The consolidation company is organized on a cellular basis. The capabilities of the com- pany vary with the size and grouping of the teams. It is assigned or attached to a headquarters and headquar- ters company of a psychological warfare battalion

(broadcasting and leaflet). Operational control of opera- tional teams is exercised by civil affairs units.
AGO 6147B
150     
e. The capabilities of consolidation activities for support of CA operations vary primarily according to the number and composi- tion of consolidation companies employed in the area. In general, psychological operational teams, under operational control of CA units can-
(1)
Supervise the reestablishment and operation of news­papers and other publication facilities.

(2)
    Plan and supervise the operation of a fixed radio broad- casting station.

(3)
    Operate mobile sound and film trucks and employ air- borne loudspeakers.

(4)
    Reestablish, operate, and direct the operation of motion picture installations.

(5)
    Supervise the distribution of newspapers, periodicals, and other materials.

(6)
    Prepare and conduct pictorial, photographic, art, poster, and instructional displays, and exhibitions.

(7)
    Utilize civilian panels to gauge the effectiveness of oper- ations.

(8)
    Disseminate information and CA directives and in­structions.

117. Signal Corps
Signal Corps personnel may assist in procurement, construction, installation, or maintenance of civilian communications facilities.
118. Transportation Corps
a.
Transportation Corps personnel may assist in procurement, installation, maintenance, and operation of civilian transportation equipment.

b.
Supplement civilian transportation facilities for movement of civilian supplies, commodities, or personnel, as the military situation permits.

119. U.S., Allied, and International Agencies
The assistance of a number of U.S., allied or international civil- ian governmental and private agencies may be available in the area of operations. Such agencies frequently are staffed with persons of considerable competence and experience, and the organization activities are of direct concern to CA. It is essential that the work of these agencies be coordinated at the highest level and that close liaison be maintained with them on the working level of CA units.
a. U.S. Agencies. Federal departments and agencies may fur- nish technical advice and assistance as requested by appropriate authority.
AGO 6147B      151
b.
Allied and International Agencies. Public and private agencies from allied nations or international organizations may be authorized to work in an area in which CA units have primary responsibility.

c.
Private Agencies. Organizations of a charitable, religious, or fraternal nature may be engaged in emergency relief activities. They may assist the CA organization with trained personnel and supplies. Personnel of these agencies may operate under the direct supervision of CA units to assist such units in the accomplishment of humanitarian objectives.

AGO 614PB
 

CHAPTER 8
CONTROL MEASURES
Section I. CONTROL AND SUPERVISION
120. Degree, Duration, and Level
a.
The degree of control exercised over the inhabitants, govern- ment, and economy of an area in which military operations are conducted depends primarily on the nature of the operation. In addition, the necessary degree of control may be influenced by such factors as the requirements of the military situation; the attitude of the inhabitants toward the military force; govern- mental, economic, and sociological conditions within the area, and the political and other objectives of the United States. As long as military operations continue, the theater commander should be authorized the degree of control over the inhabitants required to insure the security of his forces and his lines of communication, the enforcement of law and the maintenance of order, and the achievement of the objectives of the operations.

b.
The preparation for, and the security of, future operations may necessitate extendec! control over the inhabitants. Addition­ally, in order to insure the attainment of national objectives, and in consonance with international agreements, it may be necessary to continue the exercise of control over certain aspects of internal and external affairs of the territory after release of general legis- lative, judicial, and executive authority to a civilian government or agency. In this situation, control may continue to be exercised for international agreements, foreign trade, reparations, social re- form, displaced persons, and similar matters. When a potential threat to national or international security exists or conditions in an occupied territory are unfavorable or unsettled, the duration of control may extend beyond the period of active military oper- ations until such time as the objectives of the United States are achieved.

c.
Controls are established at those levels of government where the conduct of governmental activities can be directed or super- vised with the greatest efficiency and uniformity consistent with established policies. Certain functional specialties, such as public communications and public finance, normally are most effectively controlled or supervised at a high level of government; other specialties, such as public education and public safety may be best controlled or supervised at a subordinate level of govern-

AGO 6147B 153
ment; and still other functional specialties, such as public health and public welfare, are best controlled or supervised at each level of government. In any case, supervision should parallel the struc- ture of the civilian agency.
121. Techniques of Control
a.
Administrative controls over a population may be coercive in the case of measures which can be enforced or noncoercive with respect to measures which offer incentives. Whenever and wherever possible, noncoercive controls are employed as opposed to coercion. The strongest measure available may be withholding some desired assistance. Measures intended to cause every mem- ber of the population to cooperate should not involve the use of force. The people as individuals must be induced to recognize their interest in the common good. They may be offered an otherwise unobtainable incentive, or it may be made more con- venient for them to cooperate. The best medium for exercise of control over the masses is through public officials and leaders. This lends emphasis to the importance of selecting and supporting civilian administrative machinery whose members not only are capable and cooperative but who possess prestige and popularity with the remainder of the population.

b.
Among noncoercive administrative measures which may be a,dopted to secure good will and acceptance of an announced policy or desired course of action are-

(1)
Declaration of policy. A declaration of policy is an over- all statement of United States objectives, aims, and policies with respect to the area in which operations are conducted. Although a statement of policy is one of the least onerous of noncoercive administrative devices, it may be accompanied by announcement of penalties for the recalcitrant. Proclamations, ordinances, orders, and instructions may be employed to inform the inhabitants of conduct which is expected of them, and any policy followed should be clearly enunciated through official channels and public news media.

(2)
Declaration of legal obligations. A declaration of legal obligations clarifies for the government and inhabitants of the area those relationships with the military force which are prescribed by international law. A declaration of legal obligations may be included in initial or sub­sequent proclamations. Awareness of prescribed obliga- tions and relationships tends to promote integrity of action and increases mutual respect.

154 AGO 6147B
(3)
    Establishment of standards. Standards are guides with- out any binding provisions and may provide an effective means for spot checking and improving local procedures. Standards may be of particular value in the conduct of such functional specialties as public health, public trans- portation, public utilities, and public communications.

(4)
Setting of examples. Both CA units and the civil govern- ment of the area should set examples for the inhabitants. Any action taken by the government in the conduct of its affairs may stimulate voluntary action by individual inhabitants along similar lines. Elements of the United States military force should stress correct conduct of troops in public places and among the local inhabitants. CA personnel should strive to be prompt in making replies to inquiries, punctual in keeping appointments, and accessible to local officials. Epphasis should be given to the promotion of respect for local laws, customs, and traditions.

(5)
Demonstrations. A demonstration is an explanation by example or exhibition of a preferred method or device. The expectation is that the superiority of the demon- strated method or device will encourage voluntary accept- ance. Demonstrations may be particularly suited to such matters as child care and public health and sanitation through the use of mobile clinics, soil testing, deinfesta- tion of grain, care of pouItry, and operations of com­munications equipment. Agencies of civil government are encouraged to make maximum use of improved tech- niques.

(6)
    Educational campaigns. Educational campaigns ape use- ful to familiarize the inhabitants with an idea, action, or policy in order to secure cooperation, increase the scope of local interest, and raise standards. Educational cam- paigns may be prepared by the various CA functional specialists in coordination with the civil information officer to furnish information on such matters as sanita- tion, food and agriculture, and the source and amounts of imported civilian supplies. Within the various func- tional specialties such as public health, public works and utilities, public communications, and public transporta- tion, technical periodicals and other publications may be prepared and furnished to the respective local agencies of government.

(7)
Conferences. Conferences with local officials constitute the most frequently used method of clarifying and inter-

preting laws, policies, or procedures which are of mutual interest. Discussions in conferences not only serve to show an interest on the part of CA personnel in local activities or projects but also provide a most effective method of obtaining the acceptance of advice. When
questions arise on especially complex problems, effective action may be obtained by discussing the subject in gradual stages until a time is reached at which the entire matter can be summarized. It may be desirable to conduct daily informal conferences with the chiefs of the various agencies of government.
(8)     In both
Conciliation, mediation, and arbitration. con­ciliation and mediation, a third'party helps to resolve a dispute between two other parties. In arbitration, an arbitrator is given the power of making a final binding decision. Conciliation and mediation differ from arbitra- tion in that there is no prior agreement to abide by the decision of a third party. Conciliation and mediation may be advantageously employed in lieu of arbitration to reconcile divergent groups of leaders in following a common policy since the voluntary nature of such agree- ment tends to provide more active support of the agreed decision.
(9)     
Purchase of consent. Purchase of consent is the purchase of the capacity to act. It may be exercised by a govern- ment through its power to raise and disburse funds. The payment of a subsidy granting a material or financial reward for following a desired policy or plan is a form of purchase of consent. In addition, payment by the United States for the procurement of local supplies, equipment, and services is also a form of purchase of consent.
(10)
Submission of reports and review of records. The sub- mission of reports and review of records provide a valuable method of obtaining information, controlling operations, observing efficiency, verifying conditions, and checking the accuracy of actions taken. Since this method extends the effectiveness of CA personnel beyond that of most other control processes, it should be used to the maximum practicable extent.

(11)
Compliance through publicity. Compliance through publicity may be used to obtain a desired result through the use of favorable or adverse publicity or comment with respect to a specific activity or selected civilians. There is no resort to legal means of compulsion. Since

156      AGO 6147B
people as a whole usually respond to publicity concern-
ing themselves, publicity may in appropriate circum­
stances be used to influence the entire population.
c. Coercive controls apply restraint in requiring the inhabitants of the area to follow an announced policy. In the case of certain "iolations administrative penalties may be applied, while in others the violator may be referred to appropriate judicial action. Among coercive controls which may be considered are-
(1)
Licensing. A license is a permit or privilege to engage in some activity otherwise prohibited, but the purpose is regulation not prohibition. Licensing must be preceded by a law or directive making it illegal for a person or organization to engage in a specified activity without a license. The advantages of licensing as a control device are the burden of proof placed upon the licensee, the self- discipline generally resulting from the fear of loss of special privilege, and its considerable assistance to law enforcement in difficult technical areas of administra­tion. A large number of people is usually necessary to examine and process licenses, and effectiveness of the system depends upon .the inspections conducted to assure possession of a license and compliance with the conditions of its issuance.

(2)
    Investigation. An investigation is the act of searching for facts and often concerns an alleged error, deficiency, or incident of misconduct. The person or agency being investigated may be required to justify the conditions which have been uncovered or to show cause for the deficiencies observed.

(3)
    Inspection. Inspection may be used for the physical surveillance of the operations of civil government or the performance of activities involved in the production or transporation of products. It may be employed to dis- close instances of active sabotage or to uncover violations of directives. A few competent inspectors may extend their influence over a large part of the population. When an inspector is technically qualified, valuable instruction may be furnished to the persons whose activities are in- spected. If continuous operation is essential, as in the case of such vital activities as the production of food, practice of medicine, operation of water systems, com- munication lines, and transportation systems, inspections provide a particularly valuable method of control. In­spection permits the continued operation of important activities, enables small numbers of competent personnel

AGO 6147B
to be widely effective, promotes constructive policy, pro- vides a strong disciplinary influence, and is particularly suited for use in the conduct of CA operations.
(4)     
Apprehension of viohtors. Apprehension of violators in- cludes actions taken in searching for, finding, and detain- ing persons who violate proclamations, ordinances, orders, and instructions. The successful conduct of CA operations necessitates that violations be detected and violators identified and punished. Since compliance with the intent of directives may be obtained from most local civilians, the latter may develop a vested interest in the enforcement of such directives. As a result, when others violate directives, those who comply often furnish infor- mation on which the apprehension of violators may be based.
(5)     Taxation is the raising of revenues by the
Taxation.
requirement of compulsory payments, other than con­
tributions. Taxation may be used as a charge for a spe­
cific act and, under appropriate conditions, as a means
of control of the local economy. Taxation has the same
weakness as other methods of control: to be effective
each violation must be identified and proved. In addi-
tion, the incentive is to violate rather than comply with
the law.
(6)     Summary action. A summary action is an immediate action taken to correct or improve a specific activity or situation. Summary decision by an investigating officer, inspector, reviewer, or supervisor may be justified when it is essential to prevent further violations or to remove a potentially dangerous person from a position of re­sponsibility. Summary actions may be judicial or ad- ministrative and may include removal from office, denial, suspension, or revocation of license, and denial or with- drawal of benefits.

Section II. CIVIL AFFAIRS TRIBUNALS
122. General
Terms of prior agreements, policy directives of higher head- quarters, or local situations may limit the effectiveness, restrict the jurisdiction, or terminate the operations of civilian courts. Under these circumstances, a military commander having civil affairs authority may establish agencies to adjudicate existing criminal or civil law or statutory enactments based on his occu- pation. Usually reestablishment of civilian courts and restoration
158      AGO 6147B
of full jurisdiction is effected as soon as practicable. The com- position, authority, jurisdiction, and procedures of courts estab- lished under the terms of civil affairs or status-of-forces agree- ments or by executive declarations of martial law are specified by those documents. The remainder of this discussion, therefore, is devoted to courts of the armed forces established in occupied areas, not including courts martial or war crimes courts.
123. Purpose and Authority
Under international law, a military commander may establish civil affairs tribunals in occupied territory for the purpose of providing a forum in which violators of the occupant's procla- mations and ordinances may be promptly tried. Under certain circumstances a military commander has a legal obligation to maintain order that extends to administration of judicial func- tions. (See Article 36, Uniform Code of Military Justice, and FM 27-10.) Usually a theater commander delegates authority to subordinate commanders, who have area responsibility for the conduct of civil affairs, to appoint civil affairs tribunals. For reasons of practicality this authorization normally does not go below the level of division commanders in tactical organizations and comparable logistical units. Authorization extended to civil affairs commands depends not on size or level of the units but on their missions.
124. Types
a.
Criteria as to composition and jurisdictional limitations of civil affairs tribunals are set forth by the theater commander. Usually there are three categories of courts, patterned as to size, qualifications of members, jurisdiction, and limitations on maxi- mum punishments somewhat after courts martial. However, the types may be reduced to two or may be increased to any number required by the situation; in any circumstance, a superior tri- bunal in the system should be designated to conduct legal pro- ceedings involving protected persons, as defined in the Geneva Conventions of 1949, when the death sentence or imprisonment in excess of two years is authorized for the offense charged (see FM 27-10). Tribunals must adhere to every pertinent provision of the Geneva Conventions and should conduct their operations procedurally, insofar as practicable, in a manner which will be understood by local populations.

b.
In addition, commissions may be appointed by an authorized commander to hear special cases not normally within the juris- diction of established civil affairs tribunals. Commissions try cases involving unusual circumstances or exceptional seriousness. Membership, procedures, and jurisdiction are prescribed by the

AGO 6147~ 159
appointing authority. Commissions have been used in CONUS to represent the sovereignties of both the United States and of sep- arate states. Military commissions which constitute judicial bodies should not be confused with commissions created to administer specific projects or other operational programs.
c. Boards are established to process certain quasi-judicial is- sues. Findings of fact and determination of applicability of laws or rules of equity are areas in which boards operate. The appoint- ing authority may specify procedural rules or instruct the board to set its own rules. The appointing authority must define the board's jurisdiction. A board may consist of one officer but often numbers two or three. Boards pass on requisition demands, property control orders, labor issues; valuations of utilities, real property, and services, and like administrative matters.
125. Jurisdiction
a.
As to Territory. Jurisdiction of a civil affairs tribunal ex- tends to the whole of the occupied territory. When only a portion of a political subdivision is occupied, jurisdiction is assumed over each part as occupation becomes an actual or constructive fact. Normally publication of Proclamation No. 1 is the first legal act to establish occupation. For this reason, places, dates, and hours of publication are carefully reported.

b.
As to Persons. Jurisdiction extends to all persons in the occupied territory other than prisoners of war, members of the occupying forces, or members of armed forces of states allied with the occupant. Persons serving with, employed by, or accompany- ing the armed forces are sometimes made subject to the jurisdic- tion of such tribunals. Persons subject to United States military law (see UCMJ, article 2) do not fall under the jurisdiction of local courts of an occupied area unless expressly made subject thereto by a directive of occupation authorities.

c.
As to Ofenses. Jurisdiction extends to violations of a proc- lamation, ordinance, or order issued by occupation authority, vio- lations of the law of war (if other tribunals are not established for the adjudication of such cases), and violations of indigenous criminal or civil laws which continue in force after the area has been occupied.

126. Procedures
Care is taken in preparing the judicial organization, proced- ures, and rules of trial to make sure that every pertinent require- ment of the Geneva Civilian Convention of 1949 has been met. Every essential of justice is safeguarded. The system must have rational simplicity. This sometimes entails radical departures from formal U. S. judicial practices and rules of evidence. So
AGO 6147B
far as practicable, procedures, presumptions, and actions are those with which local people are familiar. An offense against an oc- cupying power usually does not violate citizenship morality. Any sentence, particularly confinement, considers not ody the crime being punished but also the facilities and capabilities of penal or public safety officials necessary to execute its provisions immedi- ately and properly. Under no condition may one assume that American practices are common, or even comprehended, in other lands. Two of many possible examples illustrate this point:
a.
Assumption that an accused is innocent until proved guilty is axiomatic in U. S. jurisprudence, however, the burden of proof of innocence rests with the accused in most of Europe and those portions of Asia and Africa not British nor former British ter- ritory.

b.
The common American practice of suspending execution of part or all of an imposed sentence would be considered in many parts of the world as a reprimand for the police, the prosecutor, or the court of original jurisdiction. In the disrupted circum- stances inherent in military occupation, suspension of a sentence does not possess the probational and rehabilitational character- istics found in a settled society.

Section Ill. PUBLISHED REGULATORY MATTER
127. Definitions
The following terms covering regulatory matter are used:
a.
Proclamation. A document published to the inhabitants of an area which sets forth the basis of authority and scope of ac- tivities of a commander in a given area and which defines the obligations, liabilities, duties, and rights of the population affected.

b.
Ordinance. Rule or regulation enacted by lawmaking power of a community. It is often, but not always, of local application.

c.
Gazette. Officially published compilation of proclamations, ordinances, and other acts having statutory effect.

128. General
a. Applicability to Occupied Territory. Civil affairs operations may be performed in territory of an enemy occupied by a military force. In such a case, governmental powers are normally vested in ?he commander of the occupying force, limited only by the rules of international law. Regulations, promulgated by the com- mander or under his authority, constitute legislation which is bindin.g upon the civil ,officials and inhabitants of the occupied area. The laws of the occupied territory existing at the time of occupation continue in effect except as amended, annulled, sus- pended, or modified by the action of the military occupant or by
AGO 6147B
competent civil authorities in the exercise of powers conferred upon them by the military occupant.
b.
Applicability Where a Civil Afairs Agreement or a Consen- sual Arrangement is in Effect. A treaty, civil affairs agreement, or other type of agreement, expressed or implied, may restrict the use of proclamations, ordinances, orders, and instructions. In such cases, the commander responsible for civil affairs operations will be governed by the terms of the agreement. In most instances the allied government will probably provide that these matters will be handled by it rather than by the military commander. Due to the wide variety in the terms of these agreements and the probable limited application of proclamations, ordinances, orders, and instructions in the conduct of civil affairs operations under such agreements, this section will consider primarily the conduct of civil affairs operations in occupied territory.

c.
Authority of Theater Commander. The theater commander prepares and approves all initial proclamations and ordinances. Subsequent regulations on subjects for which uniformity of treat- ment is desirable throughout the theater are prepared and ap- proved by the theater commander or by subordinate commanders when authorized by the theater commander.

d.
Authority of Subordinate Commanders. Commanders dele- gated authority to conduct civil affairs operations publish neces- sary regulations for their assigned areas in the form of orders, instructions, and directives and may, when the situation requires, authorize their subordinate commanders to publish more detailed regulations. Regulations published by subordinate commanders must conform to the policies of the theater commander. Subordi- nate commanders delegated authority to conduct civil affairs op- erations normally do not issue proclamations or ordinances except when they are directing separate task forces and are specifically granted such authority.

e.
Publication. Article 65 of the Geneva Civilian Convention of 1949 provides-"The penal provisions enacted by the Occupy- ing Power shall not come into force before they have been pub- lished and brought to the knowledge of the inhabitants in their own language. The effect of these penal provisions shall not be retroactive." Accordingly, proclamations, ordinances, orders, and instructions intended to be binding upon the inhabitants will be published in written form, both in English and in the language of the inhabitants. All such regulations addressed to the inhabi- tants are given the widest publicity feasible within their area of application. During the initial conduct of operations and in fluid or moving situations, publication is accomplished by posting printed copies in public places. In static situations and when

162 AGO 6147B
conditions permit, regulations are published in newspapers, of­ficial publications, and gazettes.
f.
Effective Date of Regulations. Unless otherwise stated, civil affairs regulations issued prior to occupation are effective and binding within the occupied territory upon occupation. However, penal provisions of such legislation shall not come into force be- fore they have been published and brought to the knowledge of the inhabitants in their own language, and shall not be retroactive.

g.
Standard Civil Affairs Documents. Provisions concerning proclamations and ordinances have been standardized by agree- ment between the United States, the United Kingdom, and Canada under the Standardization Program (SOLOG), and identical pro- visions are included in a Standardization Agreement among NATO Armed Forces (STANAG). For such provisions, see SOLOG Agreement 39 (app. XVI).

h.
Supervision. Subordinate commanders report to the au­thorizing higher commander upon the issuance of any regula- tions within their respective areas of authority to include the date, place of issuance, and area of application. Higher com­manders may require the submission of copies of all regulations published by subordinate commanders.

129. Proclamations
a.
In advance of an actual occupation or liberation, the theater commander prepares documents necessary to conduct civil affairs operations in conformance with the policies of higher authority. In preparing his initial proclamation, he considers such factors as United States national objectives, requirements of international law, and measures required for the security of his forces. In ad- dition, proclamations may be issued by the theater commander a-nd by subordinate commanders, when specifically authorized, to announce matters and acts of special importance.

b.
The theater commander, utilizing brief and simple terms, should issue initial instructions to the population of an occupied territory in the form of a proclamation. The points outlined be- low, which apply primarily to civil affairs administration of occupied territory, are appropriately modified by the terms of a civil affairs or other agreement to show relationships between the military and local civil authorities when civil affairs activities are to be conducted pursuant to such agreement.

(1)     the fact of occupation. The declaration Decla?.ation of
is a formal notice of the fact of occupation. In the dec- laration, the extent of area and the people covered by the occupation are defined.
(2)     
Purpose and policy of the occupation. A general state- ment of the purpose and policy of the occupying force is
AGO 6147B      163
included in the proclamation as designated by higher authority.
(3)
    Supremacy of the military commander of the occupying force. A declaration of the supremacy of the military commander is essential if the fact of military control is to be made known to the inhabitants and compliance with military directives assured. Announcement is made of the commander's authority and of the suspension of local political ties with, and obligations to, the enemy national government. In addition, the inhabitants are informed that they will be required to obey the orders of the military commander and his subordinates and to abstain from all acts or words of hostility or disrespect to the occupying force.

(4)
    Obligations, duties, and rights of the inhabitants. Con­firmation is given that, unless the military authority di- rects otherwise, local laws and customs will continue in force, local officials will continue in office, and officials and employees of all transportation and communications systems and of public utilities and other essential serv- ices will carry on with their regular tasks. Assurance is also given that persons who obey the instructions of the military commander will be protected in their per- sons, property, religion, and domestic rights and will be allowed to carry on their usual occupations.

(5)     Statement of additional p~oclamations and ordinances.
Advance notice is given of subsequent proclamations and accompanying ordinances which will specify in detail what will be required of the inhabitants.
(6)
    Miscellaneous m.atters. The proclamation includes the place and date of signing, the signature and title of the issuing authority, and such other matters as the com- mander considers appropriate.

c.
The tone and character of the proclamation may be affected by the­

(1)
National political objectives of the United States or Al- lied Powers.

(2)
    Military situation.

(3)
    Composition and disposition of the occupying force.

(4)
    Attitude of the inhabitants.

(5)
    History of the territory and the traditional culture and accustomed standard of living of the population.

(6)
    Degree of control required.

d.
Subsequent proclamations, numbered in sequence, and sup- plemented by ordinances, are prepared as necessary to set forth.

AGO 6117B
detailed rules governing the conduct of the population. Where­ever possible, required actions are accomplished through the agen- cies of civil government.
e. A form of initial civil affairs proclamation adaptable for use in liberated territory is shown as appendix X. For a form of initial civil affairs proclamation suitable for use in occupied ter- ritory, see appendix XI.
130. Ordinances
Ordinances are approved laws of general application to the area and to the inhabitants therein; such laws affect the previous gen- eral law of the territory and are subject to the control of the issuing authority. Ordinances should be prepared in advance of operations and issued under the authority of the theater com­mander in order to provide detailed rules of law or procedure on such matters as offenses against the military force and establish- ment and control of courts. The format of ordinances is stand- ardized to the maximum practicable extent, as follows:
a.
They consist of a series of main subdivisions entitled as awticles.

b.
They contain definitions of any terms used therein which are ambiguous or unfamiliar to the persons to whom addressed.

c.
The final article in each ordinance specifies the effective date of the ordinance.

d.
Ordinances are signed by the military commander or an authorized subordinate. (For an example of an ordinance pertaining to the circulation of currency in occupied territory, see app. XII; for an example of an ordinance published in occupied territory specifying penalties for particular crimes and offenses, see app. XIII.)

131. Orders, Instructions, and Directives
a. Orders and instructions differ from proclamations and ordi- nances in that they are local in application and are primarily
.          intended to prevent civilian interference with military operations by providing more detailed instructions on compliance with the provisions of previously published documents of a general nature. Orders and instructions, which are published by subordinate com- manders delegated that authority, may be published in the form of notices to include such matters as the establishment of curfew, restrictions on travel, and limitations on the operations of local agencies of government. For an example of a notice specifying hours of curfew in occupied territory, see appendix XIV.
b. Directives are issued to specified persons such as civil offi- cials and are distinguished from those orders and instructions
AGO 6147B          165
which are published for the information and compliance of the general public.
132. Gazettes
a.
Ordinances and other acts binding upon the inhabitants may be printed from time to time in an official gazette.

b.
Instructions pertaining to the operations or internal admin- istration of civil affairs units are transmitted through command channels and are not published in a gazette.

c.
Regulations published in a gazette are an authoritative state- ment of the law which is set forth therein. Such regulations, how- ever, are subject to any amendment which may be issued after the date of the publication of the gazette.

133. Enforcement
a.
In the initial stages of an occupation the enforcement of proclamations, ordinances, instructions, and orders is accom­plished, under the staff supervision of the responsible command- er's G5 staff sections, by civil affairs units assisted by civilian police. When civil police and other civil agencies lack sufficient enforcement capabilities, military police or other military units may be required, although, if possible, troop enforcement is limited to such matters as emergency measures, crimes against the military, and traffic control.

b.
Violators of regulations are brought for prosecution before civil affairs tribunals or, if authorized by the theater commander, before the civil courts of the occupied territory. Military tri- bunals with jurisdiction over the local population normally are not established in friendly territory except when authorized by the terms of agreements or other consensual arrangement.

AGO 6147B
 

CHAPTER 9
INTELLIGENCE

Section I. CA REQUIREMENT FOR INTELLIGENCE
134. General
a.
Intelligence. CA intelligence activities are concerned with the collection, evaluation, interpretation, and appropriate utiliza- tion or dissemination of information on the people and the area of present or potential operations.

b.
Counterintelligence. Counterintelligence, conversely, is con- cerned with destroying the effectiveness of enemy or potential enemy intelligence activities and protection of information against espionage, personnel against subversion, and installations or ma- terial against sabotage. In CA operations this includes those civil security measures necessary to control the civilian population.

c.
References. The details of intelligence structure, functions, and operations conducted under the general staff supervision of G2 are set forth in FM 100-5, FM 101-5, and FM's of the 30­series. Additional information is contained in the AR's of the 380 series.

135. Purpose
a.
Accurate, complete, and timely CA intelligence enables the commander and his staff to estimate in advance of operations the influence of CA factors on the accomplishment of the mission or on the contemplated course of action of the command, to develop CA annexes to plans, and to determine in accordance with policy guidance those measures which will be necessary to control the local population or to relieve or adjust to reported political, eco- nomic, and sociological conditions in the area of operations.

b.
Intelligence concerning immobilized, isolated, or bypassed enemy forces, hostile underground movements, and the activities of partisans and guerrillas, permits the planning for and employ- ment of such friendly countermeasures as the prevention of infil- tration, use of local civilians to report guerrilla activities, and the separation of guerrillas from civilian support.

c.
On the basis of intelligence, continuous and long range esti- mates are made of the effect which CA operations will have on the inhabitants and the effect which the civilian reaction will have on CA activities.

AGO 614CB 167
136.     CA Intelligence Planning
a. Prior to moving into any area of operations, whether on a friendly agreement basis, as part of a liberating force, or in an occupational role, an intelligence collection plan must be drafted and implemented by CA staff sections and units to develop maxi- mum information on the area and its people and on source mate- rial and agencies essential for the collection of the data. The functional specialties and their areas of emphasis provide broad guidelines as to the general nature of CA intelligence require- ments for planning and operational purposes and will include but not be limited to the following:
(1)
    Topography, hydrography, climate, weather, and terrain including land forms, drainage, vegetation, and soils.

(2)
    Census, location, ethnic composition, and health factors.

(3)
    Attitude of the population including ideological, religi- ous, and cultural aspects.

(4)
    Governmental structure including forms, personalities, laws in being, and political heritage.

(5)
    Educational standards and facilities and important cul- tural activities and repositories.

(6)
    Communication, transportation, utility, power, and natu- ral resources.

(7)
    Labor potential including availability by type and skill, practices, and organizations.

(8)
    Economic development including principal industries, scientific and technical capabilities, commercial proc­esses, banking structure, monetary system, price and commodity controls, extent and nature of agricultural production, and accustomed population dietary habits.

(9)
    Cores of resistance movements.

(10)
    Organization and operation of guerrilla forces in rear areas and the extent and degree of volition involved in local support.

(11)
Hostile activities including espionage, sabotage, and other factors of subversion and disaffection.

b.
Documentary sources of intelligence prior to movement are primarily strategic in nature and represent the positive collection efforts of the Central Intelligence Agency, Department of Defense intelligence agencies, and other governmental agencies such as the State Department and various international mission and assist- ance groups. Among unclassified sources, particularly productive with respect to CA interests are libraries, periodicals, news­papers, departments of leading universities specializing in lan- guage and area fields of interest, travel agencies, and commercial

AGO 6147B
168     
enterprises with holdings or representation in target regions. Various combat intelligence documents prepared by G2 agencies such as estimates, annexes, periodic reports, tactical weather and terrain studies, and other studies and reports contain valuable data on political, economic, and sociological conditions.
c. The G5 collection plan predicated on EEI (essential ele- ments of information) designated by the commander, normally through his G2, provides a systematic analysis of information desired and determines the assignment of collecting agencies to procure the required items of information. In appropriate situa- tions the collection plan may be prepared by the intelligence officer of a CA unit and, when completed, submitted to G2 for integration into the overall plan for the command. For detailed guidance on the preparation of a collection plan see FM 30-5 and appendix IX.
137. Area Studies and Surveys
a.
Area studies covering the gamut of CA intelligence, the scope of which is partially indicated above should be prepared on each country in which operations are possible or are projected. These studies, invaluable for planning and reference, usually are coordinated projects involving particularly the G2 and the G5 with the supplementary assistance of G3, G4, Surgeon, Engineer, Provost Marshal, and other members of the staff. Studies are a continuing requirement for any G5 or CA unit. They should be started in CONUS and be modified and amplified during the course of military movements and operations to provide a capsular and ready source of information upon which to base plans and actions.

b.
Area surveys are conducted on the ground through physical reconnaissance and the exploitation of all available local sources of information. These sources may include records of govern- mental agencies, banks, business firms, public utilities, and medical facilities; publications, libraries and archives; mail, and other communications media. Information may also be obtained by questioning informed persons in direct or related counterpart categories with CA functional specialists. During combat, initial surveys are concentrated on conditions and activities which may have an immediate effect on military operations. More detailed surveys follow and are kept current as a basis for re-evaluation of policies and new planning. Survey items include-

(1)
Numbers and movements of refugees and displaced per- sons.

(2)
Health conditions particularly with respect to contagious diseases.

(3)
Adequacy of essential items of civilian supplies.

(4)
Availability and potential of governmental officials.

(5)
    Possibilities of hostile activities by individuals or groups,

(6)
    General attitude of the civilian population.

c.
Regardless of the type of operation, it can safely by said that information desired ranges throughout every facet of the socio-politico-economic life of the civilian community. Collection efforts should be concentrated on the most significant factors in the interest of practicality and economy of effort. National and theater policies, future plans, and collective experience will pro. vide guidance in the preparation of studies. Obviously pertinent are­

(1)
All the items covered above.

(2)
    Current political developments.

(3)
    Dossiers on important personalities.

(4)
    Availability, location, and cost of essential civilian. supplies.

(5)
    Statistical data on diseases.

(6)
    Up-to-date material on manpower resources, skills, and employment.

(7)
    Progress in rehabilitation and planning for reconstruc- tion of housing, public utilities and services, production and merchandising facilities.

(8)
    Monetary stability.

(9)
    Census type information broken down into workable data groups covering age, sex, employment, location, and support requirements.

(10)
    Any other information within the area of functional specialization validly important to short-range consid-

erations or the realization of longer-range national ob- jectives.
138. Civil Security
a. Under any circumstances of peace or war, in oversea areas or in CONUS, commanders have important security considerations relevant to their relationships with civilians who may be under their respective jurisdictions or who may have no closer identifi- cation with the military command than proximity. Measures which provide for control of the civil population are performed by CA units within their areas of jurisdiction in coordination with military intelligence units. In any situation the security of the mil- itary force takes precedence over the welfare and convenience of the civil population within the bounds of restrictions imposed by international law or the terms of an agreement. In a fluid combat situation, civil security measures are primarily directed toward assisting military operations through effective control of the civil population. In occupied belligerent states restrictions im-
170      AGO 6147B
posed may be all-inclusive; regulations may take the form of proclamations, orders, and instructions. In other oversea areas where civil affairs, status of forces, or similar agreements are in force security measures may be implemented by or coordinated with foreign governmental agencies, and regulations will comply with the terms of the agreement. In the US security activities and policies are delineated in regulations, federal laws, and re- ciprocal agreements with the Department of Justice.
b. Civil security measures may include-
(1)
Systematic registration of civilians.

(2)
    Control of civilian movement and circulation.

(3)
Imposition and enforcement of curfew.

(4)
    Provisions for passes and permits for civilians in accord- ance with theater pass plan.

(5)
    Screening, removal, and appointment of local officials.

(6)
    Security screening of local labor.

(7)
    Barring of civilians from restricted areas.

(8)
    Planning, coordination, and implementation of measures for the control of refugees, evacuees, and displaced per- sons.

(9)
    Measures to protect local facilities and sources of sup- plies.

(10)
Dissemination of      information and counterpropaganda to the civil population.

(11)
    Civil censorship of public media in accordance with policies announced by higher headquarters.

(12)
    Control or supervision of civil communications includ- ing radio transmitting facilities used primarily for the dissemination of information and counterpropaganda to the civil population.

(13)
Control of international     commerce. (For more detailed information on other specialized types of intelligence activities see appropriate FM's of the 30- series.)

139. Civil Censorship
The objectives of civil censorship are to obtain and disseminate information which assists the United States and its allies in the attainment of their objectives and to prevent the passage of in- formation which may assist an enemy or adversely affect any current policy of the United States or any of its allies. G2 exer- cises policy control over all types of civil censorship and both policy and operational control over all types of communications except public information media. Included are civil censorship of the postal services, domestic and international telecommunica-
AGO 6147B      171
tions, and area travelers. G5 in coordination with G2 plans, coordinates, and operates censorship of all public information media over which he has jurisdiction such as radio, television, cinema, stage, and the press including periodicals and books. In a situation where. civil affairs units may operate or control the operation of other communication media, arrangements for cen- sorship procedures will be coordinated with G2.
Section 11. CA SUPPORT IN INTELLIGENCE ACTIVITIES
140. General
The nature of CA assignments and the necessity for CA per- sonnel to develop and maintain a close relationship with the civilian population and to acquire a depth of information and understanding with respect to the activities of indigenous popu- lations puts CA personnel in a favorable position to collect in- formation of vital importance to other staff sections and agencies and to lend support to the overall intelligence effort. Among supporting activities where CA personnel may make significant contributions are-
a. Collection of-
(1)
Strategic intelligence information.

(2)
Combat intelligence information.

(3)
Technical intelligence information.

b.
Procurement and recruitment.

c.
Counterintelligence.

141. Collection Potential of CA
Civil affairs personnel in their day-by-day operations deal with people, equipment, and documentary matter, all of which are primary sources of raw information of intelligence value. Among these sources are-
a.
Refugees, evacuees, displaced persons who may be interned or otherwise may come under CA control or sponsorship in move- ment control, relief, or other assistance. Normally when persons with information of possible value are discovered they are re- ferred promptly to appropriate intelligence personnel for exploi- tation.

b.
Civilians who were housed with, catered to, or otherwise were associated with enemy personnel.

c.
Political enemies of the hostile regime.

d.
Governmental documents, libraries, or archives.

e.
Files of newspapers or periodicals.

f.
Industrial and commercial records.

g.
Prostitutes or persons employed in recreational areas.

AGO 6147B
 
h.
Political prisoners.

i.
Technical equipment, blueprints, plans, or information of interest to technical intelligence personnel especially in trans- portation, signal, ordnance, engineer, chemical, and medical fields.

j.
Leaders of fraternal, civic, religious, or patriotic organiza- tions.

k.
Personal mail or messages.

142. Custody of Archives
With respect to archives concerned with governmental matters, civil administration, or of cultural significance and possessing intelligence value, command policy will determine whether or not documentary matter will be removed for intelligence process- ing or will remain in designated repositories and be copied for intelligence purposes. In either case it is a CA responsibility to maintain chain of custody documentation.
143. Procurement and Recruitment
Direct support of intelligence collection agencies may be pro- vided by CA units in the procurement of essential facilities and equipment and the recruitment of personnel.
a. Procurement. Aside from such normal procurement as civilian real property CA personnel may procure-
(1)
    Civilian clothing and items of normal personal posses- sion.

(2)
    Maps.

(3)
    Biographical data or other information essential to clandestine operations.

(4)
    Civilian equipment such as binoculars, cameras, record- ing devices, radios, or weapons.

(5)
    Documentary matter including passports, visas, vehicle operator licenses, birth or marriage records, or other similar documentation.

(6)
    Indigenous funds.

(7)
    Foodstuffs, tobacco products, or alcoholic beverages peculiar to the area.

(8)
    Barter items.

(9)
    Civilian motor vehicles, bicycles, or domestic animals.

b.
Recruitment. Through contacts with civilian organizations, leaders, and political enemies of hostile governments CA personnel may assist in the development of rosters of personnel for screen- ing by intelligence, special forces, or psychological warfare per- sonnel as-

(1)
    Recruits for clandestine operations.

(2)
    Interpreters.

(3)
    Other specialized craftsmen, technicians, or laborers.

144. Counterintelligence
a. Maximum support is provided counterintelligence personnel in the detection and prevention of espionage, sabotage, subversion, aid to hostile guerrillas, or other disaffected activities. Examples of areas in which CA units may provide assistance are-
(1)
Identification of known or suspected agents, collabora- tors, or sympathizers.

(2)
    Search of public buildings for documents of intelligence value.

(3)
    Discovery and confiscation of hidden weapons, ammuni- tion, and equipment.

(4)
    House-to-house searches for contraband.

(5)
    Obtaining information from reliable local officials.

(6)
'Seizing and impounding mail pending instructions for screening and disposition.

(7)
    Measures to prevent local publication of information which is inimical to the military force and not in sym- pathy with CA policies and objectives.

(8)
    Control of foodstuffs, clothing, medical supplies, and related items which may be used to support guerrilla activities.

(9)
    Restrictions on movements of personnel suspected of collaborating with guerrilla forces.

(10)
    Destruction, surveillance, or control of potential hiding places or shelter spots of dissidents such as abandoned mines, caves, isolated rural buildings, haystacks, or sim- ilar crop collections.

b.
The close contacts and working relationships between per- sonnel from CA units and the civilian population which provide valuable intelligence sources and material has a two-way potential capable of exploitation by unfriendly persons and groups. CA personnel must be particularly discreet in their dealings with the civilian population. Information provided civilians should be carefully screened, and indigenous persons and agencies should be kept under continuing surveillance for indications of disaffection.

Section Ill. OPERATIONS OF THE INTELLIGENCE SECTION
145. General Functions
The G2 of TACAC or the Intelligence Officer of a lower CA unit provides for the collection, processing (recording, evaluation, and interpretation), and dissemination of information about enemy directed or supported activity within the assigned area of his
AGO 6147B

174     
own CA unit. Intelligence, thus produced, keeps his unit com­mander informed of possible enemy courses of action and their pobable adoption in the light of the mission of his own CA unit. Other functions include all those related and quasi-related security activities in which the intelligence officer finds himself involved. He is the security officer for the headquarters, the map officer, and sometimes the VIP clearance officer. He also provides assist- ance in such fields as civil censorship, economic and political activi- ties, and screening processes.
146. The Collection Plan
a. Oriented on the commander's mission and assisted by all divisions, branches and specialist teams, the activities of the in- telligence section follow a four-step cycle:
(1)
Planning the collection effort and orders: (By G2 and CO), to include intelligence annex to operation orders and other directives.

(2)
Collection of Information: By all personnel directed by the Collection Plan.

(3)
    Processing: By all divisions of the headquarters and centered around the G2 situation map, journals, files and other resources of the G2 section.

(4)
    Use and dissemination of the resulting intelligence (in conjunction with G2 reports) particularly that of pub- lishing the Estimate of the Enemy Situation oriented on the 'commander's mission. Each civil affairs com­mander can make an essential contribution to civil affairs aspects of combat intelligence in support of the civil affairs mission by furnishing information according to the local units' CA Collection Plan directed to designated agencies.

b.
The CA intelligence officer directs and supervises the col- lection effort. He prepares collection plan(s), one of which is usually devised in conjunction with the intelligence officer (S2 or G2) of the tactical command or higher headquarters. In addi- tion, he prepares an intelligence collection plan for his own head- quarters.

c.
The extent to which the intelligence officer of a CA head- Quarters processes intelligence from information he obtains is dependent upon the size of his staff, his other duties, proximity and availability of other intelligence processing agencies, and the desires of his commander. He maintains files, a journal, work- sheets, and a situation map with date-time pins, which for stand- ardization may be in the following colors:

(1)
Red-Enemy guerrilla activity.

AGO 6147B      175
(2)
Yellow-Sabotage.

(3)
    Pink-Subversive activities (propaganda efforts by civil groups to disrupt).

(4)
    Blue–Political activities (organized efforts by civil groups to disrupt).

(5)
    Black-Suspected espionage agencies.

147. Dissemination and Use of lntelligence
a. A twenty-four hour period Intelligence Summary (ISUM), ending at midnight usually is prepared by the intelligence section for the purpose of compiling into one brief report the results of the intelligence collection cycle. As a matter of conformity among all CA headquarters the following paragraphing is followed:
(1)
Issuing unit.

(2)
Time and date of issue.

(3)
    Most important enemy action during period.

(4)
    Guerrilla activities.

(5)
    Sabotage.

(6)
    Subversive activities.

(7)
    Political activities.

(8)
    Espionage.

(9)
    Weather.

(10)
    Terrain (trafficability changes pertinent to most recent period).

(11)
    Miscellaneous (to include nuclear blast, CBR warfare, etc).

(12)
Discussion and summary.

b.
Periodic Reports (PERINTREPS) , Special Reports, and In- telligence Estimates will be prepared as called for by the CA commander.

148. CA lntelligence Estimate
a.
Care should be taken not to prepare too broad an intelligence estimate for the CA commander. The CA headquarters intelli- gence section estimate pertains strictly to the CA mission of the particular unit and includes only those enemy courses of action and capabilities that could affect the CA commander's mission. For example, enemy troops in other sectors are only of general interest to a CA commander unless the enemy has the capability of exploiting a breakthrough by ground or airdrop.

b.
Any prescribed Army combat intelligence estimate outline may be used, but in writing the CA intelligence estimate, the enemy situation paragraph includes enemy action in rear areas. This covers guerrilla operations, sabotage, subversive and political

176      AGO 61478
activities, and espionage. Weather and terrain should be included only as they directly affect the local CA unit's mission. In his analysis and discussion of each enemy capability, or appropriate combination of enemy capabilities, the intelligence officer judges from the enemy point of view the advantages or disadvantages of adopting the capability(ies). Careful consideration is given to conclusions which will embody probable courses of enemy action. In his conclusions the intelligence officer provides the commander with his best judgment of the enemy so that the commander, in turn, can make decisions affecting his mission.
CHAPTER 10
LOGISTICS

Section I. GENERAL
149. Civilian Supply
a.
Logistical procedures with respect to operations of CA units are similar in nature to any comparable military unit except where peculiarities of requirements and resources make departures from routine supply procedures mandatory (DA Pam 27-153). Civilian supply is a two-directional operation involving the mobilization and use of resources of the civilian economy, within the bounds of national policy, international agreements, and international law, in support of U.S. military forces, and conversely, the satis- faction of essential civilian needs through military supply sources.

b.
In procuring local items, consideration is given to the effects of such procurement on the local population and economy of the area and will be avoided when subsequent importation of similar items for civilian consumption will be necessary. CA units assist and advise purchasing and contracting, real estate, and personnel officers in determining availability of sources, making arrange- ments for procurement, and weighing immediate needs against longer-range requirements. Since procurement of local resources and personnel frequently leads to friction, ill will, or misunder- standing, CA units will make arrangements for such procurement through local governmental authorities wherever possible.

c.
While a separate CA functional section may be given primary responsibility for planning and implementing civilian supply pro- cedures, civilian supply cuts across functional lines and will actively involve other specialist teams in such matters as inven- tory, control, safeguarding, and distribution. For instance-

(1)
Property control provides machinery for locating, safe- guarding, and maintaining official records on designated categories of property, and maintaining official registers of transfers of non-consumable property between civilian population and military forces.

(2)
    Price control and rationing provides administrative con- trols over prices and allocations of consumable property and industrial raw materials. This function does not include determination of prices or of allocations.

(3)
    Commerce and industry provides machinery for dis­tribution of manufactured products.

178      AGO 6147B
(4)     
Food and agriculture provides machinery for distribu- tion of agricultural, marine, and forest products.

d.
Civilian supply operations will vary with the location, com- mand mission, and political and economic climate of the area but normally will involve the following considerations:

(1)
Consolidation of requirements.

(2)
    Procurement.

(3)
    Storage.

(4)
    Distribution.

(5)
    Transportation.

150. Basic Policies
a.
Basic policies and procedures for civilian supply operations are established in theater plans prior to active commitments of military forces to a theater. These plans will include initial re- quirements and availability of resources based on current intelli- gence of the area of operations. After commitment it is the responsibility of commanders delegated CA authority to provide information and recommendations upon which the Theater Army command can determine changes in requirements for support of the civilian population and an assessment of sources of civilian supplies which may be utilized in support of military operations.

b.
There are no pat criteria for use by the officer charged with advance planning for civilian supply requirements. U.S. forces are subject to commitment on a global basis, and needs are as variable as the areas concerned. For example, troops may be committed to action in food surplus areas, in areas where chronic shortages exist, or in areas with a food situation somewhere be- tween the extremes. Even in food surplus areas, however, the destruction incidental to warfare and the dislocations of trans­portation and other distributive factors may create temporary shortages. Considerations of foreign policy, over-all use of US resources, and effects on military operations determine the alloca- tion of supplies, facilities, and services to support civilians in a country in which U.S. forces are stationed or are in combat. The civilian supply program for any military operation should, there- fore, be based on planning guidance developed through inter-departmental coordination by the United States Government (par. 40708, JCS Pub 2). Generally, in preparing a plan of support for a civilian population, the planner will take into consideration some or all of the following factors:

(1)     Whether or not the Department of State or other gov- ernmental or international body has the responsibility for assuming civilian supply operations at some future date. If so, the length of time required for the assump-
tion of responsibility and capabilities of the agency with respect to supply resources, transportation, and the ma- chinery for distribution must be accorded recognition.
(2)
    Latest area intelligence.

(3)
    Rural populations will require little or no emergency food allocations.

(4)
With no better yardstick available, it can be estimated that ten percent of the population in cities in excess of 100,000 population will require indefinite subsistence in food and medical supplies. This figure can be scaled downward in smaller municipalities and may need to be increased in larger cities.

(5)
Caloric basis of the plan may be reduced to lowest sub-

sistence levels and be as low as 1500 calories daily per person.

(6)
    Requirement for medical supplies should be based on civilian combat casualties, epidemic disease potential, and major endemic diseases.

(7)
    Availability of shipping space.

(8)
    Palatability factors in foodstuff consumption rates.

(9)
    Off shore procurement resources.

(10)
Determination      of      policy     on rehabilitative measures which will be taken with respect to the local economy.

(11)
    Extent of destruction of housing and means     of produc­tion and distribution.

(12)
    Capabilities of allied nations with forces committed to the area to assist in support operations.

(18)
    Numbers and breakdown by age and     sex     of civilians who become refugees, displaced persons; or are evacu- ated. In the case of evacuees the measure or responsi- bility is greater.

(14)
Mission     of      forces.     Emphasis on requirements for ci- vilian supplies will be influenced by political variables. In the case of an invitational assignment on disaster re- lief or to support a government endangered by internal divisions or external threat, civilian supply support would have greater essentiality than in an occupied hos- tile area.

(15)
Capabilities of combat forces to provide civilian relief supplies from available unit stockage in areas of active combat.

c.
Programmed issue of supplies for civilian use is accomplished by requisitions submitted by CA units and processed in accord- ance with theater logistical plans and procedures. For emergency issues the burden of decision as to quantities and kinds of supplies

AGO 6117B
180     
which car; be spared from unit stocks rests with commanders con- cerned. Wherever practicable and shipping facilities permit, ma- jor combat organization should carry a predetermined unit load of supplies earmarked for civilian consumption. In either case total quantities by item should not be issued in excess of alloca- tions established by theater headquarters except in extreme emer- gencies.
d.
Distribution of civilian supplies to locations specified by TACAC is the responsibility of TALOG. Normally, further stor- age, transportation, and distribution is then a responsibility of CA units assigned to areas requiring the supplies either through direct control activities or through supervision over designated civilian agencies. Accountability is maintained until supplies are issued to appropriate civil agencies after which further account- ablity, storage, processing, and final distribution to end users is normally the responsibility of civil agencies operating under the supervision of CA personnel.

e.
The TACAC commander is responsible for a continuing esti- mate of civilian supply requirements, allocations, and priorities within his area of responsibility ; development of plans and pro- grams for distribution and control of supplies and coordination of requisitions from subordinate units; distribution within the TACAC area, and maintenance of necessary records and accounts to reflect the current status of civilian supply operations. Similar surveys, estimates, and records are maintained by CA units at all levels in the interest of local planning and operations as well as to provide feeder data for central consolidation of information at the TACAC level.

151. The Civilian Supply Officer
a.
Within any CA unit the civilian supply officer is assigned this functional responsibility and is the focal point within the unit to whom military commands or other agencies submit requests for local supplies, property, and facilities for the area assigned to the CA unit. After determining from those CA personnel in the unit, whose functional areas encompass such supplies, property, and facilities, that they can be made available, the civilian supply officer arranges for delivery to the appropriate military control agency. All transactions in property other than consumable items are processed through the property control section. Through the same civilian supply officer channel, return of local property and facilities to civilian control may be arranged.

b.
In the matter of civilian supply operations the closest co- ordination between TACAC and TALOG and their respective sub- ordinate echelons is required at all levels and in all aspects of such matters as planning, programming, procurement and distri-

AGO 6147~ 181
bution, and the exchange of current information on the status of civilian supply operations (fig. 9).
152. Policy on Civilian Supplies
The extent and manner of furnishing civilian relief and eco- nomic aid from United States resources and the permissible de- gree of utilization of local resources in support of military oper. ations should be developed in prior planning at all levels based on capabilities, requirements, national policy, aild international law. Recommendations on program changes should be made as they appear warranted on the basis of continuing studies. Maxi. mum permissible utilization is made of the material resources, facilities, and services of the area concerned for the purpose of supporting the conduct of military operations. Such resources, facilities, and service include, but are not limited to the following:
a.
Material resources including natural resources, raw materi- als, agricultural products, and manufactured commodities.

b.
Port, transportation, and communication facilities; public utilities; and industrial plants, machinery, and equipment.

c.
Real estate including troop areas, housing, warehousing, open storage, and hardstand space.

d.
Local civilian labor.

e.
Contractual services.

153. Support by Technical and Administrative Services
The implementation of approved plans and the actual conduct of CA logistical operations is not confined to CA units. It is es- sential that the various technical and administrative services of the Army in the field render appropriate support in the form of supplies, services, and technical assistance, as follows:
a.
Receipt, storage, and transportation of supplies for civilian relief and economic aid.

b.
Provision of assistance or technical advice to the maximum extent consistent with requirements for the support of military operations in such activities as-

(1)
Removal or neutralization of mines, booby traps, and demolitions.

(2)
    Rehabilitation of water supply facilities and public util- ities for military or essential civilian use when such re- habilitation is beyond the capabilities of local agencies of government.

(3)
    Rehabilitation of port, transportation, and communica- -tion facilities, as may be directed.

(4)
    Clearance of debris or damaged structures.

(5)
    Emergency care of civilian casualties.

(6)
    Emergency graves registration service.

AGO 0147B
182     
(7)     Care and control of refugees and displaced persons be. yond the capabilities of local authorities and the CA organization.
Section II. REQUIREMENTS
154. General
Requirements for civilian supplies must be specific as to quan- tities, time, or needs for a specific project. Civil affairs units at all levels must conduct continuing surveys and make reports and recommendations concerning civilian supply requirements within their respective areas of employment. The CA staff sections of the commands concerned are responsible for estimating both in- itial and future supply requirements. In any situation, consoli- dated requirements for civilian supplies are submitted to the logistical staff section for review and necessary supply action in accordance with normal procedures for military requirements.
155. Civilian Supply Planning
Civilian supply planning must be carefully integrated with military logistical planning so that required shipping space with- in desired delivery times may be assured. Applicable policies are determined for each country or area in which operations are to be conducted and are furnished to the theater commander for guidance in planning. In general, such policies may cover the extent to which civilian supplies are to be furnished from United States resources for the relief of civilian distress and the caloric value of rations for civilian consumption. In addition, guidance is furnished on the general scope of military assistance with re- spect to any rehabilitation or restoration of the economy, stabili- zation procedures, the desired standard of living in the country of concern, and extent of utilization of local resources for military support purposes.
156. Estimates of Civilian Supply Requirements
a. Comprehensive estimates of minimum requirements for civilian supplies, such as food, clothing, fuel, shelter, and medical supplies to include types, quantities, and scheduled delivery dates should be made prior to the initiation of operations. Such esti- mates of requirements are preferably made to include operations during the first six months of combat. The determination of civil- ian supply requirements prior to operations serves as the basis for initial automatic supply. Subsequent estimates of supply re- quirements made after operations have been initiated are based on prescribed requisitioning periods. In addition, review and ad-
184      AGO 0147B
justment of previously determined requirements are made on the basis of actual experience.
b. Spot requirements such as immediate need for large quan- tities of a particular medicine or vaccine must be anticipated. These requirements must be handled on an emergency basis. Mili- tary operations may be initiated by an enemy so unexpectedly as to preclude a detailed estimate of requirements and their review, approval, and programming through normal channels within prac- tical time limitations. The theater commander must be prepared to cope with minimum initial civilian relief requirements through the diversion of food, clothing, and medical supplies from military stocks, supplemented by authorized offshore procurement from allied nations in the vicinity of the area of need.
157. Basis for Estimates
a. The development of civilian supply requirements may be more complex than the calculation of purely military requirements because of unknown factors which may be involved. For ex­ample­
(1)
There are no convenient tables of organization and equipment for ready reference.

(2)
    Civilian supply requirements may be extremely diverse including many types of items required to meet the basic needs of a civilian population during or subsequent to military operations when the normal sources of produc- tion and means of distribution have been eliminated, curtailed, or disrupted.

(3)
    Established experience factors will be lacking.

b.
In the development of estimates of requirements, considera- tion, as appropriate, is given to such factors as-

(1)
    Previous and existing standards of living of the civilian population including health and dietary factors.

(2)
    Climate, customs, and general way of life of the in- habitants.

(3)
    Agricultural and industrial pattern of the nation in- cluding the status of local production, times of harvest, percentage of population living in cities, effectiveness of rationing and distribution systems, and need for imports. Additional allowances may be required due to breakdown in transportation facilities between production areas and cities and disruption of the rationing and food distribu- tion systems.

(4)
    Availability of essential supplies within the theater such as excess food and fuel and means of transportation to deficit areas.

(5)
    Present extent of damage and disruption to the local

AGO      185
614iB
 
economy including the means of production, processing, and distribution of supplies and probable effects thereon of future military action including foraging by the en- emy.
158. Types, Quantities, and Priorities of Civilian Supplies
a.
Urban areas are largely dependent on outside food sources; rural areas are normally self-sustaining. An examination of the records of wholesalers, containing information on previous im- ports, may provide basic data of assistance in determining types and quantities of supplies to be imported into a specific area.

b.
Civilian supplies intended for initial distribution in an area of active military operations, such as canned goods, ready-made garments, or tents for shelter, should be susceptible to rapid distribution and immediate consumption or use. They should not require major preparation, processing, or detailed handling. As the military situation becomes relatively stabilized, bulk type supplies such as unprocessed foodstuffs, cloth to be made into clothing, or lumber for the construction of shelter may be more suitable. The provision of supplies in the form of raw materials conserves vitally needed shipping space, reduces purchasing costs, and when local processing is employed, may assist in industrial rehabilitation and economic recovery.

c.
Establishment of priorities and phasing of deliveries is nec- essary to assure delivery of supplies when needed and to provide conformance with the timing of supplies required for the support of tactical military operations.

d.
Consistent with the dietary habits of the local population and the traditional mode of food preparation, fuels for cooking are assigned priorities in consonance with those accorded to food supplies.

e.
The supplementing of local resources with such items as fer- tilizers, seeds, tools, or spare parts, may serve to accelerate local production of large amounts of needed supplies at low cost and free valuable shipping space for other uses.

159. Review of Civilian Supply Requirements
Within the theater of operations the aggregate of civilian sup- ply requirements is reviewed to determine those supplies, facil- ities, and services which should be obtained through local pro- curement. This review is accomplished by TACAC on the basis of regular feeder reports furnished by subordinate CA units. Where requirements exceed the aggregate of resources, a recom- mendation will be made to Theater Army on steps to be taken in- cluding the essential redistribution of local surpluses. If supplies in some categories are surplus to civilian requirements and are adaptable to utilization by the military forces, inventories will be
AGO 6147B
provided Headquarters Theater Army. The theater commander will forward his estimate of requirements to the Department of Defense for action at the national level, and his estimate or that portion of his estimate approved will be incorporated in national programs for civilian supplies.
160. Reconstruction and Rehabilitation for Military Use
a.
In the logistical planning prior to a large scale military op- eration, consideration is given to projects involving the recon- struction and rehabilitation for military use of local facilities in the objective area. These facilities, which are returned to civilian use as soon as there is no further need for them, may include ports, railroads, highways, hospitals (under special circumstances, see FM 27-10), accommodations for personnel, depots, shops, plants, factories, and communications facilities.

b.
In planning for the reconstruction, rehabilitation, and use of local facilities both military and civilian requirements are con- sidered to insure that assigned priorities and allocations reflect the politico-economic as well as the military mission of the com- mander.

c.
In the selection and recommendation of vital installations for pre-operational attack military planners should avoid indiscrimi- nate destruction. Indiscriminate destruction destroys the bases on which a peace can be built when the conflict is over and may impose an additional drain on the resources of the United States.

Section Ill. PROCUREMENT
161. Civilian Supply in General
a.
Civilian supplies consist principally of commodities such as food, coal, petroleum products, medical supplies, clothing, and any raw materials which can be utilized in local production. Sup- plies and services necessary to establish or restore information services in the area are provided (newsprint, printing facilities, radio broadcast and reception, motion pictures, etc.).

b.
Although civilian supply operations must be flexible, every effort should be made to promote stabilitv and prevent the per- formance of supply functions on a crisis basis. Basic minimum stocks or reasonable reserves of supplies are maintained in order to assure stability of operations.

c.
Supplies for civilian relief or economic aid may be procured, as appropriate, from military stocks, domestic purchase within the united States, offshore procurement, procurement from local resources, captured enemy stocks, and the contributions of volun- tary agencies such as the American Red Cross.

AGO 6147R
162. Automatic Supply for Civilian Requirements
a. Upon the initiation of military operations in a new theater, supply action is normally conducted on an automatic basis from the zone of interior. In accordance with requirements established prior to operations, civilian supplies are shipped automatically
(without requisition) in accordance with prearranged schedules. Corrections in amounts of supplies furnished on an automatic basis are made when amounts exceed desired stock levels. Pro­visions are made to call forward additional supplies on an emer- gency basis.
b. As military operations proceed, G5 staff officers at all com- mand levels estimate continuing civilian supply requirements for their areas, using reports, requisitions, and other data submitted by subordinate CA units and the appropriate technical services. Requirements for civilian supply operations must conform with other logistical support operations and must be closely coordi- nated by G5 with G4 at all command levels.
163. Regulated Items of Civilian Supply
Regulated items are those articles which are scarce, costly, of a highly technical or hazardous nature, or which, for some other reason, must be controlled closely during and after distribution. Appropriate commanders establish controls and publish lists of critical items which are handled in the same manner as regulated items. Supplies intended for civilian use normally are not included in regulated item lists, but they may be strictly controlled and may appear on a theater-controlled supply list to prevent waste or unauthorized diversion. Military supplies to be diverted to civilian use may be included in regulated item lists.
164. Requisitions for Civilian Supply
Requisitions for needed civilian supplies are prepared by those CA units in whose areas ultimate distribution to civilian agencies will be made. The form of the requisition or request may be a complete, written, formal requisition on a specified form, a call against a credit, an informal request in the form of a message, or an oral request from the CA unit.
a. Each formal requisition includes a statement that the re­quested items are necessary for civilian use in a specified area. This statement is necessary to enable the technical services to account for quantities and costs of items issued for civilian sup-
ply.
b. Procedures to be followed in the preparation and submis- sion of requisitions will be published by the headquarters of the field army or communications zone and will be supplemented by instructions issued by subordinate commands. When a CA unit
188 AGO 6147B
requisitions civilian supplies for which a specific credit or allo- cation has been established by the headquarters of a major com- mand, a requisition citing the authorization may be submitted directly to the specified depot or supply point. When a credit or allocation has not been established for needed civilian supplies, requisitions will normally be forwarded through command chan- nels to the headquarters of the operating CA command for ap- proval and consolidation.
c. Requisitions for regulated items will be forwarded through command channels for approval with information to supply agencies concerned prior to being sent to the depot or supply point for issue.
165. Objectives of Local Procurement
Local procurement is utilized as an alternate supply source to fill known military requirements and to augment other supply sources on an "as required" basis to insure the adequacy of logisti- cal support for tactical operations. Local procurement may-
a.
Decrease the industrial burden on the United States.

b.
Conserve critical domestic materials of the United States.

c.
Reduce procurement lead time.

d.
Reduce supply distribution time.

e.
Conserve shipping space.

f.
Promote economic and industrial self-sufficiency for the country furnishing local resources.

166. Basic Considerations Affecting Local Procurement
a.
In the support of military operations the CA organization mobilizes all available local resources to achieve military objec- tives. It is essential that elements of the military force avoid wanton destruction of property and exploitation of the inhabitants in order to comply with legal requirements, forestall civilian hos- tility, and permit the effective civilian and military utilization of local resources.

b.
Consideration is given to agreements concluded with allied governments and the effects of such procurement on the local population and economy of the area.

c.
Utilization of existing local facilities serves to reduce the need for military construction and requirements for engineer units and Class IV supplies. It also augments, for example, the potential of the quartermaster service with existing refrigeration, bath, laundry, baking, shoe, clothing, and repair facilities; of the transportation service with existing rail systems, waterways, road nets, and installations; and of the signal service with existing communication facilities.

d.
Careful consideration must be given to the urgency of the needs of the local economy and the requirements of the military

force. Local procurement will be avoided when it results in the subsequent importation of similar items for the civilian population. When the minimum needs of the local population are involved, local procurement of items such as food, livestock, fodder, medical supplies, insecticides, soaps, and fuel will be avoided.
e.
Real estate and local facilities, which are utilized after prior acquisition through prescribed procurement procedures, may in- clude land, buildings, rights of way, piers, docks, bridges, rail- ways, utility and communications systems, together with those fixtures and appurtenances required for their operation, such as machinery, equipment, and tools.

f.
Limitations on prices, wages, rentals, or fees for materiel, labor, facilities, and services will be established by theater policy and may be adjusted periodically on the basis of surveys and recommendations made by CA units. Price discipline must be observed and competition between using military agencies avoided.

167. Local Procurement Procedure
Although the functions of local procurement are conducted under the general staff supervision of G1 or G4 or comparable directorate staff officer in COMMZ of the headquarters concerned, G5 (director civil affairs) has general staff responsibility for pro- viding liaison with civil agencies; locating local supplies, equip- ment, and labor required for military use; determining the effect of their military utilization on the local economy, and reporting their availability based on a determination of civilian needs. Prior staff planning and detailed staff coordination are required to in- sure the maximum effective utilization of local resources. Chiefs of technical services, in coordination with CA units, explore the possibilities of and initiate action for the local procurement of supplies, facilities, real estate, services, and civilian labor.
a.
Procurement of supplies and equipment is effected by pur- chasing and contracting officers duly appointed in accordance with policies and procedures established by the Department of the Army. Purchasing and contracting officers may also be designated agent finance officers for the purpose of making cash purchases. When the procurement of local resources may provide a source of friction and misunderstanding with local civilians, P&C officers should avoid direct dealings with property owners and performers of services and whenever possible, arrange for the utilization of properties and services through local agencies.

b.
CA units assist and advise P&C officers in making arrange- ments for local procurement and facilitate compliance with the regulations and procedures prescribed by higher headquarters.

c.
Procedures for local procurement by CA units conform to those prescribed for all military units operating in the area.

190 AGO 6147B
168. Methods of Local Procurement
Procurement is accomplished by purchase, requisition, contri- bution, or confiscation. Directives of the theater commander, based on applicable legal limitations, furnish guidance to subordi- nate commanders on available methods of procurement.
a.
Purchase, which is a transaction whereby the ownership of. supplies is transferred and services are performed for an agreed cash payment or obligation, may be used to obtain supplies and services of a non-recurrent nature or where procurement by requisition is either unauthorized or undesirable.

b.
Requisition, which. is a demand made on the inhabitants, differs from purchase in that the price is fixed, usually by the buyer, and the owner has no option in the transaction. Requisi­tion may be of the direct or indirect type. Direct requisition is the process whereby supplies and services are demanded from the vendor or performer of services in exchange for a receipt to be utilized as a basis for future compensation. Indirect requisition is similar to direct requisition with the exception that the trans- action is accomplished through local authorities who should make immediate payment to the vendor or performer. The United States may assume an obligation to repay the local government. Indirect requisition is normally preferable to direct requisition.

c.
Contributions result from demands, levies, or taxes on the civilian population for the conduct of the essential services of the local government.

d.
Lawful confiscation is that seizure of the property of an enemy government for public use authorized by the law of land warfare (FM 27-10).

169. Procurement of Real Estate
The acquisition and disposition of real estate are functions of the engineer service. These functions are performed in accord- ance with the terms of agreements, the law of land warfare, and applicable theater policies.
a.
Adequate prior planning is essential to the effective deter- mination of requirements and allocations of areas and facilities.

b.
Although control over all activities concerned with real es- tate is centralized in the engineer service, the acquisition of real estate has a strong and direct impact on the economy of the area of operations. G5 (director civil affairs) accordingly determines the availability of real estate for military use, any limitations that should be imposed on such use, and the effect of such utiliza- tion on the local economy. G4 (director of services) develops policies on the requisitioning and administration of real estate

AGO 6147B 191
and makes allocations of areas, billets, and facilities to users. G1 (director of personnel) sub-allocates shelter and quarters for the use of staff sections and personnel within the headquarters
c.
CA units assist engineer real estate officers in locating de- sired properties and facilities. To assure close coordination it is desirable that engineer real estate offices be established in the vicinity of the headquarters of those CA units allocated area juris- diction for major political subdivisions. Engineer real estate officers insure that requests for utilization of real estate are within the allocations made by G4 and maintain, in coordination with CA units, inventories of available real estate.

d.
Effective coordination of real estate requisitions may neces- sitate the establishment of area real estate allocation boards in- cluding CA and other representation from the various commands concerned.

170. Procurement of Labor
a.
Maximum permissible use is made of local sources of labor in support of military operations. Theater policies, based on legal or treaty requirements and United States policies with respect to local economic considerations, are promulgated on such matters as the procurement and distribution of labor, uniform wage scales, and conditions of employment. When the availability of local labor has been determined by G5 (director civil affairs) in accord- ance with theater policies, the report of such availability is fur- nished to G1 (director of personnel), the allocating staff agency.

b.
Civilian labor procurement and adinistration is performed by unit labor officers, civilian personnel officers or area labor officers in coordination with appropriate CA units. CA units lo- cate local labor for using agencies and establish and maintain such minimum records as are necessary to insure adherence to prescribed policies and directives. CA units are not responsible for such matters of administration as hiring, payment for serv- ices, and maintenance of employment records.

c.
Refugees are utilized to the maximum practicable extent as a source of local civilian labor.

171. Acquisition and Utilization of Captured Enemy Supplies
Captured enemy military supplies or movable public property become the property of the United States immediately upon cap- ture and must be handled in the same manner as all other gov- ernment property (FM 27-10). Private property must be held pending return to or compensation of its owner. Usable captured materiel is distributed through normal supply channels or is moved to the rear, as in the case of salvage. Care is taken to safeguard and evacuate captured material of new design to the appropriate technical intelligence team or to the appropriate special staff officer of the responsible supply branch.
a.
Maximum efforts are made to exploit those captured enemy supplies which are suitable for civilian use. The military use of captured enemy supplies may be unsatisfactory due to their dis- similar quality, packaging, marking, and the difficulty which may be encountered in repair and maintenance. The allocation of cap- tured supplies to civilian use in the area of their location reduces requirements for civilian supplies and the transportation neces- sary to move such supplies from rear areas.

b.
Prior planning includes consideration for the disposition of captured enemy supplies which are adaptable for civilian use. In rapidly moving situations the enemy may be unable to remove or destroy supplies contained in various supply points and depots prior to the seizure of such installations by friendly military units.

c.
Captured enemy supplies released and issued for civilian use are accounted for in the same manner as imported supplies. Cap- tured enemy military supplies and public property may be sold to local authorities only when such sale is specifically authorized.

172. Storage of Civilian Supplies
Storage includes the operations of receiving, storing or ware- housing, and shipping civilian supplies in accordance with the overall distribution plan. Depots perform four supply functions- control, storage, procurement, and distribution. The extent to which a depot exercises each of these functions depends on its location, mission, type, and service. Civilian supplies are stored in and distributed from military depots and supply points as appropriate by class of supply and responsible technical service. Each technical service is charged with maintaining stocks at the prescribed level and furnishing the necessary operating person- nel. Records indicating type, location, and status of supplies are maintained by each depot. Reports on these records serve as a basis for operation of the stock control system.
Section IV. DISTRIBUTION
173. Supply Channels
a.
Military supply channels are used in the distribution of civilian supplies in a theater of operations. Adherence to normal supply channels not only obtains the most efficient use of per- sonnel, transportation, communications, and storage space but also assures that such supplies reach their proper destination and serve their intended purposes.

b.
Supply officers of the administrative and tactical commands

AGO 6147B
concerned insure the timely movement of civilian supplies from the ports through military supply channels. The chief of each technical service processes and handles such supplies in the same manner as those of a purely military nature. Uniform procedures for the issuance of such supplies are determined by the chiefs of technical services in coordination with G4 and G5 of field army headquarters or appropriate TALOG directors.
c.
If the harvests or the stocks of local supplies are adequate to meet civilian supply needs as each military objective is reached, the clogging of military channels may be avoided by holding back imports in storage areas and by utilizing local resources to the maximum. Allocated supplies are called forward as needed; pri- orities are adjusted to conform to actual on-the-ground needs.

d.
Operational considerations and the requirements of the local situation may require deviations from the normal supply distribu- tion system. When adequate transportation is available to CA units, such units should draw directly from army or communica- tions zone supply points or depots thus relieving the technical services from the responsibility of drawing such supplies. When the transportation available to CA units is limited in relation to the bulk or quantities of supplies to be drawn, supplies may be delivered to points designated by CA units. Civilian supplies may be issued directly to local governmental agencies by depots in the communications zone or field army service area. In any instance, maximum utilization is made of local civilian labor, transporta- tion, and distribution agencies.

e.
Since the main objective of supply distribution is to get the supplies to the ultimate consumer where and when needed, civilian supplies will normally be issued by the depot in closest proximity to the CA unit responsible for ultimate distribution to the agen- cies of local government.

f.
Civilian supplies may carry special markings to distinguish them from items normally issued to troops and to facilitate ready identification. In order to obtain the good will of the inhabitants, the contribution of civilian supplies is fully publicized.

g.
The distribution of civilian supplies through sale rather than gratuitous issue is instituted under appropriate conditions. Due consideration is given to the avoidance of inflation and black market activities.

h.
The proper distribution of civilian supplies to consumers is a responsibility of CA units in their respective areas of jurisdic- tion. Best results are obtained when the existing civilian distribu- tion system is used.

i.
Civilian supplies are drawn from those supply points or local

AGO 6147B
issue sections of branch and general depots designated in appli- cable administrative orders.
174.     Issue of Civilian Supplies by Corps and Divisions During Combat
a.
Commanders of corps and divisions may be authorized to issue military rations as relief supplies when local supplies or special military rations for civilian relief are not available. As enemy food supplies are uncovered, adequate security measures are taken to protect them from destruction or looting, either by troops or by the inhabitants. These supplies may be released for distribution through CA distribution channels for the feeding of refugees, displaced persons, and local inhabitants.

b.
Commanders of corps and divisions may be authorized to requisition necessary salvage clothing. Prior to issuance all identifying insignia should be removed, and further alterations to include dyeing may be undertaken to differentiate the items from material in the hands of troops. These alterations, however, are not a safeguard against pilfered Army stocks being treated in a similar manner and placed on civilian markets. As a safeguard against pilferage and to assist in possible recovery of stolen goods, adequate bookkeeping and receipting procedures should be set up to establish legitimacy of possession of salvage goods. Issues of tentage for emergency shelter and wire for inclosures may be authorized when local supplies have been exhausted. If neces­sary, commanders within their capabilities, assist in provision of potable water and medical supplies for civilian use.

c.
Gasoline from military supplies or captured enemy stocks may be issued for the movement of food from rural to urban areas and for other essential use. Whenever possible, gasoline is given a distinctive color to prevent misuse. Captured enemy vehicles may be used for the movement and distribution of civilian sup- plies.

d.
Since military supplies for industrial needs usually are not available during combat operations, enemy construction supplies, machine tools, and equipment are protected from destruction and looting in order to permit their later use in the civilian economy.

e.
Engineer equipment to restore the operation of such essen- tial utilities as the water system, sewage disposal, and electric power facilities is requested through engineer supply channels when the operation of such facilities is necessary to prevent dis- ease or unrest or to contribute to the military effort.

175.     Civilian Supply Accounting
a. The CA organization should require civilian agencies re­ceiving civilian supplies to maintain records in such detail as is
AGO 6147B     
necessary for a full and proper accounting of supplies provided from military sources and of contributions made by allied govern- ments and nonmilitary agencies.
b.
When supplies are transferred to the local government or civilian agencies for' distribution or for reallocation, authorized signatures must be obtained on receipts.

c.
Central accounting controls over the receipt and issue of civilian supplies are maintained to provide information in the course of operations on which to base continuing requisitions for civilian supplies and insure that supplies are not issued in excess of essential minimums or of amounts which have been determined by proper authority. Statistical evaluations at local, regional, and national levels assist in determining the effectiveness with which civilian supply operations are being accomplished.

Section V. HOSPITALIZATION AND TRANSPORTATION
176. Civilian Casualties
It may be necessary for military aid stations to administer emergency type treatment to civilians during active military op- erations and, when feasible, to evacuate seriously wounded or critically injured civilians. The extent of military treatment and evacuation of civilian casualties depend upon the requirements of the military situation, the availability of military medical facili- ties, and the lack of civilian medical personnel and facilities. Whenever possible, civilian casualties are evacuated to the nearest civilian medical installation. If civilian medical facilities are not available, the administrative order of the command concerned should outline evacuation procedures.
a.
When civilian casualties are to be evacuated to military medical installations, such evacuation is accomplished through the military evacuation system on a priority basis second to military casualties.

b.
If civilian ambulances are not available for the transport of civilian casualties, trucks, private cars, or animal-drawn carts are utilized. When military transportation must be provided, avail- able air, rail, or motor transportation, including empty vehicles moving to the rear, are employed. Provisions are made, where appropriate, for the transportation of civilian casualties by litter or improvised means.

c.
When sick and wounded civilians have been evacuated to military medical facilities, they are segregated from military personnel and transferred to civilian facilities as soon as their physical condition permits. Accordingly, measures are taken, whenever practicable, to rehabilitate civilian hospitals on a first priority basis.

196 AGO 6147B
177. Movement of Civilian Supplies
As described herein, transportation includes the utilization of civilian and military transportation for the movement of civilian supplies. Utilization for military purposes of public transporta- tion facilities not operated by the Transportation Corps is co- ordinated through G5 or director of civil affairs of the command charged with the control or supervision of such facilities.
a.
When authorized by competent authority, civilian transpor- tation may be requisitioned for military use. In the allocation of civilian transport between military and civilian use, careful consideration must be given to the terms of the civil affairs agree- ment or rules of international law, as applicable, and to local re- quirements for the movement of food, clothing, medical, and other supplies. Civilian vehicles should not be utilized for mili- tary purposes when additional requirements for military trans- portation of civilian supplies can be anticipated. Civilian vehicles are returned to their proper owners as soon as effective control over their use can be exercised by civilian authorities.

b.
Upon entry into an area previously under enemy control, all civilian vehicles, trucks, and animal-drawn carts required for the transportation of civilian supplies are organized into trans- portation pools for operation under the supervision of CA units in the area. The organization of vehicles into pools provides the most effective means for the movement of civilians and trans- portation of essential civilian supplies. To the maximum prac- ticable extent, such vehicles are operated by their respective owners.

c.
When local or captured enemy supplies and facilities are not available, minimum amounts of fuel, lubricants, tires, and spare parts from military stocks and essential military maintenance facilities are made available by the responsible military com­mander for issue to an utilization by civilian pools under the supervision of CA units. Issues of supplies are made against ap- proved trip tickets and are restricted to the controlled employment of the vehicles in meeting the approved transportation needs of the community involved. Commanders of CA units estimate fu- ture requirements from military stocks for fuels and lubricants in advance and submit the necessary requisitions through appro- priate command channels.

AGO 6147B

APPENDIX I
 
REFERENCES
 

AR 611-203 AR 616-170 AR 725 Series
Inspector General Activities and Procedures
Message Preparation
Field Water Supply
Civil Affairs Branch
Military Intelligence and Army Security Branches Active Duty for Training of Individual Members Military Police Criminal Investigation Activities Battalions, Battle Groups, Squadrons, Gen- eral Provisions
Companies ;General Provisions
Preparation and Processing
Organization and Equipment Authorization Tables Orders, Bulletins, Circulars, and Memoran- dums Issued From Headquarters of Field Commands
Dictionary of United States Army Terms
Authorized Abbreviations and Brevity Codes
Reports Control System
Correspondence
Civil Affairs Training
Public Information, Community Relations
Public Information, Establishment and Con- duct of Field Press Censorship in Combat Areas
Safeguarding Defense Information
Civil Censorship
Command Report
Officer Qualification and Classification
Personnel Selection and Classification Manual of Warrant Officer Military Occupational Specialties
Manual of Enlisted Military Occupational Specialties
Enlisted Classification
Civil Affairs Specialization
Issue of Supplies and Equipment
AGO 6147B
AR 740 Series Storage and Shipment of Supplies and
AR 746-80 AR 750 Series FM 1-5 Equipment
Marking of Supplies for Shipment
Maintenance of Supplies and Equipment
Army Aviation; Organizations and Employment
Tactics and Techniques of Chemical, Biologi- cal, and Radiological (CBR) Warfare Operations of Engineer Troop Units Camouflage, Basic Principles and Field Camouflage
Engineer Intelligence
Engineers Reference and Logistical Data
Infantry and Airborne Division Battle Groups Infantry Division Medical Service Units, Theater of Operations Medical Service, Theater of Operations Transportation of Sick and Wounded Bandaging and Splinting Ordnance Service in the Field Quartermaster Service in Theater of Operations
Quartermaster Reference Data
Signal Operations in the Corps and Army
Signal Corps Technical Intelligence
The Chaplain
The Armored Division and Combat Command Military Police Operations Civil Disturbances and Disasters Criminal Investigation Military Police Traffic Control Physical Security Handling Prisoners of War The Provost Marshal Civil Defense Military Training Techniques of Military Instruction Military Sanitation Map Reading Military Symbols Small Unit Procedure in Nuclear, Biological
and Chemical Warfare
AGO 6147B
 

FM 101-10 Part I1
Soldier's Handbook for Nuclear, Biological and Chemical Warfare Combat Training of the Individual Soldier and Patrolling
Military Leadership
Field Radio Techniques
Field-Wire and Field Cable Techniques
Motor Transportation, Operations
Interior Guard Duty
The Law of Land Warfare
Combat Intelligence
Technical Intelligence
Handbook on Aggressor Military Forces
Aggressor Order of Battle
Operations Against Airborne Attack, Guer- rilla Action, and Infiltration Guerrilla Warfare and Special Forces Operations
Desert Operations
Combat in Fortified Areas and Towns
Northern Operations
Psychological Warfare Operations
Joint Manual of Civil Affairs
Field Press Censorship
The Logistical Command
Transportation Services in Theaters of Operation Airborne Operations The Airborne Division Amphibious Operations; Embarkation and Ship Loading
Jungle Operations
Field Service Regulations; Operations Field Service Regulations, Administration Signal Communications Doctrine
Larger Units
The GI Manual
Staff Officer's Field Manual, Staff Organiza- tion and Procedure Staff Officer's Field Manual: Organization, Technical, and Logistical Data Department of the Army Planning and Pro- gramming Manual Joint Logistics Policy and Guidance Manual
AGO 6147B
JCS Pub 1
JCS Pub 2 JANAP and ACP
121-series JANAP 169 TM 5-687
DA Pam 20-21 DA Pam 27-1 DA Pam 108-1
DA Pam 310-1 DA Pam 310-2 DA Pam 310-3 DA Pam 310-4
DA Pam 310-5 DA Pam 310-7
DA Pam 350-60 DA Pam 600-3 TOE 7-1 TOE 17-1 TOE 29-500 TOE 33-56
Dictionary of United States Military Terms for Joint Usage
Unified Action Armed Forces (UNAAF)
Joint Communications Instructions
Standard Abbreviations
Fire Protection Equipment and Appliances; Inspections, Operations, and Preventive Maintenance
Military Water Supply
Tactical Motor Vehicles, Preventive Main­tenance, Supply, Inspection, and Training Procedures
Army Mess Operations
Cases on Military Government
Preservation, Packaging, and Packing of Military Supplies and Equipment
Preservation, Packaging, and Packing of Materials, Supplies and Equipment Used by the Army
The Army School Catalog
Treaties Governing Land Warfare
Index of Army Motion Pictures, Filmstrips, Slides, and Phonograph Recordings Index of Administrative Publications Index of Blank Forms Index of Training Publications Index of Technical Manuals, Technical Regu-
lations, Technical Bulletins, Supply Bul­letins, Lubrication Orders, and Modification work Orders
Index of Graphic Training Aids and Devices
Index of Tables of Organization and Equip- ment, Tables of Organization, Type Tables of Distribution, and Tables of Allowances
Announcement of Army Extension Courses
Career Planning for Army Officers
Headquarters, Infantry Division
Headquarters, Armored Division
Composite Service Organization
Headquarters and Headquarters Company, Psychological Warfare Broadcasting and Leaflet Battalion
AGO 6147B
 

TOE 33-57
TOE 33-77
TOE 33-500
TOE 33-600
TOE 41-500 TOE 51-1 TOE 52-1 TOE 54-1 TOE 54-101 TOE 54-201 TOE 57-1 ATP 21-114

ATP 41-200 ATT 41-1
Psychological Warfare Reproduction Detachment Psychological Warfare Loudspeaker and Leaflet Company Psychological Warfare Radio Broadcasting Organization Psychological Warfare Consolidation
Organization Civil Affairs Organization Headquarters, Army Headquarters Corps or Airborne Corps Headquarters, Logistical Command A Headquarters, Logistical Command B Headquarters, Logistical Command C Headquarters, Airborne Division Basic Combat Training Program for Male
Military Personnel Without Prior Service Civil Affairs Groups and Companies Army Training Test for Civil Affairs Service
Organization
AGO G147B
APPENDIX II
 
—.———————–­
(CLASSIFICATION)
Form for CA Unit Commander's Estimate of the Situation
Unit or Area Place Date and Time
COMMANDER'S ESTIMATE OF THE SITUATION Map or chart references: (As necessary for understanding of the estimate).
1. Mission
A concise statement of the task and its purpose. The overall politico-military mission is the controlling factor of the estimate. If the CA mission is multiple, determine priorities. If there are immediate tasks, prescribed or deduced, necessary to the accom- plishment of the mission, such tasks should be listed in this paragraph.
2. The Situation and Considerations
a. Considerations AfSecting the Possible Courses of Action. Determine and analyze those factors which will influence your choice of a course of action as well as those which affect the capabilities of the enemy to act adversely. Consider such of the following and other factors as are involved:
(1)
Characteristics of the area of operations including its physical features–climate, and basic political, economic, and psychological factors. Consider also the following specific points :

(a)
Attitudes of the population-whether          cooperative or noncooperative.

(b)
    Availability of local material and personnel to support CA operations.

(c)
    Estimated number of refugees, evacuees, and displaced persons in the area.

(d)
Amount     and type     of      war damage suffered by the economy, particularly in public utility and communica- tion fields.

(e)
Status and character of civil government.

-..–.-.-.-.-…-.—-.—-­
(CLASSIFICATION)
AGO 6147B
……………………….
 

(CLASSIFICATION)
(f)    
     State of health of the civilian populace.

(2)
    Enemy strength and disposition. Note all enemy capa- bilities which could possibly affect the accomplishment of your mission and estimate the relative probability of their adoption. These capabilities may include the fol- lowing :

(a)
Relative enemy strengths and combat capabilities, to include special attention to unconventional weapons and the possibility of their employment.

(b)
Sabotage-include all capabilities for military, politi- cal, and economic sabotage possible of execution by agents, guerrillas, and partisans.

(c)
Espionage-include all methods for which the enemy is known or estimated to be capable, together with the extent of such activity.

(d)
    Subversion-include all types of propaganda, treason, disaffe tion, sedition, and similar acts affecting friend- ly troo, s and local civilians.

!l
 

(e)         
Movement by the enemy of refugees, evacuees, and displaced persons into the area.
(f)    
     Passive resistance, such as refusal to serve in re­quired capacities.

(3)
    CA situation and nature of operations to be supported. Review general policy guidance from higher headquar- ters and consider pertinent terms of relevant civil affairs agreements or rules and conventions of international law. Other factors to be considered include-

(a)
Review of current problems faced by the supported operation pertinent to your mission.

(b)
Estimate the impact of future plans of the supported force on your operations.

(c)
Note the size and composition of the CA unit and the availability of military or civilian relief supplies for diversion to the civilian population.

b.
Assumptions. Matters which are assumed, but not known, to be valid for the purpose of the estimate.

c.
Special Factors. Items not covered by any of the above categories which require special recognition and treatment in your estimate, such as the possible employment of mass destruc- tion weapons by the enemy and the effect of such employment on your mission.

204          AGO 0147B
————-*————-­
(CLASSIFICATION)
 

d. Own Courses of Action. Note all practicable courses of action open to you which, if successful, will accomplish your mission. The following checklist will serve as a reminder of the various activities for which you may be responsible and over which you may be required to exercise control or supervision:
(1)
Arts, monuments, and archives.

(2)
Civil government.

(3)
Civil information.

(4)
Civilian supply.

(5)
Commerce and Industry.

(6)
Displaced persons and refugees.

(7)
Economics.

(8)
Food and agriculture.

(9)
Labor.

(10)
Legal.

(11)
Price control and rationing.

(12)
Property control.

(13)
Public communication.

(14)
Public education.

(15)
Public finance.

(16)
Public health.

(17)
Public safety.

(18)
Public transportation.

(19)
Public welfare.

(20)
Public works and utilities.

(21)
Religious affairs.

3. Analysis of Opposing Courses of Action
Determine the probable effect of each enemy capability on the success of each of your own courses of action. At this stage of estimate, eliminate those capabilities which have little or no effect on your selection of a course of action. An enemy capability will not influence your choice of a course of action if it affects all alternatives equally.
4. Comparison of Own Courses of Action
Weigh the advantages and disadvantages of each of your own courses of action (in the light of the governing factors of the situation) and decide which course of action promises to be the most successful in accomplishing your mission. In arriving at a decision, the commander may assign particular weight to one or
……………………….
 

(CLASSIFICATION)
 AGO 6147B 205
-..–.-..—.——.——-­
(CLASSIFICATION)
more of the factors listed in paragraph 2 and may consider addi- tional factors such as those policy decisions affecting the conduct of CA under special political situations.
5. Decision, Conclusions, or Recommendations
Translate the course of action selected into a concise statement of what the unit as a whole is to do, and so much of the elements of who, when, where, how, and why, as may be appropriate.
/sJ …-.-..-.—..-…———–.—–.—-…….—–.——————–.—


Commander
Notes
1.
The estimate may be a thorough, complete, written docun~ent or it may be a brief mental evaluation. In preparing his esti~nate the CA unit co1111nander will nornlally rely on his staff for evaluation and recommendations pertaining to their principal fields of interest. (See FJI 101-5.)

2.
The comnlander's decision is not confined to the statement of decision made in paragraph 5 of the estimate but may inclncle additional irnl~lementing instructions, suppleinentary decisions, admonitions, or warnings to clarify his intent or furnish guidance to his staff or subordinate commanders.

(CLASSIFICATION)
AGO 6ldIB
APPENDIX Ill
(CLASSIFICATION)
Form for CA Annex to Operation or Administrative Plan or Order
Copy No …-.—.-. Headquarters Place Date and Time
Annex——…_..-.——————–­
(CA) to OPORD …..-..-..-..———————–­
References. (Maps, charts, and relevant documents.)
 
Time zone. (Used throughout the order; if unnecessary, omit.)
 
Troop list. List here, when appropriate, the CA units which will
 
comprise the command, together with names and ranks of com-
manders.
 

1. Situation
Such information of the general overall situation as may be essential to an understanding of the CA annex.
a.
Enemy Forces. Pertinent information regarding composi- tion, disposition, location, movements, estimated strengths, identi- fications, and capabilities.

b.
Friendly Forces. Pertinent information on the organization, locations, strengths, and plans of our forces, other than those listed above under organization, which may have a bearing on the decision of a subordinate.

c.
Attachments and Detachments. When not shown under task organization, list here units attached to or detached from the issuing unit together with the times they are effective. When shown under task organization, list here an appropriate reference.

d.
Area Intelligence. Pertinent information relating to the politics, economy, 2nd sociology of a specific area of operations and furnishing guidance as to the sources of such information.

e.
Assumptions. Assumptions used as a basis for this plan. Normally applicable only to higher planning echelons.

2. Mission
A clear, concise statement of the CA task and its purpose. This statement is not confined to broad generalities but also relates to the specific nature of the particular operation.
……………………….
 

(CLASSIFICATION)
AGO 6147B 207
——————-.——-­
(CLASSIFICATION)
3. Execution
Contains the concept of operation and assigns definite tasks or
missions to each element of the command. A separate lettered subparagraph beginning with "0" assigns specific tasks to each element of the command.
a. Concept of the Operation. Include the commander's general plan for the development and phasing of the operation.
b.
Major Subordinate Elements and their Specific Tasks. (Sep­arate subparagraphs for each unit.)

c.
The Delegation of Authorization for Specific CA Tasks to Specific Commands.

d. Coordinating Instructions. The final subparagraph contains the details of coordination and control measures applicable for two or more elements of the command, the repetition of which would be cumbersome in the other subparagraphs of paragraph 3.
4. Administration and Logistics
Contains a statement of administrative matters including logis- tical arrangements for the conduct of operations. When an ad- ministrative order is in effect, this paragraph in a CA annex to an OPORD may consist of only a reference to the ADMIN 0.
Instructions to subordinate commands for the administrative and logistical support of CA operations.
a. Governmental Functions.
(1)
Civil government. Supervision, coordination, or control of governmental functions, modification or replacement of governmental structure.

(2)
Legal. Organization and supervision of courts; suspen- sion or promulgation of laws.

(3)
    Public safety. Restoration of public order and safety and direction of measures for civilian defense.

(4)
    Public health. Preservation or improvement of public health.

(5)
    Public welfare. Supervision over public welfare ac­tivities.

(6)
Public edzication. Supervision of educational institutions.

(7)
    Public finance. Supervision or control of budget, taxa- tion, public funds, currency issue, and banking structure.

(8)
    Labor. Determination of availability of labor for mili- tary purposes, priority of utilization of labor in rehabili- tation of the economy.

AGO 6147B
(CLASSIFICATION)
b. Economic Functions
(1)
Economics. Maintenance, preservation, rehabilitation, or restoration of local economy, determination of avail­ability of local resources for military use.

(2)
    Commerce and industry. Development of local commerce and industry, coordination of productive capacity, and determination of requirements for military assistance.

(3)
    Food and agriculture. Stimulation of food production, processing, and effective marketing.

(4)
    Price control and rationing. Measures to insure equi- table and effective distribution of essential supplies; supervision or control of prices, rationing, and other restrictive measures.

(5)
Property control. Custody, protection, and control of public and private property.

(6)
     Provision for and distribution of food

Civilian supply.
and supplies for disaster relief and the prevention of disease and unrest.
c. Public Facilities
(1)
    Public works and utilities. Supervision and operation, where required, of such facilities as water, gas, and electrical systems.

(2)
    Public communications. Supervision or control of postal services and those civil communication facilities not under direct military control of the signal officer.

(3)
    Public transportation. Supervision of transportation facilities which remain under or are transferred to civil government or private operation.

d. Special Functions
(1)
    Displaced persons. Control, care, repatriation, resettle- ment, or other disposition of displaced persons, refugees, and evacuees.

(2)
    Civil information. Censorship; dissemination of infor- mation to the inhabitants, using all media of informa- tion available.

(3)
    Arts, monuments, and archives. Care and protection of fine arts, monuments, and archives.

(4)
    Religious affairs. Liaison with and support for religious activities and facilities.

AGO 6147B
(CLASSIFICATION)
 

5. Command and Signal
Contains instructions relative to command and the operation of signal communication, including a statement of the command relationship for CA, location of commanders and command posts, and the CA plan of communications (may refer to a standard plan, separate annex, or appendix).
Acknowledgement instructions.
————————————-.—————————————–­
Commander
 

Annexes Distribution Authentication
Notes.
1.
Subparagraphs not required should be omitted.

2.
The CA order may be published as an annes to the operation or admin­istrative order or as a separate docmnent. It results from preceding estimates, plans and studies, and enables subordinate co~nmanders to prepare their plans or orders. (See FM 101-5.)

3.
Specific information and instructions too detailed for inclusion in the CA annex may be transmitted in appropriately nntiibered al~pendises thereto.

4.
The commanders of CA area support llnits will normally include CA instruc­tions in their operation plans and orders rather than in anneses thereto.

5.
In continuing situations, CA orders nornially will be issued in fragmentary form as changes occur in the CA situation. A complete order should be issued when changes to the current order are so numerous as to make the order ineffective.

6.
The commander may prescribe the paragraphic format of CA annexes. The form provided above is for illustrative purposes only.

(CLASSIFICATION)
 

AGO 6147B
 

APPENDIX IV
……………………….
 

(CLASSIFICATION)
Example of CA Annex to Operation Order-Army
Copy No. 5 1st Army CASABLANCA (Coordinates), MOROCCO 140800 Apr 19 .-.-…­KR 75
Annex I (Civil Affairs) to OPORD 1. Maps : SOUTHERN FRANCE, 1:200,000 MARSEILLES, ANTIBES, AVIGNON, LEPUY, GAP, and LARCHE sheets. Troop List: Appendix 1, Task Organization.  MONTPE DIGNE,  LLIER, NICE,  
1. Situation  

a.
Enemy Forces. Annex B (Intelligence) to OPORD 1.

b.
Friendly Forces. OPORD 1and Annex C, Opn Overlay.

c.
Attachments and Detachments. None.

d.
Area Intelligence.

(1)
Theater Intelligence Estimate and Surveys.

(2)
    Other intelligence studies and area. surveys.

e. Assumptions.
(1)
Assumptions included in OPORD 1.

(2)
    Aggressor has not eliminated all organizations and lead- ers capable of offering a threat to his forces.

(3)
    Aggressor sponsored government is capable of going underground in event of liberation of the area and of opposing subsequent operations by guerrilla and sub- versive activities.

(4)
Any objective area will be extensively devastated prior to liberation.

(5)
    French authorities will be capable, with minimum as­sistance, of establishing friendly, local, and other governmental echelons as areas are liberated by U.S. forces.

.2.     Mission
1st Army civil affairs organization supports attack, assists in maintaining law and order, supports friendly, local, and other
————-.————-­
(CLASSIFICATION)
AGO G147B     
(CLASSIFICATION)
governmental echelons in accordance with Civil Affairs Agree- ment. It also provides for rehabilitation of local p~pulation, government, and economy, as permitted by local resources and available U.S. military supplies, in order to achieve the overall politico-military mission. Appendix 2, Civil Affairs Agreement.
3. Execution
a. Concept of Operation.
(1)
No military government as such will be established in France.

(2)
    Under appropriate staff supervision and pursuant to stated objectives, civil affairs units will conduct liaison with governmental echelons, control refugees in combat area assisted by local police, and will report availability of local resources.

(3)
    During combat phase standard of living for civilians will not be established in excess of essential minimum when contributions therefor must come from U.S. resources.

(4)
    Civil affairs organization provides such assistance to or influence on local and other governmental echelons as may be required to establish or maintain law, order, and government.

(5)
In course of this operation, primary concern of G5 staff sections and civil affairs organization will be directed toward sociological aspects of the activity with secondary and tertiary concern given to problems of local gov- ernment and economy in that order.

(6)
    In absence of specific policy direction for conduct of certain civil affairs activities, principles and precepts set forth in FM 101-5 may be employed initially to plan for and conduct civil affairs activities.

(7)
    Area support companies as follows: one per 10 million population in allied areas.

b. 1st Corps.
(1)
Establish civil affairs in ST. RAPHAEL (Coordinates).

(2)
Be prepared     to establish civil affairs in DIGNE     (Co­ordinates).

c. 2d Corps.
(1) Establish civil affairs in TOULON (Coordinates).
(CLASSIFICATION)
AGO 6147B
……………………….
 

(CLASSIFICATION)
(2) Be     prepared     to     establish civil affairs in AVIGNON (Coordinates).
e. Delegation of Authorization.
(1)
    Area authority for conduct of civil affairs delegated to corps and front line division commanders in respective areas.

(2)
Divisions in corps and army reserve     may be required to assist and supervise civil affairs units, but specific area authority is not delegated when divisions are so employed.

(3)
Commanders exercising authority for civil affairs estab- lish and maintain checklists dealing with policy matters to insure timely requests for decisions.

f. Coordinating Instructions.
(1)
Normal command channels on all CA matters which affect policy, tactical operations, or security of troops.

(2)
Report     locations     of     primary points of contact with civil authorities.

(3)
    To maximum extent practicable, establish tactical and administrative boundaries in conformity with local politi- cal subdivisions. Appendix 3, Political Subdivisions.

4. Administration and Logistics
Logistical support of civil affairs activities is a military respon- sibility with priority second only to combat operations.
a.
1st Army ADMIN 0 1.

b.
Governmental Functions.

(1)         Commanders will accept and utilize
Civil government.
local government existing at time of entrance into an area pending modification and replacement of that gov- ernmental structure in accordance with Civil Affairs Agreement and U.S.-French war objectives.
(2)
    Legal. Commanders will assist French authorities in the control and supervision of local civil and criminal courts. CA courts will be established as authorized by proper authority.

(3)
    Public safety. Commanders will utilize, within security limits, existing public safety organization in coordina- tion with French authorities and will coordinate local civilian defense plans with military rear area defense and damage control plans.

(CLASSIFICATION)
AGO 6147B     
……………………….
 

(CLASSIFICATION)
(4)
Public health. Commanders will initially take steps necessary to protect health of military force, prevent undue suffering and distress, and will assist French in public health matters.

(5)
    Public welfare. Delegate control and supervision of local welfare agencies to French authorities, and co­ordinate and direct foreign military agencies.

(6)
     Delegate control and supervision of

Public education.
public education to French authorities.
(7)
    Public finance. Commanders will assist French author- ities in establishing safeguards, will prevent acquisition of public funds by unfriendly forces, and will protect value of currency by preventing unauthorized practices.

(8)
     Commanders will accord maximum respect for

Labor.
local  laws  and  practices  consistent  with  military  
situation.  
c. Economic Functions.  'P  

(1)
    Economics. Commanders will limit military assistance in combat operations to preservation of law and order measures and to that rehabilitation which will assist military operations. In post-combat phase military effort may be directed toward restoration. Detailed supervision to be delegated to French authorities.

(2)
    Commerce and industry. Encourage local production of items essential to prevent disease and unrest and such other production dictated by availability of raw ma­terials and labor.

(3)
    Food and agriculture. Maximum practicable military assistance to agricultural production; control or super- vision by French authorities; no military use of food production and processing plants, and no local procure- ment of food supplies by military agencies.

(4)
    Price control and rationing. Delegation of responsibility for price control and rationing to French officials.

(5)     
Property control.
(a)
Identification of ownership of French private property in accordance with Civil Affairs Agreement.

(b)
Military use of French p&vate property in accord with Civil Affairs Agreement.

(c)
Property belonging to other than French owners under control of civil affairs organization.

(CLASSIFICATION)
AGO 6147E
(CLASSIFICATION)
(d)     
Institute measures to prohibit removal of controlled property from area.
(6)     
Civilian supply.
(a)
     a mobile situation, military supply of items for

In civilian use to be limited to prevention of disease and unrest.

(b)
Assist French authorities in establishing and control- ling local organizations for admini~tration and distri- bution of civilian relief supplies.

(c)
Relief contributions and personnel from other than French services directed by theater commander.

d. Public Facilities.
(1)
Public wol;ks and utilities.

(a)
     

Military concern limited to minimum authorized use.
(b)     re­
Construction or repairs limited to local material
sources unless required for military operations.
(c)
Rehabilitation, other than that necessary for military operations limited to post-combat phase.

(2)
Public communications. Commanders will give priority for military purposes and establish essential controls to insure security and safety of military operations.

(3)
    Public transportation.

(a)
     

Maximum military assistance in rehabilitation of pub- lic transportation facilities essential for military purposes.
(b)     
Military utilization established by Civil Affairs Agree- ment.
(c)     
Surrender of authorized military use as military situa- tion permits.
e. Special Functions.
(1)
Displaced persons.

(a)
     dis­

commanders direct handling and evacuation of placed persons.
(b)     
Standard of care will be that required to prevent dis- ease and unrest to prejudice of military mission.
(c)
French authorities and economy will not be burdened with care of non-French displaced persons.

(2)
    Civil information. Civil affairs organization coordinates psychological warfare and public information activities with respect to local population.

AGO 6147B
(3)
    Arts, monuments, and archives.

(a)
Maximum protection to arts, monuments, and archives consistent with military mission.

(b)
Care     and     preservation     a function of French au­thorities.

(c)
Commanders will enforce measures safeguarding cen- ters holding cultural property.

(4)
    Religious affairs.

(a)
Within requirements of military situation, maximum respect for customs, traditions, and desires of civilian population.

(b)
    Use of churches and religious institutions for military purposes is prohibited.

f.
Miscellaneous.

(1)
Civil AfSairs Handbook for France.

(2)
SOP, Civil Affairs. 1st Army.

5. Command and Signal
a.
Annex N, Signal.

b.
Command.

(1)
Civil affairs staff sections of subordinate commands located with their respective commands.

(2)
Civil affairs units located insofar as practicable in capital cities of political subdivisions.

Acknowledge.
Appendixes:      1-Task Organization (omitted) 2-Civil Affairs Agreement (omitted) 3-Political Subdivisions (omitted)
Distribution:      A.
OFFICIAL:
/s/      Jones JONES G5
AGO 6147B
APPENDIX V
……………………….
 

(CLASSIFICATION)
Form for CA Policy Checklist
Nature of  
policyreceived or to  Date  Date received and  
Functional specialty  be requested  requexted  Ale no.  
I  
1.Arts, monuments, and archives.  
a. Extent of supervision over identifica-  
tion and safeguardiug of arts, moauments,  
and archives.  
b. Recognitiou of art objects and de­
termination of ownership.  
c. Utilization of buildings or locations  
of a cultural value for 1)uryoses other  
than originally intended.  
d. Establishment of delnilitarized areas  
for preservation of arts, nlonuments, and  
archives.  
e. Extent of use of local custodial per-  
sonnel.  
2. Civil gocernment.  
a. Degree of control or supervision over  
civil administration.  
b. Retention, modification, or replace­
ment of existing governmental structure.  
c. Retention or removal of governmental  
officials.  
d. Criteria for appointment of govern­
mental officials.  
e. Issuance of proclamations, ordi­
nances, orders, instructions, and restric­
tions pertaining thereto.  
3. Civil information.  
a. Objective of civil information pro­
grams.  
b. Contributions to "Troop Information"  
and "Educational Development of Mili­
tary Personnel" programs (to acquaint  
military personnel with CA and role of  
military in such operations).  
c. Employment of consolidation psy­
chological warfare units and teams.  
d. Coordination of consolidation psy­
chological warfare and PI0 activities  
with respect to local population.  

(CLASSIFICATION)
AGO 6147B
(CLASSIFICATION)
Nature of policy Date
received or to Date received and Functional. specialty be requested requested file no.
e. Supervision and control of public information media including retention or removal of policy making and operating personnel.
6. Civilian supply.
a.
Extent of diversion of food and other supplies from military stocks for disaster relief and prevention of disease and un­rest.

b.
Acceptance and disposition of dona­tions made by civil and relief agencies.

c.
Establishment of local organizatiol~ for administration and distribution of civilian relief supplies.

d.
Command authority over voluntary agencies and their contributions.

e.
Utilization of military transportation facilities for transportation of civilian supplies.

f.
Accounting for supplies furnished and services rendered for civilian relief.

5. Commerce and industry.
a.
~egreeof control or supervision over physical output of commodities.

b.
Reestablishment of commercial re­lationships.

c.
Rehabilitation or reconstruction of production facilities.

d.
Military assistance in rehabilitation or reconstruction of production facilities (machinery, technical skills, etc.)

e.
Coal, oil, or fuel for industry.

f.
Allocation of production facilities between consumers and capital goods and direction of production.

g.
Development of production for ex­port.

h.
Relocation of production facilities.

i.
Degree of regulation or supervision over exports and imports.

I
6. Displaced persons. I
a. Authorized extent of migration or evacuation.
I
b. Location and establishment of camps for refugees and displaced persons.
———-.——.-.—-..-­
(CLASSIFICATION)
Functional specialty
c.
Sources of materials and personnel to construct camps.

d.
Status and ultimate disposition of refugees and displaced persons from al- lied, neutral, or enemy countries.

e.
Extent of local governmental au­thority over non-national civilians.

7. Economics.
a.
Preservation.

b.
Relief (applies to capital goods, raw materials, fertilizer, etc., and excludes civil relief).

c.
Rehabilitation.

d.
Restoration.

e.
Stabilization procedures.

f.
Degree of control or supervision over economic life.

g.
Centralization of controls.

h.
Modification of economic structure.

i.
Desired standard of living.

j.
General scope of military assistance in rehabilitation of economy.

k.
Allocation of natural resources be­tween military requirements and civilian needs.

I.
Allocation of natural resources be­tween areas, industries, and plants.

m.Extent of exploitation of natural resources for military support purposes. reparations, etc.
8. Food and agriculture.
a.
Degree of control or supervision over agricultural output.

b.
Improvement of agricultural means of production through reclanlatioil or im- proved methods.

c.
Military assistance to agricultural production (fertilizers, farm machinery, etc.) .

d.
Direction of agricultural production.

e.
Degree of control or supervision over means of distribution.

f.
Diversion of perishable goods to mil- itary forces.

Nature of  
~OHCY  Date  
received or to  Date  received and  
be requested  requested  file no.  

……………………….
 

(CLASSIFICATION)
AGO 6147B
(CLASSIFICATION)
 

Notiire of
1
policy Dale
received or to Dil te received and Functional specialty be requested requested file no.
g.
Extent of land reforms.

h.
Subsidies to producers.

9. Labor.
a.
Degree of control or supervision orer
 
labor market.
 

b.
Degree of superrisioll over labor
 
organizations.
 

c.
Priority of utilization of labor in
 
rehabilitation of the economy.
 

d.
Availability of civilian labor for mil- itary purposes.

e.
Wage controls including \\-age scale and schedule of hours of work.

f.
Labor relations including medical care and compensation.

g.
Specific guidance respecting economic and political aspects of labor.

10. Legal.
a.
Supervision, control, or closing of criminal and civil courts.

b.
Matters relating to the modification, suspension, or repeal of local civil and criminal laws.

c.
Establishment of CA Courts. ­

d.
Organization, jurisdiction, and pro­cedure of local and CA courts.

1
11. Price control and rationing. I 1
a.
Establishment or continuance price control and rationing.

b.
Supply and control of civilian price control and rationing agencies.

I
c. Control or assistance measures to insure equity of distribution and counter- inflationary measures.
12. Property control.
a.
Degree of supervisory authority orer property.

b.
Specific directions with respect to

I
property of foreign governments or citi­zens.
I
c. Preservation of property assets which are subject to treaty settlement (patent rights, cartel ownership, properties sus­ceptible of confiscation or requiring pro- tection).
——————-.——-­
(CLASSIFICATION)
 

AGO 6147B
 

……………………….
 

(CLASSIFICATION)
Functional specialty
d.
Evidence of ownership and rights of equity claimants.

e.
Utilization of private property for military purposes.

f.
Property restitution measures.

IS. Public communications.
a.
Degree of supervision over public communications and officials thereof.

b.
Rehabilitation or reconstruction of public communications facilities.

c.
Military assistance in reconstruction or rehabilitation of public communications.

d.
Utilization of public communications for military purposes.

e.
Restrictions on and censorship of public communications.

14. Public Education.
a.
Degree of supervision over educa­tional system including public and private schools.

b.
Retention or removal of public edu- cation oficials and teachers.

c.
Objectives of public education system and priorities as to level and type of in- struction.

d.
Retention or alteration of teaching doctrine and principles.

e.
Rehabilitation or reconstruction of public and private schools.

f.
Military assistance in rehabilitation or reconstruction of public and private schools.

15. Public flnance.
a.
Degree of control or supervision over currency.

b.
Designation of type of circulating local currency.

c.
Provisions for a circulating military curnency.

d.
Establishment of currency exchange rates.

e.
Restrictions on exportation of cnr­rencies.

f.
Control of foreign exchange.

Nature of
policy Date
received or to Date received and
be requested requested Ale no.
(CLASSIFICATION)
AQO 6147B
 

(CLASSIFICATION)
1 Nature of I
I
l~olicy Date
received or to Date received and Functional. specialty be requested requested file no.
g. Control or supervision over budget,
 taxation, expenditures, and handling of
 
I
public funds.
h.
Reestablishment or revision of tas-
ation system.
 

i.
Utilization of national taxes for op-
 
eration of local governments.
 

j.
Extent of control or supervision over
 
banking system.
 

k.
Liquidation, reorganization, opening, or closing of banks and financial institu- tions.

I.
Supervision over credit and provi­sions for credit needs.

m.
Extent of regulation or supervision of credit cooperatives and other financial agencies.

n.
Declaration of debt moratoria.

o.
Funding and refunding directives.

I
I
16. Public health. I I
a.
Degree of supervision over public health officials and public health activ­ities.

b.
Retention or removal of public health officials.

c.
Extent of military assistance in con­trol of disease and care of civilian populace.

d.
Rehabilitation or reconstruction of civilian medical facilities.

e.
Nutritional standards.

17. Public safety.
a.
Degree of supervision over civil law enforcement officials.

b.
Retention or removal of law enforce- ment officials.

I
o. Degree of restraint over civil popu- lace.
I
d.
Establishment and degree of jurisdic- tion over local organizations for civilian protection.

e.
Coordination of civilian defense measures and integration with military defense and damage control plans.

I I
……………………….
 

(CLASSIFICATION)
……………………….
 

(CLASSIFICATION)
Nature of
policy Date
received or to received and
Functional specialty be requested file no.
f.
Provision of equipment and arms for
 police and fire protection.
 

g.
Internment policies.

I
18. Public transportation.
a.
Degree of supervision over public
 
transportation facilities and officials
 
thereof.
 

b.
Rehabilitation or reconstruction of
 
public transportation facilities.
 

c.
Military assistance in reconstruction
 
or rehabilitation of public transportation.
 

d.
Utilization of public transportation
 
for military purposes. *
 

e.
Restrictions on appropriation and
 
utilization of private transportation.
 

19. Public welfare.
a.
Degree of consideration for welfare of population.

b.
Military assistance to public and private welfare organizations.

c.
Coordination of public welfare ac­tivities and agencies by the military.

d.
Extent of supervision and control of public welfare agencies and organiza- tions.

20. Public works and utilities.
a.
Degree o'f supervision over public works and utilities and offlcials thereof.

b.
Rehabilitation or reconstruction of public works and utilities.

c.
Military assistance in reconstruction or rehabilitation of public works and utilities.

d.
Utilization of public owned works and utilities for military purposes.

e.
Coal, oil, or fuel for public works hnd utilities.

f.
Appropriation or utilization of pri­vate utility interests.

21. Religious affairs.
a.
Determination of religious doctrines and individual philosophies not inimical to military objectives.

b.
Restrictions on utilization of facil­ities of religious institutions.

(CLASSIFICATION)
(CLASSIFICATION)
Nature of  
policyreceived or to  Date  Date received and  
Functional -specialty  be requested  requested  file no.  
c.  Screening of religious leaders.  
d. Measures to protect individual right  
to freedom of worship and to respect re-  
ligious conviction~ and practices.  
e. Provisions for religious guidance and  
instructions  in  consonance  with  tradi­
tional  culture.  
f. Supervision  and  coordination  of  
missionary activities.  
g. Supplies and materials for religious  
use.  

A70tea
1.
The foregoing form is a type of policy checklist that may be utilized by commanders, G5's and CA units in the theater of operations on determining matters on which policy guidance should be received or requested from higher headquarters,

2.
In analyzing policy which has been received or in determining matters on which policy guidance is to be requested, consideration must be given to the objectives of each of the various operational phases and the functional activities pertinent thereto.

3.
The general or specific nature of the policy required will largely depend on the operating level of the particular command. The type of function or activity on which policy guidance will be required will vary with the particular situation, will depend on condition under which operations are being conducted, and will be governed by the control exercised by the military commander, or the agreement defining and delimiting his authority.

4.
With respect to many of the above functions the extent of the guidance received and 'directions transmitted will necessarily require subdivision and the insertion of supplementary information requiring space in addition to that which appears on this form.

5.
For staff relationships in selected areas see figures 16 through 27, FM 101-5.

……………………….
 

(CLASSIFICATION)
AGO 6147B
APPENDIX VI
……………………….
 

(CLASSIFICATION)
Form for CA Annex to Standing Operating Procedure
1. Application
a. Purpose.
(1)
A statement of the purpose, scope, and application.

(2)
A     standing operating procedure     standardizes normal procedures; it applies unless otherwise prescribed.

b.
Unit Procedure. Instructions concerning the issuance of standing operating procedures by subordinate units.

2. Organization
a. General.
(1)
Information of a general nature pertaining to the desig- nation of CA units to provide command or area support.

(2)
    Statement as to the delegation to subordinate comrnand- ers of the authority for the conduct of CA activity.

(3)
    Organization of staff sections and subordinate CA units.

b.
Special. Statement on the assignment or attachment of CA units to subordinate commands.

3. Intelligence
Concise instructions relating to each of the following when not otherwise covered in SOP.
a. Area Intelligence.
(1)
Sources of      information     and procedures     for obtaining area intelligence.

(2)
Continuing surveys and search for information to verify and supplement area intelligence previously received.

b. Measures for Handling Personnel, Documents, and Materiel.
(1)
Special instructions pertaining to suspect civilians.

(2)
    Procedure for determination of those personnel entitled to treatment in a prisoner of war status.

c.
Maps and Air Photos. Special instructions and reference to SOP.

d. Counterintelligence.
(1)
Special instructions pertaining to sabotage, espionage, and subversion.

(2)
Reference to SOP.

……………………….
 

(CLASSIFICATION)
AGO 6147B
(3)     Policy on screening and clearance of indigenous person- nel considered as possible choices for public office or positions where they could favorably influence U.S.or allied military objectives.
4. Operations
Concise instructions relating to each of the following when applicable:
a. Deployment and Training of CA Units.
(1)     
Procedure for calling forward CA units by commanders having area authority.
(2)     Provisions for indoctrination and training of newly ar- rived units and personnel.
b. Functional Specialties.
(1)     
Governmental Functions
(a) Civil government.
1.
Procedures for conduct of governmental functions as determined by civil affairs agreement or rules of in- ternational law, as applicable.

2.
    Survey and analysis of governmental agencies to de- termine their capability, reliability, and essential control or assistance measures.

3.
Authorization for removal of goveirnmental officials.

4.
    Authorization for issuance of proclamations, orai­nances, orders, and instructions, as appropriate.

(b)     
Legal.
1.
Procedure for determination of legality of question- able CA activities.

2.
    Authorization for closing local, criminal, and civil courts.

3.
Authorization and procedure for establishment of CA


courts when appropriate.
(c) Public safety.
1.
Measures for control of or assistance to local govern- ment in restoration of public order and safety.

2.
Directions as to measures for civilian defense.

3.
    Authorization for removal of local law enforcement officials.

(d) Public health.     Measures for control of or assistance to local government in-
1. Control, prevention, and treatment of disease.
(CLASSIFICATION)
AGO 6147B
 

……………………….
 

(CLASSIFICATION)
2.
Rehabilitation and supervision of hospitals.

3.
Furnishing medical supplies.

4.
Disposal of sewage and waste.

5.
Treatment and evacuation of civilian casualties.

(e) Public welfare.
1.
Measures for control of or assistance to local govern- ment in the supervision of public and private wel- fare institutions and the reestablishment of local charitable and relief organizations.

2.
    Coordinating activities essential to the public welfare objectives.

(f)     Public education. Procedures under established poli- cies for the rehabilitation and opening of schools, con- duct of the educational system, revision of textbooks, and the detection of subversive or harmful instruction.
1. Methods of furnishing assistance to the local govern- ment in the reestablishment of educational activities.
2.    Procedure for obtaining military supplies and ma­terials for school use.
(g)         
Public finance.
1.    
     Means for supervising civil financial operations and reestablishment thereof.

2.
Measures for securing banks and fund depositories.

3.
Currency restrictive measures.

(h) Labor.
1.    
     Procedures for determination of availability of labor by type and skill and estimates of impact on essen- tial civil activities resulting from military use of labor.

2.
    Measures available under established policies for con- trol or supervision over civilian labor market.

3.
    Procedure for labor relationship activities including recognition of union organizations and the applica- tion of labor laws.

(2)     Economic Functions
(a) Economics.
1.
Procedures for control or supervision of economic structure of assigned area.

2.
    Survey and analysis of economy of area to determine support and assistance essential to accomplish objec- tives.

AGO 6147B          227
(CLASSIFICATION)
3.
    Measures available under established policies for the rehabilitation of the local economy.

4.
Procedures for economic stablization.

5.
Procedures for determination of availability of and requirements for natural resources.

(b)     Commerce and industry.
1.
    Measures for stimulation of and assistance to domestic trade to insure equitable distribution of essential civilian goods.

2.
Measures for regulation of exports and imports.

(c)     Food and agriculture.
1.
    Measures available under established policies for fur- thering maximum agricultural production through establishment of food production programs, recla- mation, conservation of lands, and improvement of agricultural methods.

2.
    Procedures for supervision, processing, and storage of food and agricultural products.

(d) Price control and rationing.     Measures for establish- ment of price control, rationing, and other measures to reduce inflation, hoarding and black market activities.
(e)     Property control.
1.
    Procedure for assuming custody and conducting ad- ministration of property and enterprises owned wholly or in part by an enemy government, or by enemy nationals of countries other than that of the country in which operations are being conducted.

2.
    Procedures for obtaining utilization of property for military purposes in accordance with existing poli- cies and rules of international law or terms of agree- ment, as applicable.

(f) Civilian supply.
1.
Procedure for obtaining supplies such as food, cloth- ing, shelter, and medical aid for disaster relief and prevention of disease and unrest.

2.
    Procedure for providing other essential goods which may be necessary for the reestablishment of public order and safety.

3.
Measures for distribution of military supplies for civilian use in emergency situations.

(3)     Public Facilities.
……………………….
 

(CLASSIFICATION)
(CLASSIFICATION)
(a) Public works and utilities.      Measures available under established policies for reestablishment and super­vision of public works and utilities.
(b) Public communications.
1.
    Measures available under established policies for re- establishment and supervision of public communica- tions facilities.

2.
    Restrictions on and censorship of public communica- tions.

3.
Authorization for utilization of civilian communica- tions for military use.

(c) Public transportation.
1.
    Measures available under established policies for re- establishment and supervision of public transporta- tion facilities.

2.
Authorization for utilization of civilian transportation to meet military requirements.

(4)     Special Functions.
(a) Displaced persons.
1.
Measures for the control, care, and disposition of dis- placed persons and refugees.

2.
    Instructions under established policies for evacuation of civilian communities and procedure for submit- ting requests for evacuation to higher headquarters for approval.

(b) Civil information.
1.
Procedures for utilization of the press, radio, and motion pictures in the dissemination of information.

2.
    Procedure for obtaining utilization of psychological warfare and other supporting agencies.

(c) Arts, monuments, and archives.      Measures for assist- ing the local government in the recovery, rehabilita- tion, and preservation of historical monuments, works of art, and archives.
(d)     
Religious affairs. Method of furnishing assistance in the reestablishment and support of religious functions and facilities.
5. Logistics
Concise instructions relating to each of the following when not otherwise covered in SOP:
……………………….
 

(CLASSIFICATION)
AGO 6147B      229
(CLASSIFICATION!
a.
Civilian Supply. Instructions not included in paragraph 4, above, under functional activities of Civilian supply.

b.
Evacuation and Hospitalization. Instructions not included in paragraph 4, above, under functional activities of Public hedth and Displaced persons.

c.
Transportation. Procedure under established policies for ob- taining utilization of military %ransportation to supplement civilian facilities. Instructions not included in paragraph 4, above,

under functional activities of Public transportation.
d.
Service. Availability of and procedure for obtaining utiliza- tion of military technical service facilities in CA operations.

e.
Miscellaneous. Information as to any special instructions or procedures not covered above.

6. Personnel
Concise instructions relating to each of the following when not otherwise covered in SOP:
a.
Discipline, Law and Order. Authority and jurisdiction for the enforcement of laws, and regulations, and making arrests in assigned areas.

b.
Burials and Graves Registration. Instructions pertaining to the interment of civilian dead by local citizens and reference to SOP.

c.
Interior Management. Special instructions pertaining to the movement of CA units, additional requirements for quarters and messing facilities, and utilization of public and private buildings for military purposes.

d.
Miscellaneous. Information as to any special instructions or procedures not covered above.

7. Command and Signal
Concise instructions relating to each of the following, when not otherwise covered in SOP:
a.
Command Posts. Location of command posts.

b.
Liaison. Requirements for establishing liaison and furnish- ing liaison officers.

c. Signal Communication.
(1) General.
(a)
Responsibility for establishing signal circuits.

(b)
Authorization for direct communication.

(CLASSIFICATION)
AQO 6147B
(CLASSIFICATION)
(2) Radio.
(a)
Radio nets.

(b)
Limitations on radio communication.

d.
Reports. Instructions for submission of periodic CA reports and summaries.

e.
Orders and Distribution. Distribution of CA operation orders or annexes thereto and reference to SOP.

Commander
Appendixes Distribution Authentication
……………………….
 

(CLASSIFICATION)

AGO C147B
 

APPENDIX VII
Form for COMBAT CHECKLIST
 
CA Operations Upon Initial Entry
 

This checklist is adaptable for use by troop commanders or combat CA personnel who are inaugurating CA control over com- munities uncovered in their advance. In order to be readily acces- sible, this checklist is indexed by CA functions. Action recom­mended herein consists of the principal emergency measures recommended as most highly desirable for accomplishment by CA units.
This checklist is primarily intended for use in an occupation of enemy territory but may be adapted for use in the liberation of friendly territory.
It should be understood that accomplishment of any or all of the subsequent actions will be conditioned by the requirements of the military situation.
1. Arts, Monuments and Archives
a.
Secure and protect fine arts and monuments, and archives by the use of guards and "Off Limits" signs.

b.
Caution troops to refrain from desecration of objects of art and local fetishes and symbols unless directed to be destroyed by competent authority.

2. Civil Government
a.
Retain acceptable administration officials on a "stand-by" basis until Intelligence Corps personnel can adequately screen key officials.

b.
Where officials in key positions are not available or utilizable due to public censure or strong political implications inimical to allied policies, temporarily appoint key officials after careful consultation and deliberation with any or all of the following personalities or agencies: reputable clergymen, allied nations in the area or prominent local citizenry considered in sympathy with allied policies. Intelligence Corps screening should be utilized.

c.
All identity documents, curfew exemptions, travel excep­tions, and similar privilege documents should be issued on a temporary basis until conditions become stabilized.

d.
Issue such proclamations, laws, ordinances, and notices as are authorized by higher headquarters upon initial entry into the area. See that a record of postings is kept and reported in periodic reports. See that all such publications receive widest possible publicity.

e.
Display appropriate United States or allied flags in public center when possible and practicable.

3. Civil Information
a.
Safeguard, and close if deemed necessary, all public and private information media until competent allied CA or PSYWAR personnel can assume charge of these installations.

b.
Have all operating personnel of newspapers, journals, and
 radio/TV installations stand by until needed or directives autho-
 rize their resumption of activities under competent supervision.
 Printing presses should be utilized to duplicate such forms and
 proclamations, laws, and other civil affairs publications which are
 immediately needed.
 

4. Civilian Supply
a.
Safeguard essential supplies.

b.
Make requisitions through normal supply channels for emer-
 gency civilian supplies of clothing, food, or medical items when
 the situation demands and local stocks are unavailable.
 

c.
Report to higher headquarters any excess stocks in the area
 which can be used for civilian supply purposes.
 

5. Commerce and Industry
a. Place "Off Limits" signs or guards on vital industries to pro-
tect all equipment and records and to conserve all items in short supply.
b.
Local authorities will be held strictly responsible for the preservation of all funds, property, equipment, records, stocks of material on hand, and patents of all plants and mines.

c.
All principal trade and industry officials not actively engaged in productian for allied purposes should be ordered to survey stocks and produce a complete stock inventory as soon as practi- cable for subsequent report to higher headquarters.

6. Displaced Persons
a.
Set up displaced person and refugee assembly center; and appoint or delegate chief officials of ethnological groups.

b.
Arrange for issuance of rations from local stocks in same ratio as civilian populace ration scale.

c.
Arrange for medical supplies, clothing, and such other civilian supplies as are immediately needed from local stocks.

d.
In the absence of local supplies to cope with requirements, requisition civilian supplies through prescribed supply channels.

e.
Report numbers and identifications of displaced persons and/or refugees to their respective allied officers.

7. Economics ,
a. Survey economic structure of the area with view toward assisting any subsequent economic rehabilitation.
AGO 6147B 233
 

b. Insure that natural resources are not exploited for military support purposes unless absolutely essential to military operations,
8. Food and Agriculture
a.
Safeguard agricultural stocks and food supplies by guards and/or "Off Limits" signs.

b.
Survey food stocks and requisition civilian supplies to sup- plement these when an emergency situation demands.

c.
Continue farm and crop activity whenever this will not interfere with military operations.

9. Labor
a.
Conduct survey to ascertain amount and type of available labor in the area.

b.
Recruit civilian labor for military support purposes which are not contrary to the law of land warfare.

c.
Order key officials to clean up debris, bury dead, and repair utilities as the situation and priorities require.

10. Legal
a.
Examine and suspend, if deemed necessary, activities of all courts in the area.

b.
Safeguard all legal records and court archives.

c.
Where situation permits, set up and exercise summary court jurisdiction if competent personnel are available to conduct the court.

11. Price Control and Rationing
a.
Continue or reestablish ration office and maintain existing rationing, price control, and local measures in full force and effect except in instances where food stocks preclude maintenance of former ration scale in full effect. Any diminution or increase in existing ration scales will be authorized only after concurrence by CA authorities.

b.
Take every measure possible to prevent hoarding and black marketing.

c.
Control requisitions and purchases by the military which injure the local economy.

12. Property Control
So far as the situation will permit, see that properties in the following categories are safeguarded and, if appropriate, placed "Off Limits."
a.
Property of enemy nations capable of direct military usage.

b.
Property of allied nationals.

c.
Property and enterprises owned wholly or in part by an enemy government or by enemy nationals of countries other than the one occupied.

d.
Property which has a vital usage for maintenance of the civilian economy where owner or management is unknown or absent.

13. Public Education
a.
Maintain and preserve educational facilities as permitted by the requirements of the military situation.

b.
Utilize school personnel, when politically acceptable, as fillers. for administration as replacements are needed. If politically ac- ceptable educational personnel are located, they may be advan- tageously utilized as advisors in the assumption of CA controls.

14. Public Finance
a.
Secure and safeguard banks and principal financial institu- tions.

b.
If deemed necessary, close financial institutions until direc- tives and military situation permit normal resumption of their activities.

c.
Safeguard all financial records from spoilation, looting, dam- age, or destruction.

15. Public Health
a.
Bury the dead, remove debris, and rehabilitate the sanitation system through the recruitment of local labor.

b.
Assist civil administration in maintenance of sanitariums, orphanages, homes for indigent and maimed, and hospitals and institutions for the infirm and insane by obtaining required sup- plies from local supply stocks.

16. Public Safety
a.
Enforce proclamations, laws, ordinances, notices, and direc- tives after populace has been duly informed by posting and publi- cation.

b.
Collect and take into custody all arms, ammunition, explo- sives, and other implements of war. Radio receiving sets will not be disturbed.

c.
Reestablish local police chief and such police force as is necessary to cope with local situation.

d.
Check jails and prisons to insure that proper guards are utilized at these institutions. Only prisoners to be released are those affirmatively identified as allied POWs, political prisoners, and displaced .persons not charged with criminal actions. Intel­ligence Corps personnel should assist in screening before any releases are effected.

e.
Keep military routes clear of civilian traffic by posting signs, establishing static and mobile checkpoints, issuing directives,

and enforcing such measures through the civil police force. When feasible, civil police forces may be augmented to accomplish adequate control.
f.
Reestablish the fire department and also charge it with responsibility for air raid warning and air raid shelters.

g.
Establish guards over civilian food warehouses, public fa- cilities, industrial, scientific, and cultural installations, using local police wherever possible.

h.
Control the sale of liquor and narcotics.

17.     Public Welfare b
a.
Survey needs of populace concerning emergency food, shelter, and clothing requirements.

b.
Assist local welfare officials in providing above requirements to needy civilians.

18. Public Works and Utilities, Public Communications, and Transportation
a.
Survey above facilities to determine requirements for opera- tion of essential services.

b.
Insure that civilian administration exercises initial priority in rehabilitation of public works, utilities, communications, and transportation, which provide our troops with facilities.

c.
Requisition or cannibalize parts to mobilize transportation, communications, and utilities to an operational stage, utilize En- gineer and Signal units where necessary.

d.
Safeguard transportation, communications, and oil storage installations in order to keep highest possible operation of normal functions.

e.
Control communications facilities and restrict to Army and essential civilian usage.

19.     Religious Affairs Insure troops do not desecrate religious facilities and that no
use is made of religious buildings except for emergency medical care.
20.     Miscellaneous
a.
Constantly see that troops are reindoctrinated as to their rights, obligations, and responsibilities in the occupied country.

b.
Stress to troop commanders and their personnel that the laws of land warfare must be rigidly enforced.

(1)Emphasize that the policy of courtesy should be pre- eminent in their relationships with civilians.
(2)     Emphasize that billeting, contacts with civilian admin- istration, and requisitions from local resources should
be cleared and coordinated through CA agencies or duly appointed representatives.
(3)
    Emphasize that troops should keep out of local and central government offices, banks, courts, post offices, factories, food warehouses, and similar institutions un- less absolutely necessary.

(4)
    Emphasize that troops should not buy rationed food and should respect local fixed prices.

(5)
    Emphasize that troops will respect CA regulations and "Off Limits" signs.

(6)
    Emphasize that troops will be denied access to monu- ments, museums, and other buildings and sites indicated in the official lists of protected monuments; warehouses and enemy dumps containing food and other valuable supplies; and churches and other religious premises except for the purpose of attending regular church services.

(7)
    Emphasize that troops will not use for military purposes the monuments and other buildings and sites included in the official list of protected monuments.

(8)
    Emphasize to all personnel that they-

(a)
Individually, are personal representatives and symbols of the military, economic, and moral power of the United States or its allies.

(b)
Must maintain an attitude which will be at all times fair, impartial, dignified, and a credit to the United States.

c.
Any derelictions of the (a)and (b)above are a transgression of discipline and good conduct and should be dealt with accord- ingly.

(CLASSIFICATION)
Example of a Checklist for CA Inspection
SUBJECT:     Periodic Inspection Checklist for CA Units in Country X.
TO:          Corps and Division Commanders; CA Unit Com­manders.
1.
Attached hereto is a Periodic Inspection Checklist for CA units operating in Country X. The checklist is divided into sec- tions A, B, C and D. Section A includes points on the general housekeeping of the unit, which are observed by the inspecting officer during the period of his visit. CA unit personnel will not be interrogated on any of these points. Section B includes points of a progress nature; i.e., items which must be accomplished by the unit. The investigator may discuss these points with per- sonnel of CA Groups and Companies and make such explanatory notes as are necessary. Section C contains other operational fac- tors, and section D is reserved for comments on unit requirements.

2.
Do not be critical of all apparent minor deficiencies, since the action taken may have been performed in the most expedi- tious manner. The best constructive results are obtained if the information sought is developed during conversation with the members of CA Groups and Companies and by observation of their activities. It is by this method that efficient phases of the unit's operations are brought to light and deficiencies exposed. Groups and Companies have much to contribute to CA operations, and the inspector should encourage constructive suggestions. Notes should be made of any existing problems which are brought to light, and of items that merit criticism or commendation.

3.
This checklist may be used by Corps and Division inspecting officers in making periodic inspections of CA units. It will also serve to give units a general outline of the various aspects of the CA activity which will be investigated.

4.
The following procedure is suggested to all inspecting officers:

a. Inform yourself before making the visit by-
(1) Reading the unit's latest reports and surveys.
……………………….
 

(CLASSIFICATION)
AGO 6147B
—————.———–­
(CLASSIFICATION)
(2)
    Becoming familiar with the unit's problems as stated in its reports.

(3)
    Becoming familiar with the unit's jurisdictional boun- daries.

(4)
    Checking with appropriate CA subsections for action taken or to be taken, on requests made by the unit.

(5)
    Keeping a file of the latest directives and letters of in- struction on hand and being sufficiently familiar with all their provisions to be able to discuss them intelligently.

(6)
Reading the unit journal before initiating the discussion.

b.
Upon arrival at the unit, stab

(1)
Purpose of your visit to the unit CO.

(2)
    That the inspection will be conducted by discussions and observations made of his unit and a check of his juris- dictional area.

(3)
    That observations and suggestions concerning the im- provement of efficiency of the unit and the extent of ad- herence to CA policies will be made upon completion of the inspection.

(CLASSIFICATION)
AQO 6147B
 

(CLASSIFICATION)
PERIODIC INSPECTION CHECKLIST FOR CA UNITS
UNIT..-…-..—–.———————–…—————–­
JURISDICTION–.———.
DATE VISITED——-..–.———­
DATE OPERATIONS
BEGAN IN PRESENT
JURISDICTION —-.–.-.—…———–­
RATING OF UNIT (BASIS OF 100)—…-.—..–.———-.——————–­
INSPECTING OFFICER..-…—————————————————————­(Name and Rank-Unit)
LOCATION
a.
Town ……………………………………………………………………………………
 

b.
Office..–…-.-…————.————-.­

Phone—.–.-.—..—————————­
c. Billets —.-.-…..-.-..—–..—.———.——————————————————-­
SECTION A-OBSERVATION
See
Yes No None Note
1. GENERAL
a.
CA signs conspicuously spotted at town entrances.

b.
Civilians show signs of returning to normal life.

c.
Security precautions for CA office adequate.,

d.
Retail establishments operating.

2. CA PERSONNEL
a.
Personnel busily engaged in essential duties.

b.
Unit personnel are observed to have­

(1)
Neat appearance.

(2)
Good military posture.

(3)
Good military discipline.

c.
Personnel adequate to accomplish mis­sion.

-.-.———————–­
(CLASSIFICATION)
AGO 6147B
 
(CLASSIFICATION)
See
Yes      -No None Note

3. CA OFFICE
a. Exterior:
(1)
     Centrally located.

(2)
     Large enough for unit offices.

(3)
Building has dignified appearance.

(4)
     Flags are displayed.

(5)
     Garage space or parking lot near.

(6)     
Building occupied solely by CA personnel.

(7)     
Building within walking distance of chief civil official.

(8)
     Civilian police posted at entrance.

(9)
     Civilian police show military cour­tesy as U.S, and Allied personnel approach.

b. Reception Room:
(1)
Comfortable.

(2)
     Sufficient seating space.

(3)
     Businesslike atmosphere prevails.

(4)     
Separate seating space for civilian and military.

(5)
Receptionist (soldier) present.

(6)
Interpreter present.

(7)
Visitor's requests handled indi­vidually.

(8)
     Receptionist and interpreter neat, efficient, courteous.

(9)
     Proper priority of visitors is ob­served.

(10)
Information available at reception­ist desk:

(a)
Road map.

(b)
     Town plan.

(c)
Directory of civil officials.

(d)
     Directory of important civilian establishments.

(11)
No classified document used in re­ception room.

AGO 6147B
……………………….
 

(CLASSIFICATION)
See
Yes No None Note
c. Ofice Space:
(1)
Office furniture is practical.

(2)
Inter-office     communication operat-
 
ing (if essential).
 

(3)
Each EM has space allocation for
 
his work.
 

(4)
War trophies, and the like, are not
 
displayed.
 

d. CO's Ofice:
(1)
Private office.

(2)
    Office well enough away to avoid
 
distraction.
 

(3)
Map present defining unit jurisdic-
 
tional boundaries.
 

(4)
Area      map      present     showing im-
portant industrial, utility, com-
munication, etc., installations.
 

(5)
Latest     summaries of      unit     opera-
tions, charted/edited.
 

e. Specialists' Ofices. Each specialist has-
(1)
    A private office or desk space.

(2)
    A map showing his installations
 
well defined.
 

(3)
    Readily available his latest survey.

(4)
Readily     available governing     texts
 
and directives.
 

f. Operational/Administration:
(1)
Log (incoming-outgoing mail).

(2)
Civilian and military visitors diary. .

(3)
Message blanks.

(4)
    Journal (current events).

(5)
Diary.

(6)
    Work Progress Record.

(7)
    Files, system utilized.

4. CA BILLETS
a.
Convenient to offices.

b.
Safeguarded.

c.
Physical arrangement:

(1) CO, separate room.
(CLASSIFICATION)
AGO 6147B
(CLASSIFICATION)
See
Yes No None Note
(2)
     Officers and EM in separate places.

(3)
     Recreation rooms.

d. Messes:
(1)
     Officers, EM, and civilians sepa­
rated.
 

(2)
     Cooks.

(3)
     Civilian service.

(4)
     Supplies received satisfactorily.

SECTION %OBSERVATION AND INTERROGATION
1. ARTS, MONUMENTS, AND ARCHIVES
a.
Libraries, monuments, art, surveyed, reported.

b.
Safeguarded where necessary, includ­ing steps to prevent wanton damage by troops.

2. CIVIL GOVERNMENT
a.
All civil officials contacted, screened by Intelligence Corps personnel.

b.
Unsatisfactory officials dismissed and vacated posts filled.

c.
Civilian officials instructed as to duties and conduct.

d.
Records surveyed for possible use.

e.
Governmental setup adequate for next 30 days.

3. CIVIL INFORMATION
a.
Supervision and control of public in- formation media.

b.
Coordination with psychological war­fare units.

c.
Newsprint stocks impounded where necessary, and reported.

d.
Printing and publishing facilities sur- veyed, reported.

—–.———————­
(CLASSIFICATION)
AGO 6147B
(CLASSIFICATION)
See
Yes No None Note
4. CIVILIAN SUPPLY
a.
Essential civilian supplies safeguarded.

b.
Needed supplies received.

c.
Adequate arrangement for storage and issue of civilian supplies.

d.
Proper accounting system for receipt and issue.

5. COMMERCE AND INDUSTRY
a.
Industries survey, reported.

b.
Essential industries operating.

c.
Rehabilitation of production facilities.

d.
Adequate coal, oil, other fuel for in- dustry.

e.
Military assistance in rehabilitation of production facilities.

6. DISPLACED PERSONS
a. DPs, refugees, billeted, registered, re­ported.
(1)
Billets fulfill sanitary requirements.

(2)
Food and water requirements met.

b.
DP camp sites surveyed, reported.

c.
Imported food furnished only under established policy.

7. ECONOMICS
a.
Plan developed for maintenance, preser- vation, and rehabilitation of the local economy.

b.
Local resources surveyed and reported.

8. FOOD AND AGRICULTURE
a.
Food surpluses, deficiencies, reported, investigated.

b.
Farms, fisheries, forestries, food proc- essing, and storage plants operating.

c.
People moved from urban to rural areas to alleviate suffering as required.

……………………….
 

(CLASSIFICATION)
———————-.—–

(CLASSIFICATION)  
-Yes  No  w  e  SeeNote  
d. Agricultural organizations and bureaus,  
reconstituted, operating.  
9. LABOR  
a. Available 1abor.registered and reported.  
b. Labor office set up.  
c. Labor needs of military being met. (If  
not, explain under notes.)  
10. LEGAL  
a. Local courts surveyed and closed, if  
necessary.  
b. Initiation of action to reopen courts if  
closed.  
c. Civil affairs courts functioning.  
d. Prescribed oaths of office taken by  
judges, notaries, prosecutors, lawyers.  
e. All civilian claims against U.S. trans­
mitted to proper agency.  
11. PRICE CONTROL AND RATIONING  
a. Price control and rationing set up,  
operating.  
b. Appropriate counterinflationary meas­
ures taken.  
12. PROPERTY CONTROL  
a. Adequate control and administration of  
property designated for control.  
b. Supervision over requisition of private  
property for military use.  
c. Adequate protection of records of title,  
transfers, other property transactions.  
d. Property custodians appointed where  
required.  
13. PUBLIC COMMUNICATIONS  
a, Supervision over public comrnunica­
tions.  
b. Safeguard of public communications.  
……………………….
 
(CLASSIFICATIOEF)  
AGO 6147B  

(CLASSIFICATION)
See
Yes 3 None Note

c.
Military assistance in rehabilitating public communications.

d.
Essential facilities operating :

(1)
Telephone.

(2)
Telegraph.

(3)
Postal system.

(4)
Radio.

(5)
Television.

e.
Adequate restrictions and censorship of public communications.

14. PUBLIC EDUCATION
a.
Adequate supervision over education system including public and private schools.

b.
Military assistance for rehabilitation or construction of schools.

c.
Schools operating.

15. PUBLIC FINANCE
a.
Banking institutions safeguarded.

b.
Instructions given to banking institu- tions.

c.
Instructions to finance officials deliv- ered.

d.
Access to safe deposits controlled.

e.
Accounts blocked by banking institu­tions.

f.
Balance sheet, accounts list, sent to central bank or ready for delivery.

g.
Foreign exchange assets, sent to central bank or ready for delivery.

h.
Banking institutions reopened. (Give number under note.)

i.
Notice of custody posted when required.

j.
Postal financial services started.

16. PUBLIC HEALTH
a.
Dead persons and animals, buried.

b.
civilian hospitals checked and operat-

ing.  
c.  Number  of  vacant  hospital  beds  
reported.  
……………………….  
(CLASSIFICATION)  

……………………….
 

(CLASSIFICATION)
See
—No None
Yes      Note
d. Doctors, nurses, midwives surveyed,
organized. e, Health Department officer functioning.
f.
Water checked for contamination.

g.
Sewage system operating.

17. PUBLIC SAFETY
a.
Proclamations, notices, etc., posted, dated.

b.
Police organized, operating.

c.
Mines, hazardous buildings cleared, marked.

d.
Fire department organized, operating.

e.
Liaison with Intelligence, PM, tactical units established.

f.
Arms, radio transmitters, collected.

g.
Cameras, field glasses, radio receivers, collected or impounded, if required.

h.
Pass system organized:

(1)
Pass system operating efficiently.

(2)
    Civilian check points, static and nob bile, established.

i.
Curfew regulations being enforced.

j.
Prescribed registration completed.

k.
All persons on "black list" arrested.

I.
All arrests recorded and reported through channels.

m.
Political activity investigated.

n.
Essential utilities, public works, indus- tries, banks securely guarded.

o.
Police and civil administrative records, archives, and works of art seized and guarded.

p.
Civilian officials and appointees screened with Intelligence Corps assistance.

q.
Prison facilities, personnel checked. Minimum sanitation requirements met.

18. PUBLIC TRANSPORTATION
a. Supervision over public transportation.
(CLASSIFICATION)
———————*—–­
(CLASSIFICATION)
See
Yes Lo None Note
b.
Safeguard of public transportation
 
where necessary.
 

c.
Military assistance in rehabilitating
 
public transportation.
 

d.
Essential facilities operating:

(1)
Rail.

(2)
Road.

(3)
Water.

(4)
Air.

19. PUBLIC WELFARE
a.
Supervision of public welfare agencies
 
and organizations.
 

b.
Military assistance to public and private
 
welfare agencies where necessary.
 

c.
Public welfare agencies functioning.

20. PUBLIC WORKS AND UTILITIES
a.
Supervision over public works and
 
utilities.
 

b.
Steps taken to guard essential installa-
 
tions of this nature.
 

c.
Military assistance in rehabilitating public works and utilities.

d.
Essential facilities operating:

(1)
Gas.

(2)
Electric.

(3)
Water.

(4)
Sewage.

21. RELIGIOUS AFFAIRS
a.
Churches rehabilitated.

b.
Churches operating.

c.
Protection of freedom of worship.

SECTION C-OPERATIONS, TRAINING AND
INTELLIGENCE
1. DEPLOYMENT
Extent of area preparation of unit prior to deployment.
……………………….
 

(CLASSIFICATION)
(CLASSIFICATION)
See
-Yes Lo None Note
2.      OPERATION REPORTS AND
 
HISTORY
 

a.
    All operation reports submitted.

b.
     All functional reports submitted.

c.     All historical information furnished.
3.    TRAINING
AND INSPECTIONS

a.
Unit/individual training prior to pres-
 ent assignment.
 

b.
Previous periodic inspections-how
 
many.
 

4.      INTERNAL SECURITY AND
 
INFORMATION
 

a.
Civilian attitude surveyed/reported. Civilian attitude toward CA checked.

b.
Combat information (enemy records, documents, maps, etc.) being reported.

c.
Intelligence. of special interest to CA collected, evaluated, and reported.

5.    MISCELLANEOUS

a.
Unit's outstanding accomplishments
 (list under notes).
 

b.
Unit's new methods or forms used (at- tach samples or explain).

c.     Disposition of personnel and special
means     of      CA control of     outlying districts. (List under notes.)
SECTION D-UNIT NEEDS
 
NOTES
 
(use additional sheets If necessary)
……………………….
 

(CLASSIFICATION)
APPENDIX IX
(CLASSIFICATION)
Form for CA Intelligence Collection Plan
Essentinl elements Analysis of essenial elements Collecting agency Specific request or When tlnd how of information (EEI) of information (indications) or source orders to agency to report
I          I
1. What is the attitude la. Behavior or conduct indicat. All Branches la. Include a short summary of any la. Include in of the populace toward ing-change in attitude noted during the periodic report. CA? period giving details of specific ac-
(1) Confidence and trust      tions, which indicate any of the through conlpliance with      following : laws, etr., acceptance oi      (1) Confidence and cooperation.
change, approval of civil.
(2) Doubt and suspicion.
ians selected for 1,ositione     
of authority; lack of sup          (3) Apathy and indifference.
port of resistance move.
ments.
Civil Informa-b. In addition to the above, in-     lb. Same as la.
(2)
     Cooperation as show11 by tion clude questions in public opinion. reporting violators of CA questionnaire that indicate which laws ; making constructive of the three attitudes listed under sugg6stions. la above is prevalent.

(3)
Doubt and suspicion as manifest by ill-tempered ( c. Analyze all press releases not I c. Same as compliance, reluctance to censored prior to publication, and . la. Include accept employment with statements of radio commentators specific details. CA ; drawing unfavorable I to detect criticism of CA operations

I
comparison with situation or circulation of rumors and propa- in other zones. ganda. Cover. theatrical perform­ances, musical recitals and films for
1 (4) Apathy and indifference.
I     
the same purpose.
b. Expressions in public opinion Ipolls.
I
I
c. Fraternization and other friend- Detachment d. Make continuous study and d. same a8 ly gestures toward the occupying offices analysis of fraternization in area,
forces personnel.     noting trends, impressions and con- clusions as to trends.
d. Articles in the press, radio,
 
handbills, rumors, films, etc.
 

I e. Clandestine or open meetings 1     e. Keep bulletin boards, trees, e. Report im-
demanding changes.     building walls, etc. under periodic mediately to surveillance for posters and un-designated authorized handbills and notices. headqu a r ­
ters by fastest
means avail­
able; send two
copies of trans-
lated material
to designated
headquarters.
I
f. Investigate thoroughly all re-f. Report cir- quests for permission to hold meet- cumstances of ings ; ascertain ostensible purpose unusual inci­and follow through to determine dents, unau­
(CLASSIFICATION)
–.-.————–.——

(CLASSIFICATION)
Essential elements Analysls of essenlal elements Colleetlng agency of Information (EEI) of lnformatlon (indleations) or source
Military Intel­ligence Units
b 2. Do migrating popula- 1      2a. Tabulated record showing num- Displaced Per­g tions constitute a prob­ber and nationality of people mov-sons
 e lem? ing into and out of the area.
P
2     What are the social and b. Indications of cause to in­political effects of such clude
 movement? (1) Labor shortages.
(2)
Loss of need for workers
 or specialists in industry
 or agriculture.
 

(3)
Insufficient food, housing.
 clothing, or fuel.
 

(4)     
Epidemic diseases.

c.
Economic and political impli-
 cations of failure of emigrants to
 adapt themselves to community life
 or to be accepted by the community.
 

(1. Possible presence and effects
 of large numbers of dangerous
 fanatics among groups.
 
Detachment Ofllces
Speelfle request or orders to agency
real purpose. If real purpose is 0th- er than that given at time of re­quest, report complete details in-eluding names, number attending, time and place of meeting, and what transpired, with conclusions as to real ~~urpose.
g. Monitor all forms of commun­ications originating with citimns for statements of interest to CA.
2a (1) Maintain tabulated record of number and nationality of people moving into and out of the area.
(2) Maintain record of persons in camps ; number received each week; number dis­charged each week. De­termine destination of dis­chargees and purpose of going there; origin of per- sons received and reasons for leaving former place of residence ; occupation of wage earners.
b. Determine reasons for large groups of people moving irto or out of the area. Also determine num­ber of political fanatics t:>ming into the area.
When and how to report
thorized meet­ings or misrep- resentation of pu rpoJe of meetings im- media telg to designated headquar­ters by fastest available means.
8. Same as la. In c 1 u d e specific details. Send two cop­ies of the trans- lation of such matter direct to designated headquarters.
2a. Same as In..
b. Same as
la.
(CLASSIFICATION)
3. What is the influence of political parties upon the populace of the area? How is it exer­cised? Relative strength and potency of vari­ous parties? What is the platform? Who are the leaders? What so­cial and economic group supports each party? Do large groups or organi­zations contribute to the support of certain par- ties? What parties are gaining in public sup­port? Which are losing?
……………………….
 

(CLASSIFICATION)
Collecting agency or source
Labor
Economic
Public Health
Civil Informa­tion
3a. Registration of political party. Civil Informa­tion and Pub-
b. Political meetings and rallies.
lic     Safety
1 c. Membership drives and cam­paigns or other tactics used to stim- ulate party members hi^).
d.
Party funds.

e.
Party publicity.

f.
Public reception and interest
 in party platform and activity.
 

g.
Evidence of influence from out-
 side the area.
 

h.
Allegiance of any local group
 or element to a central party or
 organization.
 

i.
Failure of membership to show
 allegiance to own party in local
 election.
 

Specific request or orders to ugencs
c.
Maintain record of labor re­quirements ;shortages aud overages in the area by requireme~its such as industry and agriculture: by 1oc.a­tions ;tabulation of the nnen?l~loyt?d by profession, skill, or occnl,stion. Number of prescribed arty meln-. bers in each group.

d.
Maintain record of status of housing, food, fuel, and clothing in the area to show requirements, shortages, and overages.

e.
Maintain record of status of health in the area to show number sick in hospitals, in homes, type of illness, probable cause, whether or not contagious.

f.
Determine political significance of migrating populations and degree to which they adapt themselves to community life and/or are accepted by the community.

I
3a. Study press releases and opin- ions expressed in public opinion polls ; listen in on radio broadcasts ; have representatives attend political rallies or meetings having political significance. Analyze data from all available sources to determii~e
(1)
Relative strength and pop. ularity of various parties with reasons for popularity.

(2)
     Changes in regular policies and procedures or non­conformity with established procedures.

(3)
     Social and economics sta­tus of party membership;

i.e. urban, rural, literate and illiterate, etc.
When and how to report
c. Same as
la.
d. Same as
la.
e. Same as
la.
f. Same as
la.
3a. Same as la.
……………………….
 

(CLASSIFICATION)
Essential elements of information (EEI)
4. What economic prob- lems are serious in the area? What are their causes? What will be the estimated duration?
Analysis of essenial elements of information (indicutions)
j. Political attitudes, allegiances, interest and activities of returning or repatriated individuals to the area.
Ic. Power struggles within the elite group of party organs and underlying reasons.
I. Deviations from policy or
propaganda line by key party mem- bers.
m. Defections of key members or groups from party and reasons for these defections.
4a. Economic disruption as evi­denced by-
(1) Food shortages.
(2)Fuel shortages.
(3)
Lack of adequate housing.

(4)
Transportation shortage.

(5)
Excessive unemployment.

(6)
Serious floods or drought.

(7)
     Disorganization of normal trade and production sys­tems.

……………………….
 

(CLASSIFICATION) Collecting agency or source
Public Finance
Detachment Offlces
Military Intel­ligence Units
Economic and R e 1 a t e d Functional' Specialties.
Speeiflc request or When and how orders to agency to report
(4)
Methods used to gain new
 
members.
 

(5)
Amount and source of in-
come.
 

(6)
Expenditures.

(7)
     Party afeliations with oth-
 
er parties, groups; etc. In-
vestigate scope of party
 
program and evidencu! of
 
influence from outside the
 
area.
 

b.
Examine records of political b. Same as parties to determine to what extent la. support is being given to groups and organizations by Contrib~tion~ of services, money, or supplies.

c.
      (1) Same as le and If. c. (1) Same as le

(2)     Observe political attitudes, and If.
allegiances, interests and
activities of returning or (2) Same
repatriated natives.      as la.
d. Peruse mail of recently re-d. Same as turned or repatriated natives to de la. termine political attitudes, alle­giances, interests, and activities.
4a. Maintain continuing study of 4a. same as 14.
economic situation as it might dis- rupt standards of living in the area. Analyze results of food and fuel shortages, lack of adequate housing ; lack of transportation to move com- modities within area ;effect of shut- down of essential or vital indus­tries ; probable results of unemploy- ment caused by layoff of workmen; effect of serious floods or droughts on agriculture and industry; ex­istence of undistributable surpluses ;
Essentinl elements of information (EEI) Analysis of essenial elements Collecting agency of information (indications) or source
b.
Existence of undistributable surpluses.

c.
Bank failure or runs on finan- cial institutions.

d.
Hoarding of currencies, com­modity barter and blaclr market activities.

e.
Widespread complaint on eco­nomic difficulties.

f.
Lack of confidence in the cur­rency.

Public Finance
.-..-…………..-..-.-…–….
 
(CLASSIFICATION)
I      1
Labor Public Safety
Detachment Offices
Military Intel­ligence
Specific request or orders to agency
I     
hoarding of commodities ;cause and duration of black market as it pertains to items necessary for health, comfort, or well-being of populace.
I
b. Make a continuous study to determine those conditions which might lead to bank failures or runs on financial institutions ;amount of currency being hoarded ;relation of value of currency in circulation to the value of commodities available for purchase; lack of confidence in the currency and/or banking in­stitutions in the area as evidenced
by a cheapening of the purchasing power of the monetary unit by the transfer of currency from the area to other areas; effect of black mar- ket activities on stability of the currency.
c. same as 2c.     
1
d.
Maintain a tabular record of I number of arrests for black market activities.

e.
(1) Follow up al: complaints I on economic difficulties ; determine cause of complaillts and whether or not justified.

(2)     Use all available means to detect black market actir- ities within the area.

f.
Recapitulate various types of complaints pertaining to economic difficulties as found in letters writ- ten by natives or overheard in tele. phone conversations between na­tives.

I When and how to report
b. Same as
la.
 

c.
Same as 2c.

d.
Same as

e.
Same as

la.
 

f. Same as
la.
 

(CLASSIFICATION)
……………………….
 

(CLASSIFICATION-)
Ea~ential elements
 of Informatton (EEI)
  I       Analysis of essenial elements of iniormutlon (indlcut~ons)  Collecting ngency or uource I       I  SpeciEc request or order8 to agency  I  When and how to report  
5. What  is the  extent  1      5. Number of arrests for commission  Public  Safety  5a. Be alert to detect technical com-  5. Same as la.  
of  crime  and  misde­ of  law  violations  over  and  nbt.re  pliance with rules, regulations, laws,  Render inform-  
meanors  in  the  area?  what is normal.  Type of violatiot~.  proclamations,  and  instructions  al  report  by  
frequency, against whom committed,  while  attempting  to  thwart  the  telephone  or  
and whether increasing  or  decreae­ purpose of the law by evading its  memoran­
ing.  scope or retarding its implementa-  dum  to  desig­
tion.  nated  head­
quarters  when  
first  detected  
or suspected.  
6. What  are  the  atti­ 6a.Degree  of  success  or  failure  Public  Educa­ 6a. Maintain  a  constant  study  of  6. Same as la.  
tudes  of  educators  or  of  reorientation  programs  toward  tion and Pub-  attitude of  teachers and educators  
leaders  of  schools and  US policy.  lic Safety  to determine: what they are teach-  
g 0  universities? What are they teaching? What are their qualifi­cations, backgrounds, beliefs, ideas advocated, and the strength of their following?  b. Organization of secret societies      in colleges and schools.      c. Presentation of lectures and theories directed against US ob­jectives and policies, methods used, and results obtained.      d. Regimentation of local youth in schools and colleges.  ing, strength of their following, methods used to eliminate or per- petuate ideologies inimical to US policy. Determine degree of success or failure of reorientation programs toward US policy. Detect organiza- tion of secret societies in colleges or schools. Examine critically lectures and theories directed  
e.      Student demonstrations.       against US policies.  Analyze  reac­
f. Influence exerted by political      parties or other outside groups; efforts to set up junior organizations      to develop student following.       tions of students to such lectures and theories. Determine to what extent native youth is regimented in I schools and colleges. Report all student demonstrations, determine  
g. Efforts  toward  restricting  at- causes.  Ascertain influences exerted  
tendance to politically approved or satisfactory individuals.  upon students by political parties or other outside groups; what junior  
organizations  are  being developed  
among the student body.  Detect ef-  
forts being used, if any, to restrict  
school attendance to those students  
approved or satisfactory to certain  
groups or organizations.  

———–..-.-.——­
(CLASSIFICATION)
……………………….
 
 
(CLASSIFICATION)
 
 
Notes
1. The intelligence worksheet is most conveniently prepared in columnar form. The advantage is in the concise presentation of each EEI, together with the analysis of the element into indicators, the probable sources of information about the various indications, the specific mission, and the reporting procedures to be applied to each.
2. Form. a. Column one lists the EEI generally in order of importance. EEI's may include some or all of the foregoing as well as others, depending on the situation.
b. In column two there is the result of a mental analysis of each EEI listing indications or points of evidence that shed light on the questions implicit in the EEI.
c. Column three indicates the probable best collecting agency or best source of the needed items of information.
d. Column four delineates specific instructions for gathering information, as well as instructions relative to assembling, evaluating, and reporting.
e. Column five prescribes when and where, and how to report.
——-.——————–

(CLASSIFICATION)
 
 
APPENDIX X
Form of Initial Civil Affairs Proclamation
 
for Use in Liberated Territory
 

PROCLAMATION TO THE PEOPLE OF
As Supreme Commander of the Allied Expeditionary Force I salute the -…-.-.—————————————————–.-­
People. It is an honor to participate in the restoration of the freedom and inde- pendence for which you have been fighting during all these years, regardless of privation, suffering and sacrifice. Your efforts have not only served the cause of —…–….—.-.———-,
but have been of signal importance as a shining example in our joint struggle against oppression and violence.
The presence in —-.—–..-.—————–­
of the Allied Forces under my command has been effected in full unity and agreement with the -..-.—.——-.-.———————————.-.
My forces include -…—–.—.–.­.–.—-.—_..———–.——­
military, naval, and air force units. Together with the men of the .-.-…..—.–.———————­
merchant marine they have been fighting at our side and their efforts have contributed conspicuously to our common cause.
My Forces have come to complete the liberation of your country and to secure filial victory over the enemy. As soon as this task has been discharged those Forces which are not ———–.–.————–­will be withdrawn.
But there is still much that remains to be done. Therefore, until further notice, in areas affected by military operations my authority may be supreme to the full extent necessitated by the military situation, and you will obey all orders which military considerations may require. However, I have anticipated that the decrees and regulations demanded by the situation will be issued by the .—–.–_—–_——————————.——­
Government or its representatives, and it will thus not be necessary for me to exer- cise control over your public and private actions.
The Allies salute you !
Supreme Commander Allied Expeditionary Force
Date———-Place………………….
 

AGO 6147B
Form of Initial Proclamation
 for Use in Occupied Territory
 
TO THE PEOPLE OF —-..-..-…..-.——————–­
:
WHEREAS in prosecuting their war against —–….-…—..————,

it
 has become necessary for the armed forces of –.—-.–..-.-.————

and
—.-.-….—.—.——————–­
under my command to occupy —..—.——….­and WHEREAS it is the policy of the Allied Forces not to make war upon the civilian inhabitants of the occupied territory but to protect them in the peaceful exercise of their legitimate pur- suits in so far as the exigencies of war and their own behavior will permit, and
WHEREAS, in order to preserve law and order and provide
for the safety and welfare both of my troops and of yourselves,
it is necessary to establish control in the occupied territory.
Now, therefore, I, —.–….–..——————————————————————-­
General, General Officer Commanding the Allied Forces in the
territory occupied, by virtue of the authority vested in me by

……–.—–.——————————-.,
Commander in Chief of the Allied
 Forces in -..——.—…-..———————–,

do hereby proclaim as follows :
I All powers of government and jurisdiction in the occupied ter- ritory and over its inhabitants, and final administrative responsi- bility are vested in me as General Officer Commanding, and the Allied Civil Affairs Administration of Occupied Territory is established to exercise these powers under my direction.
I1
'All persons in the occupied territory will obey promptly all orders given by me or under my authority and must refrain from all acts hostile to the troops under my command or helpful to our enemies, from all acts of violence, and from any act calculated to disturb public order in any way.
I11 Your existing personal and property rights will be fully respected and your existing laws will remain in force and effect except in so far as it may be necessary for me, in the discharge of my duties as General Officer Commanding the Allied Forces and as Civil Affairs Administrator, to change or supersede them by proclamation or order issued by me or under my direction.
All .–…-..-…….————————————-

civil and criminal courts and all universities, schools and educational establishments will be closed until further order of the Allied Civil Affairs Adminis- tration.
v
All officials of the provinces and communes and all other govern- ment and municipal functionaries and employees, and all officers and employees of state, municipal or other public services, except such officials and political leaders as are removed by me, are required to continue in the porformance of their duties, subject to my direction or the direction of such of my officers of the Allied Forces as may be deputed for that purpose. Further proclama- tions, orders and regulations issued by me or under my authority from time to time, will specify what is further required of you, and what you are forbidden to do, and these will be displayed in courthouses, police stations, post offices, or prominent public places.
VI Further proclamations orders and regulations issued by me or under my authority from time to time, will specify what is further required of you, and what you are forbidden to do, and these will be displayed in courthouses, police stations, post offices, or prominent public places.
VII So long as you remain peaceable and comply with my orders, you will be subjected to no greater interference than may be inevitable in view of military exigencies.
General Officer Commanding
The Allied Forces and Civil Affairs
Administrator
Date-.-.–..-.-…———­
Place….-.–.-….—­
APPENDIX XI1
 

Example of an Ordinance Pertaining to the Circulation
of Currency in Occupied Territory
ORDINANCE NO. 51
CURRENCY
ARTICLE I
Allied Military Currency
1.
Allied Military Currency Notes bearing local denominations and in readily distinguishable form shall be legal tender in the occupied territory for the payment of any debt expressed in the terms of the local currency.

2.
Allied Military Currency Notes will in all respects be equivalent to any other local currency which is legal tender and of equal value.

3.
No person shall discriminate between Allied Military Cur- rency Notes and any other local currency which is legal tender and of equal value.

ARTICLE I1
 
Prohibited Transactions
 

4.
Except as authorized by the Civil Affairs Administrator, no person shall make or enter, or offer to enter, into any arrange- ment or transaction providing for: payment in or delivery of a currency other than Allied Military Currency or Notes or local currency which is legal tender and of equal value.

ARTICLE I11
 
Penalties
 

5.
Any person violating any provision of this Ordinance shall, upon conviction by a Civil Affairs Court, be liable to any lawful punishment, other than death, as the Court may determine.

ARTICLE IV
Effective Date
6. This Ordinance shall become effective upon the date of its first promulgation.
General, United States Army Civil Affairs Administrator
APPENDIX Xlll
 
Example of an Ordinance Published in Occupied
 
Territory Specifying Penalties for Crimes
 
and Offenses
 

ORDINANCE NO. 4
PROHIBITION OF WEARING OF –.-.—.–……–­
MILITARY UNIFORMS
ARTImCLE I
1. No former member of the .–..—–.-.-..—————­
armed forces and no other civilian shall at any time wear or display on his person or clothing any military decorations, medals, insignia, or badges of rank or any miniatures thereof.
ARTICLE I1
2. From the effective date of this article, no former member of the..—–..-.-..-.———–­
armed forces and no other civilian shall at any time wear a ..—.-….—.—————-­
military uniform, or any part there- of, in its regulation color and pattern.
3. The wearing of garments which have been produced by dye- ing a uniform a color other than (indicate denied colors) or by remodeling it into a civilian pattern will be permitted, provided such dyed or remodeled garment may not be readily identified as a uniform. This provision does not apply to headgear of any .—-.-.-.-..-_–.————–military will in event be
uniform, which no worn. ARTICLE I11
4. The term ''————-..-.—————military shall mean
uniform" any uniform of-
(a) Any branch of the –.–..-…-.-.——.-­
armed forces, includ- ing any –..—…-.–.—-­
armed forces prior to .-..–..-….–..——­
(b)
The-.-.—–.—.-.——————-­

(c)
Any-.—–.-..-…———-..—-.

Party, its formations or affii- ated or supervised organizations, and
para-military organization, and and police uniforms similar thereto, and shall include all outer garments including shirts and headgear but not including boots, shoes, or socks.
ARTICLE IV
5. The term "insignia" shall include but shall not be limited to collar, sleeve or shoulder ornaments or devices, distinctive braid,
AGO 6147B 267
and distinctive buttons of any of the organizations listed in article
111.
6.
The term "military decorations and medals" shall include but not be limited to decorations and medals awarded to military personnel or to civilians for services related to the organizations listed in article 111, or for any other services related to military operations, but will not include decorations or medals granted or authorized by the government of any of the United Nations.

7.
The term "military insignia and badges of rank" means in- signia and badges of rank of any of the organizations listed in article 111.

ARTICLE V
8. The senior –.–……..——————-

official at each level of Govern- ment will initiate and carry out a program for the remodeling and dyeing of uniforms and for the collection and distribution of clothing to those without adequate clothing. He is responsible for the distribution of clothing between communities within the areas under his jurisdiction. For these purposes, mayors and county councillors shall have power to requisition surplus clothing. With- out limiting individual responsibility hereunder, mayors and county councill~rs shall be responsible for insuring compliance within their areas of the terms of articles I, 11, and I11 hereto.
ARTICLE VI
9.
Any person violating any of the provisions of this Ordinance shall upon conviction by a Civil Affairs Court be liable to any law- ful punishment, other than death as the Court may determine.

ARTICLE VII

10.
Articles I1 and I11 of this Ordinance shall become effective on..–……–.-…————————.

Articles I, IV, V, and VI shall become effective on –.-..-.-.—.–.——————-.
General, United States Army Civil Affairs Administrator
APPENDIX XIV
Example of a Notice Specifying Hours of
 
Curfew in Occupied Territory
 

NOTICE
CURFEW
Until further notice no person within ..-.—..—.——————­
will be permitted to circulate on the streets or outside his own house with- out a permit of Civil Affairs authorities between the hours of
—–.-..–..–…————-­
and——————————–. Any persons found in the streets without such permit between those hours will be severly punished. All persons are further warned that military guards are in- structed to shoot any person seen outside his house after hours attempting to hide or escape.
……………………………………………………………………
 

Major General, United States Army Commanding General,
AGO 6147B
APPENDIX XV
 
SOLOG AGREEMENT 29
DETAILS OF AGREEMENT
CIVIL AFFAIRS/MILITARY GOVERNMENT
 
PRINCIPLES OF OPERATION-

(Study A 11)
 
General Remarks
 
No standard terminology is essential to this study.
 

SOLOG Agreement
1. The following general principles apply to all Civil Affairs and Military Government Operations ;they are the basis for initial planning purposes in the absence of specific guidance:
a.
Humanity. The principle of humanity prohibits the use of any degree of violence not actually necessary for the purpose of the war. War is not an excuse for ignoring established humani- tarian principles. To a large extent these principles have been given concrete form in the law of war; but because all of these principles have not become legal rules; a military commander should consider whether a proposed course of action would be humane even though not prohibited by international law.

b.
Benefit of the Gove~ned. Subject to the requirements of the military situation, the principle of governing for the benefit of the governed should be observed.

c.
Reciprocal Responsibilities. The commander of an occupying force has the right, within the limits set by international law, to demand and enforce such obedience from the inhabitants of an occupied area as may be necessary for the accomplishment of his mission and the proper administration of the area. In return for such obedience, the inhabitants have a right to freedom from un- necessary interference with their individual liberty and property rights.

d.
Command Responsibility. Responsibility and authority for the conduct of Civil Affairs/Military Government operations are vested in the senior military commander, who is guided by direc- tives from higher authority, national policies, applicable agree- ments and international law.

e.
Continuity of Policy. Continuity and consistency in policy are essential to the success of Civil Affairs/Military Government op- erations. Therefore, it is fundamental that over-all policy be de-

veloped at governmental or top command levels and transmitted through normal command channels.
f.
Inclusion of Civil Aff airs/Military Government Aspects in Plans and Orders. It is essential that military directives, plans and orders contain guidance to insure the accomplishment of the Civil Affairs/Military Government mission.

g.
Economy of Personnel. The duties of Civil Affairs/Military Government personnel should be confined where possible to super- vision over existing or re-established civilian authorities.

h.
Integration in Combined Operations. In combined operations integration is desirable. This is achieved by exercising Civil Af- fairs/Military Government control through a combined command as opposed to establishing separate areas of national responsibil- ity. Such integration should be included at appropriate command levels but should not extend to the command of Civil Affairs/Mili- tary Government units of one nation by officers of another.

AGO 6147B
APPENDIX XVI
 
SOLOG AGREEMENT 39 (STANAG 20561
DETAILS OF AGREEMENT
STANDARD CIVIL AFFAIRS/MILITARY GOVERNMENT
 DOCUMENTS
 
(PROCLAMATIONS AND ORDINANCES)
 
(Study A 12) General Remarks No standardized terminology is essential to this study. SOLOG Agreement
1.
All initial proclamations and appropriate ordinances should receive the approval of the governments concerned prior to pro- mulgation.

2.
Initial proclamations should contain, where appropriate, the following:

a.
Declaration of the occupation. This is formal notice of the fact of occupation and of the extent of the area over which the Armed Forces assume jurisdiction.

b.
A statement as to the purpose and policy of the occupation.

c.
A declaration of the supremacy of the theater commander. This is an essential prerequisite to the administration of any Mili- tary Government. It should announce that a Military Governor has been appointed and that political ties with, and obligations to, the enemy government, if any, are suspended. It should announce that inhabitants will be required to obey orders of the theater commander and his subordinates and to abstain from all acts or words of hostility or disrespect to the occupying forces.

d.
Confirmation that, unless the military authority directs other- wise, local laws and customs will continue in force, local officials will continue in office, and officials and employees of all transpor- tation and communications systems and of public utilities and other essential services will carry on with their regular tasks.

e.
Assurance that persons who obey the instructions of the mili- tary authority will be protected in their persons, property, religion and domestic rights and will be allowed to carry on their usual occupations.

f.
A statement that further proclamations or ordinances will accompany or follow the initial proclamation, specifying in detail what is required of the inhabitants.

g.
Place and date document is signed, signature and military title of the issuing authority.

h.
In the event the situation above is a Civil Affairs Adminis- tration of a liberated territory, rather than an occupation, a to f above should be appropriately modified.

3.
Subsequent proclamations, numbered in sequence, contain de- tailed rules governing the conduct of the population. These rules of conduct may also be set forth in ordinances.

4.
The format of Ordinances should be standardized to the fol- lowing extent :

a.
Ordinances should be numbered in sequence.

b.
They should consist of a series of main subdivisions called Articles.

c.
They should contain definitions of any terms used in them which are ambiguous or unfamiliar to the persons to whom they are addressed.

d.
The final Article in each ordinance should specify the effec- tive date of the ordinance.

e.
Ordinances should be signed by the Military Governor or by some authorized subordinate.

AGO 6147B
APPENDIX XVll
SOLOG AGREEMENT 40 (STANAG 20571
 
DETAILS OF AGREEMENT
CIVIL AFFAIRS/MILITARY GOVERNMENT SUBJECTS
 FOR INSTRUCTION
 
(Study A 13) General Remarks No standardized terminology is essential to this study.
SOLOG Agreement
1.
The introduction of Civil Affairs and Military Government sub- jects for instruction, the method of providing the information and the amount of time to be devoted to each subject of instruc- tion will be decided by the Army concerned.

2.
Training will be conducted to familiarize all military person- nel with Civil Affairs and Military Government operations. The following subjects will be included:

a.
The purpose and necessity of Civil Affairs and Military Gov- ernment in military operations.

b.
Rules and conventions governing war, with emphasis on the enforcement of law, preservation of order, and the prevention of wanton destruction of civilian property, communications, records, etc.

c.
Organization and functions of Civil Affairs and Military Gov- ernment staffs and units.

d.
The individual soldier's relation to Civil Affairs and Military Government operations.

3. Training in Civil Affairs and Military Government conducted in courses of Army command and staff schools or colleges will be preceded by training outlined in paragraph 2 above and will in- clude the following subjects:
a.
Comparison of systems of government.

b.
Training and employment of Civil Affairs and Military Gov- ernment units and personnel.

c.
Civil Affairs and Military Government planning.

d.
The combined or inter-allied aspects of Civil Affairs and Military Government operations.

e.
The methods of including Civil Affairs and Military Govern- ment problems in instructional and training exercises.

274 AGO 6147B
4. Courses for Civil Affairs and Military Government personnel will include the following subjects:
a.
History of Civil Affairs and Military Government.

b.
Comparative government, national, state or provincial, and lower levels.

c.
Organization of the Army.

d.
National policy concerning Civil Affairs/Military Govern­ment operations.

e.
Staff functions and procedures.

f.
Rules of land warfare and appropriate maritime law.

g.
Civil Affairs/Military Government organization.

h.
Civil Affairs/Military Government functions including courts, public safety, public health, and others.

i.
Local procurement in support of military operations.

j.
Logistical organization and procedures of the Armed Forces.

k.
The nature of inter-allied Civil Affairs/Military Government operations.

1. On mobilization, regional and language training.
m. Creation and issuance of occupation money. Consequential effects on the ecomony. (See amendment 3, STANAG 2057, 2 Feb 60.)
5. Courses conducted at combined training centers will be similar to the courses for Civil Affairs/Military Government personnel with additional emphasis on inter-allied operations.
APPENDIX XVlll
SOLOG AGREEMENT 41 (STANAG 2058)
 
DETAILS OF AGREEMENT
CIVIL AFFAIRS/MILITARY GOVERNMENT PRINCIPLES OF ORGANIZATION
(Study D 2) General Remarks No standardized terminology is essential to this study.
SOLOG Agreement
1.
Civil AffairsJMilitary Government is a command responsibility.

2.
The function of Civil Affairs/Military Government is super- vised and directed by the commander, assisted by an appropriate staff.

3.
Civil Affairs/Military Government operations are performed executively by Civil Affairs/Military Government units or detach- ments so far as practicable.

4.
The organization for Civil AffairsJMilitary Government is flexible in order to function effectively under varying situations and contingencies.

5.
Integration of Civil Affairs/Military Government personnel is essential to combined operations. It should not normally be extended to the command of Civil Affairs/Military Government units or detachments of one nation by officers of another.

6.
British and Canadian Division Headquarters will include a Civil Affairs/Military Government officer and staff section when the division operates under the command of a United States Corps to conform with United States organizations. (This will not apply when assignment is of a temporary nature only.)

7.
The armies of the three countries will accept responsibility for appropriate administration and support required by attached Civil Affairs/Military Government personnel or units of any of the other armies.

AGO 6147B
APPENDIX XIX
 
SOLOG AGREEMENT 42
DETAILS OF AGREEMENT
 

CIVIL AFFAIRS/MILITARY GOVERNMENT TRAINING
 
PRINCIPLES
 

(Study D 3)
 
General Remarks
 
No standardized terminology is essential to this study.
 

SOLOG Agreement c~he Government train-
introduction of Civil Affairs/Military
ing, the method of providing the instruction and the amount
of time devoted to training will be decided by the army concerned.
2.
Basic orientation in Civil Affairs/Military Government will be provided for all Army personnel on active duty prior to or during movement overseas.

3.
Additional general instruction will be given to all army officers on active duty to impart a knowledge, at least equivalent to that required in regard to organization and operation of administrative and technical services.

4.
Advanced instruction will be given at high level military schools at which officers are trained for command and staff assignments.

5.
Maneuvers and other training exercises will include problems requiring the participation of Civil Affairs/Military Government units and personnel.

6.
Civil Affairs/Military Government personnel will receive mili- tary training.

7.
The functional training provided for specialists will be designed to adapt their civilian specialties to military operations.

8.
Civil Affairs/Military Government personnel will receive appropriate regional training in accordance with their planned assignment.

9.
Civil Affairs/Military Government personnel assigned to a theater or area having an inter-allied command should normally receive additional training at a combined training center.

APPENDIX XX
 
STANAG NO. 2065
DETAILS OF AGREEMENT
 
CIVIL AFFAIRS/MILITARY GOVERNMENT
 TRAINING PRINCIPLES FOR NATO ARMED FORCES
 
GENERAL
1. It is agreed that the NATO Armed Forces accept the following principles for training in Civil AffairsJMilitary Government.
SCOPE
2.     Introduction of Training. The introduction of Civil Affairs/Military Government training,
the method of providing the instruction and the amount of time devoted to training will be decided by the Service concerned.
3.     Basic Training
Basic orientation in Civil Affairsmilitary Government will be provided for all Service personnel on active duty.
4.     Further Training
a.
Additional general instruction should be given to all officers on active duty to impart a knowledge at least equivalent to that required in regard to organization and operation of administra­tive and technical services.

b.
Advanced instruction will be given at high level military schools at which officers are trained for command and staff assignments.

5.    Maneuvers and Exercises Maneuvers and other training exercises will when practicable
include problems requiring the participation of Civil Affairs/ Military Government units and personnel.
6.     Training of Civil /Military Government Personnel
a.
Civil AffairsJMilitary Government personnel will receive military training.

b.
The functional training provided for specialist personnel will be designed to adapt their civilian specialties to military operations.

c.
Civil Affairs/Military Government personnel will receive appropriate regional training in accordance with their planned assignment.

278      AGO 6147B
d. Civil Affairs/Military Government personnel assigned to a theater or area having an inter-allied command should normally receive additional training at a combined training center and/or school.
AGO 6147B
 

PERIODIC CA REPORT
(CLASSIFICATION)
(Omit subparagraphs not applicable. This report may include important items of information relative to anticipated activities in addition to those concerning the period covered.)
Issuing Headquarters
Place of Issue
(may be in code)
DateJTime group
(to include month and year)
Periodic Civil Affairs Report No.
 
Period Covered: (Date and time to date and time)
 
Reference: Maps (country, scale, and sheet numbers of maps)
 
or charts
 
Disposal instructions : (If any-e.g., DESTROY WITHIN 48
 
HOURS OF RECEIPT)
 

1.
CIVIL AFFAIRS SITUATION AT END OF PERIOD. Location of civil affairs units and pertinent activities of each; any important changes of civil affairs operational zones or

areas; principal incidents and events since last report. (Indicate on map or overlay annex where possible.)

2.
GOVERNMENTAL (Use Annexes as necessary).

a. Civil Government :
(1)
Organization.

(2)
Administrative Changes.

(3)
Political Intelligence.

(4)
Changes in Personnel.

(5)
Pre-election Planning.

(6)
Other essential information.

b.
Legal.

c.
Public Safety.

d.
Public Health.

e.
Public Welfare.

f.
Public Education.

……………………….
 

(CLASSIFICATION)
AGO 6147B
—–..——————–­
(CLASSIFICATION)
g.
Public Finance.

h.
Labor.

3. ECONOMIC (Use Annexes as necessary).
a. Economics :
(1)
Supply and demand ratio.

(2)
Exports and imports.

(3)
Trade and investment factors.

(4)
Natural resources status and development.

(5)
Other essential items not covered in additional economic
functions.

b.
Commerce and Industry.

c.
Food and agriculture.

d.
Price control and rationing.

e.
Property control.

f.
Civilian Supply.

4. PUBLIC FACILITIES (Use Annexes as necessary).
a. Public Works and Utilities :
(1)
Water Supply and Purification.

(2)
Waste Disposal.

(3)
Electrical Power.

(4)
Flood Control and Drainage.

(5)
Public Housing.

(6)
Other essential items.

b.
Public Communications.

c.
Public Transportation.

5. SPECIAL FUNCTIONS (Use Annexes as necessary).
a. Displaced Persons :
(1)
Census and other statistical data.

(2)
Relief supplies.

(3)
Repatriation and relocation.

(4)
Utilization.

(5)
Other essential items.

b.
Civil Information.

c.
Arts, Monuments, and Archives.

d.
Religious Affairs.

6. MISCELLANEOUS. Indicate any special recommendations and requests such as special civil affairs personnel problems exist-
-~~~~~~.~~~-~~~~———–­
(CLASSIFICATION)
AGO 6147B 281
ing, requisition for additional units, recommendations for lifting controls, restrictions, recommendations for troop indoctrination, training and inspections, internal security information, and other miscellaneous matters not properly covered in paragraphs above.
……………………………………………………………………
 

Commander Annexes Distribution Authentication
AGO 6147B
 

APPENDIX XXll
 
A CA UNIT CHECKLIST
 

The following is a list of major points to be checked in improv-
 ing efficiency in a CA headquarters.
 
1. DETERMINING THE MISSION. Check that–
a.
Each CA task is habitually begun by determining and an- nouncing the primary objectives of the unit, its teams, and sub- ordinate units.

b.
Statements of objectives of the unit are clear and definite, answering the questions: who, what, when, where, how, and why.

c.
Priorities among CA objectives have been determined and announced.

d.
The mission of each CA unit and of its subordinate units is stated in writing.

e.
Each individual knows the mission of the unit and of the section or team in which he works.

2. ORGANIZATION. Check that-
a.
Every function necessary for accomplishing the command- er's mission is assigned to an individual, section, or team of the unit.

b.
The responsibilities assigned to individuals, teams, subordi- nate units, or civilian officials are specific, clear-cut, and under- stood.

c.
Up-to-date organization charts of the unit and civilian gov- ernment (including structural, functional, position, and flow charts) are prepared and are available.

d.
The functions are assigned so that related functions are grouped together.

e.
Every member of the organization understands to whom he reports and who reports to him.

f.
No member of the organization is required to report directly to more than one supervisor.

g.
The number of persons or units reporting directly to any one supervisor does not exceed the number that he can effectively supervise.

h.
The channel of command through which orders and policies are transmitted is clear and is adhered to.

i.
The authority and responsibility are decentralized to the maximum degree consistent with adequate control.

j.
The assignment of activities to sections of the headquarters follows the same general pattern at all levels.

AGO 6147B
 
k. The responsibility for an activity is matched by the author­ity necessary to perform that activity.
3. PLANNING. Check that-
a.
Effective administrative activity is carefully planned well in advance by studying and determining future schemes of action.

b.
Planners have a complete and thorough understanding of the objectives to be attained.

c.
The procedure is determined at the outset for producing and coordinating each plan within the time available.

d.
Planning is based on complete and accurate facts, correctly interpreted.

e.
Close supervision of all phases of planning is provided to insure accuracy and timely completion of coordinated plans.

f.
Direct contact is authorized between coequals and counter­parts at all levels in order to expedite planning.

g.
The responsibility for supervision of each planning task is fixed with one individual.

4. COORDINATION. Check that-
a.
All personnel and functional teams of the unit are familiar with the functions of all other teams.

b.
Specific personnel in the unit are assigned responsibility to insure coordination of specific matters.

c.
Adequate and timely means are employed to disseminate enough information to insure intelligent cooperation.

d.
All staff sections contributing to an undertaking have an opportunity to comment on proposed plans, orders, or policies.

e.
Time is allowed in the preparation of plans and orders for the accomplishment of necessary coordination.

f.
Coordination is begun in the early stages of planning to avoid wasted effort.

g.
Staff papers are accompanied by an indication of the agen­cies concurring and nonconcurring in the paper.

h.
Staff officers visiting subordinate units habitually look for and report evidences of lack of coordination on the part of their headquarters and their own staff section, and check that such reports are followed up with corrective action.

i.
Files are checked to determine whether correspondence is leaving the headquarters or section without proper coordination.

j.
Progress reports are regularly studied for evidence of any failure in coordination.

k.
The functional team initiating an assigned action on a mat­ter is held responsible for coordination within its field and for referring the matter to the agencies responsible for coordinating in other fields.

284 AGO 6147B
5. DIRECTING. Check that-
a.
Definite tasks or missions are assigned to subordinates.

b.
Directives clearly define the relation of subordinate tasks or missions to the overall objectives.

c.
Directives are positively and clearly expressed.

d.
Directives are specific as to the who, what, where, when, and why of required action.

e.
Directives are fully understood, and ample opportunity is provided for subordinates to seek clarification.

f.
Directives are issued sufficiently in advance of the prescribed action.

6. CONTROL. Check that–
a.
Adequate measures are provided and properly utilized to determine that each activity is proceeding according to plans, orders, and policies.

b.
Priorities are established and disseminated.

c.
Continuity is maintained by-

(1)
Planning and organizing for the full period of operation.

(2)
Providing for replacement of losses by trained personnel.

(3)
    Accomplishing changes in an orderly manner, without interrupting operations.

d.
Flexibility is preserved by allowing room in plans, orders, and organization to meet changing conditions and for internal arrangement to meet such changing conditions.

e.
Physical audits or surveys are made when necessary to gather facts about accountancy procedures for functional teams wherein funds are involved.

f.
Individual effectiveness is kept at a maximum by-

(1)
Providing the best possible working conditions.

(2)
Training each individual in more than one job.

(3)
    Careful selection and placement.

g.
Staff visits to subordinate units by staff officers and assist- ants are made according to a systematic program to insure that all items and all units are covered and reported on regularly.

h.
A staff message control system is provided, including a positive check on the distribution and routing of important documents.

i.
Translator sub-section and civilian employees therein are properly screened and supervised.

7. WORK FLOW. Check that–
a.
Movement of work between two points travels the shortest distance possible.

b.
Related operations are concentrated to minimize physical movement, time, and space in handling workload.

AGO 6147B     
c.
All handling not absolutely essential is eliminated.

d.
Workloads are balanced and all workers have the same relative amount of work to do.

8. STANDARDIZATION. Check that-
a.
A best method is developed and adopted for those activities which recur frequently.

b.
Good procedures already developed in the Army and in busi- ness are considered at the outset of an administrative operation.

c.
Conditions authorizing departure from standing operating procedures are clearly prescribed.

d.
Satisfactory administrative procedures are prescribed early rather than awaiting the development of ideal procedures.

e.
Sufficient flexibility exists in establishing procedures to allow for changes in conditions and to allow for internal adjustments to meet them.

f.
Those important procedures which have been adopted are reduced to writing.

g.
Administrative instructions and procedures are reviewed periodically and revised when advisable.

h.
Consolidated report forms such as SITREPS and PERIN- TREPT are utilized by teams and subordinate units.

AGO 6147B
APPENDIX XXlll
 

EXTRACTS OF TREATY PROVISIONS FOR
 
PROTECTION OF PROPERTY
 

THE HAGUE CONVENTION (11) of 1899
Convention (11) with respect to the Laws and Customs of War
on Land and Annex to the Convention. Treaty Series, No. 403.
Article 1: The high contracting Parties shall issue instructions
to their armed land forces, which shall be in conformity with the
"Regulations respecting the laws and customs of war on land"
annexed to the present Convention.
Article 2 :The provisions contained in the Regulations mentioned
in Article 1are only binding on the contracting Powers, in case
of war between two or more of them. These provisions shall cease
to be binding from the time when, in a war between contracting
Powers, a non-contracting Power joins one of the belligerents.
Annex to the Convention.
Annex to the Convention. Regulations respecting the Laws and
Customs of War on Land.
Section 11. On Hostilities. Chapter I. On Means of Injuring the
Enemy. Sieges and Bombardments.
(g)     To destroy or seize the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war.
Article 25: The attack or bombardment of towns, villages, habita-
 

tions, or buildings which are not defended is prohibited * * *
 
Article 27: In sieges and bombardments all necessary steps should
 
be taken to spare as far as possible edifices devoted to religion,
 
art, science, and charity, hospitals and places where the sick and
 
wounded are collected, provided they are not used at the same
 
time for military purposes. The besieged should indicate these
 
buildings or places by some particular and visible signs, which
 
should previously be notified to the assailants.
 

Article 28: The pillage of a town or place, even when taken by
 
assault, is prohibited.
 
Section 111. On Military Authority over Hostile Territory.
 
Article 46: Family honors and rights, individual lives and private
 

AGO 6147B      287

property, as well as religious convictions and liberty, must be
 
respected.
 
Private property can not be confiscated.
 
Article 47: Pillage is formally forbidden.

* * * * * * *
Article 56: The property of the communes, that of religious,
 
charitable and educational institutions, and those of arts and sci-
 
ence, even when State property, shall be treated as private
 
property.
 
,411 seizure of, and destruction, or intentional damage done to
 
such institutions, to historical monuments, works of art or science,
 
is prohibited and should be made the subject of proceedings.'
 

THE HAGUE CONVENTION OF 1907 (IX) Convention concerning Bombardment by Naval Forces in Time of War. T~S~~NO.
542. Chapter I. The Bombardment of Undefended Ports, Towns, Vil- lages, Dwellings or Buildings. Article 1. The bombardment by naval forces of undefended ports,
towns, villages, dwellings, or buildings is forbidden.
Chapter 11. General Provisions. Article 5: In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the inhabitants to indicate such monuments, edi- fices, places by visible signs, which shall consist of large stiff rec- tangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white. Article 7: A town or place, even when taken by storm, may not be pillaged. INTER-AMERICAN TREATY OF 1935 Protection of Artistic and Scientific Institutions and Historic Monuments. Treaty Series 899
Article 1: The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents.
These articles of The Hague convention (11) of 1899 were derived from the Declarn- tion of Brussels of 1874, e.g., Article VII of the Droft Declorntion rends as follows: "The property of communes, institutions devoted to religion, charity, and education.
to arts and sciences, even when stnte property, shall be treated as private property.
"All seizure of. and destruction of, or intentionnl dnmnge to such institutions, to historical monuments, works of art or science, should be mnde the subject of proceedings by the competent authorities."
AGO 6147B
The same respect and protection shall be due to the personnel
of the institutions mentioned above.
The same respect and protection shall be accorded to the his-
torical monuments, museums, scientific, artistic, educational and
cultural institutions in time of peace as well as in war.
Article 2: The neutrality of, and protection and respect due to, the monuments and institutions mentioned in the preceding arti- cle, shall be recognized in the entire expanse of territories subject to the sovereignty of each of the signatory and acceding States, without any discrimination as to the State allegations of said monuments and institutions. The respective governments agree to adopt the measures of internal legislation necessary to insure said protection and respect.
Article 3: In order to identify the monuments and institutions mentioned in Article 1, use may be made of a distinctive flag (red circle with a triple red sphere in the circle on a white background) in accordance with the model attached to this treaty.
Article 4: The signatory Governments and those which accede to this treaty, shall send to the Pan-American Union, at the time of signature or accession, or at any time thereafter, a list of the monuments and institutions for which they desire the protection agreed to in this treaty.
The Pan-American Union, when notifying the governments of signatures or accessions, shall also send the list of monuments and institutions mentioned in this article, and shall inform the other Governments of any changes in said list.
Article 5: The monuments and institutions mentioned in Article 1 shall cease to enjoy the privileges recognized in the present treaty in case they are made use of for military purposes.
CONVENTION OF 1954 FOR PROTECTION OF CULTURAL PROPERTY (Summary)
The preamble describes the intentions underlying the prepara- tion of the Convention. The Contracting Parties state their deter- mination to take all possible steps to protect cultural property which, by reason of the developments in the technique of warfare is in increasing danger of destruction. The High Contracting Parties also recognize that damage of cultural property means damage to the cultural heritage of all mankind and consider it im- portant. that this heritage shall receive international protection, which cannot be effective unless both national and international measures have been taken to organize it in time of peace.
AGO 6147B 289
Chapter I deals with "General Provisions Regarding Protection." Article 1 defines cultural property, which it divides into three categories: (a) movable or immovable property that is of great importance to the cultural heritage of every people ; (b) buildings whose main and effective purpose is to preserve or exhibit mov- able cultural property; and (c) centers containing a large amount of cultural property. The same chapter then deals with the safe- guarding of and respect for cultural property. These general provisions further prohibit any form of theft, pillage or misap- propriation of cultural property, any acts of vandalism or repris- als in respect of such property, as well as the requisitioning of movable cultural property in the territory of another Party. After a provision applicable in the event of occupation, the Con- vention provides for Contracting Parties to introduce in time of peace into the military regulations such provisions as may ensure observance of the Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples. They also undertake to establish, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property. Chapter 11, en- titled "Special Protection," states that a limited number of refu- ges intended to shelter movable cultural property in the event of armed conflict, or centers, containing monuments and other im- movable cultural property of very great importance, may be granted extra protection provided that, in particular, they are situated at an adequate distance from any military objective and that they are not used for military purposes.
Special protection is granted by entry in an Inte~national Register kept by the Director-General of UNESCO. Contracting Parties undertake to insure the immunity of such cultural property; this immunity may be withdrawn only in really exceptional cases of unavoidable military necessity, which can be established only by the officer commanding a force the equivalent of a division in size or larger.
Chapter I11and IV deal respectively with the transport of cultural property and of personnel.
Chapter V deals with the distinctive emblem.
Chapter VI deals with the field of application of tlie Convention and stipulates, in particular, that it shall apply in the event of declared war or of any other armed conflict which may arise be- tween two or more of the Contracting Parties, even if the state of war is not recognized by one or more of them. The Contracting Party is occupied, even if that occupation meets with no armed resistance, and in the event of a conflict not of an international
290 AGO 6147B
character. In the latter case, UNESCO may offer its services to
the parties to the conflict. Chapter VII is concerned with the execution of the Convention, which is to be applied with the cooperation of the Protecting Powers usually responsible for safeguarding the interests of the Parties during a conflict. Immediately any Contracting Party is involved in an armed conflict, these powers will arrange for a "Commissioner-General for Cultural Property" to be accredited to that Party; he will have an important part to play in insuring that Parties to the conflict observe the provisions of the Conven- tion. Furthermore, this chapter makes provision for conciliation procedure in certain cases and for the possibility of concluding special agreements, provided that they do not limit the protection already afforded by the Convention. The final provisions deal with the effective application of the Convention, its territorial ex­tension, its relation to previous conventions and the procedure for denunciation and revision. In the Protocol, the Contracting Parties undertake to prevent the exportation of cultural property from any territory occupied by them during an armed conflict and if any such property is nevertheless imported into the territory of a Contracting Party, to return it, at the close of hostilities, to the competent authorities of the territory previously occupied. Such property may never be retained as war reparations.
Section I1 of the Protocol lays down that cultural property coming from the territory of a Contracting Party and deposited by it within the territory of another Contracting Party for the purpose of protecting such property against the dangers of an armed con- flict, shall, at the close of hostilities, be returned by the latter to the competent authorities of the territory from which it came.
AGO 6147B
 

APPENDIX XXlV
 
TYPE TASK ORGANIZATIONS
 

1.
General. The cellular character of TOE 41-500 permits an unlimited number of organizational combinations. Such flexibility is necessary to adapt CA units to their multifarious missions and varying environmental requirements. The requirements for assembling platoons, companies, or groups with essential func- tional teams are as variable as missions assigned, and paragraphs

2 through 5 are given only as examples of organizations that might be formed under the circumstances outlined.

2.
A Civil Affairs Group employed in Communications Zone under Hq TACAC where English is not commonly spoken. One subordi- nate company advises the government of a province; a second

company, with five platoons, is deployed in counties and towns.
a. Group headquarters functions might be divided into three categories.
(1)
It would need for internal support a Mess Detachment (CA) for headquarters personnel, an Automotive Maintenance Detachment (DB) to service all group vehicles, and a Food Service Team (CA) to draw and distribute rations to all group units.

(2)
    Although most CA personnel will have or will develop some ability to communicate in local languages, they will always require support where exact meanings, technical matters, or quantity become factors.. Language Team FD provides translating as we'll as interpreting capa- bility.

(3)
    Group headquarters will also require a wire communi- cations system using two Switchboard Operation Detach- ments (GE).

(4)
    Sizes of the several functional teams would vary. A large Civil-Information Team (WC) is provided because activity in several media (press, radio, motion picture, drama, music, circus, and other areas of entertainment) may be expected and will require both operational con- cern and guidance to subordinate echelons. A small Civilian Supply Team (BA) would be adequate if the zone were nearly self-sufficient. This headquarters would need a large Economics Team (GC) for planning activi- ties and synthesizing data from the more specialized sec- tions of lower echelons. A large Labor Team (RC) is provided because this function is centralized. Each

AGO 6147B

292     
major headquarters needs a Legal Team although a small one (PA) is usually adequate if CA Courts are not active. A medium sized Public Health Team (NB) can provide staff coordination for company and platoon agencies. A large Public Safety Team (MC) is needed to provide both technical and staff guidance.
Headquarters t h CA Group Attachments : Name of Team Symbol Number
1 (TOE 29-500) Mess Detachment CA 1 (TOE 29-500) Switchboard Operation GE 2
(TOE 11-500) Food Service CA 1 Language FD 1 Civil Information WC 1 Civilian Supply BA 1 Economics GC 1 Labor RC 1 Legal PA 1 Public Health NB 1 Public Safety MC 1 Automotive Maintenance DB
b. The company advising the provincial government would also have four categories of units.
(1)
    It would need a Mess Detachment (CA) for its own members.

(2)
    It would need a large Language Team (FC) to assure prompt, effective contacts with advised officials.

(3)
    Functional teams would have to cover the spectrum of the government being advised. The several teams could be small, however, as a single counterpart to each minister should be enough. Exceptions would be Civil Information (Propaganda) and Economics (Planning).

(4)
    Company headquarters will also require a wire com­munications system using one Switchboard Operation Detachment (GE).

Headquarters th CA Company Attachments : Name of Team Symbol Number
Mess Detachment CA 1 (TOE 29-500)
AGO 6147B
 
Name of Team      Symbol Number
Switchboard Operation
(TOE 11-500) Language Arts, Monuments and
Archives Civil Information Economics Legal Labor Price Control and
Rationing Property Control Public Communications Public Education Public Finance Public Health Public Safety Public Transportation Public Welfare Religious Affairs
c. The company and five platoons deployed through the zone would have different requirements due to their dispersion and amount and variety of direct contacts with the population.
(1)
Company headquarters would need a Mess Detachment (CA); the five platoons would either be satellited on some larger units or set up a mess with indigenous cooks.

(2)
    Company headquarters will also require a wire communi- cations system using one Switchboard Operation De­tachment (GE) .

(3)
    Company headquarters and each platoon would need a small Language Team (FA).

(4)
    Functional teams would depend on the political, eco­nomic, and sociological situation in towns and counties of deployment. Some fields of work can sometimes be handled more effectively with some degree of centraliza- tion. Here only three Civil Information Teams (WB), one Displaced Persons Team (VB), one Public Educa- tion Team (QB), and one Public Works and Utilities Team (SA) are shown. Other activities may require a team at company headquarters and with each platoon, such as Commerce and Industry (HA), Food and Agriculture (IA), Public Health (NA), and Public Safety (MA).

AGO 6147B
294     
Headquarters th CA Company  
Attachments :  
CA Platoon  
CA Platoon  
CA Platoon  
CA Platoon  
CA Platoon  
Name of Team  Symbol Number  
Switchboard Operation  GE  1  
(TOE 11-500)  
Mess Detachment  
(TOE 29-500)  CA  1  
Food Service  CA  1  
Language  FA  6  
Civil Information  WB  3  
Commerce and Industry  HA  6  
Displaced Persons  VB  1  
Food and Agriculture  IA  6  
Public Education  &B  1  
Public Health  NA  6  
Public Safety  MA  6  
Public Works and  SA  1.  
Utilities  <-­

3. A Civil Affairs Company employed as part of a large task force that may sustain operations for several months in an area where English is not commonly spoken. The company will have two CA platoons and a wide variety of functional teams. It will need to be prepared to disperse the platoons and teams if the situation
so requires. The company headquarters will maintain a mess and a small motor pool using Mess Detachment (CA) and Automotive Maintenance Detachment (DB), respectively, and will draw and distribute rations to all personnel with a Food Service Team (CA). One large Language Team (FD) and two small Language Teams (FA) will give both translating and interpreting capability to the company and the platoons. Company headquarters will also require a wire communications system using one Switch­board Operation Detachment (GE). Choice between two or three small teams and one large one in the same specialty is dependent on local circumstances and probable methods of operation. For this organization, two large and four medium functional teams were chosen on the presumption that they could be used without fragmenting them. If complex problems with information media are anticipated a large Civil Information Team (WC) will be needed. Medium sized teams for Commerce and Industry (HB),
AGO 6147B 295
Labor (RB), Public Health (NB), and Public Safety (MB) will give weight in the more critical fields. Small teams in Civilian Supply (BA) , Displaced Persons (VA), Food and Agriculture (IA), Legal (PA), Public Communications (TA), and Public Transportation (UA) will give breadth of capability.
Headquarters t  h CA Company  
Attachments :  
th CA Platoon  
th CA Platoon  
Name of Team  Symbol  Number  
Mess Detachment (TOE 29-500)  CA  
Automotive Maintenance  DB  
(TOE 29-500)  
Switchboard Operation  
(TOE 11-500)  
Food Service  
Language  

Civil Information Civilian Supply Commerce and Industry Displaced Persons Food and Agriculture Labor Legal Public Communications Public Health Public Safety Public Transportation
4. A Civil Affairs Platoon employed as part of a small task force on a short time emergency mission in an area where English is spoken. The situation indicates that refugees will be encountered in considerable numbers, that food may be inadequately dis­
tributed, that repair of public works will solve the production and distribution of food, that labor may be required, that health and public safety will be critical if prompt action is not taken. Finally, local religious practices differ from those known to most members of the task force and extraordinary care will be necessary to avoid offending the local population. Small teams will be taken to conserve space and keep strength to lowest possible figure. Platoon commander and executive officer and team personnel
296 AGO 6147B
may be required to work in functions other than which they are presently assigned. Headquarters t h CA Platoon Name of Team      Symbol Number
Displaced Persons VA 1 Food and Agriculture IA 1 Labor RA 1 Legal PA 1 Public Health NA 1 Public Safety MA 1 Public Works & Utilities SA 1 Religious Affairs YA 1
5. For contingencies in which a small versatile detachment is desired, one of the following may serve. Examples of use include a detachment to accompany a very small task force where trans-
portation facilities limit number of persons and amount of equip- ment, a Civil Defense Team, a Mobile Training Team for Instruc- tion, a Mobile Training Team for Civic Action, or a CA Survey Detachment. Officers assigned MOS's other than 8104 will be selected on the basis of specialist requirements for specific missions. Officers assigned MOS's 8104 will be responsible for coordination of their detachments.
CIVIL AFFAIRS DETACHMENT "A" CA DET "B"
 MOS Number and Grade Number and Grade
 
1 colonel 1 It col
 2 majors      1 captain
1 It col      1 major –    lmajor 2 captains 2 captains
AGO 6147B
 

CIVIL AFFAIRS DETACHMENT "C" CA DET "D"
 

MOS – Number and Grade  Number and Grade  
8104  1It col  1 major 1 captain  

AGO 6147B
 

Paragraph Page
Acquisition. Utilization of
Captured Enemy Supplies ………………………….. 171
 Administrative Control (See Control.)
 Advice ………………………………………….. 4d. 7f. 11. 12. 77
 Advisory Council (See Co~ilmunity Councils .)
 Agreements ………………………… 2. 8. 16. 58. 72. 74. 77.
 
78.122, 128. App XXIII
 Airborne. Amphibious. Armored
 
Operations ……………………………………………….. 108
 
Ambassador ……………………………………. 4. 66. 74. 76
 
Apyrehelision of Violators …………………….. 121c (4)
 
Arbitration ……………………………………………… 12171 (8)
 
Area Authority …………………. 11-15. 20. 27. 28. 92. 95
 
Area Damage Control ……………………………….. 106. 107
 
Area Support ………………………………….. 27. 28. 92. 95
 
Armed Forces Disciplinary Control
 

Boards …………………………………………………… 648 (7)
 
Arts. Monuments. and Archives ……………….. 14c. 142
 
Assistant Chief of Staff. G1 ………… 56. 167. 169. 170
 
Assistant Chief of Staff. G2 …………………. 56. 87. 100.
 

104. 116. 136. 137. 139. 145. 146
 Assistant Chief of Staff. G3 …………………. 24. 56. 59.
 
104. 106. 116. 137
 Assistant Chief of Staff. G4 …………………. 56. 59. 104.
 
106. 107. 137. 162. 167. 169. 173
 
Assistant Chief of Staff. 65 …………………… 16. 22. 24. &56. 59. 64. 66. 92. 96. 1CU. 106.107.
116. 136. 137. 139. 162. 164. 167.
170. 173. 177
 
Athletics …………………………………………………… 64b (3)
 
Banks ……………………………………………………… llf.12a
 
Bi-National Associatioils ………………… ……….. Mb (9)
 
Boards ……………………………………………………………. 124
 

Casualties. Civilian ……………… lld. 107. 176. App VI
 Centralization ……………………………………………. 15f. 28
 Civic Action :
 
Criteria …………………………………………………….. 81
 
Definition ……………………………………………….. 71b
 
General …………………………………………………….. 79
 
Operations ……………………………………………. 82. 110
 

Other Units
…….

………………………..
 

…………..
 75
 

Procedures ……………………………… ……………….. 84
 Projects ………………….. ………………………………. 80
 Teams 83
 
Civil Affairs :
 Annex . App 111, IV
 Authority . 2b, 15, 16, 20
 Checklist …………………. App V, VII, VIII, XXII
 
AGO 6147B
Paragraph
Commands (See Organization.)
 
Concept …………………………………………………. 6d
 
Definition ……………………… ………………… 2a
 
Environmental Factors …………………. ………… 5
 
Functions (See Functions.)
 
Objectives …………………………………………………. 3
 
Officer (See Asst Chief of Staff. G5.)
 
Operations (See Operations.)
 
Organization (Ses Organization.)
 
Phasing ……………………………………………………. 9
 
Principles …………………………………………………. 4
 
Representative Activities ………………. …….. 7
 
Responsibilities ………………………………….. 92
 
Scope …………………………………… 6, 7, 91, 92, 93
 
Support ………………………… 7e, 91, 92, 95, 109, 160
 

Civil Affairs Tribunals :
 
Enforcement ………………………………………… 133
 
General ……………………………………………… llb. 122
 
Jurisdiction ……………………………………… 125
 
Procedures …………………. ……………………… 126
 
Purpose and Authority …………………………. 123
 
Types ……………………………………………………. 124
 

Civil Censorship …………………………………. 100, 139
 
Civil Defense ………………………………. llc, 69, 106, 107
 
Civil Emergency ……………. 2d, 3d . 11, 12f, 68 . 69, 107
 
Civil Government …………………………. … lla, 80, 83, 85
 
Civil Information ……………… 14a. 83. 85.98g(l). 110
 
Civil Security …………………………………………. 134. 138
 
Civilian Agencies ……………… 3. 7. 9. 11. 16. 17. 64.66.
 

69. 76. 80. 83. 84.119. 136
 
Civilian Internee …………………………………….. 104. 105
 
Civilian Officials …………………. 3. 4. 9. 16. 70. 83b. 98.
 
APP V
 
Civilian Supply :
 
Accounting ……………………………… …….. 175
 
Army Support …………………………………… 153
 
Automatic Supply for Civilian
 
Requirements ………………………………………. 162
 
Bases for Estimates …………………………….. 157
 
Estimate of Requirements ………………….lle, 156
 
Function ……………………………………………….. 149
 
General …………………… 12f, <%, 98g(2), 101, 107c
 
Aiorement ……………………………………………….. 177
 

Offlcer ……………………………………………………. 151
 
Planning ……………………………………….. 110, 155
 
Policies …………………………………. ………….. 150, 152
 

Priorities ……………………………………………….. 158
 
Procurement (See Procurenlent.)
 
Quantities ……………………………………………….. 158
 
Review of Requirements ………………………….. 159
 
Storage ……………………………………………….. 172
 

AGO 6147B
 

Paragraph
Cold Whr Activities ………………………….. 2k. 67. 71-90
 

Collection Plan …………………………………. 146.App IX
 

Combined Operations …………………. 4f. 19. 24. 28. 92.
 

App XV. XVIII
 Command Posts ……………………………………………… 98
 Command Support ………………………… .. 26.94.9%. 96
 Commanders Responsibility ………… 4b. 6c. 18. 36. 92.
 
102c. 103b
 Commerce and Industry …………………. 12b. 80. 83.85
 Commissions ……………………………………………… 124
 Communications. Unit 100
 Community Councils ……………… 7c.a.65. 83c(6). 84
 Compliance through Publicity ……………….. 121b(ll)
 Conferences ……………………………………………… 121b (7)
 Conciliation ………………………….. … ………….. 121b (8)
 Control :
 By Function ……………………………………… 11-14
 Coercive 121c
 
Degree. Duration, and Level …………………… 120
 

Enforcement ……………………………………….. 133
 

General …………………………………. ……………….. 79
 

Noncoercive ………………………………………….. 121b
 

Program …………………………………………………. 110
 

Techniques ……………………………………………… 121
 

Transfer ………………………………………………..9, 16d
 

Tribunals ……………………………………………. 122-126
 
Coordination ………………………………………….. 7d, 9, 22
 
Counterguerrilla …………………………………… 86, 110
 
Country Teams …………………………………. 16, 76, 83,84
 
Courts (See Civil Affairs Tribunals.)
 
Curfew ……………………………… 98, 102, 110, App XIV
 

Decentralization ………………………………….. 15f. 28
 
Declaration of Legal Obligation ……………….. 121b(2)
 
Declaration of Policy ………………………………. 121b (1)
 

Definitions :
 
Civic Action ………………………………. ……………  71b
 
Civil Affairs …………………………………………….  2a
 
Civil Affairs Agreement ………………. ………….  2e
 
Civil Affairs Operations …………………………  2b
 
Civil Defense …………………………………………  2c
 
Civil Emergency  ……………………………….  2d
 

Cold War ……………………………………………. 2k. 71a
 
Counterintelligence ………………………………… 1348
 
Displaced Persons ……………………………….. 102b
 
Economic Warfare ………………………….. 89a (2)
 
Evacuee …………………………………………………… 102b
 
Gazette …………………………………………………… 127c
 
General War ……………………………………….. 2h
 
Intelligence …………………………………………… 1340
 
Irregular …………………. ………………………… 71c, 86
 
Limited War ………………………………. …………… 2i
 
Military Government ………………………….. …. 2g
 

AGO 61478
 
Page
Paragraph
Ordinance ……………………………………………….. 127b
 
Political Warfare ……………………………… 89a (1)
 
Proclamation ………………………………….. 127a
 
Refugee …………..:……………………………… 102b
 
Situations Short of IVar 2j
 
Status of Forces …………………. …………….. 2f
 

Delegation of Authority …………………………….. 20, 92
 
Demobilization of Guerrillas ……………………….. 109
 
Demonstrations ……………………………………… 121b (5)
 
Depth of Area ………………………………………….. 58, 92
 
Destruction of Property ………………… …….. 103e(4)
 
Directives ……………………….. …………………….. 131
 
Disaster Relief (See Civil Emergency.)
 
Displaced Persons and Refugees :
 

Sssembly Areas and Camps 105
 
Collecting Points ………………………… 103, 104, 110
 
Evacuation ………………………………………… 103
 
General …………………………………… 14b. 989. 102
 
Moveinent Control …………………………………. 102
 

Distribution of Supplies :
 
Accounting …………………………………………….. 175
 
Channels ……………………………………………….. 173
 
Issue During Combat ……………………………… 174
 
Rlovement …………………………………………. 177
 

Econon~ic Warfare ………………………………………… 89
 
Econonlics …………………………………………………. 12a, 83
 
Economy of Forces ………………………. 417 13d, App XV

.

Educational Ca~npaigns (See lJrol)agnnda.) 121b (6)
 Enemy Supplies ……………-……………….. ….171
 Engineer ……………………….. ……………………… 137. 169
 Engineers. Corps ………………………. 10. 13. 80 . 83. 112.
 
166. 169. 174
 Environlnental Factors ………… 5-7. 13. 21. 44. 47. 58.
 
61. 63. Mc. 136. 137
 
Escape and Evasion ………………………………………… 87
 
Establishnlent of Standards …………………….. 121'6 (3)
 
Estimates of the Situation ……………… 57. 97. App I1
 
Evacuation …………………….. 14b. 10.26. 103 . 107b (10)
 
Evacuees ……………………………………………….. 14'6. 102b
 
Executive Order ……………………………………. 4. 16. 74
 

Food and Agriculture ……………….. 120. 80. 83. 85. 110
 Financial Institutions ……………………………. …. llf, 12a
 Functions :
 
Checklist ……………………………………………. App V
 
Civic Action …………………………………………. 83c
 
Econo~nic……………………………………………… 12, 83
 

Civilian Supply ………………………. 12f, 85, 98
 
Coluluerce and Industry ……………….. 12b, 85
 
Economics …………………………………. 12a, 83
 
Food and Agriculture ………. 12n, 83, R5,110
 
Price Control and Rationing ………. 12d, 110
 
Property Control ……………………………. 12e
 

AGO 6147B
Paragraph
General ……………………………. 10. 93. App 11-VII
 

Governmental ………………………………………. 11. 83
 
Civil Government ………………………… lla, 85
 
Labor ……………………………….. llh, 85, 98, 105
 
Legal ………………………………….. llb, 85, 110
 
Public Education ……………… llg, 83, 85, 110
 
Public Finance …………………….. llf, 121c (5)
 
Public Health ……………. Ild, 83, 85, 98, 105,
 

107, 110
 Public Safety …….. llc, 85, 98, 105, 107, 110
 
Public Welfare ………….. lle. 85. 98. 106. 107
 Public Facilities …………………………………… 13. 83
 Public Communications ……………….. 13b. 85.
 107c. 110
 Public Transportation …………………. 13c. 85.
 107c. 110
 Public Worlrs and Utilities …….. 13a. 83. 85.
 
98. 110
 
Special Functions …………………………………. 14. 83
 Arts. Monuments and Archives …… 14c. 142
 Civil Information ………… 14a. 83. 85. 98. 110
 Displaced Persons and
 
Refugees ……………………………. 14b. 98. 105
 
Religious Affairs ……………………………… 14d
 

Gazette ………………………………………………………….. 132
 
Geneva Conventions …………………. 8. 11. 12. 102. 124.
 

126. 128. App XXIII
 Geographical Areas …………………………………. . 92f, 95
 Governments in Exile ………………………………….. 90
 Guerrilla Operations ……………. llc. 85. 109. 135. 144
 
Handbooks ………………………………………………………. 61
 
Humanity ………………………………………………………. 4i. 8
 

Identification ………………………….. llc. 103d. 110. 138.
 

144. App VII. VIII
 Information Activities …………………… 14a. 64b (1). 85
 Initial Action …………………… 96-98. App VII. X. XI
 Inspection …………………….. 121c(3). Apg VIII. SXII
 
Intelligence : Area Studies and Surveys ……………… 87. 89. 97.
98g. 136. 137
 
CA Support …………………………………. 109. 140-144
 
Civil Censorship ……………………………….. 100. 139
 
Civil Security ………………….. ……………. 134, 138
 
Collection …………………….:………………….. 141
 
Collection Plan ………………………….. 146, App IX
 
Coordination ……………………………………………. 10
 
Counterintelligence ………………………….. llc. 144
 
Custody of Archives ……………………………….. 142
 
Detachments …………………. ……………………… 102
 

AGO 6147B
Paragraph
Essential Elements of
Inforluation ……………………………. .. 136. App IX
 
Estimate …………………………………………………. 148
 
General …………………………………………………. 134
 
Officer …………………………………………………… 145
 
Planning ………………………………………………. 136
 
Procurenlent and Recruitn~ent ……………….. 143
 
Purpose …………………………………………………… 135
 
Reports …………………………………………………… 147
 
Support …………………………………………………… 115
 
Investigation …………………………………… 121c(2). 144
 
International Law …………………… 3. 8. 101a. 105. 110.
 

123. 120. App XXIII
 
International Organization ………… 7. 16. 24. Mb(9).
 

66.72. 119. 128.136. App SV-XS
Joint Conlmissions and Colnmittees ………….. lla. 66
 
Judge Advocate ……………………………………………….. 36
 

Labor …………………….. Ilk. 85. 989. 105. 107c(9). 170
 

Law of War (See International Law.)
 
Legal …………………………………………………. 5. 11.85. 110
 
Liaison ………………………………………………………. 7a. 92a
 
Licensing …………………………………………………… 121c(1)
 
Limited Actions ……………………………………………. 2. 78
 

RlAAGs and Missions ……………. 72. 76. 77. 79. 83. 84
 
Marches …………………………………………………….. 99. 101
 
Martial Law …………………………………………………… 70
 
Mediation …………………………………………………. 121b (8)
 
Medical Service ………………………. 10. lld. 36 . 80. 83.
 

103. 113. 176
 Military Assistance (See 3fAAGs and
 
3Iissions.) …………………………………………………. 72. 75
 
Military Authority …………………………………. 49. 128
 
AIilitary-Civil Relationships ……………… 6. 63. 6-1. 74.
 

77. 63. 110
 Military Governlnent …………………………………… 29
 Military Police ………………………. 10, 36, 69. 80, 102d .
 
104, 114, 115
 Mobile Training Team ………………………….. 72c, 83, 84
 Money ………………………………………………………… llf
 RIutual Security (See MAAGs and
 
Missions.) ………………………………………… 72. 78. 120
 
Xational Policy ……………………………….. 3-5. 9. 16. 78
 
Xationalisn~…………………………………………………… 73
 
Negotiation ………………………………………….. 7b. lla. 16
 
Nuclear Attack ……………………………. 69. 103. 106. 107
 

Objectives. CA ……………… 3. 4c. 9. 1.5. 50. 58. 74b. 79 .
 

107. lo!)), 110. 129. 150. 173
 
AGO 6147B
Paragraph  Page  
Open Houses-Exhibits …………………. 64b (2). 83c(11)  75. 96
 
Operations :
 
Airborne. Amphibious. Armor …………………. 108
 
Against Irregular Forces …………………….. 86. 110
 
Aspects. CA ……………………………………………… 6d
 
CA Support ………………………………………. 91, 109
 
Civil Defense ………………………………………….. 107
 
Combined ……………… 4f, 19, 92, App XV, XVIII
 
Continuity ……………………………………………….. 4e
 
Definition ……………………………………………….. 2b
 
Guerrilla ……………………………… llc, 109, 135, 144
 
Initial Action …………………… 98, App VII, X, XI
 
Organization ……………………………………………. 15
 
Platoon …………………………………………………….. 96
 
Responsibilities ………………… ………………. 92
 
Orders ………….. llc. 59. 96. 99. 131. App 111. IV. XV
 
Ordinances ……………… 130. 132. App XII. SIII. XVI
 
Organization :
 
Area Support Units …………………… 27. 28. 92. 95
 
Basic Concepts ………………………………………….. 15
 
CA Area Hq (Type A) ……………… 26. 28. 32. 35
 
CA Area Hq (Type B) ……………… 26. 28. 33. 35
 
CA Command …………………… 26. 28. 32..33. 35 . 92
 
CA Company ……………………………… 26. 28. 30. 35
 
CA Group …………………………………. 26. 28. 29. 35
 
CA in Cold War …………………………………… 74
 
CA Platoon ………………………….. 26. 28. 31. 35. 96
 
CA Schools ……………………………………………….. 34
 
Combined Comrnand ………………………. 19. 24c. 92
 
Command Support Units ………….. 26. 94. 95c. 96
 
Co~npositions of Units ……………………………… 25
 
Elements …………………………………………………… 23
 
Flexibility ……………………………………………….. 93
 
Functional Teams ………………………………….. 36
 
General ……………………………… 6d (3) , App XXII
 
Language Teams ………………………………….. 35
 
Mobile Training Teams ……………………………. 8371
 
Paran~ilitary ………………………………………. 80j
 
Personnel (See Personnel.)
 
Requirements for Units ……………………………. 21
 
Service Teams ………………………………………….. 35
 
Staff Sections …………………………………. 24, 54-56
 
TdCAC …………………………………. 22, 28, 32, 95
 
Type ……………………………………………… App XXIV
 
Orientation Programs …………………….. ………… 64b (4)
 
Passes ……………………………………. … llc, 989, App XIV
 
Personnel :
 
Assignment ……………………………….. ……………… 38
 
Civilian Specialists …………………………………… 39
 
Enlisted ……………………………………………….. 38, 49
 
Qualifications ………………………………………… 37
 
AGO 6143%  

Paragraph
Planning ……………………………… 1.5. 58. 59. 74. 84c. 96.
 

102d. 107. 136. App XXII
 
Policy ………………………………………………………….. 4a. 5
 
Political Advisor ………………………………………….. 17
 
Political Warfare ……:…………………………………….. 89
 
Population Control ……………………………… 98, 101-103
 
Price Control and Rationing …………………. ..12d, 110
 
Prisoners of War ………………………………………. 105
 
Prisons ………………………………………………………….. llc
 
Proclamations ………… llc, 98a, 129, App X, XI, XVI
 

Procurement :
 
Automatic Supply …………………………………… 162
 
Basic Considerations ……………………………… 166
 
Eneiny Supplies …………………………………… 171
 
General ……………………………………………… 143, 161
 
Labor ……………………………………………………… 170
 
Local Procedure ……………………………………. 167
 
Local Procurelllent Alethods …………………… 168
 
Local Procureitlent Objectives …………………. 165
 
Real Estate ……………………………………………… 169
 
Regulated Items ……………………………………. 163
 
Requisitions ……………………………………………… 164
 
Storage ………………………………………………… 172
 

Propaganda ……………….. l4a. 80. 8.7. 98. 103. 110. 116
 

Property Control …….. 12c. 36. 149 . 1.71. hpl) VI. VII
 

IJrovost Marshal ……………………………………. RGd. 137
 Psychological Warfare …….. l4n. 80. 83 . !)8g. 110. 116
 Public Cbmmunications …… 137). 36. 80. 85. 100. 10ic.
 
110
 Public Education …………………… 11g. 36. 80. 83. 85. 110
 Public Finance …………………………………… llf. 12lc (5)
 Public Health …. llr7. 36. 80. 83. 85. 98g. 103.107~. 110
 
Public Records ……………………………………………….. 14c
 
Public Safety ……………. llc. 36. 85. 9811. 103. 107. 110
 

Public Transportation ………. 13c. 36. 80. 85. 107c. 110
 
Public Welfare ………….. lle. 3G. 80. 86. 98g. 105. 107c
 

Public Works and Utilities …….. 13a. 36. 83. 85. 9811.
 107e. 110
 Purchase of Consent ……………………………….. .. 12121 (9)
 
Quartermaster ……………………………………………. 10. 166
 

Rear Area Security …………………………………… llc. 110
 
Reconnaissance ………………………………………… 92. 97-99
 
Reconstruction ……………….. 7f. 12. 13. 80. 91. 106. 107.
 

150. 160. 169. 174. App V
 Refugees (See Displaced Persons.)
 
AGO 6147B
Paragraph Page
Regulatory Matter :
 
Enforcement ……………………………………………. 133
 
Gazettes …………………………………………………… 132
 
General …………………………………………………… 128
 
Orders. Instructions. and Directives ………… 131
 
Ordinances ………………………. 130. App XII. XI11
 
Proclamations ………………………….. 129. App X. XI
 

Religious Affairs ………………………………….. 14d. 103d
 
Reports :
 
Final Civic Action ……………………………….. &id (2)
 
Intelligence ……………………………………………… 147
 
Interim Civic Action ………………………….. 84d (1)
 
Periodic …………………………………… 62. App XXI
 
Submission …………………………………. 121b (10)
 
Retrograde Movement ……………………………… 101. 103e
 

Schools ……………………………………………………………. 11g
 
Screening ……………. llc. 102f. 103d. 110. 138. 143. 144
 

Security ……………….. llc. 99h. 100. 102. 103. 110. 138
 

Setting Examples ………………………………………. 121b (4)
 
Signal Corps ………………………………10. 13. 80. 100. 117
 
SOLOG ……………………………… 24c. 128. App ST-XIS
 
Staff Coordination ………………………………………….. 56
 
Staff Supervision ……………………………………………. 5.5
 
STANAG ……………….. 24r. 128. -11)~

STI-SI'III.
XS
 State. Department ……………….. 4a. 9c. 17. 83. 84e. 150
 Standing Operating Procedure (SOP) …. 60. Agp VI
 Subversion ……………………………………………………. 85. 88
 Summary Action ……………………………………… 121c(6)
 Surgeon ……………………………………………….. 64b (7). 137
 Surrey (See Intelligence and Reconnaissance.)
 
TACAC …….. 22, 28,'32. 95. 146 . 150. 151, App XXITT
 

TALOG …………………………………. 22. 28. 160 . 151. 173
 Taxation …………………………………………. llf. 121c (5)
 Tech Service Support of C.1 ………… 56. 68. 69. 75. 80.
 111-113. 117. 118. 153. 174. 176
 
Theater Commander ………… 16. 22. 124. 128. 129. 159
 

Theater Plan …………………………………………………… 58
 

Training :
 
Area …………………………………………………… 34. 47
 
Area Damage Control ……………………………… 107
 
Categories …………………………………………….. 43
 
Center ………………………………………………………. 34
 
Conduct of …………………………………. .il.App SVII
 
Continental United States ………………………… 41
 
Enlisted …………………………………………………. 49
 
Functional ……………………………………………….. 46
 
General …………………………………………………. 40, 44
 

AGO 6147B
Paragraph
Language ………………………………………… 34, 48
 
Mobile Teams …………………………………… 72, 83, 84
 
Objectires ……………………………………………….. 50
 
Policies ……………………………….. 4.5. .I1~1)XIS,SS
 

Program …………………………………………………..  40  
Standards …………………………………………………  52  
Superrisioil ………………………………………….  53  
Theater of Operations ………………………………  42  

Transportation Carps …………………….. 56, 80, 118, 177 Treaties (See Agreements.)
Gnconventional 1\23rfare ……………….. 83.90 . 109. 110
 
USIS …………………………………-.-.-.Qb (8).83
 

Weapons ……………………………… llc. 98a. 110. 143. 144
 

AGO GI4TB
[AG 353 (1 Mar62)l BYORDEROF THE SECRETARYOF THE ARMY:
G. H. DECKER,
General, United States Army, Official : Chief of Staff.
J. C. LAMBERT
Major General, United States Army,
The Adjutant General.
Distribution :
Active Army:
DCSPER (10) ACSI (10) DCSOPS (10) DCSLOG (10) ACSRC (10) CRD (5) COA (2) CINFO (5) CofF (5) TIG (1) TJAG (5) TPRlG (5) CCA (5) TSG (5) CofOrd (1) CofEngrs (5) TQMG (5) CofT (5) CsigO (5) CCmlO (1) USCONARC (10) ARADCOM (10) LOGCOMD (5) USARPAC (50) USARAL (1G) USARCARIB (10) USAREUR (50) Armies (CONUS) (2.5) Seventh USA (40) EUSA (35) Corps (CONES) (3) except
XVIII Corps (15) I Corps (15) V Corps (15) VII Corps (15) IX Corps (15) Div (10)
NG: State AG (3) ; units-same copy to each unit.
Bde (5)
Regt/G~/Bg (5)
Bn/Sqds (5)
Co/Btry/Trp (1)
PMS Sr Div Units (2)
PMS Jr Div Units (1)
USASA Sch (5)
USACAS (6000)
TAGSUSA (75)
ARADSCH (5)
USAARMS (10)
USAAMS (700)
USAAVNS (2)
USACHS (200)
USACMLCSCH (25)
USACGSC (2060)
USAES (6)
FSUSA (2)
USAIS (500)
USARIS (30)
USAINTS (218)
TJAGSA (100)
MFSS (25)
USA Ord Sch (25)
PMGS (150)
USAQMS (25)
USASCS (5)
USASWS (lo)

USATSCH (10)
 
U~'AWC (16)
 
AFSC (10)
 
USA SW Cen (10)
 

MAAG (5)Mil Msn (5) Units org under fol TOE : 17-22 (5)
as Active Army except allowance is one
USAR: Same as Active Army except allowance is one copy to each unit. For explanation of abbreviations used see AR 320-50.
AGO 6147B 309
Cover page – back

THEATER ARMY
INFORMATION & GUIDANCE
~
~ EXCHANGE INFORMATION ….
SUlMITS REQUJ:REMENTS ~HQ TACAC
~DETERMINES AVAILABILITY-Y
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JJ /REQUESTS DELIVERY CIVILIAN SUPPLY
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TALOG CONTROL ! AGENCY OR USINGI UNIT
Figure 9
Figure 9. Support ot military effort trom local resources 1citllin aOlJIMZ.
 AGO 6147B 183
 
 

Lectures on GC-1949

Lectures on GC-1949

DEPARTMENT OF THE ARMY PAMPHLET NO. 20-151

LECTURES ON
THE GENEVA CONVENTIONS
OF 12 AUGUST 1949

DEPARTMENT OF THE ARMY JULY 1951
AGO 258B-J"uly 950966°-l'il-.1
PROPERlY OF U.S. ARMY _
THE JUDGE ADVOCATE GENERAL'S SCHOOL
<.
LIBRARY
DEPARTMENT OF THE ARMY· WASHINGTON 25, D. C., ~6 JuZy 1951 Department of the Army Pamphlet 20-151 is published for the in­formation and guidance of all concerned. [AG 092.3 (13 Jul 51)]
By ORDER OF THE SECRETARY OF THE ARMY:
OFFICIAL: J. LAWTON COLLINS WM. E. BERGIN Ohief 01 Staff, United Sta.~~8_~'!"lnY Major GeneraZ, USA Acting The Adjutant General
DISTRmUTION:
GSUSA (1) ; Tech Sve (1) ; AFF (2) ; OS Maj Comd (5); Sec
(2) ; MDW (2) ; A (5); CHQ (5) ; D (2) exe Tng Div (25) ; B (5) ; R (1); Bn (1) exe 19 (5); C (1) exe 19 (5) ; Seh (5) exe 19 (50); Dep (1); PE (1); OSD (1); Dist (1); RTC (10); Special distribution.
For explanation of distribution formula, see SR 310-90-L
AGO 258B
LECTURES ON THE GENEVA
CONVENTIONS OF 1949

Section I. GENERAL
1.
A conference was convened in Geneva in 1949 for the purpose of revising the Geneva Conventions of 1929 and the Hague Convention of 1907 relating to the protection of war victims. The conference established the texts of four Conventions which are now undergoing the process of ratification by the countries involved. The United States will not become legally bound by the Conventions until ratification by the Senate of the United States in the manner prescribed by the Con­stitution.

2.
The four Conventions are reproduced in Department of the Army Pamphlet 20-150, Geneva Conventions of 12 August 1949 for the Protection of War Victims, 11 October 1950.

3.
The following three lectures are designed to acquaint you with the principal provisions of the four Geneva Conventions of 1949.

Section n. LECTURE NO. 1
THE     GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR
Introduction
Most of you have read or heard of the captured soldiers who, with their hands tied behind their backs and without means of defense, were ruthlessly put to death by their captors.
It was for the purpose of eliminating such cruel and inhuman treatment of victims of warfare that agreements, conventions, and treaties among civilized nations of the world have been proposed and ratified.
The most recent convention for the consideration of such matters
was that convened by the Swiss Federal Council for the purpose of
revising the Geneva Conventions of 1929 and the Xth Hague Conven­
tion and to establish a convention for the protection of civilian per­
sons in time of war. Deliberation and discussion were carried on for
4 months by representatives of the major powers of the world. This
conference established the texts of the following conventions:
I.     Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
AGO 2G8B
II.     Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at . Sea..
III.     Geneva Convention Relative to the Treatment of Prisoners of War.
IV.     Geneva Convention Relative to the Protection of Civilian Per­sons in Time of 'Var.
These Conventions, known as the Geneva Conventions of 1949 for the protection of war victims, were signed by our representatives together with sixty other powers, known as the High Contracting Parties, and are now in process of ratification by the signatory nations.
Because of its primary importance to the armed forces, today's discussion, the first, will cover the Convention Relative to the Treat­ment of Prisoners of War. It will review the general provisions of the Convention and give you the basic information necessary to know the rights and privileges which the member nations are bound to observe in their treatment of prisoners of war.

General Provisions
We, the members of the Armed Forces, must understand these Con­ventions for two main reasons; first, through the misfortune of war, some of us may become prisoners of war and would need to know our rights; second, we may capture prisoners of war and we must know how to treat these prisoners in order to uphold the dignity and honor of our Republic, for Article 1 of all the Conventions states that an signers will respect this agreement in all circumstances; as captorsr we become direct agents of our Nation.
This agreement covers all armed conflict between Contracting Pal' ties and all c.ases of partial or total occupation of the territory of a Party to the Convention. 'Vhen one Party to a conflict is not a memo ber, we still observe the Convention if the nonmember accepts and applies the provisions of the Convention. Under all circumstances, our Nation agrees to treat prisoners of war humanely without distinc­tion founded on race, color, belief, creed, or other cause. We further agree that we will not murder, mutilate, torture, or degrade prisoners of war nor will we pass sentence and carry out executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indis­pensable by civilized peoples.
Article 4 of this Convention defines prisoners of war as persons be­longing to one of the following categories who have fallen into the power of the enemy: .. ..
AGO 25811
(1)     
All members of the [lrmed forces of a party to the conflict as well as members of militias or volunt~l' corps, forming.a put< of such forces.

(2)     
Members of other militias and members of other v(')lunteer corps, including organized resistance movements belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such groups or organized resistance movements are­

(a)     
Commanded by a person responsible for his subordinates.

(b)     
That of having a fixed distinctive sign recognizable at a distance.

(c)     
That of carrying arm~ openly.

(d)     
That of conducting their operations in accordance with the laws and customs of war.

(3)     
Members of r;gultlr armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (Example-North Korean P,\V's)

(4)     
Persons who accompany the armed forces without being members thereof, such as civilian members of airaraft crews, war correspondents, supply contractors and members of labor service units provided they are authorized by the army which they accompany and ha.ve proper identification.

(5)     
Members of the Merchant Marine and crews gf civil aircraft belonging to the conflicting parties when not entitled to more favorable treatment under International L&w.

(6)     
Inhabitants of a n0n-occupied territory, who on the approach of the enemy spontaneously taka up arms to resist the invading forces, without having had time to form themselves·into regu­lar armed units, provided uhey carry arms openly and respect the laws and customs of war.

Persons belonging, or having lolelonged, to the armed forces of the occupied country who may be classed as security risks may be interned and should be treated as prisoners of war. ThesQ classifications do not affect the status of medical personnel, chaplains, and others alassed as protected personnel.
No special agreementshall adversely affeot the situation of prisoners of war, as defined by the present Convention. Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to, if such there be.
A Protecting Power is a designated neutral eountry which acts as a go-between for settling complaints and grievances between you and the enemy. The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartial­ity and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention. There will always be a Protecting Power or organization to inspect and report on the observance of the rules of these Conventions among the High Contracting Parties.

General Protection of Prisoners of War
Prisoners of war are in the hands of the enemy power but not of
the individuals or military units who have captured them. 'Ve are
obligated to observe all the rules of the Convention even in the
heat of battle should we capture or have an enemy surrender to us
or to our unit.
Prisoners of war must at all times be humanely treated. In par-­
ticular no prisoner of war may be subjected to physical mutilation
or to medical or scientific experiments, which are not justified by
the medical, dental, or hospital treatment of the prisoner cOllcerned
and conducted in his interest.
Prisoners of war must, at all times, be protected against acts of
violence, insult, and public curiosity; reprisals of any kind against
prisoners of war are prohibited. Prisoners of war are entitled in
all circumstances to respect for their persons and their honor. . 1Vomen prisoners of war will be treated with all regard due to their
sex and shall have the benefit of treatment as favorable as that granted
to men.
The Power detaining prisoners of war shall be bound to provide
free of charge for their maintenance and for the medical attention
required by their state of health.
Taking into consideration the provisions of rank and sex, and
privileges accorded due to health, age, and profession, all prisoners
of war will be treated alike by a Detaining Power without distinction
based on race, nationality, color, creed, or any other cause.

Beginning of Captivity
Upon capture every prisoner of war when questioned on the sub.
ject, musl! give only his full name, rank, date of birth, and serialnum­
ber or equivalent information; failure to comply may render him
liable to a restriction of privileges due his rank or status.
Each person will be given an identity card by the Power that he
serves to be used for identification and information on his status when
taken prisoner by the enemy. 'When being interrogated, no prisoner
of war will be coerced, abused, threatened, or exposed to unpleasant
treatment of any kind. Prisoners of war who, due to physical or
mental condition, are unable to be questioned ~ill be turned over to
AGO~
the medical service. All questioning of prisoners of war must be conducted in a language 'which they understand. .
All prisoners of war when being searched shall keep in their pos­session all effects and articles of personal use, except arms, horses, military equipment, and military documents. Articles of issue such as gas masks, metal helmets, and like articles issued for personal pro­tection will be retained by the prisoner. Clothing and mess gear will not be removed nor will the prisoner's identity document be removed.
Badges of rank and nationality, decorations, and articles of per­sonal or sentimental value will not be taken. .
When money is found on a prisoner, it will be removed only after being so ordered by an officer who will issue a proper receipt for said money. Such money, unless it be at the request of the·prisoner, con­verted to funds of the Detaining Power and credited to his account, will be kept and returned to the prisoner at the end of his captivity. Any other articles withdrawn for security reasons will likewise be receipted, recorded, and restored to the prisoner at the end of his captivity.
Prisoners of war shall be moved out of the danger zone as soon as possible after their capture to camps not in danger or combat areas. No prisoner of war will be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.
We must maintain similar conditions, in transporting prisoners of war, to the movements of troops of our own Army.
Location of Internment Camps
I Prisoners of war are subject to internment and may not go beyond certain specified limits or outside of a perimeter fence. Unless a prisoner is undergoing penal or disciplinary punishment, he will not be placed in close confinement except where necessary to safeguard health. An prisoner of war camps must be located on land in localities affording every condition of hygiene and healthfulness and prisoners of war will be assembled in camps or camp compounds according to nationality, language, and customs. No camp will be located in areas exposed to the fire of the combat zone nor will prisoners of war be sent into such areas or used as a screen for combat action. Transit or screening camps will be of similar nature to permanent camps and an prisoners therein shall have the same treatment as in other camps.

Quarters, Food, and Clothing
Prisoners of war must be quartered under conditions as favorable
as those afforded forces of the Detaining Power billeted in the same
area. All quarters shall be clean, adequate in space, free from damp-

AGO 211SB s
ness and be furnished with heat nnd light with adequate bedding and blankets. Sanitary facilities such as showers and latrines must be adequate. Men and women prisoners will be housed in separate
dormitories (Art. 25.) The basic food rations shall consider the habits and customs of the prisoners and will be sufficient to keep the prisoners in good health and to prevcllt the loss of weight or nutritional deficiencies. Sufficient drinking water will be provided and the use of tobacco will be per­mitted. Adeq"ate premises for cooking and eating of food will be provided; tne pri~oners will be permitted to work in the kitchens in preparing their own food. No collective d.isciplinary action will be administered l'pgarding food. Necessary clothing, underwear, and foot wear suitable for the cli­mate in which interned must be provided for all prisoners of war with repair and replacement when needed. Every prisoner of war camp must have an infirmary where pris­oners of war may receive adequate medical care. Medic!!.l personnel from thei.r own army wh-en available will mini:!!ter to their needs. No pr.isoner of war will be denied the right to go on sick call. All costs for treatment and for aids such as dentures and glasses will be borne by the Detaining Pow&-. Medical inspection will be held at least once a month. Members of medical personnel and chaplains when retained by the ~tainiug Pow&' are uet classed as prisoners of war, but will receive all the ben~fits of PW's. They are protected personnel and will not be prohibited from visiting prisoners in camps and hospitals, nor will they be required to do work other than religious or medical for the l)encfit of the prisoners. Such personnel are subject to the internal discipline of the camps. Prisoners of war enjoy freedom in the exercise of their religious duties, including attendance at the service of their faith on condition that they c<lmply with the disciplinary routine prescribed by the mili­tary authorities. They will be encouraged to engage in educational .intellectual, and athletic pursuits; the equipment and suitable area~ for such activities will be provided by the Detaining Power.
Discipline
Every prisoner of war camp will be commanded by a responsible commissioned officer of the regular arIUed forces of the Detaining :r:o:ver, who will see th~t all operating personnel understand the pro­VlSIOns of the Conventlon and observe its provisions. All prisoners, except officers, must salute and show all officers of the Detaining Power
AGO 21i8D
the same respect as provided by regulations of their own army. Of–' ficer prisoners must salute all officers of higher rank and the Camp Commander regardless of his rank.
Prisoners of war may wear badges of rank and nationality as well as decorations.
All camps will have a copy of the Convention posted in the prison­ers' own language in places where all may read. All notices, regu­lations, and orders for prisoners must be in a language which they understand. Every order given to an individual prisoner must also be in a language which he understands.
The use of weapons against prisoners escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances.
Officers and prisoners of equivalent status shall be treated with regard due to rank and age. Orderlies of other ranks of the same armed forces will be assigned to officer camps and will not be required to perform any other work than that of orderlies.
When prisoners of war are transferred from one camp to another, they must be advised. of their departure and of their new postal ad­dress. They shall have time to pack their luggage and be allowed to take their personal effects and parcels. No prisoner will be required to carry more than 25 kilograms in weight (approximately 55 lbs.) Community property and mail and parcels will be forwarded at no expense to the prisoners without delay.
'Vhen moving prisoners because of the combat zone drawing close to a camp, safety of the prisoners will be considered, and they will not , be moved unless in greater danger by remaining in the camp.
Labor
Prisoners of war may be required to perform labor which is not humiliating, dangerous, or unhealthy provided such labor generally is not military in character or purpose. Work in agriculture; manu­facturing and processing of raw materials, except in metallurgy, ma­chinery, or chemicals; transport and handling of stores not military in character or purpose; arts and crafts; public utility services, if such services have no military character or purpose; and domestic service is permitted and prisoners may be compelled to do such work along with camp administration, installation, a:ad maintenance. When prisoners feel that required work is contrary to the provisions of the Convention, they may complain to the Protecting Powers.
Noncommissioned officers may request work, but in no case may be compelled to do more than supervisory work.
AGO 258B 950966'-51-:
Officer prisoners may request work, but under no circumstance may be compelled to work. 'When prisoners of war are worked in labor detachments and for private contractors, the base camp commander must keep records
subject to inspection of the Protecting Powers and the International Red Cross and insure that the conditions of labor are in compliance with the Convention.
All prisoners of war will receive pay and each will have an account or record of receipts and expenditures maintained by the Detaining Power. Prisoners may not be required to perform slave labor.

Relations With the Exterior
Immediately upon capture or not more than one week after arrival
at a camp or upon transfer, each prisoner of war will be permitted to
write a card to his family and to the Central Prisoner of vVar Agency
informing them of his location, state of health, and other permitted
matters.
Prisoners of war will be allowed to receive by post or other means
parcels and packages containing food, clothing, medical supplies, and
religious, recreational and educational articles such as books, examina­
tion papers, musical instruments, and sports equipment. All such
communications and parcels are subject to censorship for security
reasons, but will in no manner be delayed or limited other than by the
Protecting Power or the International Red Cross or other similar
agencies in the interest of the prisoners themselves.

Prisoners' Relations With Authorities
(Art. 78).
Prisoners of war ::lay register complaints with the authorities re­
garding their captivity and may further complain to the Protecting
Power o~ such conditions; even though the complaints are unfounded,
they must be forwarded without delay and for such unfounded com­
plaints, there may be no punishment administered.
Prisoners of war are subject to the laws, regulations, and orders in
force in the armed forces of the Detaining Power. They may be tried
for violations of those laws, provided the punishment decreed is not
greater than that allowed for members of the armed forces of the
Detaining Power and that the trial be held in the same type court as
would be required for members of the Detaining Power's Armed Forces
with all the safeguards of the Convention, such as right of counsel, a
competent interpreter, Protecting Power's advance knowledge, ample
time for defense, and full knowledge of the charges with the right of
appeal. No prisoner may be punished more than once for the same act
AGO 2GSB
and on the same charge. Officers, noncommissioned officers, and men ' shall in no case receive more severe treatment when undergoing pun· ishment than would be received by members of the equivalent rank in the armed forces of the Detaining Power.
1Vomen prisoners of war will in no case receive a punishment more severe than that given to women of the armed forces of the Detaining Power nor will their punishment be more severe than that given to male members of the armed forces of the Detaining Power for the same offense.

Disciplinary Punishment
The maximum disciplinary punisl1ments allowed to be auministered by the camp commander or by some competent officer who has had such authority delegated to him by the camp commander cannot exceed a period of more than 30 days and may be one of a fine of not more than 50 percent of pay; discontinuance of privileges granted above the treatment provided in the Convention; extra fatigue of not more than 2 hours daily; or confinement. Extra fatigue may not be given officers. In no case shall disciplinary punishments be inhuman, brutal, or dangerous to the health of prisoners of war.
Any period spent by a prisoner of war in confinement awaiting the disposal of an offense against discipline shall be reduced to an absolute minimum and shall not exceed 14 days and will be deducted from the final punishment. 'Vhen a prisoner of war is awarded a further dis­ciplinary punishment, a period of at least 3 days shall elapse between the execution of any two of the punishments, if the duration of one is 10 days or more.
The escape of a prisoner of war shall be deemed to have succeeded when-he has joined the armed forces of the Power on which he de­pends, or those of an allied Power; he has left the territory under the control of the Detaining Power, or of an ally of the said Power; he has joined a ship flying the flag of the Power on which he depends, or of an allied Power, in the territorial waters of the Detaining Power, the said ship not being under the control of the last named Power.
Prisoners of war who have made good their escape in the sense of this Article and who are recaptured shall not be liable to any punish­ment in respect of their previous escape.
An offense committed during an escape or attempted escape that does not endanger life or limb is subject to disciplinary punishment only. It follows, under the same conditions, a. prisoner of war, who aids or abets an .escape, is subject to disciplinary punishment only (Art. 93).
N~ prIsoner o~ w~r may be confined while awaiting disciplinary hearmg for a perIod m excess of 14 days; furthermore, he will not be
…OO2GSB
so confined unless a soldier of the Detaining Power would be so con­fined. All hearings will be investigated immediately and when held will be before the camp commander or the officer who has had such disciplinary powers delegated to him. The prisoner will be informed of his offense and. be given an opportunity to defend himself. In no case maya prisoner of war have disciplinary power over other pris­oners of war. The Protecting Power may be appealed to and in all cases records will be kept for the Protecting Power to inspect.
A prisoner while undergoing confinement shall not suffer the loss of any rights secured to him by the Convention other than those rendered inapplicable by such confinement. Officers, men and women, will be confined in separate quarters and shall have the right to write and receive 1eters; parcels and money may be denied them until confinement is completed. Two hours in the open for exercise and fresh air will be allowed daily. Daily sick call and medical atten­tion must be provided; hospitalization when needed will not be denied
(Arts. 95-98).

Death
Every death or serious injury to a prisoner of war caused or sus­
pected to have been caused by a sentry, another prisoner of war, or any
other person; or any death the cause of which is unknown will be fol­
lowed by an official investigation by the Detaining Power. The Pro­
tecting Power will be given all information and if the findings indicate
the guilt of one or more persons, the Detaining Power must take all
measures for their proseoution (Art. 121).
In order to properly carry out the provisions of the Convention, a
prisoner of war information bureau is established in each member coun­
try. This bureau is in the office of the Provost Marshal General for
our Nation. All matters pertaining to prisoners of war are handled
through this agency to the Protecting Powers, the International Red
Cross, and to and from the Central Prisoner of War Information
Agency; an agency created in some neutral country to handle all
prisoner of war information between the High Contracting Parties
(Art. 122).
The Protecting Power, that neutral government which looks after
the. interests of a belligerent in the enemy country, and the represen­
tatIves of the International Red Cross have the authority to visit any
and all prisoner of war camps for inspections and to interrogate pris­
oners of war, in private, regarding the conditions of their confinement
and other matters for the prisoners' welfare and rights (Arts.
12G-127) •
AOO 210
'Ve must remember that our Nation keeps its treaties and agree­ments; as members of the armed forces and representatives of our Republic, we need to know the rights and privileges that we must give to prisoners of war under the Geneva Convention. ·We should further know that as in a football game we have umpires and referees to enforce the rules of fair play, so in the enforcement of the provisions of the Geneva Convention, we have the Protecting Powers and the Interna­tional Red Cross or other similar agencies to check on and observe the treatment afforded prisoners of war. 'Vilful violations of this Con­vention upon the part of individuals or nations will reflect upon the nation's honor and in certain conditions will require the trial ILnd punishment of violators.
Section III. LECTURE NO.2
THE GENEVA CONVENTIONS RELATIVE TO THE
AMELIORATION OF THE CONDITION OF THE
WOUNDED, SICK, AND SHIPWRECKED
Introduction
The first Geneva Convention was an international agreement enacted for the purpose of improving the cvndition of sick and wounded soldiers in the field. The 1949 Conventions includes ship­wrecked members at sea. The First COIlYention was originally adopted at Geneva in 1864, replaced in 1901), 1929, and again in 19-19. The. Convention of 1906 did not supersede that of 1864 with respect to nations who approved the latter but not the former. The Gon­vention of 1929 replaced that of 1906 only as between parties who approved the former, and likewise the Convention of 19-19 replaced that of 1929 only as to countries approving the former. General MacArthur publicly stated that he would abide by the humanitarian principles as set forth in the Conventions of 1949, although no!' as yet ratified by the Senate of the United States. The International Congress of 1864 which established the Convention of 1864, was the result of a movement which sprang from the publication in 1862 of a book entitled Un Souvenir De Solferino, by Henri Dunant, a Gene­vese Philanthropist, in w11ich he described the battle of Solferino in which 39,000 troops were slain. His description of the suffering was so vivid that the subject became forthwith one of public interest. Dunant's works were energetically taken up by M. Gustave Moynier, a Swiss, whose agitation led to an International Congress being held at Geneva in 1863. The Convention afterwards received the adher­ence of every civilized power.
AGO 258B U .J
lVounded, Sick, and Shipwrecked
The following six distinct categories of personnel who are at sea.
and who are wounded, sick, or shipwrecked shall be respected and
protected in all circumstances, it being understood. that the term
"shipwreck" means shipwreck from any cause and mcludes forced
landinO's at sea by or from aircraft.
u'>     Members of the armed forces of a party to the conflict as
well as members of volunteer corps or militias forming part
of that force.
(2)
Members of other volunteer corps such as organized resist­ance movements who operate inside or outside their own territory provided they fill the following four conditions:

(a)     
Commanded by a person responsible for his subordinates' actions and conduct.

(b)
Carry arms openly.
«() \Vear a fixed distinctive insignia recognizable at a distance.

(d)     
Conduct their operations in accordance with the rules and customs of war.

(3)
Members     of regular armed forces who profess allegiance to a Government not recognized by the Detaining Power.

(4)
Persons not belonging to but accompanying the armed forces such as reporters, photographers, and technicians, provided they have proper authorization from the armed forces they accompany.

(5)
Members of crews of the merchant marine and the crews of civil aircraft of the Parties to the conflict.

(6)     
Inhabitants of 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.

Subject to the provisions outlined in the following paragraph, the wounded, sick, and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them.
Treatment
They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar r,riteria. Any attempts upon their lives or violence to their persons shall be strictly prohibited; in particular, they shall ~not be murdered or exterminated, subjected to torture or to biological
AGO 258B
experiments; they shall not wilfully be left without medical assist­
ance and care, nor shall conditions exposing them to contagion or
infection be created. The commission of acts mentioned above shall
be considered grave breaches to the Conventions. The High Con­
tracting Parties undertake to enact any legislation necessary to pro­
vide effective penal sanctions for persons committing or ordering
to be committed any of the grave breaches mentioned above.
Each High Contracting Party shall be under obligation to search
for persons alleged to have committed or to have ordered to be com­
mitted such grave breaches and shall bring such persons regardless
of their nationality before its own courts.
It may, however, turn such individuals over for trial to another
High Contracting Party provided such High Contracting Party has
made out a prima facie case.
Collection of Casualties
At all times and particularly after an engagement, Parties to the
conflict shall, without delay, take all possible measures to search for
and collect the wounded and sick at sea and in the field and to protect
them against pillage and ill-treatment, to insure their adequate care,
and to search for the dead, and prevent their being despoiled.
The Parties to the conflict shall record as soon as possible any par­
ticulars which may assist in the identification of the above. These
records should if possible include­
(1)
Designation of the power on which he depends.

(2)
Army, regimental, personal, or serial number.

(3)
Surname.

(4)
First name or names.

(5)
Date of birth.

(6)
Any other particulars shown on his identity card or disc.

(7)
Date and place of capture or death.

(8)
Particulars concerning wounds or illness, or cause of death.

As soon as possible, the above-mentioned information shall be for­
warded to the Prisoner of War Information Bureau which shall trans­
mit this information to the Power on which these persons depend
through the intermediary of the Protecting Power and of the Central
Prisoner of \Var Agency.
Parties to the conflict shall prepare and forward to each other
through the Prisoner of \Var Information Bureau certificates of death
or duly authenticated lists of the dead. They shall also send through
the Bureau in sealed packets to the next of kin all articles of intrinsic
.or sentimental value-last wills, important documents, one-half of the double identity disc, together with unidentified articles possessed by the dead.
AGO 2~B
Parties to the conflict shall insure that burials at sea and in the field, carried out individually as far as circumstances permit, are preceded by a careful examination, if possible by a medical examination, of the body with a view to confirming death, establishing identity, and enabling a report to be made. 'Where a double identity disc is used, one-half of the disc should remain on the body.
Bodies of the dead at sea which are brought ashore and the dead in the field shall Ve honorably interred and, if possible, according to the rites of the religion to which they belonged. Their graves will be respected, grouped, if possible, according to their nationality, and properly maintained and marked so that they may always be found. For this purpose, the Parties to the conflict shall organize at the com­mencement ofhostilities an official Graves Registration Service to allow subsequent exhumations and to insure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country.
As soon as circumstances permit, and at latest at the end of hostili­ties, these Services shall exchange, through the Prisoner of \Var Infor­mation Bureau, lists showing the exact location and markings of the graves, together with particulars of the dead interred therein.
Indigenous Aid
The military authorities may appeal to the charity of the inhabitants voluntarily to collect and care for, under their direction, the wounded and sick, granting to persons who have responded to this appeal the necessary protection and facilities. Should the adverse Party take or retake control of the area, he shall likewise grant these persons the same protection and the same facilities.
The military authorities shall permit the inhabitants and relief soci­eties, even in invaded or occupied areas, spontaneously, to collect and care for wounded or sick of whatever nationality. No one may ever be molested or convicted for having nursed the wounded or sick.
The above does not in any manner relieve the occupying power of its obligation to give both physical ana moral care to the wounded and sick.
Protected Establishments on Land
Fixed establishments and mobile medical units of the Medical Serv­ice may in no circumstances be attacked, but shall at all times be re­~pected and protected by the Parties to the conflict. Should they fall mto the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing power has not itself ensured the necessary oare of the sick and wounded found in such establishments and units.
The above establishments will, so far as is possible, be situated in such a manner that attacks against military objectives cannot imperil their safety. These establishments will not be bombarded or attacked from the sea or air.
The following conditions shall not be consider~d as depriving Q. medical establishment of its guaranteed protection:
(1)     
That the personnel of the unit are armed, and that they use the arms in their own defense, or in that of the wounded or sick in their charge.

(2)     
That in the absence of armed ordetlies, the unit is protected by a picket or by sentries or by an escort.

(3)     
That small arms and ammunition taken from the sick and wounded and not yet handed to the proper authorities are found in the establishment.

(4)     
Tha.t personnel and material of the veterinary service are found in the establishment, withou.t forming an integral part ,thereof.

(5)     
That the humanitarian activities extend to the care of civilian wounded or sick.

The material of mobile medical units and land transports shall be reserved for the care of w0unded and sick and shall not be intention­ally destroyed. The stores of fixed medical establishments remain subjicttothelaws of war, but may not be diverted from their purpose as long as they are requireQ for the care of wounded and sick.
Fixed medical establishments which fall into the hands of the enemy shall remain subject to the laws of war, but may not be diverted from their purpose as long as they are required for the care of wounded and sick.

Protected Seacraft
Generally speaking, there are three principal categories o~ seacraft entitled to protection. These are­
(1)     
Military hospital ships, that is to say, ships built or. equipped by the Powers specially and solely with a view to assisting the wounded, sick, and shipwrecked, to treating them, and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that the Parties to the conflict have been notified of their names and description, ten days before these ships are so employed.

(2)     
Hospital ships utilized by National Red Cross. Societies, by officially recoO'nized relief societies, or by private persons shall be exem;t from capture if the Party to the conflict on which they depend has given them an official commission and that the notification mentioned above has been complied with. In addition, these vessels must be provided with certificates from the responsible authorities, stating that the vessels have been under their control while fitting out and on departure.

(3)     
Hospital ships utilized by National Red Cross Societies, by officially recognized relief societies, or by private persons of neutral countries shall be exempt from capture on condition that they have placed themselves under control of one of the Parties to the conflict, with previous consent of their own governments and with the authorization of the Party to the conflict concerned, insofar as the provisions of the notification mentioned above have been met.

The Parties to the conflict sl;all have the rightto control and search
the categories of vessels mentioned above and can detain them for a
period of not exceeding 7 days from the time of interception if the
gravity of the circumstances so require.
The vessels mentioned above shall afford relief and assistance to
the wounded, sick, and shipwrecked without distinction of nationality.
Merchant vessels which have been transformed into hospital ships
cannot be put to any other use throughout the duration of hostilities.
Any hospital ship in a port which falls into the hands of the enemy
shall be authorized to leave the port.
Should fighting occur on board any warship, the sick-bays shall be
respected and spared as far as possible. Sick-bays and their equip­
ment shall remain subject to the laws of warfare, but may not be
diverted from their purpose·s~ long as they are required for· wounded
and sick. The commander into whose power they have fallen may,
after insuring the proper care of the wounded and sick who are accom­
modated therein, apply them to other purposes in case of urgent mili­
tary necessity. ., : To insure compliance with all of the above, Parties to the co;nflict, may put on board their ships neutral observers who shall verify the ,strict observation of the above provisions. . The protection to which hospital ships and sick-bays are entitled sllall not cease unless they are used to commit outside their humani­, tarian duties, acts harmful to the enemy. Pr~tection may, however, , cease only after due warning has been given, naming in all appropriate , cases a reasonable time limit, arid after such warninO' has remained
. nnlleeded.     . !~.
',16
AGO 2GSl,I
In particular, hospital ships may not possess or use a secret code for.! their wireless or other means of communication. . The following conditions shall not be considered as depriving hospi­tal ships' or sick-bays of vessels of the protection due to them:
(1)     
The fact that crews of ships or sick-bays are armed for the maintenance of order, for their own defense, or that of the sick and wounded.

(2)     
The presence on board of apparatus exclusively intended to facilitate navigation or communication.

(3)     
The discovery on board of portable arms and ammunition taken from the wounded, sick, and shipwl'ecked and not yet handed to the proper service.

,.. , (4) The fact that the humanitarian services extend to wounded, sick, or shipwrecked civilians.
(5)     The transport of equipment and of personnel intended ex­clusively for medical duties over and above the normal re­quirements.
Transports
Medical transports on land are subject to the laws of war, on con­" dition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain.
: Medical transports at sea shall be authorized to transport equip­ment exclusively intended for the treatment of wounded and sick members of the armed forces provided that particulars regarding their voyage have been notified to the Adverse Power and approved. The Adverse Power shall preserve the right to board these transports, but they may not capture them or the equipment carried.
Medical aircraft exclusively employed for the removal of wounded, sick, and shipwrecked and for the transport of medical personnel and equipment may not be the object of attack, but shall be respected by the Parties to the conflict, while flying at heights, at times, and on routes specifically agreed upon between the Parties to the conflict.
Unless otherwise agreed upon, flights over enemy or enemy occupied territory are prohibited.
Medical aircraft shall obey every summons to alight on land or water. In the event of having thus to alight, the aircraft with ita occupants may continue its flight.
In the event of alighting involuntarily on land or water in enemy territory the wounded, sick, shipwrecked, as well as the crew of the aircraft, shall be prisoners of war (Art. 39).
Medical and Spiritual Personnel
Medical personnel exclusively engaged in the search for ~r the collection transport or treatment of the sick au.d wounded, or m the preventio~ of 'disease, and the stair members exclusively engaged in the administration of ,medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances.
The Staff of National Red Cross Societies and that of other
Voluntary Aid Societies duly recognized and authorized by their
governments, who may be employed on the same d~ties as medical
or chaplain personnel are afforded the same protectIOn as such per­
sonnel provided that the staff of such societies are subject to military
laws and regulations.
Each High Contracting Party shall notify to the othel', either in
time of peace, or at the time of commencement of hostilities or
during hostilities, but in any caSe before actually employing them,
the namas of the societies which it has authorized, under its responsi­
bility, to render assistance to the regular medical service of its armed
forces.
Personnel mentioned above who fall into the hands of the Adverse
Party, shall be retained only insofar as tIre state of health, the
spiritual needs, and the number of prisoners of war require.
Personnel thus retained shall not be deemed prisoners of war, but
they shall fit least benefit by all the provisions of the Geneva Con­
ventions relative to the treatment of prisoners of war. 'Within the
framework of the military laws and regulations of the Detaining
Power and under the authority of its competent service, they shall
continue to carry out, in accordance with their professional ethics,
their medical and spiritual duties on behalf of prisoners of war,
preferably those of the Armed Forces to which they, themselves be­
long. They shall further enjoy the fonowing facilities for carrying
out their medical or spiritual duties:
(1)     
They shall, be authorized to visit periodically the prisoners of war in labor units or hospitals outside the camp. The Detaining Power shall put at their disposal the means of transportation required.

(2)     
In e~ch camp the senior medical officer of the highest rank shall be responsible to the military authorities of the ca~p for the Iirofessional activity of the retained medical per­somiel. For this purpose, from the outbreak of hostilities the Partie! to .the conflict shall agree regarding th~ corresponding seniority of the ranks of their medical per­sonnel, including those of the societies mentioned above. In

18
1    AGO HSB
all questions arising out of their duties, this medical officer, and the chaplains, shall have direct access to the military and medical authorities of the camp who shall grant them the facilities they may require for correspondence relating to these questions.
(3)     Although retained personnel in a camp shall be subject to its internal discipline, they shall not, however, be required to perform any work outside their medical or religious duties.
Personnel mentioned above whose retention is not indispensable shall be returned t;Q the Party to the conflict to whom they belong, as soon as a road is open for their return and military requirements permit. Pending their return they shall not be deemed prisoners of war, nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the treatment of prisoners of war. They shall continue to fulfill their duties under the orders of the Adver~3 Party and shall preferably be engaged in the care of the wounded and sick of the Party to the conflict to which they them­selves belong. On their departure they shall take with them the effects, personal belongings, valuables, and instruments belonging to them.
The selection of personnel for return under the above provisions shall be made irrespective of any consideration of race, religion, or political opinion, but preferably according to the chronological order of th~ircapture and their state of health.
As from the outbreak of hostilities, Parties to the conflict may deter­mine by special agreement the percentage of personnel to be retained, in proportion to the number of prisoners, and the distribution of such personnel in prisoner of war camps.
Members of the armed forces specially trained for employment,
should the need arise, as hospital orderlies, nurses, or auxiliary stretch­
er-bearers, in the search for or the collection, transport or treatment
of the wounded and sick shall likewise be respected and protected if
they are carrying out these duties at the time when they come into
contact with the enemy or fall into his hands. In addition, these
personnel shall be employed on their medical duties insofar as the lleed
arises and they wil1 be classified as prisoners of war.
A recognized Society of a neutral country can only lend the assist­
ance of its medical personnel and units to a Party to the conflict with
the previous consent of its own government and the authorization of
the Party to the conflict concerned. Such personnel, when utilized,
shall be placed. under the control of that Party to the conflict.
The neutral government shall notify this consent to the adversary of the State which accepts such assistance. The Party which ac­cepts such assistance is bound to notify the Adverse Party thereof
AGO 2118B     19
before making any use of it. These persons who fall into the hands of the Adverse Party may not be detained.
Unless otherwise agr~d, they shaH have permi.ssion to return to their country, or if this is not possible, to the territory of the Party to the conflict in whose service they were employed, as soon as a route for their return is open and military considerations permit. Pending their release, they shall continue their work under th~ direction of the Adverse Party; they shall preferably be engaged m the care of the wounded and sick of the Party to the conflict in whose service they were when captured. The Parties to the conflict shall secure to this personnel, while in their power, the same food, lodging, allow­ances, and pay as are granted to the corresponding personnel of their armed forces. The food shall in any case be sufficient as regards. quantity, quality, and variety to keep them in a normal state of health.
The Distinctive Emblem
As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground, formed by reversing the Federal colors,' is retained as the emblem and distinctive sign of the Medical Servioo Of armed forces. In the case of countries which already use as an emblem, in place of the red cross, the red crescent or the red lion and sun on a white ground, those emblems are also recognized by the terms of the present Convention.
Personnel exclusively engaged in medical duties, spiritual care, members of national aid societies, and members of aid societies of neutral countries shall wear, affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority. Such personnel, in addition to wearing the identification discs shall also carry a special identity card bearing the distinctive emblem. This card will be water-resistant and of such­size that it can be carried in the pocket. It shall be worded in the national language, shall mention at least the surname and first name, the date of birth, the rank, the service number, and shall state in which capacity he is entitled to the protection of the present convention. The card shall bear the photograph, signature or fingerprints, or both, and shall be embossed with the stamp of the military authority. The identity card shall be uniform throughout the same armed forces and as far as possible, of a similar type in all the armed forces of the High Contracting Parties. Identity cards should be made out if possible at least in duplicate, one copy being kept by the home ;ountry. fu no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet.
AGO 2118B'
Auxiliary medical pers~nnel engaged. temporarily in medical duties
shall wear, while engaged in such duties, a white armlet bearing in its
center the distinctive sign in miniature; the armlet shall be issued
and stamped by the military authority. Military identity documents
to be carried by this type of p~rsonnel shall specify what special
training they have received, the temporary character of the duties in
which they are engaged, and their authority for wearing the armlet.
With the exceptions listed below, the distinctive insignia shall not
be employed either in time of peace or war except to indicate or to
protect the medical units, personnel, and material protected by the
Convention or other Conventions dealing with silllilar matters. The
exceptions to this rule are­
(1)     
National Red Cross Societies may in time of peace make use of the name and emblem of the Red Cross for their other

• activities which     are in conformity withthe principles laid down by the International Red Cross Conferences. 'When those activities are carried out in time of war, the conditions for the use of the emblem shall be such that it cannot be con­sidered as conferring the protection of the Convention; the emblem shall be comparatively small in size and may not be placed on armlets or on the roofs of buildings.

(2)     
The International Red Cross organizations shall be permitted to make use, at all times, of the emblem of the red cross on a. white ground.

(3)     
The emblem may be employed in time of peace to identify vehicles used as ambulances and to mark the positions of aid stations exclusively assigned to the purpose of giving free treatment to the wounded or sick. I

The distinctive flag of the Convention shall be hoisted only over
such medical units and establishments as are entitled to be respected
under the Convention, and only with consent of military authorities.
In mobile units, as in fixed establislunents, it may be accompanied by
the National flag of the Party to the conflict to which the unit or es­
tablishment belongs; although medical unitE which have fallen into
the hands of the enemy shall not fly any flag other than that of the
Convention.
Parties to the conflict shall take the necessary steps, so far as mili­
tary considerations permit, to make the distinctive emblems indi­
cating medical units and establishments clearly visible to the enemy
land, air, and naval forces, in order to obviate the possibility of any
hostile action.
Military hospital ships and hospital ships belonging to societies and private individuals shall be distinctively marked as follows:
(1)     All exterior surfaces shall be white.
,-"     I
AGO 2G8B
(2) One or more dark red crosses, as large as possible, shall be . . painted and displayed on each side of the hull and on the . horizontal surfaces, so placed as to afford the greatest"possible visibility from the sea and from the air.
All hospital ships shall make themselves known by hoisting this
National flag and further, if they belong to a neutral state, the flag
of the Party whose direction they have accepted. A white flag with
a red cross shall be flown at the mainmast as high as is possible.
Lifeboats of hospital ships, coastal lifeboats, and all small craft
used by the medical service shall be painted white with dark red
crosses prominently displayed and shall, in general, comply with the
identification system prescribed above for hospital ships.
The above-mentioned ships and craft which may wish to insure by
night and in times of reduced visibility the protection to which they
are entitled must take the necessary measures to render their painting
and distinctive emblems sufficiently apparent.
Hospital ships, whicli are provisionally detained by the enemy, must haul down the flag of the Party to the conflict in whose service they are or whose direction they have accepted.
Execution of the Convention
Each Party to the conflict,acting through its Commander In Chief, shall insure the detailed execution of the preceding articles and pro­vide for unforeseen cases, in conformity with the general principles of the present Convention ..
Section IV. LECTURE NO.3
THE GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME
OF WAR
Introduction
The treatment of civilians in time of war is the subject of the fourth Convention formulated at Geneva on August 12, 1949. This was not the first protection of civilians provided for by international agree­ment. The Hague Regulations had provided for the government of e~~~y territory during military occupation, for protection of the c~v~l~ans, for the protection of property, and for the treatment of CIVIlian persons who took action against the occupying forces.
Definition
The Geneva Convention Relative to the Protection of Civilian Per.. sons in Time of vVar is an agreement entered into by 61 governments in which each undertakes to enforce an agreed policy concerning the treatment of civilians. This Convention is concerned with more than the treatment of civilians in countries occupied by the Armed Forces of the signatory powers. The Convention applies in cases of declared war or other armed conflict, cases of partial or total occupation of the territory of a High Contracting Party, and in cases of armed conflict not of an international character, to persons who find themselves, i. case of such conflict or occupation, in the hands of a Party to the con­flict or Occupying Power of which they are not nationals. The repre­sentative of the United States signed the agreement with one reserva­tion having to do with offenses for which the death penalty may be imposed. As previously stated, this Convention has not been ratified by the Senate of the United States, however, it is now in the process of being ratified by the member nations' parliaments and rulers. Let us consider the possibilities of this agreement. This Convention fur­nishes a guide which is in accord with dignity, humanity, and justice. Its observance by the world powers will reduce the hardships of all armed conflict.
General Provisions
(Arts. 1-12).

The Convention applies to alI-cases of declared war or of any other
armed conflict which may arise between two or more of the High Con­
tracting Parties, even if the state of war is not recognized by one of
them; to all cases of partial or total occupation of the territory of a
High Contracting Party, even if the said occupation meets with no
armed resistance; and to cases of armed conflict not of an international
character occurring in the territory of one of the High Contracting
Parties.
Persons protected by the Convention are those who, at a given
moment and in any manner whatsoever, find themselves, in case of
a conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are riot nationals. Nationals of a
State which is not bound by the Convention are not protected by it.
Nationals of a neutral State who find themselves in the territory of
a belligerent State, and nationals of a cobelligerent State, shall not
be regarded as protected persons while the State of which they are
nationals has normal diplomatic representation in the State in whose
hands they are. Persons protected by the Geneva Convention for
the Amelioration of the Condition of the Wounded and Sick in Armed
:.Aoo·UQ
-Forces in the Field of August 12, 1949, or by the Geneva Conven­tion for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea of August 1~, 1949 or by the Geneva Convention relative to the Treatment of PrIsoners of \Var of August 12, 1949, shall not be considered as protected per­sons within the meaning of the present convention.
Protection of Civilians Against Consequence of Y{ar
(Arts. 13-46) Article 13 specificaIIy provides that the provisions concerning pro­tection against certain consequences of war shall apply to the whole population of a country without adverse distinction based upon race, nationality, religion, or political opinion. Itshould be noted that the provisions of Part II apply only to the provision of creature com­forts such as food, clothing, and medical supplies, to the protection of installations such as hospitals, and to the normally expected humane considerations such as providing family news and preventing the dis­persal of families. Hospital zones, safety zones, and localities may be established by a party to the conflict in order to protect the sick, wounded, aged, children under fifteen, expectant mothers, and mothers of children under seven. These zones are expressly made the subject of mutual agreement between the High Contracting Parties. The Contracting Parties shall endeavor to conclude local agreements for the removal of such persons; protect the staffs of installations caring for such people; avoid action against land, sea or air transport marked to show that it carries such people, and to allow the movement of medical supplies, food, and clothing to such people even though the movement must be made across its own territory into the territory of the enemy. One exception to this is that, if one Party to a conflict abuses this protection by using it to cover hostile actions, the pro­tection of such installations and such persons may be disregarded. Another exception is to the movement of medical supplies, food, and clothing when such movement would give a definite advantage to the enemy by releasing an equivalent amount of such supplies for its fighting forces. Your attention is directed to the policy that the wounded, sick, infirm, expectant mothers, and the staffs of institutions caring for them are to be particularly protected. Provision is made that staffs of hospitals and other institutions, who treat and care for wounded a~d sick civilians, the infirm and the pregnant, shall be made recog­nIzable by accredi~ed armlets worn, while carrying out their duties, on , the left arm, bearmg a red cross or a red crescent or the red lion and .sun 0!J, a white ground, representing the relief agency in the country
AGO 2liiB
concerned. The members of the staff shall also carry identification cards certifying their status, bearing their photograph and the stamp of the responsible authority.
Pl·otected Persons, Aliens, and Occu!:,ied Territories (Arts. 27-78)
STATUS AND TREATMENT OF PROTECTED PERSONS
Article 27 of the Convention provides that without adverse distinc­tion based upon race, religion, or political opinion and with due con­sideration to the health, age, and sex, protected persons are entitled to respect for their persons, honor, family rights, religious convictions and practices, and their manners and customs. They shall at all times be humanely treated and shall be protected against all actions of vio­lence or threats thereof and against insults and public curiosity. The Occupying Power may, however, take such control and security meas­ures as are necessary as a result of the war.
The following are some of the provisions afforded to protected persons:
(1)     
Facilities for making application to Protecting Powers, In­ternational Red Cross or equivalent societies, and other or­ganizations whose objectives are to give spiritual aid or mat~­rial relief, must be made available to them.

(2)     
Physical or moral coercion may not be used against protected persons, particularly for the purpose of obtaining informa­tion from them.

(3)     
Collective penalties or measures of intimidation or terrorism may not be applied.

(4)     
Prohibits murder, torture, corporal punishment, mutilation, and medical or scientific experiments not necessitated by the medical treatment of a protected person.

(5)     
It is forbidden to pillage and it is forbidden to take reprisals.

(6)     
It is forbidden to take hostages.

ALIENS
Section 2 of part III provides for the treatment of aliens in
the     territory of a Party to the conflict. In general, they are given
protection in their right to leave the country, an opportunity to earn
a living or to be provided one, to be employed on the same conditions
as nationals of the Party to the conflict, and to receive generally
humane treatment. In view of the fact that the military is not likely'
to apply these particular articles concerning aliens, no further con­
$ideration of it is given to this section.
Articles 38, 39, 40, 41, 42, and 43 provide that an alien who is not
repatriated shall be alloweci to live, generally speaking, according'
A.GO 258B     25
to his own desires; shall be afforded the right to an equal opportunity to find paid employment, subject to security considerations and the provisions of Article 40 as to forced labor, and that no more serious restrictions may be placed upon him than internment or the require­ment that he live in an assigned place. Particularly, aliens may not be deprived of individual or collective relief sent to them. They must be allowed to receive the same medical treatment and hospital treat­ment as nationals of the country in which they live. They must be' allowed freedom of religion. Finally, the country in which they live must treat them considerately making provisions for appeal from any adverse decisions against them.
OCCUPIED TERRITORIES
The Convention prohibits individual or mass forcible transfers within a country as well as deportations of protected persons from occupied territories to the territories of the Occupying Power or of any other country, The exception to this is permission to evacuate a community for the security of its population or if imperative mili­tary reasons so deman<t The type of transfer or deportation such as the German movement of Jews from Germany to 'Western Poland and the movement of labor from occupied France into Germany during World War II is prohibited. The Occupying Power shall not detain protected persons in an area. particularly exposed to the dangers of war unless the security of the population or imperative military rea­sons so demand. Also the Occupying Power is not permitted under the Convention to move its own population into occupied territory.
Article 51 of the Convention requires the particular attention of the commanders and staff officers of military units. It prohibits forced enlistments into the army or auxiliary forces of any protected person and prohibits pressure or propaganda aimed at securing volun­tary enlistments. Protected persons may not be compelled to work unless they are over 18 years of age, and then only on projects which are necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation, or health of the occupied country. Every such per­son shall, so far as possible, be kept in his usual place of employment. They must be paid a fair wage and the work required of them must be proportionate to their physical and intellectual capacity. The legislation in force in the occupied country concerning working con­ditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training, and compensa­tion for occupational accidents and diseases, shall be applicable to the pr<>.t~!~d persons assigned to the work referred to above.. .
26
L .AGO 2liSB
And note this particular requirement: "In no case shall requisition of labor lead to a mobilization of workers in an organization of a military or semimilitary character."
Article 64 of the Convention provides that the penal laws of the occupied territories will remain in force except that any may be repealed or suspended by the Occupying Power if they constitute a security threat or an obstacle to application of the Geneva Convention. Subject to this and to the necessity for ensuring the effective admin­istration of justice, the courts of the occupied territory shall continue to function and apply the penal laws. The Occupying Power, how­ever, may promulgate and enforce additional laws necessary to protect itself.
Article 65 provides that penal provisions enacted by the Occupying Power must be published and brought to the knowledge of the in­habitants in their own language, before they can be enforced. The courts which try violators of penal laws of the Occupying Power must be nonpolitical military courts sitting in the occupied territory. An accused person must be permitted to defend himself, must be per­mitted to appeal according to the laws applied by the court, must be permitted counsel of his own choice, and failing a choice, the Pro­tecting Power may provide him with counsel, and in no case may be put to death until consideration has been given to any application for pardon or reprieve which the accused may desire to make. In no case maya death sentence be carried out until six months after the date on which the Protecting Power received notification that a death sen­tence had been confirmed or that request for pardon or reprieve had been denied. The six months period of slolspension of the death sen­tence may be reduced in individual cases in circumstanC€s of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying au­thorities in respect of such death sentences. The effect of this is that one may not have a general military government court convict a man, approve a sentence of death and have him executed immediately.
Regulations for the Treatment of Internees; General
(Arts. 79-82)
Our primary consideration up to this point of this lecture has been the protection of civilian persons at our mercy during an occupation. But we have another problem to consider in an occupied territory and even at home. "Ve are somewhat in peril of violence or othel'wise
harmful actions by the nationals of the occupied territory. What is our protection against such people t .
Historically, if the nationals of an occupied country performed any acts of violence against the occupier, it was permissible to take hos~ tages or to impose reprisals.
Paragraph 359, FM: 27-10, The Rules of Land Warfare, 1 October 1940 contains this statement concerning hostages: "Hostages have
, .
been taken in war for the following purposes: To msure proper treat­ment of wounded and sick when left behind in hostile localities; to protect the lives of prisoners who have fallen into hands of irregular troops or whose lives have been threatened; to protect lines of com­munication by placing them on engines of trains in occupied territory; and to insure compliance with requisitions, contributions, etc. When a hostage is accepted he is treated as a prisoner of war." Hostages were normally chosen from among influential families, wealthy fami­lies, or political leaders among the population thereby causing those influential persons to control the remainder of the population. In that way they protected the occupying forces in order to protect their own people.
Reprisals, paragraph 358, FM 27-10,1 October 1940, states the fol­lowing concerning reprisals:
"a. DEFINITION. Reprisals are acts of retaliation resorted to by
one belligerent against the enemy individuals or property for illegal
acts of warfare committed by the other belligerent, for the purpose
of enforcing future compliance with the recognized rules of civilized
warfare."
If a specific individual can be identified as one who committed vio­lence against the occupying troops or their installations or property, he may be tried before a court and such sentence as is prescribed may be executed. However, the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offense.
Particular attention is invited to one consideration concerning in­dividual offenses. After an individual offense is committed, for example, the murder of a soldier, which is obviously the act of an individual and not the act of a group, it must be treated as an in­dividual crime. Mass punishment may not be ordered against a group of people who fail to produce the individual. The most severe meas­ures of control which can be taken, if recurrence is anticipated, is to subject the population in the area in which the crime occurred to as­signed residence or internment. This may be done by either of two methods; the population may be moved to an internment area other than their normal residences or may be simply restricted so closely by travel regulations and curfews that the future commission of such
AGO 268B
a crime is made extremely difficult. One may not legally take hos­tages, enforce mass penalties, other than internment or assigned resi­dence, nor execute reprisals against a mass population, even when individuals commit crimes against the ArIlOl.ed Forces. A death penalty may be imposed and executed only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offenses which have caused the death of one or more persons, provided that such of­f.enses were punishable by death under the law of the occupied terri­tory in force before the occupation began (the United States entered a reservation to the effect that it reserves the right to impose the death penalty for these offenses regardless of whether they are so punishable under the law of the occupied country at the time the occupation begins).
Articles 79 through 141 impose upon each government which interns civilians specific obligations to provide the internees with all of the supplies, services and facilities to insure desirable conditions of life other than the fact that their movements and activities are restricted to the extent which security requires.
What are these specific obligations which the government must meet if it should decide to intern civilians during a wad
Article 80 prescribes that the internees remain civilians with all the rights compatible with their being interned. Interned persons must be maintained and supplied at no expense to themselves. If possible, people of like nationality, language, and customs should be interned together. Except where separation of a temporary nature is necessitated for reasons of employment or health or the enforcement of penal or disciplinary sanctions, members of the same family shall be interned in the same place of internment, and, wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees.
Places of Internment
(Arts. 83-88)
Eleven major conditions govern the selection of and establishment of an internment camp.
(1)     
Internment areas must not be particularly exposed to the dangers of war.

(2)     
The Detaining Power must notify the enemy Powers, through the intermediary of the Protecting Powers, of the location of internment camps.

(3)
Whenever military considerations permit, internment camps must be clearly marked with the letters "I. C." However,

AGO 2li8B
the Powers concerned may agree upon any other system of marking.
(4)     
Internees shan be accommodated and administered separately from prisoners of war and from persons deprived of liberty for any other reason.

(5)     
Buildings shall be conducive to good health, in other words an necessary and possible measures must be taken to provide buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection from the rigours of the climate and the effects of the war.

(6)     
Heat, light, and sanitation for the people interned must be provided.

(7)     
Sanitary conveniences including baths, water, soap, and facil­ities for washing and cleaning must be provided.

(8)     
Separate sleeping quarters and sanitary facilities must be furnished for women internees who are not members of fami­lies.

(9)     
Premises for holding religious services must be made avail­able.

(10)     
Canteens providing necessities for sale must be provided except where other suital::le facilities are available, the profits therefrom going into a welfare fund to be used for the bene­fit of the internees.

(11)     
Protective measures against fire and air raids must be pro­vided.

Food and Clothing
(Arts. 89 and 90)
Sufficient suitable food to maintain health, sufficient drinking water, and special foods for expectant and nursing mothers must be provided. Permission to use tobacco must be granted to inmates. Should any internees not have sufficient clothing, and be unable to procure any, it shall be provided free of charge to them by the Detain­ing Power. The clothing supplied internees and the outward mark­ings placed on their own clothes shall not be ignominious nor expose them to ridicule.
Hygiene and Medical Attention
(Arts. 91 and 92)
Specific provisions are included in Articles 91 and 92 providing that internees must be provided with the necessary medical facilities and attention and must be permitted to use them. Article 95 provides that the Detaining Power may require doctors, dentists, and other medical
30     AGO 258B
personnel among the internees to administer to the other internees. Internees must be medically inspected at least once each month, par­ticularly to detect contagious diseases especially tuberculosis, malaria, and venereal disease. The weight must be checked during this monthly inspection and at least once a year a radioscopic examination must be made.
Religious, Intellectual, and Physical Activities (Arts. 93-96)
Internees must be allowed to practice their own religion subject to complying with the disciplinary routine prescribed by the camp com­mander. Ministers must be permitt~ to minister to those of their own faith and consideration must be given to distributing the interned ministers as equally as possible throughout the camps where members of their faith are interned. If no minister of any particular faith is available the minister E>f a similar faith or a layman may be used to carry out his duties. Schools must be provided for the education of those of school age and opportunity and encouragement given to in­tellectual, educational, and recreational pursuits, sports and games among the internees.
With ~e exception of work for the maintenance of the camp and the treatment of the internees, internees may· not be required to accept employment. Wages for work done shall be determined on an equitable b!lsis by special agreements between the internees, the De­taining Power, and, ifthe case arises, employers other than the Detain­ing Power, due regard being paid to the obligation of the Detaining Power to provide for free maintenance of internees and for the medical attention which their state of health may require.
If labor detachments are iormed, they must remain a part of and dependent upon the place of internment. The delegates of the Pro­tecting Power or other organizations impartially representing the welfare of the internees must be notified concerning any such labor detachments.
Personal Property and Financial Responsibility
(Arts. 97 and 98)
On re1ease or repatriation, internees shall be given all articles, moneys, or other valuables taken from them during internment except any articles or amounts withheld by the Detaining Power by virtue of its legislation in force. If the property of an internee is so with­held, the owner shall receive a detailed receipt.
. Regular financial allowances must be made available to internees in th~ form of money, oredit or purchase coupons to enable them to
AGO 258B
purchase the usually needed items of daily life such as tobacco, toilet items, etc. Internees may receive from their own government or a Protecting Power allowances according to category of person. The Detaining Power shall open a regular account for every internee, to which shall be credited the allowances and wages earned and the remittances received, together with such sums taken from him as may be available under the legislation in force in the territory in which he is interned.
Administration and Discipline (Arts. 99-104)
Every place of internship shall be put under the authority.of a responsible officer, chosen from the regular military forces or the regular civil administration of the Detaining Power. He must have in his possession a copy of this Convention in his own language and in the language of those whom he is to govern. His staff must be in­structed in the provisions of the Convention and of the administra­tive measures which they will be enforcing. The disciplinary regime in places of internment shall be consistent with humanitarian prin­ciples, and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. Identification by tattooing or im­printing signs or markings on the body, is prohibited. In particular, prolonged standing and roll-calls, punishment drill, military drill and maneuvers, or the reduction of food rations, are prohibited.
Relations 'Vith the Exterior (Arts. 105-116)
The internees must be permitted to carryon certain relations with the exterior. Correspondence may be limited if necessary but the internee must be allowed to receive by mail or other means such relief parcels as may be sent to him, subject to inspection by camp officials for security. One specific provision must be carefully observed. As soon as possible and in no case later than one week after the internees enter the camp, each must be permitted to direct one card to his family informing them of his detention, address, and state of health. These cards must be forwarded promptly.
Penal and Disciplinary Sanctions (Arts. 117-126)
The disciplinary controls which may be applied by the commander of an internment place are of two types. Penal sanctions are those
AGO 2118B
which must be prescribed by a court. In general they must not con­stitute cruel or inhuman punishment.
Disciplinary sanctions are those of the type which are administered by a company commander to a soldier under the 104th Article of War. They may include a fine of not to exceed 50 percent of the wages of an internee for 30 days, discontinuance of privileges over and above those required by the Convention, fatigue duties not to exceed 2 hours daily, and confinement. Disciplinary penalties must not be brutal, inhumane or dangerous to health and in no case may con­finement of more than 30 days at one time be enforced. Disciplinary punishment may be imposed only by the commander of the camp or a designated responsible officer and must be given after due investi­gation and consideration, not just by caprice.
The only sanctions permitted for attempts to escape or for success­ful escape from the place of internment are disciplinary punishments. The usual personal comforts allowed to a prisoner must be allowed to those in disciplinary punishments, including confinements.
Transfer of Internees
(Arts. 127-128)
Transfers of internees must be effected humanely under conditions at least equal to those obtaining for the forces of the Detaining Power in their changes of station. In particular; food, clothing, shelter, medical attention, and safety precautions must be provided during transfer. Transfers are not to be made if staying in place would be the less dangerous course.
When internees are transferred they must be again permitted to notify relj;,tives of their address and condition of health.
Deaths
(Arts. 129-131)
In the event of the death of an internee his will shall be transmitted without delay to a person whom he has designated. Deaths of in­ternees shall be certified in every case by a doctor, and a death certifi­cate shall be made out, showing the cause of death and the conditions under which it occurred. An official record of the death, duly regis­tered, shall be drawn up in accordance with the procedures relating thereto in force in the territory where the place of internment is situ­ated, and a duly certified copy of such record shall be transmitted without delay to the Protecting Power as well as to the Central In­formation Agency. The detaining authorities shall ensure that in­ternees who died while interned are honorably buried, if possible, according to the rites of the religion to which they belonged, and that
AGO 258B 33
their graves are respected, properly maintained, and marked in such a way that they can always be recognized as soon as circumstances per­mit, and not later than the close of hostilities the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom the deceased internees depended, through the Central Infor­mation Agency.
If a death is caused by another person, as well as any death the cause of which is unknown, it shall be immediately followed by an official inquiry by the Detaining Power and a communication on this subject sent immediately to the Protecting Power.
Release, Repatriation, and Accommodation in Neutral Counb'ies
(Arts. 132-135)
In general the internment of civilians will be continued no longer than necessary. All of them will be released as soon as possible after the close of hostilities.
Information Bureaux and Central Agency
(Arts. 136-141)
'When a war breaks out, each nation which is a Party to the conflict must establish an official information bureau receiving and transmit­ting information concerning protected persons within its power. This bureau must be given information concerning any protected person who is kept in custody for more than two weeks or is subjected to assigned residence or interned. Thereafter all changes which occur to the person suc.h. as transfers, releases, repatriations, escapes, hos­pitalization, births and deaths must be reported and the information kept in the bureau. This information is transmitted to the Powers of whom the internees are nationals through the intermedia,ry of the Protecting Powers and the Central Information Agency.
In a neutral country a Central Information Agency will collect this information from all of the national information bureaux. Mail be­tween these various information bureaux is postage free.
General Provisions
(Arts. 142-149)
Representatives or delegates of the Protecting Powers shall have permission to go to all places where protected persons are, particula.rly to places of internment, detention and work. They shall have access to all premises occupied by protected persons and shall be able to inter­view the latter without witnesses, personally or through an interpreter.
Such visits may not be prohibited except for reasons of imperative
military necessity, and then only as an exceptional and temporary
measure. Their duration and frequency shall not be restricted.
Such representatives and delegates shall have full liberty to select
the places they wish to visit. The Detaining or Occupying Power,
the Protecting Power, and, when occasion arises, the Power of Origin
of the persons to be visited may agree that compatriots of the internees
shall be permitted to participate in the visits.
The delegates of the International Committee of the Red Cross shall
also enjoy the above prerogatives. The appointment of such dele­
gates shall be submitted to the approval of the Power governing the
territories where they will carry out their duties.
All authorities who, in time of war, assume responsibilities in re­
spect of protected persons must possess the text of, the Convention
and be specially instructed as to its provisions. ! The High Contracting Parties undertake, in time of peace as in ,time of war, to disseminate the text of the present Conventions as widely as possible in their respective countries, and, in particular, to include the study thereof in their programs of military and, if pos­
'sible, civil instruction, so that the principles thereof may become I known to the entire population.
AGO !t58B 35
tU11 O"ICII ….

 

Law war handbook 2005

Law war handbook 2005

LAW OF WAR HANDBOOK
(2005)

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
NIAJ Randolph Swansiger
LTC Daria Wollschlaeger

All of the faculty who have served 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 521-33 10; 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 111(Prisoners of War) ……………………………………………………………… Chapter
Geneva Convention N(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 …………………………………………………………….. 228

Appendix B. Milosevic Indictment Excerpt ……………………………………………………….. 234

The Law of War and Military Operations Other Than War ………………………………………….. 241

Appendix A. CPL and Civilian Detainment ………………………………………………………… 262

Appendix B. CPL and the Treatment of Property …………………………………………………. 268

Appendix C. CPL and Displaced Persons ……………………………………………………… 271

Human Rights ……………………………………………………………………………………………………….. 281

Appendix A . Universal Declaration of Human Rights ………………………………………….. 291

HISTORY OF THE LAW OF WAR
REFERENCES
Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956) [-
hereinafter DAPAM 27-11 (reprinted in Documentary Supplement).
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).
Dept. of Army, Pamphlet 27-161-2, Intemational Law, Vol. I1 (23 October 1962). [hereinafter DA
PAM 27-1 6 1-21 (no longer in print).
Intemational Committee of the Red Cross, Commentary on the Geneva Convention (1) for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Jean S.
Pictet ed., 1952) [hereinafter Pictet]
Leon Fnedman, The Law of War–A Documentary History–Vol. I (1972).
Lothar Kotzsch, The Concept of War In Contemporary History and Intemational Law (1956).
Julius Stone, Legal Controls of International Conflict (1954).
John N. Moore, National Security Law (1990).

L. Oppenheim, Intemational Law Vol. I1 Disputes, War and Neutrality (7Ih 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. Kra~iss 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,ARMYLAWYER,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.

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, $ 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.

I International Law

Private Law -commercial law
Law of Armed Conflict

Conflict
Management

(Jus ad Bellum)
U.N. Charte
k

Public Law -intergovernmental
Rules of
Hostilities

(Jus in Bello)
'Hague Conventions (means & methods)
Geneva4 Conventions I (humanitarian)
Chuplpter I History of LOW
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 Bellum serves to prevent conduct, while Jus in Be110 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 bst, 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 Bellurn 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: Legtimate 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 Bellurn, 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."

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 (Jza 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.
Earlv Beginnings: Just War Closelv 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 Chnstians 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 modem 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

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l-Jt~iotj~
LJ~"/Uli'
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, but 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 n dark ern 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 shft toward minimizing resort to war and/or mitigating the consequences of war.

b.     
EXAiMPLE: 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.

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. JLLSad Bellz~mChanges 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.

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 Jzis ad Bellurn and Jus in BeZlo, 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.
ORIGINS OF JUS INBELL0

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 mles 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
C hcrptet 1
:[/~/oi~
(I/ I-;, Ii
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 Bellurn 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 General 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 (1 949).
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 1977 Protocols.

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 fimdamental human rights.

D. Provides advance notice of the accepted limits of warfare.
E. Reduces conhsion and makes identification of violations more efficient.
14

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flisror:!:qfl.0i!'
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 fiiture 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."
NOTES

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 ARMY, 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 MANUAL 27-10, THE LAW OF LAND WARFARE (18 July 1956).
10. NAVAL WARFARE 1-14MCWP 5-2.1/COMDTPUB 5800.7 THE COMMANDER'S PUBLICATION HANDBOOK OPERATIONS NWP 9/FMFM 1-10
ON THE LAW OFNAVAL ( Oct. 1995).[ (FORMERLY
(REVISIONA),

11. AIR FORCE PAMPHLET1 10-3 1, INTERNATIONAL LAW -THE CONDUCT OF ARMED CONFLICT
AND AIR OPERATIONS
(19 Nov. 1976).
12.
MORRISGREENSPAN, LAWOF LAND WARFARE

THE MODERN     (1959).

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

14.
HILAIRE INTERNATIONAL LAW (1990).

MCCOUBREY, HUMANITARIAN

15.
HOWARDS. LEVIE,     ARMED (1986).

THE CODE OF INTERNATIONAL CONFLICT
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
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. Customary 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 principIe 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. 22-41. 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, prohbits production, stockpiling, and use of chemical weapons (even in retaliation). The US. 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 prohbits biological weapons. However, the 1972 Biological Weapons Convention

prohbits 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 I11 -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
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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, 16 1 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 customarv 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); u) 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 specificallv 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)
55 (protection of the natural environment); and

(g)56 (protection of works and installations containing dangerous forces).
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
41 9, 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 1-14MIFMFM 1 -10 (Navy and Marine Corps).
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 Bamer 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 clefacto 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:
(1)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.
(b)Rebels have control of temtory and population.
(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 recogrution 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 Occ~~pying
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 Conventions. Despite the clear language, 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 11, 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 1977 Protocols 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 11.

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 11 (all except for the limited scope of application in article I), to be customary international law. See Michael J. Matheson, Session One: The United States Position on the Relation of Customary
29
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International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2AM. U. J. INT'L L. POL'Y 419,429-431 (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.

1.
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 hghts?
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 wi h certain law of war protections, it is critical to remember these are two di ktinct 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 confi~sed, 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 of the International Military Tribunal (Nurernburg Charter), done at 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 Resol~~tion

3314, Definition of Aggression, 29 U.H. GAOR Supp. (No 31) 142 (1974).
I. HISTORICAL BACKGROUND I
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 L'just".
B. State Sovereignty ("War as Fact" Era): 1800-1 9 18
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 (1899 and 1907): Required a declaration of war.

2.     
League of Nations (1 9 19): 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.
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 corning within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: 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 counties at the United Nations Conference on International Organization, 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

Nations Day is celebrated on 24 October each year. Extracted fiom: Basic Facts About the United Nations, Sales No. E.95.I.3 1, 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.     However, if the Security Council is exercising its powers over the situation, the General Assembly may not make a recommendation unless the Security Council so requests (Arbcle 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 non-permanent 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 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 Court 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 peaceful 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 refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

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 LLaggre~~ion."

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."

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. 15 1, 163.

2.
Article 25: "The Members of the United Nations agree to accept and cany 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 peacell 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 / 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 nonmilitary 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 thrd state.
41
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3.     
Article 41: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
permanent members, fails to exercise its primary responsibility for 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 (1 990) (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 rehlrn 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 (200 1)
a.     UNSCR 1368:
(1)
Condemned 911 1 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 Co~lncil'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 necessary means" language.

5. Iraq (2003)
a.     
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.. . (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 hlly comply, or else face "serious consequences."

VI. SELF DEFENSE AND OTHER USES OF FORCE
A. Self Defense.
1.
Article 51: "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: peacehl 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 prohbition 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- existing "inherent" right outside the Charter?

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.), 1986I.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 U.S. view is that the Security Co~mcil 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 Carolineincident: 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 practice has not respected the restrictive Webster formulabon of the right. Two cases in point: the Israeli

45 !d,t#fP,' J !, , :I (
,,Jo/rr
attack on the Iraqi reactor in 198 1 (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 3 121.0 1 A, Standing Rules of Engagement for U.S. 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 51 Uses of Force
a. Israel-Iraq (1981)
(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 war7' 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 frequented by American military personnel.)

(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.. ."

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 51 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 (2001): 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."

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 temtory 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

NOTES

GENEVA CONVENTION I: WOUNDED AND SICK IN THE

FIELD
REFERENCES
1.     
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)

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

3.     
The 1977 Protocols Additional to the Geneva Conventions, December 12, 1977, 16 I.L.M. 1391, DA Pam 27-1-1. (GP I & 11)

4.     
Commentary on the Geneva Conventions (Pictet ed. 1960).

5.     
Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956).

6.     
Dept. of Army, Pamphlet 27-1-1, Protocols to The Geneva Conventions of 12 August 1949 (1 September 1979).

7.     
Dept. of Army, Pamphlet 27-161-2, Intemational Law, Volume II (23 October 1962).

8.     
Dept. of Army, Field Manual 27-10, The Law of Land Warfare (18 July 1956).

9.     
Dept. of Army, Field Manual 4-02, Force Health Protection in a Global Environment (13 February 2003).

10.
Naval Warfare Publication 1-14MlMCWP 5-2.1lCOMDTPUB 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 (1 9 November 1976).

12.
Moms Greenspan, THE MODERN LAWOF LAND WARFARE (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 OFINTERNATIONALARMEDCONFLICT(1986).
16. Alma Baccino-Astrada, MANUAL OF MEDICAL IN ARMEDON THE RIGHTS AND DUTIES PERSONNEL CONFLICTS(1 982).
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 Arhcles.

(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 further service. (b)Agree not to take up arms again.

B.
Definition (1 949 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 landings at sea by or from aircraft." (Art. 12). Article 8(b), Protocol 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 of conducting their operations in accordance with the laws and customs of war.

3.     
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4.
Persons who accompany the armed forces without actually being members thereof . . . 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 1 ~I;I/'~, '
/.c,     I/ Xi.. I," {-;(
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.
IX. 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., dwing the November 1965 battle in Ia Drang Valley pitting regular North Vietnamese (NVA) units against units of the 1" Cavalry Division there were several accounts of NVA personnel shooting wounded Americans lying on the battlefield. Moore, WE WERE SOLDIERSONCEANDYOUNG(1993).
(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 Law ofLand Warfare 11: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 hs 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 hs 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 (3 1 October 1991).

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:

5 5
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2'
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;: .'-:Li,s,c.; ",!
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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 WARIN INTERNATIONAL 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. 5-3):

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."
56
( 11(1pr~~-;
Iq?(l/ fi~,\L~</(~t,!I , i, t <>f' <,I
b. Note the use of the term "adverse" pennits 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 casualties, not just fnendly casualties.
(1)The drafters recognized that there were times when military operations would make the obligation to search for the fallen impracticable. Pictet at 151.
(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 HUNDREDDAYS 162 (1 992). Professor Draper explicitIy states that "[Ilt is apparent that submarines will rarely be in a position to search for and collect the wo~mded 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 military 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 (See Article 122, GPW). Information Bureaus are established by Parties to the conflict to transmit and to receive informationlarticles regarding PWs tolfrom 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 ofbodies (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).

59
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 fi-om 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
AND 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
( l~~lpt~t
12ry(t/ ,Y(I,C>\,(J) [/1c7 /JA-> 1 IJ 1 +
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, RED THUNDER, TROPICLIGHTNING:THE WORLDOF A
COMBATDIVISIONIN VIETNAM20 1-03 (1 993).

b. Status upon capture (Article 28) -Retained Personnel, not PWs.
(1)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 24 1.
c. Repatriation of Medical Personnel(Artic1es 30-3 1).
(1)Repahiation is the nlle; 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. Pictet 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 1-3041MCO 346 1.1, 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 reprintedin 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 the home country. During World War I1 some 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
i/l(/ptLt
12 ~(IL!A ,c ,fot i//t ' >, I]/ ' , L
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 remain 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. See also 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. See Bruce 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.

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 destroyng all medical supplies and equipment. In late 198 1 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 CRIES, HUMANRIGHTS SINCE THE INVASION
M AFGHANISTAN 1979- 1984, at 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 harmhl 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 200-0 1.

t.
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 notdepriving 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 ths 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.
XII. 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-HERCEGOVINA
115 (1 992).
2.
These vehicles may be employed permanently or temporarily on such duties and they need not be specially equipped for medical purposes. 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 modern 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: ARMY AEROMEDICAL IN
EVACUATION VIETNAM85-86 (1 982)(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 Falklands 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 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 any armament. See also article 28(3) in Protocol I; and FM 8-10-6 at 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 gmis, 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 hy 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 identification card. FM 4- 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).
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 Units and Establishments (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

NOTES

NOTES

CHAPTER5
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 Convention Number IV 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 (1979).

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 (18 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.     
I11 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) wl C1 (1 976)[hereinafter FM 27-1 01.

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 (1979)[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 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 comrnander~.~
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, OF WAR: A STUDY IN THE DEVELOPMENT
PRISONERS OF INTERNATIONAL LAW (1942), for a more detailed account of prisoner of war treatment through antiquity.
COMMENTARY,111GENEVACONVENTION, COMMIITEE
INTERNATIONAL OF THE REDCROSS 4 (1960) bereinafter 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 1192. 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 E100,OOO in exchange for their king. This amount then equaled England's revenues for five years. The sum was ultimately paid under the watchful eye of Richard's mother, Eleanor of Aquitaine, and he returned to English soil on March 13, 1194. See M. Foster Farley, Prisoners for Profit: 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. MAJOR PAT REID, PIUSONER OF WAR (1984).
See generally, Rev. Robert F. Grady, The Evolution of Ethical and Legal Concern for the Prisoner of War, Sacred Studies in Sacred Theology N. 218, The Catholic University of America. (On file with the TJAGSA library)
John C. Miller, TRIUMPH OF FREEDOM (1948), Rev. R. Livesay, THE PRISONERS
OF 1776; A RELIC OF THE REVOLUTION COMPILED FROM THE JOURNAL HERBERT
OF CHARLES (1854), Sydney George Fisher, THE STRUGGLE
FOR AMERICAN INDEPENDENCE (1908).
D. First agreement to establish prisoner of war (POW) treatment guidelines was probably the 1785 Treaty of Friendship between the U.S. and Pr~ssia.~
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^."^
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."<aptured 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 southern 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 OF WAR,at 39. For a summary of who Doctor Francis Lieber was
ON PRISONERS and the evolution of the Lieber Code, see George B. Davis, Doctor Francis Lieber S Instructions for the Government ofArmies in the Field, 1AM. J. INT'LL. 13 (1907).
'VOL. V, THEWAROFTHEREBELLION:A COMPILATION
OFTHEOFFICIAL RECORDSOFTHE UNION AND CONFEDERATE
ARMIES at 807-808 (Gov. Printing Office 1880-1901).
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 captive^.^
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 brwtal at Union camps. In fact, in the Civil War 26,486 Southerners and 22,576 Northerners died in POW camps.lo

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 from
Rev. J. William Jones, CONFEDERATE VIEW OFTHE 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 ofcaptain Henly 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 Corntnittee Appointed to 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.
1.
The Japanese had signed 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 rehsed 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.14 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.
Grady, supra note 4 at126.
were from states that had signed the various international agreements dealing with EPW's.16
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 mila ate rally, 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 27-10,861).

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.
l7 DEP'TOF DEF., JOINT P~TBLICATION
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-l)[hereinafter 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.'"

6.     
Dislocated civilian: A generic term that includes a refugee, a displaced person, a stateless person, an evacuee, or a war victim.19

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 breakmg 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 fight 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,I4 Desert
189 U.N.T.S. 137.
l9 See DEP'TOF THE ARMY,FIELDMANUAL41-10, 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, and North Korea all agreed to be bound its terms. See 7ke Geneva Conventions in the Korean Hostilities, DEP'TOF STATEBULLETIN, vol. 33, at 69 -73 (1955). Unfortunately, in practice, North Korea routinely abused and lulled POWs in violation
81
St~rm~~and
Operation 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 Tndic 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.
TO INVESTIGATE OF THE INTERNAL SECURITY ON THE JUDICIARY,
ACTAND OTHER INTERNAL SECURITY LAWS OF THE COMM. 9 2 ~ ~ TREATMENT OF WAR: A HISTORICAL (Comm.
CONG., 2D SESS., COMMUNIST OF PRISONERS SURVEY Print 1972).
2' See THE VIETNAM
WAR AND INTERNATIONAL LAW (R. Falk, ed. 1968), and LAW AND RESPONSIBILITY rN WARFARE:THE VIETNAM EXPERIENCE (P. Trooboff, ed. 1975).
22 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 CONFLICTFALKLAND-MALVINAS
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).
'* 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 (1991). See also Thomas Donnelly, Margaret Roth, and Caleb Baker, OPERATIONS JUST CAUSE: THE STORMING OF PANAMA(1991), for details of the 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 Unitedstates v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992), a district court judge found Panama was an article 2 conflict as a matter of 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 casefor release, USATODAY, Apr. 22, 1996 at 2D.
See generally, John Parkerson, United States Compliance with Humanitarian Law Respecting CiviliansDtwing Operation Just Cazae, 133 MIL. L. REV. 31 (1991).
ZS See BARRY AND PHILLIP INTERNATIONAL LAW: SELECTED 880 –
E. CARTER R. TRIMBLE, DOCUMENTS 908 (1995)[hereinafter Carter and Trimble], for copies of the United Nations Security Council Resolutions and US. domestic documents authorizing the coalition's actions. See generally, DEP'TOF DEF., FINAL REPORTTO CONGRESS: CONDUCT OF THE PERSIANGULF WAR (1992)[hereinafter DOD PERSIAN GULF REPORT], attached as APPENDK A, and U.S. NEW AND WORLD REPORT STAFF, TRIUMPH WITHOUTVICTORY:THE UNREPORTEDHISTORYOF THE PERSIANGULF WAR (1992).
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.
(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 3 1 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 .50 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 q~lestion of fact.26 Factors one should consider are:
(1)Has international recognition of the belligerents occurred?
(2)Are there de facto hostilities?
26 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, whle 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.

2.     
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

"SeeThe White House, The Office of the Press Secretary, Statement by the Press Secretary, dated 7 February 2002 [hereinafter 7 Feb 02 White House Statement].
84 C7luplc. 3 1'015L trn11I kvrliricv \
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 U.S. and USSR, might, as a
subterfi~ge 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 Terrorism. 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
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-,
"'I 6,
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 US. 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 convention^.^^

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 belonging 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;29

28 Id.
For a discussion of the uniform requirement, see In re Quirin, 317 U.S. 1(1942) and Mohamadali and Another v. Public Prosecutor (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.
c.     
Carrying arms openly;lo 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 (dependents);" and,

lo 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 distinguish 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 ADDITIONALPROTOCOLS 1977TO THE GENEVA
OF 8 JUNE CONVENTIONS 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].
" See Hans-Peter Gasser, The Protection ofJourrzalists Engaged in Dangerous Professional n/fissions, INT'L REV.RED CROSS(JanFeb. 1983), at 3. See also KATEWEBB,ON THE OTHER (1972) (journalist held for
S~DE 23 days in Cambodia by the Viet Cong).
'
See Stephen Sarnosla, The Stam Under International Law of Civilian Persons Sewing with or Accompanying Armed Forces in the Field, ARMY LAW.(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).
87
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,?"JL>:; i~~;,;!;;!.
I;.
f. Mass Levies (Levee en Masse)." To qualify these civilians must:
(1)Be in non-occupied territory; and,
(2)Act spontaneously to the invasion; and,
(3)Carry their arms visibly;"-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
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 w~rkers.'~

l4See 111Geneva Convention Relative to the Treatment of Prisoners of War [hereinafter GPW], Art. 4(A)(6) and FM 27-lO,T 61. 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.
36 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'TOF DEF., INST. 1000.1, IDENTITY CARDS REQUIRED BY THE GENEVACONVENTION
(30 January 1974).
37 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 I. During hostilities we repatriated 59 medical officers, 1,783 sanitary personnel, including 333 members of the German Red Cross. FINAL REPORT OF GENERALJOHN J. PERSHING OF THE GREAT WAR
HQ, AEF Sept. 1,1919, reprinted in XVI THE STORY (1920), at App., p. Ivii.
88
C'i!(l~?l"t~5 14's irnd Uel(;i:;c-w
5. Persons whose POW status is debatable:"
b.
Sabote~rs;~~

c.
Military advis01-s;~~

d.
Belligerent dipl~mats,~'and

e.
Mercenaries." (Art. 47, GPI); -U.S. disagrees with this view.

f.
U.N. personnel during U.N. peace missions."

6. Spies are not entitled to POW status. (Art. 29, HR and Art. 46, GPI).
38 See I INTERNATIONAL COMMITTEE TO THE GENEVA FOR
OF THE RED CROSS, COMMENTARY CONVENTION AMELIORATION OF THE WOUNDED IN THE FIELD 218 -258
OF THE CONDITION AND SICK IN ARMED FORCES (Pictet ed. 1952)(Articles 24 -28). See generalh, ALMABACCINO-ASTRADA, ON THE RIGHTSAND
MANUAL DUTIESOF MEDICAL IN ARMED (ICRC, 1982) and Liselotte B. Watson, Status of
PERSONNEL CONFLICTS Medical and Religiotts Personnel in International Law, JAG J. 41 (Sep-Oct-Nov 1965).
39
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, Ihe 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 of Deserters, 29 BRIT. YB.INT'L L. 3 10 (1952).
41 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, Vol59k36-37 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. A/49/49 (1994).
89
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7.     U.S. Policy Regarding Status of Enemy Participants in Operation Enduring Freedom.&
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.48

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.49

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- 10,77 1c). Their role is to ascertain facts, not to adjudicate any type of punishment.

a.     AR 190-810PNAVINST 3461.61AFI 3 1 -304lMCO 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.
49 Id. See also 22 Jan 02 NSC statement of US. 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.
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."
See, e.g., U.S.CENTRALCOMMAND, 27-13, LEGAL -CAPTURED
REGULATION SERVICES PERSON: DETERMINATIONOF ELIGIBILITYFOR ENEMY OF WAR STATUS
PRISONER (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
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, . …
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 Conventions.'""

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 TmATS 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 percepti~n).~~

d.
Various issues regarding detainees in operations other than war occurred in Haiti,"S~malia,~~

and Bosnia-Herzegovina."
111. PRIMARY PROTECTIONS PROVIDED TO PRISONERS OF WAR
A. Protections, "The Top Ten.'Ib0
1.
Humane Treatment. Art. 1 3, GPWe61

2.     
No medical experiments. Art. 13, GPW.62

3.
Protect from violence, intimidation, insults, and public curiosity. Art. 13, GPWab3

56 See generally, US. v.Noriega, 808 F. Supp. 791 (S.D. Fla. 1992). Of note, the U.S. chose not to appeal the
decision.
57 See Larry Rohter, Legal Vacuum in Haiti is Testing US. Policy, N.Y. TIMES, Nov. 4, 1994, at A32. See ALSO LAWAND MILITARYOPERATIONS LEARNED ADVOCATES,
IN HAITI, 1994-1995: LESSONS FOR JUDGE 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 WROFOR (2 June 1995); Message, Joint StafUSECSTATE, 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 fo Be, That is the Question ", Contemporary Military Operations and the Status of Captured Personnel, The Army Lawyer, DA PAM 27-50-3 19, June 1999.
6'
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 UNITEDNATIONSWAR CRIMES COMMISSION,XI LAW REPORTS OF TRIALSOF WAR CRIMINALS 53 (1949)(parading of American prisoners of war through the streets of Rome). See Gordon Risius and Michael A. Meyer, Theprotection ofprisoners of
93
L'!!'!>!!Y~.-7
+y,:;.;::,

/.,+LjJi:;:.;,:; ./;q<;
4.
Equality of treatment. Art. 16, GPW.@

5.     
Free maintenance and medical care. Art. 15, GPW.6S

6.     
Respect for person and honor (specific provision for female POWs included)." 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.67

10.Imrnunities 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, (July/Aug. 1993), at 288. This article focuses on the issue of photographing prisoners of war.
Pictet, supra note 2, at 154.
65 Id. at 152-53.
66 Id. at 142-52.
67 See Levie, at 262.
68 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 MANUAL19-40, ENEMY PRISONERSOF 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 Storm Team EPW, MILITARY POLICE (June 1992), at 7, for a d~scussion of MP EPW operations dunng Operat~on Desert Storm.
94 C'Il~y'f?:> I'Cill:. tr.~,IUr/cl~i:ec.\
2.     
The protection and treatment rights, as well as the obligations begin ". . .[F]rom the time they fall into the power of the enemy . . ."'"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 humiliationlintirnidationpurposes).

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)
70 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. Grzffen, 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 lulling a Vietnamese prisoner of war on the order of his platoon leader.
7' See DEP'TOF DEF.,FINALREPORT CONDUCT GULFWAR(April 1992), at TO CONGRESS: OF THE PERSIAN
61 8. DEP'TOF ARMY,REGULATION,ENEMYPRISONERS     AND
OF WARADMINISTRATION,EMPLOYMENT, COMPENSATION
7 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 190-8.73

c.     
But what about captured persons not entitled to EPW status? See Art 97, GC.74

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.75 Soldiers are not even supposed to barter with EPWs for personal items.76 However, 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. •.2201.7WoD has yet to
73 Ltr, HQDA, DAJA-IA 198718009, subj: Protective Clothing and Equipment for EPWs. See also, Pictet, at 166, n. 2.
74 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 Confiscation to Contingency Contracting: Property Acquisition on or Near the Battlefield, 124 MILL. 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.
77 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.
78 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. •. 2579. However, the 96
C'lrupier 5
Po i.F's 's1;7d f?e/llill!?/..\.
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."

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 rehses to provide his rank? Contin~~e

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 itss1
legislation is poorly written. Art. 18, GPW prohibits ths. 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.
" The US. issued an offer of reward for information leading to the avvrehension of General Noreiga. Memorandum For Record, Dep't of Amy, 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, y3 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."').
So GPW, art. 17, para. 2. See also Pictet, at 158 -9.
WAR CRIMES LAW REPORTS
15 UNITED NATIONS COMMISSION, OF TRIALSOF WAR CRIMINALS 101 n. 4 (1949) See Stanley J. Glod and Lawrence J. Smith, Interrogation Under the 1949Prisoners of War Convention, 21 Mil. L. Rev. 145 (1963); I11 COMMENTARY, supra, at 163 -4; Levie, at 106 -109.
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 -ADMINISTRATION, AND COMPENSATION
INTERNEE 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 inteniew techniques to acquire information. See, e.g., DEP'TOF THE ARMY, FIELD
97
(1) What about use of truth serum? No, violates GPW.82
(2)North Korean water torture of feet during the winter clearly violated Art. 17.83
(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.17.84
(4)It may often 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^.^^
MANUAL34-52, 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. Additionally, as of June 2004, in light of recent events, FM 34-52, Intelligence Interrogation, is under review/revision and will be reissued as FM 2-22.3.
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 of American POWs in Iraq; Gulf War: Broken Bones, Torture, Sexual Threats are reported. It could spur further calls for War Crimes Trials, L.A. TIMES, Aug. 2, 1991, at Al. See also Nora Zimchow, Ex-POW5 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. 3 1, 1991, at Al. The Iraqis did not limit their mist~eahnent to only U.S. prisoners. See Iraqi torturers failed to crack SAS soldier's cover story, THEHERALD(Glasgow), Oct. 13, 1993, at 9, available in LEXIS, Nexis Library, ARCNWS file.
For a description of the interrogation techniques used by the communists during the Korean War, see S. RPT. NO. 2832, COMMUNIST INTERROGATION OF AMERICANPRISONERS,84th Cong., 2d Sess. (1957); S. COMM.ON GOV'T OP., COMMUNIST OF AMERICAN
INTERROGATION, INDOCTRINATION, AND EXPLOITATION MILITARYAND CIVILIAN 83rd Cong., 2d Sess. (1956).
PRISONERS,
See OTJAG opinion: JAGW 1961/1157,21 June 1961.
See Ministry of Defence, United Kingdom, Treatment ofBritish Prisoners of War in Koren (HMSO, 1955), reprinted in, Levie, DOCUMENTS OF WAR, at 65 1, 662. This article provides a compelling
ON PRISONERS account of the inhumane treatment provided U.N. POWs generally during the Korean War.
84 See DEP'TOF ARMY, FIELD MANUAL34-52, INTELLIGENCE INTERROGATION 3-1 1 (28 Sept. 92) and Glod and Smith, supra, at 155.
See FM 34-52, supra, at 1-9.
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 DISCIPLINEg6

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 individ~~als or military units are only agentsg7
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 backgro~nd.~~
However, segregation by these beliefs may be required
86 For a historical recount of some of the most horrific treatment of conditions faced by POWs in any war, see
GAVANDAWS, PRISONERS POWS OF WORLD     (1 994). Cowpare
OF THE JAPANESE: WAR 11IN THE PACIFIC conditions US. POWs have historically suffered with the treatment US. forces have historically afforded their prisoners. See, e.g., Jack Fincher, By Convention, the enemy within never did without, SMITHSONIAN
(June 1995), at 126 (an account of U.S. treatment of German POWs during World War 11) and Gary Max, 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 DISPATCH, Jan. 28, 1991, at 56 (Remarks by State Department Spokesman Margaret Tutwiler). See also DEP'TOF DEF., FINAL REPORTTO CONGRESS: CONDUCT GULF WAR (April 1992), at 619 -620.
OF THE PERSIAN
" 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." MITCHELL G. BARD, FORGOTTEN VICTIMS: THE ABANDONMENT OF AMERICANS
IN HITLER'S CAMPS (1994). See also Trial of Tanaka Chuichi and Two Others in UNITED NATIONSWAR CRIMES COMMISSION, TRIALS
XI LAWREPORTSOF WAR CRIMES 62 (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

90 DEP'T OF THE ARMY, OFFICE OF THE PROVOST REPORT POLICE BOARD NO.
MARSHALL, OF THE MILITARY 53-4, COLLECTION AND DOCUMENTAT~ON RELATING
OF MATERIAL TO THE PRISONER OF WAR INTERNMENT PROGRAMIN KOREA, 1950-1953 (1954). See also WALTER TRUCE FRONT
G. HERMES, TENTAND FIGHTING (1966), at 232-63; The Cotnrnunists War in POW Camps, 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:THE USE OF FORCE, HUMAN RIGHTSAND GENERALINTERNATIONAL LEGAL ISSUES, VOL. 11,292- 322 (Lillich & Moore, eds., 1980).
91
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.

92
See Memorandum, HQDA-10, 12 Sept. 94, subj: Tobacco Products for Enemy Prisoners of War. During Desert Storm, the 301st Military Police EPW camp required 3500 packages of cigarettes per day. Operation Deserts Storm: 301st Military Police EPW Camp Briefing Slides, available in TJAGSA, AD10 POW files. See also WILLIAMG. PAGONIS, MOUNTAINS:
MOVING LESSONS IN LEADERSHIP AND LOGISTICS FROM THE GULFWAR10 (1992), for LTG Pagonis' views about being told he must buy tobacco for EPWs.
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
801 2nd Ave, lgth Fly
New York, NY 1 00 1 7

(2 12) 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.93

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
93 See Vaughn A. Ary, Accounting for Prisoners of War: A Legal Review of the United States Artned Forces Identification and Reporting Procedures, ARMYLAW.,August 1994, at 16, for an excellent review of the United States system of traclung EPWs. See also Robert G. Koval, The National Prisoner-of- War Information Center,MILITARYPOLICE(June 1992), at 25.
94 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
c'~l~l[~/~:~
2

pC),?E,,I:.i<i LI,<.:1r,r,.. \.%
.' .;.,,.,..
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.06

Letter from the ICRC to the Secretary of State dated I1June 1965,4 I.L.M. 1171 (1965); US. Continues to Abide by Geneva Conventions of 1949 in Viet Nam, DEP'TOFSTATE BULLETIN,
Sept. 13,1965, p. 3. N. Vietnam argued that they were committing "acts of piracy and regard the pilots who have canied out pirate raids . . .as major criminals. . . ." Hanoi said to Hint Trial ofAmericans, N.Y. TIMES, Feb. 12, 1966, at A12. See also Hearings on American Prisoners of War in Southeast Asia 1971 before the Subcornm. on National Securiy Policy and Scientific Developments of the House Comm. on Foreign Afairs, 92d Cong., 1 st 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,DIRECTIVE
381-1 1, Exploitation of Human Sources and Captured Documents, 5 August 1968. See also THE HISTORY OF MANAGEMENT PROVOST MARSHAL
OF POWS: A SYNOPSIS OF THE 1968 US &MY GENERAL'SSTUDY ENTITLED "A REVIEW OF UNITED POLICY ON TREATMENT
STATES OF PRISONERS OF WAR" (1975), at 49 -55. Captain Versace was from Madison, Wisconsin and graduated from West Point in 1959. See UNITEDSTATES ACADEMY, 473 (1959)(includes a picture of Captain
MILITARY THE 1959 HOWITZER 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 lulled 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).
95 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.
96 See, e.g., Memorandum of Agreement Between the United States of America and the Republic of Korea on the Transfer of Prisoners of WarJCivilian Internees, signed at Seoul February 12, 1982, T.I.A.S. 10406. See
102
c '/L/J~~L!/.
5
POUls trnd !Jerc!;:!ec:.:
c.     
Requires Assistant Secretary of Defense for International Security Affairs

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. 5 2255 to seek enforcement of their GPW rights.

G. EPW Labor.'" 49 -57, GPW; AR 190-8 -READ IT!).
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. Ths is an absolute prohibition that includes work connected to the administration and upkeep of the camp. Art. 28(c), GWS.

2.
Detainee status."

3.
Compensation (Art. 60, GPW).'" Mays paid vacation annually. Art. 53, GPW.

also UNITEDSTATES KOREA, 190-6, ENEMYPRISONERSTRANSFERRED OF
FORCES REGULATION TO REPUBLIC KOREA CUSTODY (3 Apr. 1992). See also DoD PERSIAN GULF REPORT, at 583; and, Haiti AAR, supra note 19, 59 -72 and App. R, for an overview of Detainee operations in Haiti.
97 DODDIR. 23 10.1,1C(3).
See Howard S. Levie, D~eEmnployment ofprisoners of War, 23 MIL.L. REV. 41, and Levie, at 213 -254. See generally, Frank Kolar, An Ordeal That Was Itnmortalized: Not all wasfiction in fhe stoly of the bridge on the River Kwai, MIL. HISTORY(Feb. 1987), at 58.
99 See Art. 40 & 51, 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 temtory.
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.101

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 prohbited. 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):Io2

(1)Fine: % pay up to 30 days.
(2)
Withdrawal of privileges, not rights.
(3)2 hours of fatigue duty per day for 30 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'TOF THE ARMY REGULATION ADMINISTRATION: ARMY ACCOUNTING
37-1, FINANCIAL AND FUND CONTROL (30 Apr. 1991), Chapter 36.
lo'
Pictet, supra note 2 at 150-51. '02The GC provides the same maximum punishments for civilian internees. See Art. 119, 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.'O1
(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.
(1)Military commission^.^^^
(2)Local National Court.
''I 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 resenration in essence would deny a POW their protected status if convicted of a war crime. North Vielnam used their reservation under Art.85 to threaten on several occasions the trial of American pilots as war crimnals. See MARJORIEWHITEMAN, OF INTERNATIONAL
10 DIGEST LAW 23 1 -234 (1968); J. Bumham, Hanoi's Special Weapons System: threatened execution of captured American pilots as war criminals, NAT.REV., Aug. 9, 1966;Dangerous decision: captured American airmen up for trial?, NEWSWEEK,July 25, 1966; Deplorable and repulsive: North Vietnamplan toprosecute captured US. pilots as war criminals, TIME, July 29, 1966, at 12 -13. Seegenerally, Joseph Kelly, PW's as War Criminals, MIL.REV. (Jan. 1972), at 91.
Io4See Major Timothy C. MacDonnell, Military Commissions and Courts-Martial: A Brief Discussion 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.
'05
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 begm shortly for a limited number of terrorists, including some of the GITMO detainees. The rules and procedures have been published (SECDEF 21 Mar 02 Military 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 Offenses Against the Law of Nations, 29 WAKE FOREST L. REV. 509 (1994). See also Major General (Ret.) Michael J. Nardotti, Jr, Militaly 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).
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 successfi~l:~~ (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 territory).Lo7

2. Unsuccessful escape.
Io6 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 successfully escaped. During World War II,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 successfully 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, MARCH TO CALUMNY: WAR 90 (1979) Jack Fincher, By Convention,
THE STORY OF AMERICAN POW'S IN THE KOREAN the enemy within never did without, SMITHSONIAN(June 1995), at 127. See also ARYOLDKRAMMER,
NAZI PRISONERSOF WARIN AMERICA (1994).
See, A. Porter Sweet, From Libby to Liberty, MIL. REV. (Apr. 1971), at 63, for an interesting recount of how 109 union soldiers escaped a Confederate POW camp during the Civil War. See ESCAPEAND EVASION: 17 TRUE STORIES OF DOWNEDPILOTS WHO MADE ITBACK (Jimmy Kilboume, 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 Hcltch Found: Escaping from a POW camp in Italy was one thing. The next was living offa war-torn land amongpartisans, spies, Fascists and German Patrols, MIL. HISTORY (Oct. 1988), at 34.
lo' See SWISSINTERNMENT OF WAR: AN EXPERIMENT HUMANE
OF PRISONERS IN INTERNATIONAL LEGISLATION (Samuel Lindsay, ed., 1917), for an account of POW internment
AND ADMINISTRATION procedures used during World War I.
a.     
Only disciplinary punishment for the escape itself (Art. 92, GPW). See also Art. 120, GC.

b.
Offenses in furtherance of escape.1o8

(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 escape attempt without losing his POW status.lo9
(2)Judicial punishment: if violence to life or limb or self-enrichment. Art. 93, GPW.
3.     Successful escape.
a.     
Some authors argue no punishment can be imposed for escape or violence to life or limb offenses committed during escape if later recaptured. Art 9 1, 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 lawhl. Use of deadly force is authorized "only when there is no other means of putting an immediate stop to the attempt."11o
'08 But see 18 U.S.C. 5 757 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.
'lo Pictet, at 246. See also id., at 246-248. Compare Trial of Albert Wagner, XI11 THE UNITED NATIONSWAR CRIMESCOMMISSION, OF THE TRIAL Case No. 75, 118 (1949), with Trial
LAW REPORTS OF WAR CRIMINALS, of Erich Weiss and Wilhelrn Mundo, XI11THE UNITED NATIONS COMMISSION,
WAR CRIMES LAW REPORTS OF THE TRIAL OF WAR CRIMINALS, 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 wish.l12 Logic supported by Pictet.
3.     During a cease-fire or Armistice.
a.     CW2 Hall incident."'
(1)Probable basis for repatriation: Art. 1 18

"I     For a thorough list of resources on this issue, see BIBLIOGRAPHY OF PRISONERS
ON REPATRIATION OF WAR (1960), a copy of which is maintained by the TJAGSA Library.
'I2See R.R. Baxter, Asylum to Prisoners of War, BRITISH YEARBOOK INT'L L. 489 (1953).
'I3See Scott R. Morris,America S Most Recent Prisoner of War: The WOBobby Hall Incident, ARMY LAW., Sept. 1996, at 3.
(2)At-t. 117 prcvides: "No repatriated person may be employed on active military 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 1300.21 dated January 8,2001 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.

1.     DoDI 1330.21 also includes 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. Republics 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. US. v. Provoo, 124 F. Supp. 185

(S.D.N.Y.
1954), rev 'd,2 15 F. Supp. 53 1 (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

Or was there? See The Korean Armistice Agreement, para. 52, reprinted in, DAPAM. 27-1, at 210.
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 modern 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.Il7

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 disad~antage.~~~

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 ~ode.~"owever, a violation of the Code of

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, FACTORSRELATEDTO THE COLLABORATION OF U.S. ARMYPW'S IN KOREA4
AND RESISTANCE BEHAVIOR (Dec. 1956). See Note: Misconduct in the Prison Camp: A Survey of the Law and an Analysis ofthe Korean Cases, 56 COL. L. REV 709 (1956), for a detailed factual and legal analysis of Korean POWs experiences.
[I7 DoD issued guidance through Dep't of Def., 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 Education Measures Necessary to Support the Code of Conduct (July 8, 1964). However, this guidance left it to the individual services to develop, interpret, and train its servicemembers on the Code. This lead to interpretation problems by US. 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-B115 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-Bl15 905.
See generally, Richard E. Porter, The Code of Conduct: A Guide to Moral Responsibility, 32 AIR.UNIV. REV. 107 (Jan. -Feb. 1983).
Conduct may also be a violation of the UCMJ. Nothmg in the CoC conflicts with the UCMJ. Some examples of possible violations include:
a.
DisrespectIDisobey SRO;

b.
Aiding the enemy;

c.
Mutiny and sedition;

d.
Cruelty and maltreatment; and,

e.
Misconduct as a prisoner.121

f.
14 former POWs were court-martialed after Korea.]"

g.
Attempts were made after Vietnam to prosecute POWs but for "policy" reasons this did not occur.123 Note the Garwood e~cepti0n.l~~

12'
See Charles L. Nichols, Article 105, Miscondzict as a 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 …." JULIUSSEGAL, FACTORS AND
RELATED TO THE COLLABORATION RESISTANCE BEHAVIOR
OF U.S. AMY PW'S IN KOREA 33,90 (Dec. 1956).
See, e.g., United States v. Floyd, 18 C.M.R. 362 (A.B.M.R. 1954); United States v. Dickenson, 17 C.M.R. 438 (A.B.M.R. 1954), af'd20 C.M.R. 154 (C.M.A. 1955); United States v. Batchelor, 19 C.M.R. 452
(A.B.M.R. 1954). See also Edith Gardner, Coerced Confessions of Prisoners of War, 24 GEO. WASH. L. REV. 528 (1956). Eleven of the fourteen were ultimately convicted.
12' There are four reasons presented by DoD to explain why collaborators were not prosecuted after Vietnam.
The Debriefers were instructed not to actively seek accusations because the emphasis was on gathering intelligence from the POWs
The Secretary of Defense had made a public statement saying no POWs who made propaganda statements would be prosecuted.
The service TJAGs said public opinion made convictions unlikely for POWs, who had already served extended periods of captivity in inhumane conditions.
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 (US. Air Force Productions, 198J[archive ref.# AFL 095-034-045, Pin #51190]. 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.
'24 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
(.'/) q/(!T j /'(./~.~~.:.,(/:)(I ~><,![,;,+,~~.:;
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)."'

b.
Is Art. I11 of the Code of Conduct inconsistent with POW status?lZ6

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 Ganvood 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 US. for believing them.
'"     See Bobby D. Wagnor, Cotnm~~nication:
the key element toprisoners of warsuwival, 23 AIR. UNIV. REV. 33 (May -June 1976). Box Code is also discussed in great detail in the PBS documentary "Return with Honor."
Iz6 See generally, Elizabeth R. Smith, Jr., The Code 0ofCond~ct in Relation to International Law, 3 1MIL. L. REV. 85 (1966).
112
( 'liclptt~l5
PUk!j ctntl /~~/(~I:IP(A
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 harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way."
a.     
SRO is the commander regardless of service branch.12'

b.
By E.O. 1201 8, 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
(3)Key words are "resist" and to the "utmost of m~ ability."
12' See Donald L. Manes, Jr., Barbed Wire Comrnanrl.. The Legal Nature of the Command Responsibilities of the Setzior Prisoner in a Prisoner of War Camp, 10 MIL. L. REV. 1 (1960), and John R. Brancato, Doctrinal Deficiencies in Prisoner of War Command, AIRPOWER
J. (Spr. 1988), at 40, for some of the problems the SRO faces during captivity.
Iz8 See also J. Jennings Moss, Iraq tortured all Atnericans captured," WASH. TIMES, Aug. 2, 1991, at Al; Melissa Healy, Pentagon Details Abuse of American PO Ws in Iraq; Gulf War: Broken Bones, Torture, Sexual Threats are Reported. It could spurfurther calls for War Crimes Trial, L.A. TIMES, Aug. 2, 1991, at Al; and JOHN NORTON MOORE, THE RULE OF LAW70 -75 (1994), for accounts of
CRlSIS IN THE GULF: ENFORCING the abuse US. POWs were subjected to during the Gulf War.
(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.
(e)Disease used as a means to influence.
(ii)     If broken, give as little as possible. COL Rowe identifies three levels of inf~rmation:"~
(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)1 don't know" is the hardest answer for an interrogator to break. (5)Humor is the greatest weapon -Americans laugh when they get hurt.
129 Experiences of a POW (TJAGSAProductions, Sept. 1985). This two hour videotape captures the incites of COL NickRowe. The North Vietnamese captured COL Rowe in 1964. He spent 5 112 years as a POW until he si~ccessfully 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. 13'Id.
(6)Does a POW violate the Code if he writes a letter to his family? No. It's not in response to questioning.
(7)LLConfessions"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 War concern the need for improved and uniform training so that future prisoners would all be working together from 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."111

3.     
"Return with Honor"114

'32 The Code of Conduct: a Second Look (US. Air Force Productions)
Experiences of a POW (TJAGSA Productions, Sept. 1985). A great tool for teaching Code of Conduct.
'" 4outstanding 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.
re-formatted for this publication. APPENDIX
A
UNITED STATES CENTRAL COMMAND
71 15 South Boundary Boulevard
MacDill Air Force Base, Florida 3362 1-5 101

REGULATION
NUMBER 27-13 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.
a.
Persons who have committed belligerent acts and are captured or otherwise come 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.

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 fi-ee 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.
hterpreter. A person competent in English and Arabic (or other language understood by the Detainee) who assists a Tribunal andfor Detainee by translating instructions, 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.

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 u~lless 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 UCMJ or as otherwise directed by competent authority.

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 advice of 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:

(1)
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 commlt 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, 71 15 South Boundary Boulevard, MacDill Air Force Base, Florida 3362 1-5 101.
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 movements, belonging to a Party to the conflict and operating in or outside their own tenitory, even if this tenitory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, 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 of conducting their operations in accordance with the laws and customs of war.

(3)
Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4)
Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of 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 tenitory, 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 tenitory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which

121
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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 lStLt 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. Ji 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 631.

b.
Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 12 August 1949; 6 UST 3 114; TIAS 3362; 75 UNTS 3 1.

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 33 16; 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 Tribunal to obtain and present all relevant evidence to the Tribunal and to cause a record to be made of the proceedings. The recorder shall have no vote,

c.
Tribunal. A panel of three commissioned officers, at least 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 docments 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 immediately 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. APPLICBLE 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 shall be 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 be signed by each voting member.

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.

(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 / HEADQUARTERS / 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 (m)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. Service s umber:^
Date of Birth:? unit:$
Place of Birth: I  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 the respondent, e.g., "Delivered to the Provost Marshal for Transfer to an EPW camp" 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 HEAEUNG 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:  (TRANSLATION OF ABOVE).  
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.  

NOTES

NOTES

NOTES

NOTES

PROTECTION OF' CIVILIANS DURING ARMED
CONFLICT

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 Hague IV] .

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 [hereinafter 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) [hereinafter DA PAM 27-1-11.

7.     
Dept. of Army, Pamphlet 27-161-2, International Law, Volume 11 (23 October 1962) [hereinafter DA PAM 27-1 6 1-21.

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 (I 1 January 1993) [hereinafter FM 4 1 -101.

10.
Dept. of Army, Field Manual 100-21, 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 OF WAR (1958) [hereinafter Pictet].

PERSONS
13. Yves Sandoz, COMMENTARY PROTOCOLSON THE ADDITIONAL OF 8 JUNE 1977 TO THE GENEVACONVENTIONS 1949 (1987) [hereinafter Protocols Commentary]. OF 12 AUGUST
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) [hereinafter Oppenheim].
17. UNIVERSAL RIGHTS, G.A. res. 217 A(III), December 10,1948, DECLARATION OF HUMAN
U.N. Doc. N810, at 71 (1948).
18. ~TERNATIONALCOVENANTON CIVILAND POLITICAL
FUGHTS, 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.
19.Frank Newman and David Weissbrodt, International Human Rights (1990).
20.
Frank Newman and David Weissbrodt, Selected International Human Rights Lnstrurnents (1990).

21.
Frank Newman and David Weissbrodt, 1994 Suv~lement 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."

B. Two Approaches To 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 suffering/devastation, 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 IS 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.
a.     One exception: occupation. The desire of sovereigns to minimize disruption to the economic interests with 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 intemational 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 fallen ~mder 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 intemational 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, THE LAWSOF WAR,50 Am J Int % L 3 13 (1950).
140
C11(1(7/~~6
( 1 I l//Lltl~
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 I represents an intersection of both the Hagueltargeting method, and the Genevah-espect 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 from enemy lethality.

III. 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 categories.~~
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.
Id.at 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 PW 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.. ."4
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 harm 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 context?
Id. at 618. 'Id. at 619. Id.
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 andlor 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 hnction.
IV.     THE LAW WHICH OPERATES TO THE BENEFIT OF &LJ 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 character."'
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 5 100.77), 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 NWA "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 Nicaragua v. United States at para 218).
lo Pictet 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 I included 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.     
Slaverylslave 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 h~~mane
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.
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.

B.
Further Protections of the Entire Population: In addition to providing for the 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.

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.
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. 351.
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.
b. Without such a proclamation, occupation is a de facto standard. FM 27- 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 temtory (subjugation).

5.
Application of Geneva Conventions:

a.     
(GC, Art. 6) "In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. 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 prohbited. This is reinforced by GC, Art. 82, that requires, in the case of internment, that families be housed together."]'

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 p~~blic

"In addition, if a family is divided, as a result of wartime events, they must be reunited. See Pictet at 202-203.
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.
I2These 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).
a.     fight to Leave the Territory. GC, Art. 35. (fight is overcome by the national interests of the State (Security).
(1)Right of review by appropriate court or adrmnistrative board.
b.
kght 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.     
fight to receive relief packages, medical attention, and practice of their religion. GC, Art. 38.

d.
fight 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 fights. The occupylng 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. 51.

f.     
Must protect and respect personal property. GC, Art 53. Exceptions:

(1)The occupylng power cannot destroy "real or personal property.. ., except where such destruction is rendered absolutely necessary. GC, Art. 53.
(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 ths 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.

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 occupyng 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

l3
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.
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. 41. 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. 91.

(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. 117.

(12)
Transfers must be done safely and notice must be given to internee's family. GC, Art. 128.

(13)
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 P~otected 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.

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 BFU3ACHES 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.
Willhlly 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 necessity.

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 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), Protocol 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 lawful and unlawful targets. According to the Official Commentary, "the principle of protection and distinction forms the basis of the entire regulation of war . .
.')I4
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 1977is a manifestation of the extent
l4Protocols Commentary at 586.
'5Id. at 597.
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 employmg long-range weaponry.
3.     Specific Prohibitions of Art. 5 1. 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. 51(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:
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 nonmilitary 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.
NOTES

NOTES

NOTES

NOTES

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. 2314 [hereinafter 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 Bacteriologcal Methods of Warfare, June 17, 1925,26 U.S.T. 571,94

L.N.T.S. 65 [hereinafter 1925 GenevaProtocol].
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 1-14MLJ.S. Marine Corps MCPW 5-2.1, The Commander's Handbook on the Law of Naval Operations (October 1995) [hereinafter NWP 1-1 4M]; Annotated Supplement to NWP 1-l4M.

163
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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
3.
Proportionality

4.
Humanitylunnecessary 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, lawfd according to the modem 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 f~rbidden by the law of war.

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. IX Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Militnly Tribunals, 1113 (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 defmition of a military objective is found in GP I, article 52(2): "those objects which by their 165
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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 much 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 (1 996).

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.
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 27-10, 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 GULFWAR,FINAL
OF DEFENSE, OF THE PERSIAN REPORTTO CONGRESS6 15-61 6 (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"
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 "lawhl" combatants if they fall under the definition given in the Geneva Convention on Prisoners of War for those entitled to PW status:
(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 hller discussion of these criteria, see the chapter on Geneva Convention 111, Prisoners of War.
(3)
Oftentimes you will also hear the phrase "un1awfu1 combatants." There is no such term in the law of war; however it was used by the Supreme Court in the Quivin 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 cle combat, or out of . combat.
a.     Civilians
(1)General Rule. Civilians and civilian property may not be the subject or sole object 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 51.
(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. 51 -except for para. 6, considered customary international law by US.
(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 "gwes 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 "exclusivelv 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

1. Defended Places.     FM 27-10, paras. 39 & 40, change I. 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 I.

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 1 1 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

173 i !qv,
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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 Establishments -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

174
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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. Prohbition 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 losses" among the civilian population.
(U.S.
 objects to "severe loss" language as creating a different standard than customary proportionality test -"excessive" 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 support" 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 of warfare. It is prohibited to attack, destroy, remove, or render useless objects indispensable for survival of the civilian population -such as foodstuffs, crops, livestock, water installations, and irrigation works.
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 sheld 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 prohbiting unnecessary

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 US. 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 51-402, 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 fi-agments 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 expandmg rounds. US practice accedes to these prohbitions 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, SO caliber 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, from antipersonnel mines and from bullets of undetermined type. See Maj Donna Verchio, Just Say No! The SirUS Project: Well-Intentioned, but Unnecessavy and Superfluous, 51 A.F.L. Rev. 183 (2001).

2. Fragmentation. FM 27-10, para 34.
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 within 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 M 18 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;

@)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, the United States released a new policy statement on landmines in February 2004. Under this policy:

(1)The United States has committed to eliminate persistent (dumb)
landmines of all types from its arsenal. Use of "dumb" mines for
training purposes.

(2)Persistent anti-personnel landmines are only stockpiled for use by the United States in fulfillment of our treaty obligations to the Republic of Korea.
fi) 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 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. (US DoD Report to Congress: Kosovo/Operation Allied Force After 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 27-10, para. 36. Examples: Napalm, flame-throwers, tracer rounds, and white phosphorous. None of these are illegal per se or illegal by treaty. The only US. policy guidance is found in paragraph 36 of FM 27-1 0 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 C~nventional Weapons Convention prohibits use of air-delivered incendiary weapons on military objectives located within concentrations of civilians. Has 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 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 bum up the chemicals.
(2)Tracers are not incendiaries, Art l(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 useof 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 I. 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.     hot 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 fimdamental question: is the U.S. currently engaged in war? If so, use of RCA is governed by the CWC and Executive Order 1 1850. If not, then use of RCA is governed by CJCSI 3 110.07A, 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 1 1850. Guidance also exists in EO 1 1850. Note that EO 1 1850 came into force nearly 20 years before the CWC. EO 1 1850 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 1 1850 is still in effect and RCA can be used in certain defensive modes with presidential authority. However, any use in which "combatants" may be involved will most likely not be
approved.
b.     Military Operations Other Than War (MOOTW). During MOOTW operations, the CWC and EO 11850 do NOT apply. Rather, CJCSI 3 110.07A applies to RCA use during MOOTW operations. The authorization for RCA use during a MOOTW may be at a lower level than 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 US. forces."
(5)Thus, during peacekeepiag 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 "combatants" are involved due to the CWC's prohibition on the use of RCA as a "method of warfare."
8.     
Herbicides. EO 1 1850 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. US. renounced &luse of biological and toxin weapons.

1O.Nuclear Weapons. FM 27-10, para. 35. Not prohibited by intemational law. On 8 July 1996, the International Court of Justice (ICJ) issued an advisory opinion that "There is in neither customary nor intemational 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 unlawfd 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 warshps 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, sinkmg Sydney with all 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. 51.
(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 Airborne 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 Airborne 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:
(1)Uniforms. Combatants may wear enemy uniforms but cannot fight 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 I1 -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 27-161-2 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 (1990). 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 US. 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 1-14M, para 12.5.3. Article 39 prohbits 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. Treachery/Perfidy. 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.

190
C'lq~fcr7
4 l<7ujLs 0,ld l\/~~///O~~~
considers customary internatio~al law.) Article 37(1) does not prohibit
perfidy -; 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.
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' ~teman says HR, Article 23b also prohbits ths, e.g. faking wounds and then attacking approaching soldier. Marjorie M. Whiteman, Dep't 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, whch the US. 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. Moms Greenspan, The Modern Law of Land Warfare 320-21 (1 959). Article 38 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 Wa+e 11:The
Campaign in the Fa1klands;Mil. Rev., Oct. 1984, at 49.
(2)Desert Storm -Battle of Khafji incident was nota perfidious act. Media speculated that Iraqi tanks with turrets pointed to the rear, then 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 posh~re 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 Sa~~di
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 result in a lalling, 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 harmfLl 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.
6 1.
(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 fnendly lines immunizes spy for past espionage activities. Therefore, upon later capture as a lawful combatant, past spy cannot be tried for past espionage.

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 5l(6) as not reflective of customary international law.

3.     
US policy is that a reprisal may be ordered only at the highest levels
(President).

NOTES

NOTES

CHAPTER
8
WAR CRIMES AND COMMAND RESPONSIBILITY
REFERENCES
1.     
Constitution, art. I, 5 8, cls. 10 & 14, art. I, 3 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. 49-51, 6 U.S.T. 3114, 75 U.N.T.S. 31, [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. 3516, 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 sirnature Dec. 12, 1977,

U.N. Doc. A/32/144, 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 Augnst 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, $ 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 Proflam, 17C.3. & EE.2.e.(3) (December
9. 1998) [hereinafter DOD Dir. 5 100.771.
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, TRIAL OF THE MAJOR (1947) (42 volumes). WAR CRIMINALS
16. TIUALS OF WAR CRIMINALS THE NUREMBERG TRIBUNALSBEFORE MILITARY UNDER CONTROL COUNCILLAW NO. 10 (1950) (1 5 volumes) [hereinafter Trials of War Criminals].
17. International Japanese War Crimes Trials in the International Military Tribunal for the Far East (209 volumes).
199
L ,.-,/lil,i?!W 8
;;,;/;. <.7:.j)~!(.,y L;i:(/ <,',,;q~;j/!,i/.:j .;?~:,j?(,;~,?i!?iLilj-
18.
United Nations War Crimes Commission, LAW REPORTS OF TRIALS (1948)

OF WAR CRIMINALS (15 volumes).

19.
United Nations War Crimes Commission, HISTORY OF THE UNITEDNATIONSWAR CRIMES COMMISSION

(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. St25704 (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), reprinted 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; https://www.ictr.org; https://www.un.org/law/icc; wwwsierra-

leone.org/docurnents-specialcourt.htm1

26.
William H. Parks, Command Responsibility For War Crimes, 62 MIL. L. REV. 1 (1973).

27.
Michael Smidt, 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 Accountability 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 TABROY, 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.
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. Sw Tzu, THE ART OF WAR (Samuel B. Griffith trans., Oxford Univ. Press 1963).
B. Byzantine Empire, 527 -1071 A.D. Even when surrounded by numerous and savage enemies, the Byzantine Horse-Archers' creed included immunity for women and other non-combatants. LYNNMONTROSS, THE AGES
WAR THROUGH
105, 164 (Third Edition, 1960).

C. Middle Ages. Wamors developed a code of conduct that became known as chivalry and the forerunner to modern 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. Jtls Armorurn or Jzls 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 Accozintability 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, IN INTERNATIONAL
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, ROBERTBRUCE 203 (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 MIL. L. REV. 171,173-81 (1978).
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 CIVIL WAR PRISONS
(1879); W.B. HESSELTINE, (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, 1897-1899, 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.319,326 (1995); S. DOC. 213, 57th Cong. 2ndSession, 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 6 1-2 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 Nurernberg 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 27-1 61 -2 at 224-35; NORMAN E. TUTOROW, AND WAR CRIMES
WAR CRIMES, WAR CRIMINALS, TRIALS: AN
ANNOTATED ANDSOURCE

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 GENERALGEORGES. PRUGK, LAWAT WAR: VIETNAM 1964- 1973 76-77 (1 975); 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. 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. SIRES1692 (1 99l), reprinted in 30 I.L.M. 864 (1 99 1); see also Theodore Meron, The Case for War Crimes Trials in Yulzoslavia, 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. SIRES1808 (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. SIRES1827 (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. SIRES1955 (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 13 15, 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 May04,96 countries have ratified the Rome Statute of the International Criminal Court.

1.
Although the US. 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 KC 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 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 1 1 March 2003. It is composed of Judge Philippe Kirsch (Canada) as President, Judge Aha 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.

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 functions under the authority of the President.

T. President George W. Bush issued an order on November 13,200 1 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 2 1,2002, eight DoD Military Commission Instructions dated April 30,2003, and a ninth instruction dated December 26,2003.

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, 2001.

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.

III.
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
LAW5 25 1 (7th ed., H. Lauterpacht, 1955); accord TELFORD TAYLOR, NUREMBERG
AND VIETNAM19-20 (1970).
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

1583 (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 nzdlzlm 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.     
Nzdlapoena 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 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 (1 946).
(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 nullum crimen sine Eege 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 adrmtting more evidence than may otherwise be admitted. 207 L/~U!)I(,* 8 [!O ,1, IL (I /<I 'o ,I//I/I,(</ ~,/,,/~/h,i,,
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 1TRIALSOF WAR CRIMINALS9-16. See generally OPPENHEIM.257 (noting that only one 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 ~reaches. Serious felonies. Examples include: Willfid killing; Torture or inhumane treatment; Biological experiments; Willfidly 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 of otherwise forbidden arms or ammunition; Treacherous request for quarter;

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. 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 Tndic court found there was no international armed conflict d~~ring 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 (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 of 9 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.
)    Tadic interlocutory appellate court decision on jurisdiction held that Common Article 3 protections apply in both international and internal armed conflict. The Tadic judgment 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.     
Special Court for Sierra Leone. Categories of crimes include:

1.
Crimes Against Humanity

2.
Violations of Common Article 3 and Additional Protocol 11.

3.     
Other Serious Violations of International Humanitarian Law.

4.     
Certain Crimes under Sierra Leonean Law, to include offenses relating to the abuse of girls under the Prevention of Cruelty to Children Act (1 926) and offenses relating to the wanton destruction of property under the Malicious Damage Act (186 1).

F.     International Criminal Court. The ICC has jurisdictior, 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 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:

(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 crirninalizes 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.

(1)Violations of Common Article 3.
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.
G. Statute of the Iraqi Special Tribunal
1.     
Genocide

2.
Crimes Against Humanity

3.     
War Crimes

4.     
Certain Violations of Iraqi Law, to include Tampering with the Judiciary, War against an Arab state, and Squandering Iraqi resources.

H. 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 occumng 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 prosecuticns for violations of Common
Article 3 in the U.S. federal court system.

I.     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. $ 1091).
J.     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.
K. 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 C~INALS 16; S. C. Res. 827, U.N. SCOR, U.N. DOC. SIRES1827 (1993), art.7; S. C. Res. 955, U.N. SCOR, U.N.DOC S/RES/955, art. 6; FM 27-10,T 500.
L.     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 ROMESTATUTE OF THE INTERNATIONAL COURT,~01. 1, at 356.
CRIMINAL
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.

2.     
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 underlyng 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). .
M. 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 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

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been brought on voluntarily by the defendant (i.e. did not join a unit hown 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 hislher 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 1474 with the trial of Peter of Hagenbach. William H. Parks, Command Responsibility for War Crimes, 62 MILL. REV. 1 (1 973).
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 MILL. REV. 1 (1973).
D. Two cases prosecuted in Germany after WWII further 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 hm 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.

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
1994 genocide) and Jean Paul Akayesu (bourgrnestre (mayor), responsible
for executive hnctions 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 AppenQx), 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 hnctioning 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:
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. Army Policy that soldiers be tried in courts-martial rather than international forums. FM 27-10, para. 507.

2.
No separate crime of command responsibility or theory of liability, such as conspiracy, for command responsibility in UCMJ. For a discussion of this and some proposed changes, see Michael L. Srnidt, Yamnshita, 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. 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, fi 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 wamor 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.

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 trylng four cases &om Rwanda, many complaints were filed with the courts. The statute was
222
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U'UI, C7rztt:m ~1m1 C'ot?:t?iui;d2~~,sponsii~iii1~
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 tial 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. 5 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:
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.

3. The Military Extraterritorial Jurisdiction Act of 2000 may also serve as a basis for prosecution for war crimes. DoD is currently working on implementing instructions (issued for comment in the Federal Register on February 2,2004.
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. Freq~~ent

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 s~lbsequentconflicts 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 finnly 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.
I, 25 (1942).

a.     
Congressional authority to create military commissions derived fiom 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 Expnrte Quirin, In re Ynmnshita, 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 temtory 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 temtory 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 war7' requirement lost much relevance. For example, in Quirin,neither the trial nor the defendants' crimes were 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. Kahannmoku, 327 U.S. 304 (1946).
(2)Military commissions acting as a Military Government Court may try
U.S. citizens for violations in an occupied territory. Madsen v. Kinselln, 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)During international armed conflict, Geneva Convention IVY articles 64,66 and 70 authorize, but place some restrictions on, the use of military commissions to try protected civilians in occupied territories.
(3)Hnbens Corpus Issues.
(a) May have access to U.S. co~~rt
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 temtories. Johnson v. Eisentrnger, 339 US. 763 (1 950).
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 226
C lrc~ptcr3 ij'ut Crrt1w5LIM/ ~<e~,7rr~1~113
C u~,I,~~L~~I~ 1 1~
commissions "shall be guided by the appropriate principles of law and rules
of procedure and evidence prescribed for courts-martial." MCM, pt. I, &
2@)(2).
8.
In theory, could provide very limited evidentiary and procedural formality; see,Yamashitn, 327 US 18, and a very streamlined appeal process. See Johnson v. Eisentrager, 339 U.S. 763 (1950).

9.
International treaty obligations, however, may provide a floor of procedural rights. See Geneva Convention I11 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
ARMED CONFLICT 321 n. 29,335 n. 98,383 (1976); IV Pictet at 413-14; 2
Final Record of the Didomatic Conference of Geneva of 1949 389-90; JOHN
N. MOORE,ET. AL., NATIONAL SECURITYLAW 373 (1990).
VI. CONCLUSION
no choice but to inform the United Nations, as depository of the treaty, of our intention not to become 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 anived with the fmbelief 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 acco~~ntable
before the world -and perhaps one day such a court will come into being.
A Flawed Outcome
But the International Criminal Court that emerged fiom the Rome negotiations, and which will begin hnctioning on July 1will 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 prosecutor would lead to controversy, politicized prosecutions, and confusion. Instead, the U.S. 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 U.S. officials, and our men and women in uniform, at risk of politicized prosecutions, the ICC will complicate U.S. 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.
Our Efforts
The President did not take his decision lightly.
After the United States voted against the treaty in Rome, the U.S. 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 fimdamental concerns.
On December 31, 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 U.S. 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 1of 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 So~ith 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.
2173 Celebici Appeals Judgement, para. 238. Information available to the superior which can provide the requisite notice includes, fdr 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).2 174 The adequacy of these measures is commensurate with the material ability of a superior to prevent or punish.2175 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 himself'.2178 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 options".2180 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".2181 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

1.
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2.
The oficial 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.

NOTES

NOTES

NOTES

NOTES

THE LAW OF WAR AND MILITARY OPERATIONS OTHER THAN WAR
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 [hereinafter 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) [hereinafter DA PAM 27-1-11.

7.     
Dept. of Army, Pamphlet 27-161-2, International Law, Volume I1 (23 October 1962)
[hereinafter DA PAM 27-1 61 -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 41-101.

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 (1987) [hereinafter 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 (1 992).

15.
L. Oppenheim, International 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. A1810, at 71 (1948).

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 Newman and David Weissbrodt, International Human Rights (1996).
19.Frank Newman and David Weissbrodt, Selected International Human Rights Instruments (1996).
20.U.N.Charter.
I. INTRODUCTION.
A. Military Operations Other than War (R
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) [hereinafter 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 temtory; rather it was "to establish and maintain a secure and stable environment …." Moreover,

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. LAW AND MILITARYOPERATIONS 1995: LESSONS
INHAITI, 1994 –
LEARNEDFOR JUDGEADVOCATES,

Center for Law and Military Operations 47 (1 1 December 1995) (quoting Theodore Meron, Extraterritoriality of Human 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 1" Armored 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 5 100.77, 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 infra).
b.
Because in many cases U.S. 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 243 1-.. ,!~gp,:?? ,>/' z51). I;.;,' ;(,%')7.'
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 CONFLICT. 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.
(1)"International Armed 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.
(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 US. 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-6-vis other states, while . . .

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 fights 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 5100.77, 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.
246
('ll(/pkv (J
1iZ1L Ly !!<I, 1/11~//\/(A71Jl
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 cames 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 fimctional 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. 621 (1 995).

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. Inderhrth 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 governments 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, 31 10195.

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, ludnapping, 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.

M. 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 defaultlstart 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 $ 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 rights1

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. US.),1986 I.C.J. 4 (June 27).
(c) Taking of hostages;
(d)Degradinghumiliating treatment;
(e) Punishment without fair and regular trials; and
(0Failure to care for and protect the wounded and sick.
(3)Relationship between Humanitarian Law and Human fights 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)International humanitarian law regulates the conduct of state vis-ir-vis state, whereas human rights law regulates the conduct of state vis-ir-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:

251
c'I~~l,i!/er
i:<!.:<' (!?,<.; /'"./(>c?:/'ly
(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, inhuman, 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. 9 2151n.(a);
(2) The Agricultural Trade Development and Assistance Act of 1954, as amended 7 U.S.C. 5 17 12 (precluding agreement to finance sale of agricultural commodities to such governments);
(3)International Financial Institutions Act of 1977,22 U.S.C. $8 262d arid 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 kghts, 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 of] equal treatment before the law."'
(c) Whether Declaration provisions whch 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 FOREIGN RELATIONS LAWOF THE UNITED at $702.
STATES,
Id. 5 702 k.
253
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]."' 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.     
US. 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,
obligations of the host nation, even if not binding under U.S. law, becausz such obligations become binding as host nation law.
b. JAs should seek information on host nation law and applicable international agreements fiom 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 fiom 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, 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 trigpered, 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 individ~ials 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 Conventions."
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 refhal 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 US. 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.
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 extratemtorial 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 bghts 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)
US. 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 fiom 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 AnalogyIExtension.

E.
TIER 4: U.S. Domestic Law & Policy (Including Law by AnalogyIExtension).

1. APPLICATION. The 4" tier 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,

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 fo~mh 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 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 PUB4-02, DOCTRINE FOR HEALTHSERVICESUPPORT IV -1 -IV –
IN JOINT OPERATIONS 2 (1 5 NOV. 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 from MG George A. Fisher, MNF Medical Rules of Engagement (ROE) Policy of 1/25/95, and Asbjom 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 infra 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, supm.

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

260
m1p1ct !)
IAW o/ lfi'(1, CI.X~/l\/[d! 1 :J
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 ARMYFIELD MANUAL 8-10, HEALTH SERVICESUPPORT OF OPERATIONS,
IN A THEATER para. 3-17 (1 Mar 1 991).
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. US. 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 prelpost-trial incarceration.

b.
Pretrial confinement must be deducted fi-om any post-trial period of confinement.

c.     
A sentence of to imprisonment may be converted to a period of internment.

d.
GC Arts. 68-7 1.

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."~
' 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 TASKFORCE EAGLE:JOINTMILITARY POLICY AND PLANNING HANDBOOK
COMMISSION GUIDANCE (21 Mar. 1996).
2.     Detainment is Typically Authorized (by a designated task force commander) For:
a.     
Serious crimes (as described above);

b.     
Posing a threat to U.S. 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 property.'

d.
Obstructing the forces' progress (obstructing mission accomplishment in any number of ways to include rioting, demonstrating, or encouragmg 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 his 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.

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 US. 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 ~mnder 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.

(e)
Detainees shall not be physically abused.

(d)Detainees shall be treated humanely.
(0Contact 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.
(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 Semenation. 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 successhl 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."
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 from 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, US. 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.
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. 8 1, 91, & 92.
L.     The Detaining Power must provide for the support of those dependent on the detainee. GC, Art. 8 1.
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
CPE 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 lhghts 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, fi-om 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 intemational 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 intemational 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, orof 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 waning nation were to bomb a

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 Property. 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.
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 not necessarily qualify for refi~gee 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.     
195 1 Convention Relating to the Status of Refugees (RC). The RC bestows refugee statuslprotection on pre-1951 refugees.

2.     
1967 Protocol Relating to the Status of Refugees (RP). The RP bestows refugee status/protections on post- 195 1 refugees.

a.     
Adopts same language as 195 1 Convention.

b.
U.S. is a party (110 ratifying nations).

3.     1980 Refugee Act (8 U.S.C. $ 1101). Because the RP was not self- executing, this legislation was intended to help US. 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 refugees at our borders. (This holding is inconsistent with the position of the UNHCR, which considers the RP to 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 Refugee Assistance Act of 1962 (22 USC $2601).
a.     Qualifies refugees for U.S. assistance.
' Although the phrase "within the US." was removed in 1980,the courts have steadfastly interpreted this only to apply to the difference in the status of aliens already within the US. "Within the U.S." is a tenn 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."
b.
Application conditioned upon positive contribution to the foreign policy interests of U.S.

C.
RETURNIEXPULSION RULE.

1.
No Return Rule (RP art. 33). Parties may not return a refugee to a territory where his life or freedom 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 U.S.

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 ksks (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.
Membershp 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.

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.Rght to Expedited Naturalization.

E. DETAINMENT (See MOOTW DETAINMENT above).
1.     
U.S. policy relative to Cuban Refugees (MIGRANTS) is to divert and detain.

2.     
~eneralPrinciples 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 ASYLUM NOR TEMPORARY REFUGE IS A CUSTOMARY LAW RIGHT. A number of plaintiffs have attempted to assert the right to enjoy international temporary refuge 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 1980 Refugee 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 from 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. militarypersonnel are never authorized 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 U.S. 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 notgrant 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,f17.

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.
(1)Immediately report all requests for political asylumhemp. refuge" to the Army Operations Center (AOC) at Commercial (703) 697-0218 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 TERRITOIUES:
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. Refbge will end only when directed by higher authority.

NOTES

NOTES

NOTES

NOTES

HUMAN RIGHTS
REFERENCES
1.     
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T.35 16.

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 usehl 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. law; and human rights law 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 5701.
See the Paquete Habana The Lola, 175 U.S. 677 (1900); see also supra note 1 at $ 11 1.
'Supra note 1 at $70 1.
281
('//(//JIC~ '0
:ll,/,ul/~ ?1yh >
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 circumstance.' 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 fimdamental human rights fall withm 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.
282
IJ~LT
7.     A consistent pattern of gross violations of internationally recognized human rights6
C. 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 Rightsvone 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 support,'O and as the guiding source of soldier conduct across the spectrum of conflictll). 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,
Supra note 1, at $702.
'Supra note 1, at $702, Reporters' Notes.
G.A. Res. 217A (III), UN Doc. Al810, at 71 (1948).
RICHARD B. LILLICH &FRANK INTERNATIONAL RIGHTS: PROBLEMS
NEWMAN, HUMAN OF LAWAND POLICY 65-67 (1979); RICHARDB. LILLICH, HUMAN PROBLEMS
INTERNATIONAL RIGHTS: OF LAW, POLICY, AND PRACTICE,117-127 (2d. ed. 1991); Filartiga v. 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,LAWAMONG NATIONS238 (1992) [hereinafter VON GLAHN].
lo See DEP'TOF THE ARMY REG. 12-15, JOINT SECUMTY ASSISTANCE para. 13-3.
TRAINING,
I'
See DoD DIR. 5100.77; see also CJCS INSTR. 5810.01B.
283
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,12

10.Systematic racial discrimination, or
1 1 .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 all, must U.S. forces endeavor to prevent violations of human rights law by third parties in areas where such forces are operating?
l2 This 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 legtimate 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.
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 from the harmful acts of their own governments.14 This was the "groundbreaking" 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
l4 See supra note 1 and accompanying text.
285
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-e~traterritoriality."~~
The result of this theory is that these intemational 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 intemational 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, although treaties entered into by the U.S. become part of the "supreme law of
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 temtory of the United States. See supra note 1 at •.322(2) and Reporters' Note 3; see also CLAIBORNE PELL REPORT ON THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS,S. EXEC. COC. NO. 102-23 (Cost Estimate) (This Congressional Budget Office Report inhcated 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, Extraterritoriality ofHulnan Rights Treaties, 89 AM. J. INT'L L. 78-82 (1995). See also CENTERFOR LAWAND MILITARY ADVOCATE SCHOOL, UNITED
OPERATIONS, THE JUDGE GENERAL'S STATESARMY, LAW AND MILITARY FOR JUDGE
OPERATIONSIN HAITI, 1994-19%–LESSONS LEARNED ADVOCATES49 (1995) [hereinafter CLAM0 HAITI REPORT], citing the human rights groups that mounted a defense for an Army 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).
the land,"l"ome are not enforceable in U.S. courts absent subsequent legislation or executive order to "execute" the obligations created by such treaties1'
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 on whether a judge advocate should conclude that a treaty creates a binding
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 5111. 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.
''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, i.e.,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 firther 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 provisions 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.
Supra note 1, at cmt h. See also Foster v. Neilson, 27 US. (2 Pet.) 253, 254 (1829). 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; see also DEP'TOF ARMY,PAMPHLET VOLUMEIpara. 8-
27-161-1, LAW OF PEACE, 23 (1 September 1979) [hereinafter DAPAM 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.
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 ~bligation.~'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.22

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 intemational 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 temtory 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 associated with the arrest and imprisonment of its nationals served as part of the
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." Stlpra note I, at •.11 1, 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 intemational 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).
23 Seesupra note I at 5 13 1.
24 Seesupra note 1 at 3 11 1, cmt.
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 full 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 govemment 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.27 The burden associated with fully complying with the letter and spirit of the Universal Declaration of Human hghts2"ennitted the United States to safeguard its force, execute its mission, and reap the benefits of "good press."29
25 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 "The 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 HAITI REPORT, supra note 17, at 63.
27 See supra note 17 at 64-65.
28 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, and the International Committee of the Red Cross (ICRC) that the U.S. led force" was adhering to the
289 (~'h<r/?!?>.
i11
J-iu;w,v Rights
I.     Accurate articulation of these doctrines of non-extratemtoriality 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 intemational 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, although not binding as a matter of treaty obligation, are nonetheless binding on U.S. forces as a matter of customary international law.
Universal Declaration principles. See OPERATION DEMOCRACY, DIVISION, OFFICE
UPHOLD ~OTHMOUNTAIN OF THE STAFF JUDGE ADVOCATE FORCE REPORT 7-9 (March 1995)
MULTINATIONAL HAITI AFTER-ACTION [lOTH MOUNTAIN AAR].
290
In~c?,Y
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 free 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 status of 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.
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 held guilty 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.

Article 14
1.
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 marry 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 eeedom, 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 fieedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
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 basis 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
1.
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.
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 hls 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 perfom any act aimed at the destruction of any of the rights and freedoms set forth herein.
NOTES

NOTES

NOTES

INDEX

Afghanistan ……………………………. 4 47. 64. 84. 85. 90
Aggression ………………………………………….. 35 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 …………………………………………….. 71

Belligerency ………………………………………………………. 89
Belligerent …………………….. 1. 62. 67. 89. 102. 117. 194
Biological Weapons ……………………………….2 163. 187
Biological Weapons Convention ……………..2 1. 163. 187
Booby Traps …………………………………………………….. 181
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. 214 Chemical Weapons Convention ……….. 21. 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 Codeofconduct 103. 109. 110. 111. 112. 113. 114. 115 Combatant …………………………… 4 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.
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

Defectors …………………………………………………………….89
Deserters …………………………………………………………….89

Detainees …..62.75. 81. 91. 92. 105. 106. 137. 153.262.
264. 265
Discrimination …………………………………………………..166
Dislocated civilian …………………………………………….81
Distinction ……………………………………………89. 164. 166
Dunant. Henry …………………………………………..13. 51

E
Emblems …………………………………………………………. 176
Enduring Freedom ……………………………… 47. 8 1. 85. 9 0
Enemy Property …………………………………………………189
Espionage …………………………………………………………193

Foreign Relations Law …………2. 20. 247. 251. 279. 280

General Assembly 35. 37. 38.40.41.42. 214.246. 251.
289 General Order 100 ……………………………………………….13 Geneva Convention1 …. 13.22. 137. 170. 171. 225. 226.
239 Geneva Convention 111 …………………. 170. 225. 226. 267 Geneva ConventionIV ….. 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 GulfWar….82. 95. 98. 99. 100. 113. 147. 168. 188. 192.
203. 207
H
Hagenbach. Peter von ……………………………….. 201. 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 .2 1. 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
I
Identity Card ………………………………………………………. 87
Incendiaries ………………………………………………….. 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.

2 13.226. 242 International Court of Justice …………..38. 144. 187. 248 International Criminal Court …. 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

J
Jus adBellum ……………………….4. 5. 6. 7. 10. 11. 12. 13
JusinBello …………………………….4.5.6. 11. 12. 13. 164
Just War……………………………………………..7. 8. 9. 12. 35

K
Kellogg-Briand Pact ……………………………………….11. 35
Kosovo ………………………………………………….43. 83. 182

L
Landmines ……………………………………………………179 Lasers ………………………………………………………………183 Law of Land Warfare ….19. 25. 5 1.54. 66. 75. 116. 137.
163.191.199.220. 239
League of Nations …………………………………….10. 11. 35
Levee en mass ……………………………………………… 53. 121
Libya …………………………………………………………… 46
Lieber. Francis ………………………………….. 13. 77. 78. 164

M
Macedonia ………………………………………………………….83
Malmedy ………………………………………………………5. 165
Martial Law Courts ………………………………………….. 224
Means and Methods ………………………………………….. 21
Medical

Aircraft ………………………………………………………….67
Auxiliaries ……………………………………………………..62
Material …………………………………………………………66
Personnel ……………………5 1. 61. 62. 63. 89. 171. 172
Mercenaries ………………………………………………………..89
Military Commission ..lO5.205. 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

N
National Security Strategy ……………………………………. 47
NEO………………………………………………………………….. 48
Neutral Countries ……………………………………….. 71. 172

Non-Combatant Evacuation …………………………………. 48
Non-extraterritoriality ……………………………………….. 284
Nuclear Weapons ………………………………………………187
Nulla poena sine lege …………………………………………206
Nullum crimen sine lege ……………………………….206, 207
Nuremberg …11. 165. 199. 200. 202.203. 206.208. 227

Objectives …………………………………………………….. 138
……………………………….. 148. 149.

Occupation 28,153 Osirak Reactor ……………………………………………….. 46
P
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. 11 1. 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 ProtectedPersons …………………………… 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
R
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 ……………………….. : 101.
…………………….94.194 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
300
Sierra Leone ……………………………………….. 203, 222. 227
Somalia ……………………..84. 93. 186. 240. 246. 261. 263
Sovereignty …………………………………………………………25
Spies …………………………………………………………..8 155
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
Treachery …………………………………………………………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 Rights …137. 239.248.
249.251.262.279.280.281.287. 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 …..11. 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. 211

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. 218. 220. 224. 226

cover page
 

Law of peace Vol-1

Law of peace Vol-1

DEPARTMENT OF TIE ARMY PAMPHLET

LAW OF PEACE
Volume I

HEAD(1UARTERS, DEPARTMENT OF THE ARMY
SEPTEMBER 1979

Empty page.
INTRODUCTION
The purpose of this DA Pamphlet is not to make each of its readers an expert in the
field of international law. This publication.has been written with the expectation that the
military attorneys making use of it will be provided with a basic understanding of the
legal .system governing the international community. International law is an area of jurisprudence which challenges. It quite often fails to provide concise "textbook answers" to problems which reach a degree of complexity far greater than that found in any other legal system. Entrusted with the task of regulating the conduct of intema- tional sovereign entities, it is a legal framework which develops on a daily basis. Its suc- cesses go largely unnoticed, while its failures gain almost instantaneous notoriety and condemnation. It is a jurisprudential system particularly unsuited for complacent per- sonalities and regimented minds. Hopefully, military attorneys will not view the often evident imprecision of international law as a fatal weakness but as an opportunity afforded its practitioner to develop an efficient and viable legal system. Constructive criticism and the abiity to apply concepts and rules to practical international legal prob- lems 'must be based on a working knowledge of the subject matter. The achievement of this end underlies the purpose of this publication.
The term "he" (and its derivatives) usedhithispamphlet is generic and,'except where contraindicated, should be considered asapplying to both male and female.
CHAPTER 2. Section I. Pmaph
CHAPTER 3.
Paragraph
I. PaWTaph
I1.

Paragraph
HEADQUARTERS
DEPARTMENT OF THE ARMY
WASHINGTON.DC. 1 September 1979

INTERNATIONAL LAW
Volume 1
THE LAW OF PEACE

NATURE. SOURCES AND EVIDENCE OF INTERNATIONAL LAW-THE TRADITIONAL AND
CONTEMPORARY MEWS …………………………………………………………………
The Traditional View of the Nature of International Law ……………………………………………….

1.1 . A multifaceted jurisprudence ……………………………………………………………

1.2 . The original development of international law ………………………………………………..

1.3 . The theories and schools of international law in the state system ……………………………………

1.4 . Schools…………………………………………………………………………….
Sources and Evidences of International Law ………………………………………………………..

1.5 . General ……………………………………………………………………………

1.6 . Sources of international law ……………………………………………………………..

1.7 . Evidences of international law ……………………………………………………………

1.8 . Municipal courts ……………………………………………………………………..

1.9 . Text writers …………………………………………………………………………

1.10 . Cases decided ex aequo el bono ………………………………………………………….
Contemporary Views of International Law ………………………………………………………….
1-1 1 . General ……………………………………………………………………………

1.12. The Soviet view ………………………………………………………………………

1.13 . Universality …………………………………………………………………………

1.14 . Soviet sources of international law …………………………………………………………

1.15 . The evolving states' view toward international law ……………………………………………..

1.16 . Inequitable features of the traditional system of international law …………………………………..

1.17 . Legal basis of the evolving states' approach ………………………………………………….

1.18 . Sources and evidences of international law ….:………………………………………………

1.19 . Future objectives of the evolving states …………………………………………………….

1.20 . Summary …………………………………………………………………………..

1.21 . Conclusion………………………………………………………………………….
THE RELATIONSHIP BETWEEN INTERNATIONAL AND STATE LAW …………………;……………
On the National Level ………………………………………………………………………..

2.1 . Dualism versus monism ………………………………………………………………..

2.2 . The U.S. approach …………………………………………………………………….
On the International Level …………………………………………………………………….

2.3 . Introduction…………………………………………………………………………

2.4 . Summary …………………………………………………………………………..
SUBJECTS OF INTERNATIONAL LAW …………………………………………………………

3.1 . Introduction…………………………………………………………………………
The Basic Nature of States and Governments ……………………………………………………….

3.2 . Necessary qW~cations for statehood ……………………………………………………….

3.3 . Sovereignty: The key to statehood …………………………………………………………

3.4 . Legal consequences of statehood …………………………………………………………..

3.5 . Statehood and U.N. membership ………………………………………………………….

3.6 . Statehood distinguished from government …………………………………………………..
Recognition of States and Governments …………………………………………………………..

3.7 . Nature of recognition ………………………………………………………………….

3.8 . International legal aspects of recognition …………………………………………………….

3.9 . Practice of the United States ……………………………………………………………..

3.10 . De facto and de jure recognition ………………………………………………………….
3-1 1 . Actions constituting remgnition ………………………………………………………….

3.12 . Existence or nonexistence of duty to recognize ……………………………………………….

3.13 . Recognition and diplomatic relations ……………………………………………………….

3.14 . The status of recognized and unrecognized statesand governments under municipal law …………………

3.15 . Termination or withdrawal of recognition ……….:………………………………………….

3.16 . Continuity of states and change of government ……………………………………………….

This pamphlet supersedes DA Pam 27.161.1. 30 June 1964.

Page .

Section International Legal Personality ………………………………………………………………….3-11

Paragraph 3.17 . The concept of "International Legal Personality" …………………………………………….. 3-11
3.18 . International organizations ……………………………………………………………….3-11

3.19 . Corporations ………………………………………………………………………..3-12

3.20 . Individuals ………………………………………………………………………….3-12

3.21 . Internationallawandhumanrights ………………………………………………………..3-13

3-22. The legal responsibility of individuals in international law ……………………………………….. 3-14

CHAPTER JURISDI(JTI0N ……………………………………………………………………………4-1

Section Bases of Jurisdiction Under International Law ………………………………………………………. 4-1

Paragraph 4.1 . General …………………………………………………………………………… 4-1

4.2 . Jurisdiction based on territory …………………………………………………………… 4-2

4.3 . Acquisition of sovereignty over territory ……………………..:……………………………. 4-2

4.4 . Extent of territory …………………………………………………………………….4-10

4.5 . Scope of territorial jurisdiction ……………………………………………………………4-11

4.6 . Extradition………………………………………………………………………….4-11

4.7 . Jurisdiction based on nationality …………………………………………………………. 4-15

4.8 . ~urisdiction based on agreement with the territorial state ……………………………………….. 4-17

4.9 . Jurisdiction based on protection of certain state, universal, and other interests ………………………… 4-18

Cases of Multiple Jurisdiction …………………………………………………………………..4-21

Paragraph 4.10 . General ……………………………………………………………………………4-21

JurisdictionoverAiraaftandSpaceVehicles……………………………………………………….. 4-21

Paragraph 4-1 1 . Jurisdiction over national aircraft and space vehicles …………………………………………… 4-21

4-12. Jurisdiction over foreign airaaft and space vehicles ……………………………………………. 4-22

4-13. Offenses aboard or against aircraft ………………………………………………………… 4-24

4-14. Jurisdiction over vessels and individuals thereon ……………………………………………… 4-26

4- 15 . Nationality of vessels ………………………………………………………………….4-27

4-16. Scope ofjurisdiction over national vessels and persons thereon …………………………………… 4-27

4-17. Exercise ofjurisdiction in particular situations ……………………………………………….. 4-29

4.18 . Foreign vessels in the territorial sea: The right of innocent passage ………………………………… 4-31

4.19 . Foreign vessels on the high seas (contiguous zone and beyond) ………………………………… 4-33

4.20 . Comment on materials presented ………………………………………………………… 4-34

CHAPTER JURISDICTIONALIMMUNITIES……………………………………………………………… 5-1

Paragraph 5.1 . General …………………………………………………………………………… 5-1

Section Jurisdictional Immunities of Foreign States ………………………………………………………… 5-1

Paragraph 5.2 . The current importance of jurisdictional immunities …………………………………………… 5-1

5.3 . The two theories of sovereign immunity ……………………………………………………. 5-1

5.4 . The restrictive theory …………………………………………………………………. 5-4

5.5 . Procedures for asserting immunity ……………………………………………………….. 5-6

5.6 . The evolving status of sovereign foreign litigants in U.S. courts…………………………………… 5-6

Immunities of state representatives ……………………………………………………………… 5-9

Paragraph 5.7 . Diplomatic representatives and theories of diplomatic immunity ………………………………….. 5-9

5-9
. The Vienna Convention on Diplomatic Relations …………………………………………….. 5.8
5.9 . The International Law Commission's Convention on the Protection of Diplomats …………………… 5-11

5.10 . U.S. legislation for the protection of diplomats ……………………………………………….. 5-11

5-1 1 . Applicability of domestic law …………………………………………………………….5-13

5.12 . Proving diplomatic status ……………………………………………………………….5-14

5.13 . The reach of diplomatic immunity …………………………………………………………5-15

5.14 . Protection of diplomatic personnel in transit ………………………………………………….5-16

5-1 5 . The inviolability of diplomatic premises …………………………………………………….5-16

5.16 . Consular immunity ……………………………………………………………………5-17

5.17 . The Vienna Convention on Consular Relations ………………………………………………. 5-18

5- 18 . The scope of consular immunities …………………………………………………………5-19

5.19 . Applicable U.S. law ……………………………………………………………………5-19

5.20 . Special missions and persons assimilated to diplomatic status …………………………………….. 5-19

5.21 . Representatives to international organizations ………………………………………………..5-20

Immunities of International Organizations, Their Agents. Officials and Invitees ……………………………… 5-21

Paragraph 5.22 . General ……………………………………………………………………………5-21

The Granting of Diplomatic Asylum. Political Asylum. or Temporary Refuge ………………………………. 5-21

Paragraph 5.23 . General ……………………………………………………………………………5-21

5.24 . Applicable international law …………………………………………………………….. 5-21

5.25 . Controlling State Department guidelines ……………………………………………………5-22

5.26 . Controlling DA Regulation ……………………………………………………………..5-22

NATIONALITY ……………………………………………………………………………6-1

6.1 . Introduction…………………………………………………………………………6-1

6.2 . Nationality as a concept of municipal law ……………………………………………………. 6-1

6.3 . Acquisition of nationality ……………………………………………………………….6-2

Pam 27-161-1

Paragraph
CHAPTER

Section
Paragraph
Paragraph

CHAPTER

Section Paragraph
Paragraph
Paragraph
6.4 . Loss of nationality …………………………………………………………………….

6.5 . Statelessness ………………………………………………………………………..

6.6 . Nationality asa concept of international law ………………………………………………….

6.7 . Dual nationality ………………………………………………………………………

6.8 . Obligations of nationality or allegiance ………………………………………………………

6.9 . Taxation……………………………………………………………………………

6.10 . Compulsorymilitaryservice……………………………………………………………..
6-1 1 . Multilateral agreements on nationality ……………………………………………………..

6.12 . Role of nationality in state responsibility …………………………………………………….
STATE RESPONSIBILITY ……………………………………………………………………
General Concepts of State Responsibility …………………………………………………………..

7.1 . Introduction…………………………………………………………………………

7.2 . What constitutes a violation ……………………………………………………………..
State Responsibility for Injuries to Aliens ………………………………………………………….

7.3 . Injury to aliens ……………………………………………………………………….

7.4 . The status of aliens under international law ………………………………………………….

7.5 . Degree of state responsibility to aliens -conflicting views ……………………………………….

7.6 . The international standard ofjustice ……………………………………………………….

7.7 . Procedural aspects of the assertion of a claim based on injuryto a national ……………………………

7.8 . Nationality of the individual claimant ………………………………………………………

7.9 . Substantive bases for international claims ……………………………………………………

7.10 . Responsibility of a state for acts of its militaryforces ……………………………………………
7-1 1 . Failure to protect aliens and to apprehend and prosecute those who wrongfully inflict injuryon aliens ………..

7.12 . Denial of procedural justice ……………………………………………………………..

7.13 . Injury to economic interests of aliens ………………………………………………………

7.14 . Expropriation and nationalization of alien-owned property ……………………………………….
7- 15 . Adequacy of compensation ……………………………………………………………..

7.16 . Presidential statement on expropriation …………………………………………………….

7.17 . State breach of its undertaking to an alien ……………………………………………………
7-1 8 . Choice and effect of governing law ………………………………………………………..

7.19 . State breach as a violation of international law ………………………………………………..

7.20 . Waiver by individual claimant (Calvo Clause) ………………………………………………..

7.21 . Justification for otherwise unlawful conduct ………………………………………………….

7.22 . Reparation …………………………………………………………………………..

7.23 . Succession to obligations and international responsibility ………………………………………..
The Act of State Doctrine ……………………………………………………………………..

7.24 . The conceptual framework ………………………………………………………………

7.25 . The court-made doctrine in the U.S. ……………………………………………………….

7.26 . Legislative reaction to Banco National v.Sabbatino-The Hickenlooper amendments ………………….

7.27 . Judicial reaction to the Hickenlooper amendments …………………………………………….

7.28 . The Executive Branch view of the Act of State doctrine …………………………………………

7.29 . Practical effects of the Hickenlooper amendment ………………………………………………

7.30 . Conclusion………………………………………………………………………….
INTERNATIONAL AGREEMENTS …………………………………………………………….
General…………………………………………………………………………………..

8.1 . Introduction…………………………………………………………………………

8.2 . International agreements defied …………………………………………………………
The Form and Structure of International Agreements …………………………………………………

8.3 . "Treaty Law" -The law of international agreements ………………………………………….

8.4 . Defining the international agreement ………………………………………………………

8.5 . The capacity of parties ………………………………………………………………….
The Conclusion of International Agreements ……………………………………………………….

8.6 . Formal requirements ………………………………………………………………….

8.7 . Authority to negotiate and sign …………………………………………………………..

8.8 . Consent to be bound by an international agreement ……………………………………………

8.9 . Entry into force of an international agreement ……………………………………:………….

8.10 . Depositaries…………………………………………………………………………
8-1 1 . Resewations to international agreements ……………………………………………………
The Validity and Effect of International Agreements ………………………………………………….

8.12 . The biding force of international agreements ………………………………………………..

8.13 . Pacta sunt servanda …………………………………………………………………….

8.14 . Validity and invalidity of international agreements ……………………………………………..
8-15. Jus cogens ………………………………………………………………………….
8- 16 .. Coercion and duress …………………………………………………………………..

8.17 . Registration and effect of nonregistration ……………………………………………………

8.18 . International agreements in internal law …………………………………………………….

Pam 27-161-1

Paragraph     Agreement making power in the United States ……………………………………………….
The executive agreement making power …………………………………………………….
Constitutional authority ………………………………………………………………..
Modern development ………………………………………………………………….
"Self-executing" agreements ……………………………………………………………
Conflict of agreement with internal law ……………………………………………………..
Effect of international agreements for states not parties ………………………………………….
Retroactive and successive treaties ………………………………………………………..
General -de of interpretation …………………………………………………………….

8.28 . Supplementary means of interpretation ……………………………………………………..

8.29 . Treaties authenticated in two or more languages ………………………………………………

8.30 . Summary ……………………………………………………………………………
Section. Termination and Modification of International Agreements …………………………………………….
Paragraph 8.31 . Denunciation or withdrawal from a treaty ……………………………………………………

8.32 . Termination or suspension of treaty due to breach or impossibility of performance ……………………..

8.33 . Fundamental change of circumstance ………………………………………………………

8.34 . War between contracting parties ………………………………………………………….

State Succession …………………………………………………………………………….
Paragraph 8.35 . General principles …………………………………………………………………….

8.36 . S~mmw…………………………………………………………………………..
CHAPTER INTERNATIONAL ORGANIZATIONS ………………………………………………………….
Section The United Nations ………………………………………………………………………….
Paragraph 9.1 . The beginnings of the United Nations ………………………………………………………

9.2 . The structure of the United Nations ……………………………………………………….

9.3 . The settlement of disputes by the United Nations ……………………………………………..

The International Court of Justice ……………………………………………………………….
Paragraph 9.4 . The Judges of the court ………………………………………………………………..

9.5 . The law applied in the court ……………………………………………………………..

9.6 . The jurisdiction of the court ……………………………………………………………..

9.7 . Casesbefore the court …………………………………………………………………

9.8 . Conclusion………………………………………………………………………….
CHAPTER STATUS OF VISITING FORCES IN INTERNATIONAL LAW ………………………………………..
Section Collective Security Systems …………………………………………………………………….
Paragraph 10.1 . Collective self-defense under the United Nations Charter ………………………………………..

10.2 . The United States mutual defense system …………………………………………………..

10.3 . Jurisdictional immunity of visiting forces ……………………………………………………

Criminal Jurisdiction Under Status of Forces Agreements ………………………………………………
Paragraph 10.4 . The NATO status of forces agreement ……………………………………………………..

10.5 . Other status of forces agreements …………………………………………………………

10.6
. Conclusion………………………………………………………………………….
THE CTVILLAW SYSTEM ……………………………………………………………………
11-1. Introduction…………………………………………………………………………

11.2
. The early European models ……………………………………………………………..

1 1.3 . Modem civil practice …………………………………………………………………..

11 .4 . The working civil model ………………………………………………………………..

1 1.5 . The civil process ……………………………………………………………………..

11.6 . Pretrial procedures ……………………………………………………………………

11.7 . The decisionmaking process ……………………………………………………………..

11.8 . C&cation …………………………………………………………………………

1 1.9 . Conclusion………………………………………………………………………….

APPENDIX

Section Criminal Procedures In France …………………………………………………………………

A.1 . General ……………………………………………………………………………

A4. The prosecutor in France ……………………………………………………………….

A.3 . Charging …………………………………………………………………………..
A-4. Role of counsel ………………………………………………………………………

A.5 . Burden of proof ………………………………………………………………………

A.6 . Search and seizure …………………………………………………………………….

A.7 . Pretrial confiiement …………………………………………………………………..

A.8 . Bail ……………………………………………………………………………….

A.9 . The judicial process ……………………………………………………………………

A.10 . Appeals ……………………………………………………………………………
-1. Sourcesofthelaw …………………………………………………………………….
criminal ~aw ………………………………………….

Procedures in The Federal Republic of Germany A-12. General …………………………………………………………………………… A-13. The prosecutor ……………………………………………………………………… A-14. Rightsofavictim …………………………………………………………………….
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APPENDIX     A.15 . Supervision of the prosecutional function ……………………………………………………
A- 16 . The code of criminalprocedure …………………………………………………………..

A.17 . The German Court System ……………………………………………………………..
A- 18 . Duties of the prosecutor ………………………………………………………………..

A.19 . Rights of the accused …………………………………………………………………..

A.20 . Pretrial confinement …………………………………………………………………..

A.21 . The defense counsel ……………………………………………………………………

A.22 . Indicting……………………………………………………………………………

A.23 . Charges ……………………………………………………………………………

A.24 . Composition of the courts ………………………………………………………………

A.25 . The exclusionary rule in Germany ………………………………………………………..

A.26 . Conduct of the trial ………………………. ;………………………………………….

A.27 . Conviction and sentencing ………………………………………………………………

A.28 . Sources of law …………………………………………………………………………

A.29 . The penal order ……………………………………………………………………….

A.30 . Conclusion………………………………………………………………………….
Section III. Other Civil LawJurisdictions …………………………………………………………………..

A-3 1 . Republic of Korea …………………………………… ,………………………………

A-32. Japan ……………………………………………………………………………..

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CHAPTER 1
NATURE, SOURCES AND EVIDENCE OF INTERNATIONAL LAW:
THE TRADITIONAL AND CONTEMPORARY VIEWS

Section I. THE TRADITIONAL VIEW OF THE NATURE OF INTERNATIONAL LAW
1-1. A Multifaceted Jurisprudence. a. If asked to "define" international law, a law professor would most probably articulate this classic definition: "International law consists of those rules and regulations which bind na-
tion states in their relations with each other." 1 Although academically and theoretically correct, this definition nevertheless fails to provide the military attorney with any practical insight into the distinctive areas of international jurisprudence, the interrelationship of these areas, and the sources and evidences of these rules and regulations. The purpose of this chapter will be to provide this insiit. Ad- ditionally, the views of evolving and socialist states on in- ternational law will be examined in some detail.
b. Far from being simply an amorphous collection of
International Law Private I public

vague concepts and principles, international law is com- prised of distinct component parts. As such, it is a body of law which has evolved out of the experiences and the necessities of situations that have involved members of the world community over the years. International law ex- ists because it is to the benefit of all states that some sort of order govern their international dealings. There may be disagreement among them as to what law applies to a given situation, but there is no disagreement as to the fact that some set of rules is necessary. In the absence of a world government, these rules are made by the states themselves. States are, therefore, the ultimate drafters of international law. The composition of this law can best be explained by a careful analysis of the following chart.
Law of Peace / Lawofwar
-Nature, Sources, Evidences -The State System Conflict Management Rules of Hostilities -Jurisdiction -Self Defense -Hague Regulations (1907)
-Jurisdictional Immunities -Intervention -Geneva Conventions (1 949) -Nationality -U.N. Charter -Customary Law of War -State Responsibility -International Agreements -International Organizations -Jurisdictional Arrangements Overseas
Figure I.
c. Initially, it is important to distinguish between the private and public sectors of international law. In the former, private practitioners will be direct participants in legal matters of a primarily commercial nature. Private in- ternational law thus consists of subject matter generally found in law school courses dealing with Conflict of Laws, International Business Transactions, and other related areas. Typical items of private international law concern would be questions of international tax, franchisii, pa-tents, and incorporation. Interesting in nature, this is not, however, the area of international law of principal concern to the military attorney. 2 It is the public sector of interna- tional law in which the military lawyer may often find him-
1. G. Hackworth, Digest of International Law 1 (1940). See also

W. Bishop, International Law 3 (3d ed. 1971); H. Kelsen, Principles of Internutiom/ Law 201 (1952).
2. As a legal adviser to one of the armed services, the military at-torney will be primarily concerned with providing legal advice to an in- tegral element of the United States Government. Accordingly, intema- tional legal problems which arise will seldom be matters of a purely pri- vate nature. There does exist, however, a growing feeling that the tradi-tional distinction between private and public international law must be eliminated, due to the ever increasing interrelationship between these two areas of jurisprudence. See W. Friedmann, The Changing Structure of International Law 70 (1964).
self an active participant. Accordingly, it is essential that the various elements of this aspect of international jurisprudence be fully understood. Traditionally, public international law has been viewed as operative only among nation states. That is, only states are to be con- sidered true subjects of the law. Private citizens and cor- porate personalities are simply objects of international norms, with the former generally becoming involved in international legal matters only by serving as representa- tives of nation states. 3
d. For purposes of study and analysis, public interna- tional law has generally been divided into two distinct areas-The Law of Peace and The Law of War (Use of
(1) The Law of War. It is helpfd to divide this latter area of jurisprudence into distinct portions: Conflict Man-
3. C. Fenwick, International Law 32-33 (4th ed. 1965). The reader should be aware, however, that many jurists now question the ap- plicability of this traditional view of international law to the legal realities of the latter twentieth century. These individuals argue that private citizens, some international organizations, and even various corporate entities should be considered subjects of public international law. This contention has gathered strong support, especially in the rapidly developing area of human rights.
Pam 27-161-1
agement and the Rules of Hostilities. The Conflict Man- agement aspects of the Law of Warconsist of those legal concepts and principles developed for the purpose of eliminating or substantially reducing conflict within the in- ternational community. Of primary concern here are specific provisions of the U.N. Charter and the concepts of self-defense and intervention. 4 If these norms, for one reason or another, fail to prevent the occurrence of con- flict, the other aspect of the Law of Warthen comes into play-the Rules of Hostilities. Of major importance here are the 1907 Hague Regulations and the 1949 Geneva Conventions, those treaty rules and regulations applicable to the actual conduct of combat and the concurrent humanitarian safeguards. 5 The customary Law of War
may sometimes be looked to in areas where no &led
concepts have been formulated. Publications dealing with the Law of War available to the military attorney include DA Pam 27-161-2, International Law, Volume II (1962);DA Pam 27-1, Treaties Governing Land War-
fare (1956) ;and FM 27-10, The Law of Land Warfare (1956). 6
(2) The Law of Peace. As the second major areaof public international law, thisgenerally comprises 75 to 90 percent of the content of most intemational law courses taught in law and graduate schools. Often viewed by many military attorneys as a "nice to know–but hardly rele- vant" aspect of their professional responsibilities, the various elements of this area of intemational jurispm- dence provide the basic framework upon which both the Law of War and international jurisdictional arrangements are based. 7 It is this framework of the law with which this publication deals. Each of the chapters contained herein will focus on one of the elements of the Law of Peace
4.
For a brief but well reasoned discussion of these basic Conflict management concepts, see J. McHugh, Forcible Ser-He@ in Interna- tional Law, Naval War College Review, Nov-Dec, 1972,at 61.

5.
Annex to Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,1907.36 Stat, 2277,T.S. No. 539,2 Malloy, Treaties 2269;Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, [I9551 3 U.S.T. 3114,T.I.A.S. No. 3362, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, (19551 3 U.S.T. 3217, T.I.A.S. No. 3363, 75

U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [I9551 3 U.S.T. 3316,T.I.A.S. No. 3364,75U.N.T.S. 135and Geneva Convention Relative to the Protec- tion of Civilian Persons in Time of War,Aug. 12,1949, [I9551 3 U.S.T. 3516,T.I.A.S. No. 3365, 75 U.N.T.S. 287.
6.
These are only a few of the publications dealing with the Law of War available to the military attorney. Materials sWtcally designed to assist in the teaching of the Hague and Geneva Conventions are also available.

7.
International jurisdictional arrangements are an aspect of public international law of particular importance to the militaryattorney. These arrangements speak to the jurisdiction to be exercised over military forces stationed overseas and generally occur in the fonn of Status of Forces Agreements, Military Assistance Advisory Group (MAAG) Agreements, and Military Miion Agreements. This subject will be dealt with in detail in chapters 4 and 5, idm.

shown in faure 1 above. 8
e.
The purpose of this brief analysis of the interrelation- ship of the various aspects of international law has been to alert the reader to the fact that sound legal advice on inter- national legal matters is dependent on the attorney's ap- preciation of the broad range of international legal norms. A working knowledge of the Law of Peace is the first step in thislearning process. 1-2. The Original Development of International Law.

a.
The Peace of Westphalia. International law is basically a product of Western European civilization. 9 Beii a law between sovereign states, international jurisprudence did not, indeed could not, arise until the modem nation-state system came into existence. The birth of this system is convenientlyascribed to the Peace of Westphalia of 1648, by which the Thirty Years' War was concluded. 10 It was, in a sense, the constitution for the states that, almost to this day, comprise the map of Europe. 11

6. International law did not develop gradually. It arose rather suddenly to fill a definite need created by the fairly abrupt change in the composition of European political society which resulted from the Thirty Years' War. 'Ihis is not to say, however, that earlier ages did not contribute significantly to the formulation of international law. Early jurists in the field drew heavily on the practice of prior civilizations where rules regulated the existing intercom- munity relations. 12 Major contributions toward establish- ing a viable system of international norms were made by the Hebrews, Greeks, Romans, and several individuals in the Middle Ages. 13 1-3. The Theories and Schools of International Law in the State System. a. Theories. Following the disintegra- tion of the Holy Roman Empire, but prior to the Peace of Westphalia, the Renaissance widened man's intellectual horizon and the discovery of the New World stimulated the imagination of philosophers as well as of explorers. Vitoria, a Spanish theologian whose lectures were published in 1557 after his death, sought to apply the prin- ciples of international morality to the problems of the na- tive races of the Western Hemisphere. In another and earlier treatise he formulated, in clearer terms than had
8. See page 1-1,supra.
9. Thisfact has had a great impact on the contemporary view of the socialist and evolving states toward international law. See section III,
p. 1-13,irlfra.
lo. The Thirty Years' War, beginning in 1618, was a confused struggle of religious and political objectives. Beginnii as a domestic struggle between over 350 individual German states, the war rapidly engulfed, for a variety of reasons, the m Jor states of Europe. Emally, when the participants had exhausted their resources, the war was termi-nated by the Peace of Westphalia of 1648.This agreement consisted of the two treaties of Osnabruck and Munster, to which all of the leading Christian states of Europe were parties.
11.
C. Eagleton, International Government5 (3d ed. 1957); C. Fen-wick, International Law 14-15(4th ed. 1965).

12.
J. Brierly. The Law of Nations 1-2(6th ed. 1963).

13. For an excellent analysis of the influence of earlier civilizations on the development of international law, see A. Nussbaum, A Concise History of The Law of Nations (2d ed. 1954).

Pam 27-161-1

yet been done, the principle that the nations of the world constituted a community, based both upon natural rea- son and upon social intercourse. 14 The Spanish Jesuit, Suarez, in a classic passage of his treatise published in 161 2, insisted clearly that the states of the world, although independent in their national life, were nevertheless members of the human race and as such subject to a law of conduct: a law based, he maintained, chiefly upon natural reason, but also in part upon human custom. 15 The Italian jurist Gentili, professor of civil law at Oxford, published in 1598 a treatise, De Jure belli libri tres, in which, without discarding natural reason and natural law, he sought to frnd historical and legal precedents to regulate the conduct of nations. 16 The honor was reserved, however, to Hugo van Groot, better known as Grotius, to publish in 1625 a more formal treatise, De jure belli et pacis, which was the fust to obtain a hearing outside the schools and which won for its author the accolade of "Father of International Law." 17 Grotius followed the classical tradition in making the natural law the basis of his system. The "natural law," as he defined it, was "the dic- tate of right reason which points out that a given act, because of its opposition to or conformity with man's ra- tional nature, is either morally wrong or morally neces- sary, and accordingly forbidden or commanded by God, the author of nature." 18 Since nations formed a society similar in its nature to the community of citizens, they too were bound by the dictates of the natural law.
b. In addition to the natural law, Grotius recognized a "voluntary" law of nations based upon their free consent, either explicitly expressed in treaties and conyentions or implicitly manifested by usages arid customs. To this law he gave, the name jus gentium. 19 In so far as it conformed
14. Francisco De Vitoria, De Indis Et De Iure Belli Relictiones (text of 1696), in The Classics of International Law (J. Scott ed. 1917). For an appraisal of Vitoria's contribution, see J. Scon, The Spanish Origin of International Law, pt. I: Francisco de Vitoria and his Law of Nations (1934); J. Scott, The Catholic Conception of International Law, chap. 1 (1934); H. Wright, Catholic Founders of Modern International Law (1933); Trelles, Francisco de Viloria et I'ecole moderne du droit inferm- tional, 17 Recueil Des Cours 113-342 (1 927).
15. The passage is quoted, in Latin, by T. Walker, A History of The Law of Nations 155-56 (1 899); and in English by Eppstein, The Catholic Tradition of The Law of Nations 265 (1934). For a study of the in-fluence of Suarez upon the development of international law, see C. Trelles, 43 RECUEIL DES COURS 389 (1933).
16.
Gentili, De Juri Belli Libri Tres (1598), in Classics of Interna- tional Law (1933). Other predecessors of Grotius include Legnano, De Bello, De Represaliis Et De Duello, (circa 1390); Belli, De Re Militari Et Bello Tractatus, (1563); Ayala, De Jure Et Officiis Bellicis Et Disciplina Militari (1582). For a recent critical study, see L. Erlich, The Develop- ment of International Law as a Science, 1 Recueil Des Cours 177 (1 962).

17.
A modern translation by F. Kelsey, The Law of War and Peace, appeared in the Classics of International Law series in 1925.

18.
Id., chap. I, 5 X. For an analysis of the work, see T. Walker, History of the Law of Nations 285 (1899).

19. Id, 5 XIV.Vitoria appears to have used the tern in the same sense a century earlier. The new usage was destined to become the ac-cepted one, and in due time "law of nations" and "international law" came to be interchangeable.
to the dictates of right reason, the voluntary law might be said to blend with the natural law and be the expression of it. Should there be a conflict between the two, the law of nature was tq prevail as the fundamental law, the authority of which could not be contravened by the prac- tice of nations. 20
1-4. Schools. a. Largely under the influence of the great
treatise of Grotius and stimulated by the growing inter-
course between nations and the need for more specific
rules of international conduct, the science of international
law developed rapidly during the succeeding centuries.
Three main tendencies (sometimes described as schools
of thought) may be observed, which have led historians to
classify the various writers into separate groups. The term
"schools," however, suggests a greater unity than has ac-

tually existed within any of the several traditions. Some writers have sought to build up the theory of the law while others have laid chief stress upon the actual conduct of na- tions. A great middle group has insisted that the most practical approach to the law involved, of necessity, some theory of international ethics, thereby following in the footsteps of Grotius.
b. The Naturalists. The peculiar conception of the law of nature developed by the English philosopher Hobbes in his treatise on the Great Leviathan, published in 1651, had a far-reaching effect upon the science of international law. Man is antisocial, not social as in the Stoic and Chris- tian tradition. Living in a state of nature in which he is "nasty and brutish," man is at war with every other man until at last, driven by the instinct of self-preservation, man is led to form a compact with other men and sur- render his natural rights., The law of nature was thus divorced from theology. The divorce made it possible for states to assert their sovereignty in more absolute form; but at the same time it destroyed the conception of a high- er law and made their conduct a matter to be determined by their own free agreement. While following in the tradi- tion of Hobbes in divorcing the natural law from theology, Samuel Pufendorf, a university professor first at Heidelberg and l'ater at Lund in Sweden, conceived a new natural law of his own. In a work published in 1672, De
jure naturae et gentium, Pufendorf conceived of a state of nature whose fundamental law was the obligation of man to promote socialability with his fellow men; 21 whatever acts had that effect were laws of nature. The standard of international conduct was to be determined not by custom and treaty but by the natural law evidenced by the applica- tion of reason to international relations. Historians have placed Pufendorf at the head of the Philosophic or Pure Law of Nature School. However, others who have placed
20. Id., Prolegomena, 5 9.

21. S. Pyfendorf; De Jure Naturae Et Gentium (1672), in Classics of International Law (J. Scott ed. 1934). An abridged edition of the larger work wasprepared by Pufendorf himself under the title De Officio Horninis Et Civis Jurta Legem Naturalem Libri Duo (1682), in Classics of Intermtional Law (J. Scott ed. 1927).
Pam 27-161-1
chief emphasis upon the philosophical basis of interna- tional law, such as James Lorimer in his Institutes of the Law of Nations, have had ideas of their own as to the higher law from which international obligations aie derived. 22
c. The Grotians. Another group of writers, designated as "Grotians," have been said to "stand midway" be-tween the Naturalists and the later group known as Positivists. However, Vattel, the leading writer of this school, was far from being true to Grotius either with respect to his concept of the natural law or to the conclu- sions which might be drawn from the natural law.
(1)
Owing to the practical use made of his treatise by statesmen, the name of Emer de Vattel came to be better known in the world of international relations than that of Grotius himself. Recognizing the need of a new treatise on the law of nations, Vattel believed it more expedient to popularize a volume entitled Jus gentium which was published in 1749 by the German philosopher Wolff. However, in doing so, Vattel expressly rejected the con- cept which Wolff had advanced of a great republic or com- monwealth of the nations, a world-state having authority over its component members. Instead, he preferred to relate international obligations to the theory of primitive society which had become the popular source of the rights and duties of individual men.

(2)
Vattel began with a recognition of the state as a corporate person having an understanding and will of its own as well as obligations and rights. He then argued that: . . . . as men are subject to the law of nature, and as their union in civil

society cannot exempt them from the obligation of observing those laws, the whole nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature and is bound to respect them in all its undertakings . . . .23
However, the law of nature could not be applied to na- tions without taking into account the changes called for by the fact that nations, not individuals, were the subjects of the law. It was this adaptation of the law of nature to na- tions which constituted what Vattel believed to be WOWS contribution to a system of international law, and which constituted in turn Vattel's own contribution. 24
(3)
The system proposed by Vattel is elaborate and complex, but it is important because of the great influence exercised by him upon the subsequent development of in- ternational law. Few of the statesmen and jurists who quoted his authority in later years foresaw the conse- quences of his enthronement of the sovereignty and inde- pendence of states. Vattel marked the demise of the long- established distinction between a just and an unjust war. Each prince was to be allowed to be the judge of his own case, and the community was to accept his decision on the assumption that he knew what was best for his own in- terests. Thus,a liberty denied by the law of nature to in- dividual citizens was reserved by Vattel to states, by taking into account the changes in the natural law when applied to them.

d.
The Positivists. A third group of writers has been classified as Positivists, or the Positive School. It was to be expected that with the growing intercourse of states and the greater stability in international relations that followed the Peace of Westphalia there should be increased interest in the substantive body of international law. Bynkershoek, a Dutch publicist, writing between 1702 and 1737, sub- stituted reason for the law of nature, and held that reason and usage constituted the two sources of international law. Permanent usage would appear to embody the dictates of reason, representing as it does the collective reason of suc- cessive generations and of various nations. In this way Bynkershoek was able to appeal directly to custom in sup- port of certain claims, and he went so far as to assert that there was no law of nations except between those who voluntarily submitted to it by tacit agreement. 25 John Jacob Moser, a prolific German writer of the middle of the eighteenth century, pointed the way to the more modem concept of international law by concerning him-self solely with the accumulation of treaties and usages which, in the form of precedents, gave a positive character to international law. This Positivist approach has become the predominant school of thought in the twentieth cen- tury.

Section 11. SOURCES AND EVIDENCES OF INTERNATIONAL LAW
1-5. General. a. A brief examination of the various theo- ries and schools generally associated with the jurispruden- tial development of international law is essential to its study. Though such an analysis will reveal a widespread
22. The influence of Lorimer was significant. He was one of the few writers to foresee the need of international legislative, judicial, and ex- ecutive institutions as essential conditions for the maintenance of peace. His conception of the moral basis of international law was in line with -… present-day conceptions of the inadequacy of the appeal to utilitarian
motives.
23. E. Vatrel, Le Droit Des Gens L 5 (1758).
24. The reader will note that ~atkl's law if nature differs funda- mentally from the Christian concept of natural law, founded not upon contract but upon the application of the law of God to human relations. See supra note 14.
agreement among states that rules are necessary in order to control and govern international conduct, a difference opinion often results when attempts are made to a-
ticdate these rules and defme the process through which they are formulated. Accordingly, it is essential that atten- tion be focused on the very core of this controversy-the
and evidences of international law'
b. When the Permanent Court of International Justice was established pursuant to Article 14 of the League of
2s. C. Bynkershoek, Quaestionum Juris Publici Libri Duo, Lib. I, Cap 10 (1737), in Classics of International Law (1930); Bynkershoek, De Foro Legatomm, Cap. III, 5 10, and Cap. XDL, 5 6, in Classics of In- ternational Law (1946).
Pam 27-161-1

Nations Covenant in 1920,~ a major question for resolu- tion was the law to be applied by the court in deciding mat- ters that came before it and the authorities to be consulted in determining that law. This problem was answered in Article 38 of the statute creating the court. When this body was recognized as an organ of the United Nations, Article 38 of its statute was made an integral part of the statute of the International Court of Justice. 27 Article 38 in its present form provides as follows:
1. The court, whose function is to decide in accordance with intema- tional law such disputes as are submitted to it, shall apply:
The general principles of law recognized by civilized nations; a.
International conventions, whether general or particular, estab- lishing rules expressly recognized by the contesting states;

b.
International custom, as evidence of a general practice accepted as law;

c.

d.
Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualitled publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
By the inclusion of subparagraph Id, Article 38 has in-troduced and combined in paragraph 1 the evidences of international law, together with the three sources listed in subparagraphs la, b, and c. A proper analysis of the law requires that a distinction be made between the former and the latter. 1-6. Sources of International Law. a. In general, inter- national law is based on the common consent of states in the international community. Determination as to whether such consent exists in a particular case or situa- tion is a question of fact. Thus,the three primary sources of international law are those channels through which a state might give its expressed or implied consent. These sources are international agreements (treaties), customary norms, and general principles of law common to all "civilized" states. Consent with regard to this latter source is more implied than expressed and is said to exist because states, having incorporated these principles into their domestic law, are deemed to have consented to their use as principles of international law. 28 Each of these sources merits separate discussion.
b. International agreements. Without question, inter- national agreements now stand as the primary source of international law. 29 The subject of treaties is extensively dealt with in chapter 8. Thus, for tl;e present discussion, it is ~~cient
to simply ddbe the role such agreements play as a source of international jurisprudence. A treaty
26. For a brief account of its establishment see 6Hackworth, Digest of International Law 67-68 (1943).
27.
59 Stat. 1031, T.S. No. 993. For a synopsis comparing the language of each of these statutes, see I. Schwanenberger, International Law 573-588 (2d ed. 1949). The organization and activities of the Inter- national Court of Justice are discussed more fully in chapter 9, irlfia.

28.
This consent is particularly evident in Article 38 of the Statute of the International Court of Justice. This authorizes the Court to resort to "general principles" in deciding disputes placed before it.

29. W. Friedmann, 0.Lissi~yn,& R. Pugh, International Law 64-68 (1969), [hereinafter cited as Friedmann].
may (1) declare, expand, or modify an existing rule of customary international law; (2) abrogate such a rule as between parties; or (3) provide a rule of law where none previously existed. Accordingly, treaties may take prece- dence over all other sources of international law in deter- mining the international obligations of all signatory states. An often stated rule is that only states party to the agree- ment are bound by its terms; treaties cannot control the actions of nonparties. Many modem jurists and publicists contend that international agreements may also establish rules for nonparties in two ways. First, many treaties con- tain provisions that purport to merely codify existing rules of customary international law. These rules are followed by the contracting parties, not only because the rules are part of the treaty, but also because they would be con- sidered as binding international law even in the absence of any treaty. Naturally, the greater the number of states par- ty to the treaty, the more often the agreement will be recognized as binding and the more likely it will be universally accepted as declaratory of a rule of customary international law. 30 Secondly, nonparty states may have a strong incentive to follow the treaty practice of the states party to the agreement. There has been a substantial in-crease in the frequency and importance of agreements made not by two or three states as a matter of private busi- ness, but by a considerable proportion of states at large for the regulation of matters of general and permanent in- terest. Such acts are often the result of congresses or con- ferences held for that purpose, and they are framed to per- mit the subsequent concurrence of states not originally parties to the proceedings. 31 When all or most of the ma-
jor powers have deliberately agreed to these rules, they will have a very great influence among even those states which have never expressly adopted them.
c. Custom. Until fairly recently, custom had been, quantitatively, the primary source of international law, a position now assumed by international agreements. Not- withstanding this fact, however, custom still exists as an important and vital source of international jurisprudence. This results partially from the fact that it is through custom that treaties are interpreted. Of greater importance, however, is the fact that many of the legal concepts con- tained in such treaties can be considered as binding on even nonparties, if these agreements are deemed to be merely a codification of already existing customary inter- national law. Given this fact, the lawmaking process of
30.
For recent references to international agreements as evidencing the state of customary intemational law see Letter from Secretary of State Rusk to Attorney General Kennedy (Jan. 15, 1963), reprinted in Int'l Leg. Mat'ls 527-528 (1963). For instance it is stated that the 1958 Convention on the Territorial Sea and the Contiguous Zone ". . .must be regarded in view of its adoption by a large majority of the States of the world asthe best evidence of intemational law of the subject at the pres- ent time." Id. at 528.

31.
The 1949 Geneva Conventions resulted from an international conference of this nature. Similar diplomatic conferences are currently being held in order to supplement these international agreements.

Pam 27-161-1
custom remains a particularly significant source of interna- tional norms.
(1)
Though custom is often viewed as a somewhat nebulous legal source, this need not be the case. Custom arises when a clear and continuous habit of doing certain actions has grown up under the conviction that these ac- tions are, according to international law, obligatory. It is state practice accepted as law between states. 32 The two great diffculties with respect to the concept are generally considered to be difficulty of proof and the difficulty of determining at what stage custom can be said to have truly become authoritative law. Accordingly, it is helpful to view such a determination as a factual one. As in the case of most factual determinations, there are a number of cri- teria to be studied in order to resolve the issue. Judge Manley 0.Hudson, former U.S. member of the Interna- tional Court of Justice, has suggested the consideration of the following in determining the existence of customary rules of international law:

(a)
Concordant practice by a number of states with reference to a type of situation falling within the do- main of international relations;

(b)
Continuation or repetition of the practice over a considerable period of time;

(c)
Conception that the practice is required by, or consistent with, prevailing international law;

(d)
General acquiescence in the practice by other states. 33

(2)
As can be seen, the essence of customary inter- national law lies not only in the existence and universal application of the custom but likewise in the fact that it is accepted as obligatory by the nation states of the world, or at least a substantial number of these states. Thus, it is the a view of most international jurists that when a custom satisfying the definition in Article 38 of the I.C.J. Statute is established, it constitutes a general rule of international law which, with a single exception, applies to every state. This exception concerns the case of a state which, while the custom is in the process of formation, clearly and con- sistently registers its objection to the recognition of the practice as law. 34 In the Anglo-Norwegian Fisheries case, the Court, in rejecting the so-calledten-mile rule for bays, said: "In any event, the ten mile rule would appear to be inapplicable as against Norway, inasmuch as she has al- ways opposed any attempt to apply it to the Norwegian coast." 35 Even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru, which, far from having by its attitude adhered to it, has on the contrary repudiated it. 36

32.
H. Kelsen, supra note 1, at 307.

33.
Quoted in Friedmann, supra note 29, at 36.

34. C. Waldock, General Course in Public International Law 49
(1 962). 3? Anglo-Norwegian Fisheries Case, [I9511 I.C.J. 131.
36. Colombian -Peruvian Asylum Case, [I9501 I.C.J. 277.
(3) These pronouncements seem to indicate clearly that a customary rule may arise, notwithstanding the op- position of one state, or perhaps even a few states, pro- vided that the necessary degree of acceptance is otherwise reached. Moreover, they also seem to indicate that the rule so created will not bind those states objecting to it. In other words, there appears to be no majority rule with respect to the formation of customary international law. Conversely, it clearly appears that if a custom becomes es-
tablished as a general rule of international law, it will bind all states which have not opposed it whether or not these
. .
states played an active role in its formation. This means that in order to invoke a custom against a state, it is not necessary to spedically show the acceptance of the custom as law by the state. Acceptance of the custom will be presumed, thereby binding the state, unless it can show evidence of its actual opposition to the practice in question.
(4) In applying a customary rule, the Court may well
refer to the practice, if any, of the parties to the litigation in regard to the custom. However, it has never treated evi- dence of their acceptance of the practice as a sine qua non when applying the custom to them. 37
(5)
One aspect of the legal basis of custom which is currently of particular importance is the position of the new states, with regard to existing customary rules of in- ternational jurisprudence. As will be shown in chapter 8, new states generally begin with a clean slate apropos treaties, although they very often assume many of the treaty obligations formerly applicable to them as territo- ries. The suggestion has been made that this same ap- proach should be taken with relation to customary inter- national norms. 38 This suggestion has, quite naturally, proven to be most attractive to states evolving from colo- nial regimes. 39

(6)
An examination of several cases is helpful in demonstrating some factors which various courts con-sidered in ruling upon the existence of customary rules of international jurisprudence.

(a)     THE PAQUETE HABANA THE LOLA United States Supreme Court, 1900. 175 U.S. 677, 20 S. Ct. 290. Mr. Justice Gray delivered the opinion of the court. These are two appeals from decrees of the District Court of the United States for the Southern District of Florida, condemning two fish- ing vessels and their cargoes as prize of war. Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Spain, also residing in
Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two-thuds of her catch, the other
37. C. Waldock, supra note 34, at 50.
3s. Socialist publicists are the primary proponents of this sugges- tion. They are most critical of European and Western states attempting to "impose" norms of general international law upon the evolving states of Asia and Africa.
39. A more complete explanation of this Soviet approach toward customary international law occurs idra at paras. 1-12 et seq.
third belonging to her owner. Her cargo consisted of fresh fsh, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockadins squadron, she had no knowledge of the existence of the war, or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture.
*.**
Both the fshing vessels were brought by their captors into Key West.
A libel for the condemnation of each vessel and her cargo as prize of war
was there fded on April 27, 1898; a claim was interposed by her master,
on behalf of himself and the other members of the crew, and her owner;
evidence was taken, showing the facts above stated, and on May 30,
1898, a fmal decree of condemnation and sale was entered, "the court
not beii satisfied that as a matter of law, without any ordinance, treaty
or proclamation, fishing vessels of this class are exempt from seizure."
Each vessel was thereupon sold by auction; the Paquete Habana for
the sum of $490; and the Lola for the sum of $800. *
1 1.
We are then brought to the consideration of the question whether,
upon the facts appearing in these records, the fishing smacks were sub-

ject to capture by the med vessels of the United States during the re-
cent war with Spain.
By an ancient usage among civilized nations, beginning centuries ago,
and gradually ripening into a rule of international law, coast fishing
vessels, pursuing their vocation of catching and bringing in fresh fish,
have been remgnized as exempt, with their cargoes and crews, from
capture as prize of war.
This doctrine, however, has been earnestly contested at the bar, and

no complete collection of the instances illustrating it is to be found, so
far as we are aware, in a single published work, although many are refer-
red to yd discussed by the writers on international law notably in 2 Or-
tolan, Regles Internationales et Diplomatie de la Mer, (4th ed.) lib. 3, c.
2, pp. 51-56; in 4 Calvo, Droit International, (5th ed.) 54 2367-2373; in
De Boeck, ~opridt6 ~iv& Ennemie sous Pavillon Ennemi, $8
191-196; and in Hall,International Law, (4th ed.) $ 148. It is therefore

worth the while to trace the history of the rule, from the earliest accessi-
ble sources, through the increasing recognition of it, with occasional set-
backs, to what we may now justly consider as its fmal establishment in
our country and generally throughout the civilized world.
me Court then proceeds to "trace the history of the rule" through an extensive examination of state practice, beginning with the issuance of orders by Henry IV to his admirals in 1403 and 1406.1
Since the English orders in council of 1806 and 18 10, before quoted, in favor of fshing vessels employed in catching and bringing to market fresh f&, no instance has been found in which the exemption from cap ture of private coast fshing vessels, honestly pursuing their peaceful in- dustry, has been denied by England, or by any other nation. And the Empire of Japan, (the last State admitted into the rank of civilized na- tions,) by an ordinance promulgated at the beginning of its war with China in August, 1894, established prize courts, and ordained that "the following enemy's vessels are exempt from detention"-including in the exemption "tpats engaged in coast fisheries," as well as "ships engaged exclusively on a voyage of scientif~c discovery, philanthropy or religious mission." Takahashi, International Law, 11, 178.
International law is part of our law, and must be ascertained and ad-ministered by the courts of justice of appropriate jwisdiction, as often as questions of right depending upon it are duly presented for their deter- mination. For thispurpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, resexch and experience, have made themselves pediarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215.
..**
This review of the precedents and authorities on the subject appears
to us abundantly to demonstrate that at the present day, by the general
consent of the civilized nations of the world, and independently of any
express treaty or other public act, it is an established rule of international
law, founded on considerations of humanity to a poor and industrious
order of men, and of the mutual convenience of belligerent States, that
coast fishing vessels, with their implements and supplies, cargoes and
crews, unam~ed, and honestly pursuing their peaceful calling of catching
and bringing in fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels, if employed for a warlike purpose, or in such a way as to give aid
or information to the enemy; nor when military or naval operations
create a necessity to which all private interests must give way.
Nor has the exemption been extended to ships or vessels employed
on the high sea in taking whales or seals or cod or other fish which are
brought fresh to market, but are salted or otherwise cured and made a
regular article of commerce.
This rule of international law is one which prize courts, administering
the law of nations, are bound to take judicial notice of, and to give effect
to, in the absence of any treaty or other public act of their own govem-
ment in relation to the matter.
.*.*
The position taken by the United States during the recent war with Spain was quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels.
On April 21,1898, the Secretary of the Navy gave instructions to Ad- miral Sampson commanding the North Atlantic Squadron, to "im-mediately institute a blockade of the north Coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west." Bureau of Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On April 22, the President issued a proclamation, declaring that the United States had instituted and would maintain that blockade, "in pursuance of the law of the United States, and the law of nations applicable to such case." 30 Stat. 1769. And by the act of Con- gressof April 25,1898, c. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and including April 21. 30 Stat. 364.

On April 26,1898, the President issued another proclamation, which after reciting the existence of the war, as declared by Congress, con-tained this further recital: "It beii desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice." This recital was followed by
declarations of certain rules for the conduct of the war by sea, making no mention of fishing vessels. 30 Stat. 1770. But the proclama- tion clearly manifests the general policy of the Government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations.
..I.

Upon the facts proved in either case,it is the duty of thiscourt, sitting as the highest prizecourt of the United States, and administering the law of nations, to declare and acjjudge that the capture was unlawful, and without probable cause; and it is therefore, in each case,Ordered, that the decree of the District Court be reversed, and the prweeds of any sale of her cargo, be restored to the claimant, with damages and costs.
[Dissenting opinion of Mr. Chief Justice Fuller, with whom concur- red Mr. Justice Harlan and Mr. Justice McKe~a, omitted.] 40
(b) In The Scoria, 41 the cot& dealt with the ques- tion whether international law required sailing vessels to carry colored lights instead of white ones. In thisparticular case, the court based its determination that such a rule did exist on the fact that numerous maritime states had imple-
40. The reader's attention is directed toward the fact that this case

will also be referred to in connection with the discussion in chapter 2 the relationship between international and U.S. law.
41. The Scofia (18011 81 US 822 (14 Wallace 170).

mented domestic legislation to this effect and that other states had accepted this rule asbinding customary interna- tional law. The court explained its decision as follows:
.. . .Undoubtedly, no single nation can change the law of the sea.That
law is of universal obligation, and no statute of one or two nations can
create obligations for the world. Like all the laws of nations, it rests upon
the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has been
generally accepted as a rule of conduct. Whatever may have been its
origin, whether in the usages of navigation or in the ordinances of
maritime states, or in both, it has become the law of the sea only by the
concurrent sanction of those nations who may be said to constitute the
commercial world. Many of the usages which prevail, and which have
the force of law, doubtless originated in the positive prescriptions of
some single state, which were at fmt of limited effect, but which when
generally accepted became of universal obligation. The Rhodian law is
supposed to have been the earliest system of maritime rules. It was a
code for Rhodians only, but it soon became of general authority because
accepted and assented to as a wise and desirable system by other
maritime nations .. . . And it is evident that unless general assent is
efficacious to give sanction to international law, there never can be that
growth and development of maritime rules which the constant changes
in the instruments and necessities of navigation require. Changes in
nautical rules have taken place. How have they been accomplished, if
not by the concurrent assent, expressed or understood, of maritime na-
tions? When, therefore, we fmd such rules of navigation as are men-
tioned in the British orders in council of January 9,1863, and in our act
of Congress of 1864, accepted as obligatory rules by more than thirty of
the principal commercial states of the world, including about all which
have any shipping on the Atlantic Ocean, we are constrained to regard
them as in part as least, and so far as relates to these vessels, the law of
the sea, and as having been the law at the time when the collision of
which the libellants complain took place.
This isnot giving to the statutes of any nation extraterritorial effect. It
is not treating them as general maritime laws, but it isrecognition of the
historical fact that by common consent of mankind, these rules have
been acquiesced in as of general obligation. . . .
(c)     NORTH SEA CONTINENTAL SHELF CASES (Federal Republic of Germany v. Demark) (Federal Republic of Germany v. Netherlands) International Court of Justice, 1969. 119691 I.C.J. Rep. 3, 8 Int'l Leg.Mat'ls 340 (1969).
[Denmark and the Netherlands contended that the boundaries be- tween their respective areas of the continental shelf in the North Sea, on the one hand, and the area claimed by the Federal Republic of Ger- many, on the other, should be determined by the application of the principle of equidistance set forth in Article 6(1) of the Geneva Con- vention of 1958 on the Continental Shelf, 15 U.S.T. 471,499 U.N.T.S. 311, which by January 1, 1969, had been ratified or ded to by 39 states, but to which Germany was not a party. Article 6(1) of the Con- vention reads as follows:
Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the bound- ary of the continental shelf appertaining to such States shall be deter- mined by agreement between them. In the absence of agreement, and unlessanother boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselinesfrom which the breadth of the temtorial sea of each State is measured.
Holding, by a vote of 11 to 6, that Germany wasnot bound by the
principle of equidistance, the Court said in part:]
****
70. … [Denmark and the Netherlands argue] that even if there was at the date of the Geneva Convention no rule of customary interna-tional law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its om impact, partly on the basii of subsequent State practice.
71.
In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, de-scribed, it clearly involves treating that Article asa norm-creating provi- sion which has constituted the foundation of, or has generated a rule which, only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become biding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not likely to be regarded as having been at- tained.

72.
It would in the fmt be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto, the equidistance principle might be said to fulfffl this requirement. Yet, in the particular fom in which it is em-bodied in Article 6 of the Geneva Convention, and having regard to the relationship of that Article to other provisions of the Convention, this must be open to some doubt. In the fmt place, Article 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. . . .

Secondly the part played by the notion of special circumstances relative
to the principle of equidistance as embodied in Article 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reser- vations to Article 6, while it might not of itself prevent the equidistance principlebeing eventually received asgeneral law, does add considerably to the difliculty of regarding this result ashaving been brought about (or beiig potentially possible) on the basii of the Convention: for solong as this faculty continues to exist, .. . it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess.
73.
With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it in- duded that ofStates whose in-were spedly afeded In the pres-ent case,however, the court notes that, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respecta- ble, hardly sufficient. That no~atifcation may sometimes be due to fac- tors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied. The reasons are speculative, but the facts remain.

74.
As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964. .. .Although the pasage of only a short period of time is not necessarily, or of itself, a bar to the for- mation of a new rule of customary international law on the basii of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have. been both extensive and virtually uniform in the

Pam 27-161-1

sense of the provision invoked;-d should moreover have occurred in such a way as to show a general recognition that a rule or legal obligation is involved.
75.
The Court must now consider whether State practice in the mat- ter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement. . .. [Slome ffteen cases have been cited in the course of the present proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principlein the majority of the cases by agreement, in a few others unilaterally–or else the delimitation was foreshadowed but has not yet been canied out. But even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, the Court would not think it necessary to enumerate or evaluate them separately, since there are, a priori, several grounds, which deprive them of weight as prece-dents in the present context. . . .

76.
The essential point in this connection-d it seems necessary to stress itis that even if these instances of action by nonparties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris–for, in order to achieve this result, two conditions must be fulfiffled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be canied out in such a way, as to be evi- dence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sine necessitatis. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are moti- vated only by considerations of courtesy convenience or tradition, and not by any sense of legal duty.

77.
In this respect the Court follows the view adopted by the Perma- nent Court of International Justice in the Loms case. . . . mhe position is simply that in certain cases-not a great number-the States con- cerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors. 42

*

(7)
These three cases serve to demonstrate the role customary international law may play in international ad- judication and several of the ways in which courts have relied upon this source of jurisprudence as a basis for their decisions. Its current importance and value must not be dismissed.

d.
General principles of law. Where neither treaty, nor customary norms furnish a satisfactory rule of law, the ap- plicable legal concepts must be deduced from the general principles of law recognized by "civilized" states. These general principles of law refer to the use of national law principles, common to all nations, in deciding questions of international law. This is comparable in scope to the use of the "law of peoples" by Roman authorities or the subse- quent use of municipal Roman Law by medieval writers in developing the basic principles of international law. The principles of Roman law, even today, furnish the founda- tion for the national laws of most major world powers.

42. North Sea Continental Shelf Cases, [I9691I.C.J. 27.

General principles of law have performed a very necessary function by giving norms to international law which have matured in a more organized local society and which may furnish the means to resolve disputes submitted to inter- national arbitration or adjudication. If there is no treaty or sWc custom in point, a solution can be reached by the use of general principles. A court or commission cannot say "non liquet." 43
(1)
What are these "general principles of law"? Conceivably, they may be general principles of private law 44 or concepts derived from natural law. 45 A listing of some of these observations applied by international courts and tribunals substantiates these observations. Such prin- ciples would include self-preservation, good faith, concept of responsibility, and those general principles of law that govern judicial proceedings, such as res judicata, burden of proof, and jurisdiction. 46

(2)
International arbitral tribunals have frequently employed general principles of law in deciding disputes be- tween states. In a number of cases, for example, arbitra- tors found support in the municipal law principles of ex- tinctive prescription, laches, and statutes of limitation for their rejection of claims on the basis that they had not been presented or pressed for an extended period of time. 47 In the Russian Indemnity Case, decided by a tri- bunal of the Permanent Court of Arbitration in 1912, Russia claimed interest on amounts due under a treaty of 1879 with the Ottoman Empire, which the latter had paid with considerable delay. The tribunal, invoking principles concerning the payment of interest on overdue debts which it found in the private law of European states, was of the opinion that the Ottoman Empire was under a duty to pay interest but held, also on the basis of analogies from private law, that Russia, by its previous failure to demand interest while pressing the Ottoman government for, and receiving payments of, the principal amount, had re-nounced its rights to claim interest. 48

(3)
Several post World War II war crimes trials, such as In re List and Others, indicate that a search of national laws will provide guidance in determining general princi- ples of law. In the List case, the ten accused were high ran@ officers in the German armed forces. They were charged with, inter alia, the responsibility for the execu- tion and ill treatment without trial of a large number of hostages and prisoners in Greece, Yugoslavia, and Albania in reprisal for attacks by unknown persons against

43. Schwarzenberger, Foreword to B. Cheng, General Principles of Zn&ernatiomI Law us Applied by Znter~tioml Courts and Tribunals
(1953).

44. H. Lauterpacht, Priwte Law Sources and Analogies of Interna- tional Law 71 (1927).
45. "They [general principles] opened a new channel through which concepts of natural law could be received into international law.'' Schwanenberger, supra note 43.
46. B. Cheng, supra note 43,at 44.

47. The Gentini Case (Italy v. Venezuela), Mixed Claims Commis- sion of 1903, 10 U.N.R.I.A.A. 551.
48. Russian Indemnity Case, 11 U.N.R.I.A.A.421.
German troops and installations. The tribunal said: 11235)The tendency has been to apply the term "customs and prac- tices accepted by civilized nations generally," as it is used in Interna- tional Law, to the laws of war only. But the principle has no such restricted meaning. It applies as well to fundamental principles of Justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule ofjustice is entitled to be declared a principle of International Law, an examination of the munici- pal laws of states in the family of nations wiU reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of Inter- national Law would seem to be fully justified. There is convincing evi-dence that this not only is but has been the rule. …If the rights of na- tions and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of [I2361 justice and rights which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a fmd- ing that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such. . . .49
e. The addition of a third source of law to article 38 was deliberate. Moreover, the debate in the course of drafting clearly indicates that the purpose of the third source of law was to give the Court a certain degree of flexibility in deciding disputes and to allow it to avoid, so far as possi- ble, the problems of non liquet. The scope of the Court's authorization to apply "general principles" is still, however, the object of debate. 50 The rejection of "general principles of law" as a source of international jurisprudence by Soviet jurists has resulted in one of the most basic conflicts in the contemporary interpretation of international law. 51
$ A study of the decisions rendered by the two World Courts indicates that the use by these tribunals of "general principles of law" has been limited. The main sphere in which these principles have been held to apply has been either the general principles of legal liability and of reparation for breaches of kternational obligations or the admimistration of international justice. For example, in the Chonow Factory case, 52 the Permanent Court de- scribed the principle that a party cannot take advantage of its own wrong, as one ". . . generally accepted in the jurisprudence of international arbitration, as well as by municipal courts. . . ." Moreover, at a later stage in this same case, 53 the Court said that ". . . it is a general con- ception of law that every violation of an engagement in- volves an obligation to make reparation . . .," and it went on to speak in terms of restitution and damages. These pronouncements concern general principles of legal liability and of reparation for infkingements of the rights of other states. The same is true of the Court's reference to
49.
United States v. Lit, XI Trials of War Criminals Before The Nuernberg Military Tribunals 1230- 13 17 (1 950).This caseis digested in VIII Law Reports of Trials of War Criminals 34-92 (1949). See also DA Pam 27-161-2,11 Internotiom1 Low 232 (1962).

50.
See C. Waldock, supra note 34,at 55-57 and M. Srenson, Les Sources Du Droit International 126-136 (1946).

51.
An analysis of the Soviet approach toward "general principles of law" as a source of international law occurs infraat paras. 1-12et seq.

52.
Chonow Factory Case,119281 P.C.I.J. 31.

53. Id. at 29.
"good faith" and "abuse of rights," 54 as it is also of the Court's frequent reliance on the principle of "estoppel" (preclusion)which played a particularly prominent part in the cases of the Arbitral Award of the King of Spain 55 and the Temple of Preah Vihear. 56 In the latter case the Court invoked still another general principle of liability, stating that ". .. it is an established rule of law that a plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error." 57
g. As to the administration ofjustice, there are a num-ber of references to "general principles of law" in connec- tion with questions of jurisdiction, procedure, evidence or other aspects of the judicial process. Thus,.speakhg in the Corfu Channel Case 58 of circumstantial evidence, the In-ternational Court stated ". . . this indirect evidence is ad- mitted in all systems of law, and its use is recognized by international decisions. . . ." The principle known as res judicata, which was actually mentioned by the authors of Article 38 of the Statute as an illustration of what they meant by a "general principle of law recognized by civilized nations," has more than once been referred to by the Court. A recent occasion was in the United Nations Administrative Tribunal Case 59 where the Court, in hold-ing the U.N. General Assembly to be bound by the deci- sions of the Tribunal said "[AJccording to a well-estab- lished and generally recognized principle of law, a judg- ment rendered by a judicial body is res judicata and has biding force between the parties to the dispute." Again
, in the I.L.0.Administrative Tribunal Case, 60 the Court referred to the principle of the equality of the parties as a "generally accepted practice" and as a principle which "follows from the requirements of good administration of justice."
h. Other than in the two spheres of the law mentioned above, the Court has shown little interest in attempting to delineate and apply "general principles of law" to ques- tions of international adjudication. Thus, this source of jurisprudence is generally looked to only as a last resort. 1-7. Evidences of International Law. a. Article 38(l)(d) of the Statute of the International Court of Justice states that the Court shall apply ". . .subject to the provisions of Article 59, 61 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determina- tion of rules of law. .. ." These, then, are the evidences of
54. E.g., Certain Gem Interests in Polish Upper Siesia, [I9261
P.C.I.J. 30;The FreeZones Case [I9301P.C.I.J. 12;and Conditions of
Admission to Membership in the United Nations, [I9511I.C.J. 142. $5. Arbitral Award of the King of Spain, [I9601I.C.J. 209, 213.
56.
Temple of Preah Viear Case,[I9621I.C.J. 23, 31-32. See the individual opinion of Judge Alfaro for a general account of the principle of estoppel in international law, id. at 39-51.

57.
Id. at 26.
$8. Corfu Channel Case, [I9491I.C.J. 18.

59.
United Nations Administrative Tribunal Case,I19541I.C.J. 53.

60.
LL.0. Administrative Tribunal Case, [I9561I.C.J. 85-86.

61. Statute c2f The International Court of Justice, Art. 38.

.international jurispruden-the means used to deter- mine the content and extent of the law created by treaties, customs, and general principles. As previously noted, it is essential that they be distinguished from the latter in terms of form and purpose.
6. Judicial decisions. No rule requires that judicial pre- lcedent be followed in dealing with questions of interna- 4onal law. In other words, the principle of stare decisis .does not apply to the International Court of Justice
(I.C.J.), which is comprised of judges of many different nationalities–a majority of them representing civil law systems in which the principle, as such, is not recognized.

7A deeper reason for the inapplicability of any strict *doctrine of #ecedent to international legal decisions is, however, th$+far more individual character of interna- tional judicial decisions. To a much greater extent than in 'municipal law, where the great majority of decisions con- >tern typical situations, such as contracts for property, each ;dispute between states tends to have an individual character. Historical and political peculiarities and diplo- matic actions often prevail over the generality of a legal principle. Moreover, the balance between various national outlooks and approaches is hardly ever the same in any 60cases before the I.C.J., with its 15judges of as many different nationalities.
(1) The strongly political character of many interna- tional issues accounts for the relatively small number of judicial decisions in comtemporary international law. Many issues that could be dealt with as legal matters, such as the status of Berlin, Kashrnir, or the Suez Canel, are handled on a political basis. Nevertheless, in the great ma- jority of international cases, there are legal issues of abid- ing significance, often intermingled with the particular facts and circumstances of the case but contributing to the gradual development of legal principles. Because the inter- national community has no permanent legislative organs, and given the strongly individual characer of many inter- national disputes, each international decision tends to have strong "law-making elements." Any decision by the
I.C.J. or other international tribunal on such matters as boundary disputes or territorial waters "makes" law. This, then, is a further reason why it was necessary to restrict the binding force of the judgments of the Court, as Article 59 does, to the individual case. Any other ap- proach would tend to be resented as an indirect restriction of state sovereignty. 62
(2) Despite these restrictions and reservations, however, the persuasive authority of judgments rendered by the I.C.J. can be substantial. Judgments of the I.C.J.'s predecessor or, depending on the status of the arbitrators as well as the weight of the issue and the reasoning in- volved, of international arbitral tribunals and international commissions may also carry signif~cant weight. Decisions of the courts play an important role in the development of customary law. They help to form international custom
62. Friedmann, supra note 29, at 82-84.
Pam 27-161-1
and show what the courts, national or international, have accepted as international law. The customary side of inter- national jurisprudence has, like the common law, largely developed from case to case, and an increasing number of these cases have been submitted to international tribunals or have come before the "municipal" courts of various states.

(3) As noted, the decision of even an international tribunal, such as the International Court of Justice, with respect to an international law question is binding, tech- nically, only on the parties to the dispute. 63 However, the decisions of such tribunals as the Permanent Court of Ar- bitration, the Permanent Court of International Justice, and the International Court of Justice do have a decided impact on the international community. The opinions of the latter two courts, if considered as mere evidence of the law, are almost conclusive evidence. Departures by the World Court from its prior holdings constitute an excep-tion to the general rule. 64 Thus, a considerable body of "case law" is developing and international tribunals are giving more and more weight to their prior decisions. 1-8. Municipal Courts. The decisions of municipal courts on questions of international law are of great im-portance as precedents to the judges, lawyers, and stu- dents of the particular state of the court concerned. This is true even in those states where the principle of stare decisis technically has no legal application. Normally, the decision of a national court on a question of international law is binding in common law jurisdictions on the other courts subject to judicial review by the court rendering the decision. Moreover, a fairly unanimous body of cases from various national courts will usually furnish compell- ing criteria for the ascertainment of a "customary" rule of international law. This is particularly true of courts in the major countries. Such decisions are even more compelling when the decisions are against the interests of the country in which the court is sitting. The importance of the judicial opinions of national courts as compared to international tribunals should not be overlooked. Such decisions are entitled to much weight in determining the law in areas not decided by tribunals such as the I.C.J. As noted above, the cumulative effort of uniform decisions of mu-nicipal courts is the establishment of evidence of custom- ary norms of international law. 1-9. Text Writers. a. Because of the relative paucity and vagueness of international legal rules, the place of the writer in international law has always been more impor- tant than in municipal legal systems. The basic systemiza- tion of international law is largely the work of publicists, from Grotius and Gentili onwards. In many cases of first
63. "The decision of the court has no binding force except between the parties and in respect of that particular case.'' Statute of The Internu- tional Court of Justrce, Art. 59. See also U.N. CharterArt. 94, para. 1, which sets forth the established principle of international law that the decision of an international court is binding upon the parties.
64. H. Lauterpacht, Development of Internatronal Law by The Inter- national Court 20 (1958).
impression, only the opinions of writers can be referred to in support of one or the other of the opposing contentions of the parties. The extent to which writers are referred to as "subsidiary" authorities often varies according to the tradition of the court and the individual judge.
b. There has traditionally been judicial reluctance, more marked in the British jurisdictions than in the United States, to refer to writers. In the civilian system, reference to textbook writers and commentators is a nor- mal practice, as a perusal of any collection of decisions of the German, Swiss, or other European Supreme Courts will show. A prominent example of reliance on writers in a common law court is the decision of the U.S. Supreme Court in the Paquete Habana case. Here, Justice Gray, in looking toward writers in an attempt to find a customary rule of international law, observed that since there was no treaty on the question before him,
. . . [Rlesort must be had to the customs and usages of civilized nations; and as evidence of these, to the works ofjurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculation of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. 65
c. The courts have, however, been most careful not to confuse the writings of publicists with the law itself. In West Rand Central Gold Mining Company v. The King, the court commented on the role of text writers in developing international law. In speaking ror tne tribunal,
C.J. Lord Alverstone stated: The views expressed by learned writers on international law have done in the past, and will do in the future, valuable service in helping to create the opinion by which the range of the consensus of civilized na- tions is enlarged. But in many instances their pronouncements must be regarded rather as the embodiments of their views as to what ought to be, from an ethical standpoint, the conduct of nations inter se, than the enunciation of a rule or practice so universally approved or assented to as to be fairly termed, even in the qualified sense in which that word can
be understood in reference to the relations between independent politi- cal communities, law. 66
d. In the final analysis, the opinions of writers are only as authoritative as the evidence upon which they are based. However, such a conclusion does not adequately measure the influence exerted by publicists throughout the years. They have played a most significant role in the development of international law. Recently, it has been noted that the I.C.J. has had little occasion to rely upon the opinions of text writers, referring to them only in the most general of terms. One noted publicist has suggested a reason for this development:
There is no doubt that the availability of official records of the practice of Strites and of collections of treaties has substantially reduced the necessity for recourse to writings of publicists as evidence of custom. Moreover, the divergence of view among writers on many subjects as well as apparent national bias may often render citations from them unhelpful. On the other hand, in cases–admittedly rare-in which it is
65.
The Paquete Habana, 175 U.S. 677 (1900).

66.
West Rand Central Gold Miniig Company v. The King, [I9051 2 K. B. 391.

possible to establish the existence of a unanimous or practically unanimous interpretation, on the part of writers, of governmental or judicial practice, reliance on such evidence may add to the weight of the Judgments and Opinions of the Court. 67
It should be noted that municipal courts, arbitration tri- bunals, and civilian and military attorneys confronted with international legal problems still make frequent reference to the works of publicists. 1-10. Cases Decided ExAequo et Bono. a. There had been considerable discussion in international law as to whether "equity" is distinct from the law in the sense in which ex aequo et bono is used in Article 38, paragraph 2, of the Statute of the International Court of Justice. 68 This paragraph gives the court the power to decide a case ex ae-quo et bono (according to justice and fairne8) if the parties agree thereto. In addition, the paragraph sets up a statuto! ry and equitable standard which, although never used by the International Court of Justice in deciding a case, has been occasionally utilized by other international tri- bunals. 69
b. The difference between equity and decisions made' ex aequo et bono is not clear in the present state of interna- tional law. A license to render a decision ex aequo et bono permits a judge to decide a case in accordance with his conscience, uncontrolled by law or by equity. The term "equity" refers to general abstract principles ofjustice and fairness of universal validity (i.e., one should not be allowed to profit by one's own wrongful act). On the other hand, the term ex aequo et bono does not refer to any body of general rules and has meaning only with regard to a particular factual situation-that which would be a fair disposition of a particular case according to the judge. Ac- cordingly, an international court, using either the sources of international law set forth in article 38 of the Statute of the International Court of Justice or general principles of international jurisprudence, cannot easily determine the exact role equity should play in its decisions. Neverthe- less, even with these limitations, equity is still a possible source of international law and, as several cases demon- strates, 70 it is misleading to make a very sharp distinction between the concept of ex aequo et bono and equity, each of which is designed to achieve justice. Moreover, a deci- sion rendered ex aequo et bono cannot be cited as evi- dence of international law, in that it was never intended that this law be the basis of such a decision. The fact that the I.C.J. has never turned to this concept is an indication of the minimal role it has played in the development of in- ternational legal norms.
67. H. Lauterpacht, supra note 64, at 24. , 68. W. Friedmann, The Changing Structure of Infernational Law
197 (1964).
69.
The Chaw Conflict (Bolivia v. Paraguay), 3 R. Int'l Arb. Awards. 1817 (1938), 33 AM.J. INT'LL. 180 (1939); Case of James Pugh, 3 R. Int'l Arb. Awards 1307; ANNUALDIGEST, case 46 (1933-34).

70.
Diversion of Water from the River Meuse, [I9371 P.C.I.J. 70; Cayuga Indians Claim, 6 R. Int'l Arb. Awards 173 (1926).

c. These, then, are the sources and evidence of public emphasized. It serves as the foundation upon which all of international law. The importance of a proper appreciation the various legal norms to be discussed are built and sus- and understanding of this subject matter cannot be over- tained.
Section 111. CONTEMPORARY VIEWS OF INTERNATIONAL LAW
1-11. General. a. Discussion throughout this chapter has centered around what is often called the "traditional" ap- proach toward international law. The basic concepts of iuch an approach are rooted in the ideas that states are the on&true subjects of public international law and that ex- $-international norms, as formulated through the y,ears on the basis of the recognized sources and evidences of this jurispr$ence, must be accepted as binding on all states in the prld community. As are most of the funda- mental princi 'bles of existing international law, these are concepts that are basically Western European and North American in origin and nature. They have been developed through the years by states possessed of a com- mon heritage, economic goal, and political outlook. These shared characteristics have thus produced similar views on the part of these states as to what the law should be, the manner in which it should be developed, the problems with which it should deal, and those to whom it should be applied.
Primarily during the past three decades, the Soviet b.
With the advent of the many newly evolved and socialist states on the world scene, this traditional view of international jurisprudence has been challenged. Discon- tented with many of the existing legal norms and con- vinced of the necessity for new approaches toward issues unfamiliar to states of the "old world," these states have tended to formulate their own views toward the various aspects of international law. Their views have had and will undoubtedly continue to have a significant impact on the international community and its jurisprudence. For this reason, it is imperative that the most important aspects of these views be briefly analyzed. 1-12. The Soviet View. a. The Soviet Union, principally as a consequence of further "nationalization" of its revolution, the normalization of its relations with other states, and its increasingly status quo orientation, has reconsidered its earlier refutation of international law and now manifests an intense interest in the propriety and legality of international relations. 71 Indeed, since 1956, the Soviet Union has made a concerted effort to demon- strate its dedication to the progressive development of in- ternational law and the strengthening of its role in interna- tional relations 72 and to winsupport for its formulation of peaceful coexistence as the progressive general interna- tional law of the present age. 73

b.

71. E. MC Whinney, Peaceful Coexistence and Soviet- Western Inter- national Law 52, 118 (1964).
72. The Soviets contend that the socialist and neutralist states of Asia, Africa, and Latin America are the prime movers and most active in this endeavor.
73. See B. Ramundo, The (Sovier) Socialist Theory of International Law, chs. 3-4 (1964).
Union has developed a "new" international law-the law of peaceful coexistence-designed to provide legal support and maximum flexibility in formulating its foreign polity. As an aspect of Stalin's nationalization of the Revolution in the thirties, the Soviets discarded revolutionary ap- proaches to the problems of international law and order and began to operate within the framework of conven- tional international law. 74 Soviet international legal spe-cialists were thus called upon to provide a rationale of flex- ibility for policy makers caught between the demands of Soviet national objectives and the constraints of a capitalist international legal order. The technique for achieving flex- ibility was simple. The Soviet Union firmly supported the doctrine of positivism 75 and, in addition, claimed ". . . the right to reject or modify rules of law followed by the noncommunist states by the touchstone of the avowedly objective principles of peace, equality, justice, and liber- ty." 76 The rules of law acceptable to the Soviet Union on the latter basis were characterized as progressive. Thus, consent and unilateral characterizations of the progressive were the foundation of the Soviet attempt to deal with what was viewed as a hostile legal order. 77
c.
The Soviet Union now contends that the interna- tional legal order is no longer hostile, in that it has been influenced and shaped by the forces of world socialism. Nevertheless, consent and unilateral characterization (which are said to be the basic defenses against a hostile order) remain the essential elements of the new law of peaceful coexistence. The apparently new ingredient, "peaceful coexistence," is intended as a formulation of all that is progressive (i.e., socialist-inspired) in international law. The effort to secure its acceptance as the basic legal principle is an attempt to gain acquiescence in an "objec-tive" standard that will actually facilitate unilateral charac- terization by the Soviet Union by providing a universally accepted "legal" basis for it. 78 Only in this way, it is said, can world order be achieved.

d.
This desired world order, in the Soviet view, has two principal planes of operation and two contexts-relations with capitalist states, and relations within the socialist camp. The former, reflecting the Marxist teaching of class struggle, involves conflict between capitalist and socialist

74. T. Taracouzio, The Soviet Union and International Law

350-351 (1935).
75. Shapiro, The Soviet Concept of International Low, Il Y.B. of World Affoirs 272-310 (1948). See id. at 273, where it is said: "Soviet theorists accept as an axiom consent as the sole basis of the validity of international law . . . ."
76. Lissitzyn, International Law in a Divided World, 542 Int? Con- ciliation 22, 23 (March 1963).
77. Shapiro, supra note 75, at 287.
70. Lissitzyn, supra note 76, at 19.
Pam 27-161-1
states. In this plane, the degree of world order desired would appear to be only that amount necessary to prevent mutual annihilation by a thermonuclear exchange. 79 In dealing with members of the socialist camp, however, a maximum of order is sought to achieve integration and the reduced importance of national boundaries which will produce a single socialist state, and, following that, a world communist society. Accordingly, the Soviet Union now considers the two fundamental principles of contem- porary interrational law as being "peaceful coexistence" and "socialist internationalism." The former is said to be the basic principle regulating the international class strug- gle and relations between the capitalist and socialist camps, while the latter is viewed as the basis upon which members of the socialist "commonwealth of nations" achieve the fullest measure of cooperation and collabora- tion.
e. The current and spec& task of Soviet international legal specialists is to achieve acceptance by the interna- tional community of this new law of peaceful coexistence and its basic component principles. 80 With this task in mind, Soviet jurists contend that the principles of peaceful coexistence are embodied in the Charter of the United Nations and have, therefore, become generally accepted principles of international law: for members of the United Nations, through their acceptance of the Charter, for non- members as a customary principle. 81 Moreover, to en- sure the codification of the general principles of peaceful coexistence, these individuals insist that the Charter of the . United Nations must serve as the general legislative framework:
. . . every mcation of the principles of international law, in whole or in part, is possible only on the basis of the Charter of the U.N. The further progressive development of contemporary international law at variance with the Charter of the U.N. as desired by Representatives of the imperialist states is unthinkable. 82
J The need for codif~cation is rationalized on the general basis that the new international law ". .. is far from perfect and needs to be further developed …" in order to ". .. bring the content of the principles and rules of international law in line with contemporary social development . . ." (i.e., along the lines of consolidating peaceful coexistence). 83 Codif~cation, whether of treaty
79. The conclusion of the Limited Test Ban Treaty in 1963 and the recent participation by the Soviet Union in SALT talks reflect the depth of Soviet concern in this area.
80. Tunkin, The Twenw-Second Congress of the CPSU and the Tasks of the Soviet Science of International Law, I Soviet Law and Government 10. (1963). See also Trukhanousky, Proletarian Interna- tionalism and Peaceful Coexistence, 8 INTZ AFF. 54-59 (1966).
81. B. Ramundo, supra note 73, at 30.
82. Chkhikvadze, Voprosy Mezhdunarodnovo Prava Na XX Sessii General' noi Assamblei [Problems of International Law at the 20th Ses- sion of the General Assembly], 3 Sowtrkoe Gosudarstvo 1 Pravo [Soviet State and Law] [hereinafter cited as SGIPJ 67-78 (1966).
83. Movchan, 0 Znachenii Kodifikatsii Printsipov Mezhdunarod- novo Prava [On the Importance of the Codification of International La4 1 SGIP 46-55 (1965).
or customary law, is considered beneficial, as it provides an opportunity for socialist and neutralist states to com- bine their efforts in furtherance of the development of in- ternational jurisprudence. 84
g.
In addition to the Charter of the United Nations, Resolutions of the General Assembly and multilateral declarations, agreements, and practices are offered as further evidence of the general acceptance of the principles of peaceful coexistence. 8s Similarly, the binding character of the principle of socialist internationalism is said to be based upon treaty as well as customary law. 86 Soviet com- mentaries note that multilateral declarations of tfie socialist states 87 have affirmed socialist internationalism to be the guiding principle in relations beheen socialist states, and the principle of socialist inteinationalism is reflected in all such relations, bilateral as well & multilateral. 88

h.
A recent commentary summarizes all of the forego- ing discussion in a single terse statement: "Peaceful coex- istence is an historical fact, an objective reality, the natural process of social development and the basic internatiod legal norm." 89 Thus, peaceful coexistence is said to be ". . . the political basis of general international law, the development of which determines the possibilities of the development of general international law." 90 In essence, although the objective laws of social development are in-voked, the focal point is the impermissibility of nuclear warfare. This produces the rather non-Marxist result that interdependence based upon technological advances in weaponry, rather than Marxism-Leninism, has dictated both the policy and law of coexistence. 1-13. Universality. a. Soviet international legal spe- cialists formally recognize the universality of international law, that is, the concept of a single general international law binding on all states. 91 These specialists are con- fronted, however, with a dilemma in coping with the problem their acceptance of universality presents. The law of peaceful coexistence must be universal in the sense of binding all states to meet Soviet foreign policy needs in dealing with both capitalist and socialist states. However, it must also allow for different operational norms within the socialist camp. Given the difference in the nature of

84.
Movchan, Kodifikatsiia Mezhdunarodnopravovykh Printripov Mirnovo Sosushchestovovaniia [Codification of the International Legal Principles of Peaceful Coexistence] Sovetskii Ezhegodnik 15-30 (1965).

85.
Mezhdunarodnoe Pravo [International Law] 58-60 @. Levin &

G. Kaliuzhnaia ed. 1964).
86. G. Tunkin, Voprosy Teorii Mezhdunarodnovo Prava [Problems of The Theory of International Lad 313 (1962).
8'. See Declaration of the Twelve Communist Parties in Power (November 1957) and Declaration of Representatives of the Eighw-One Communist Parties (November-December, 1960) in The New Com- munirt Manifesto 169-182; 11-47 (D.Jacobs ed. 1962).
88.
Mezhdunarodnoe Pravo, supra note 85, at 62-78.

89.
Zadorozhnyi, Mirnoe Sosushchestvownie I Mezhdunarodnoe Pravo [Peaceful Coexistence and International Law] 7 (1964).

90.
G. Tunkin, supra note 86, at 7.

91.
E. Mc Whinney, supra note 71, at 32.

Pam 27-161-1

the relationships desired among socialist states and be- tween socialist and capitalist states, the Soviets feel a prac- tical and ideological need to distinguish between these relationships. This desire to differentiate generates con- cern over whether such a fragmentation of the interna- tional legal order may result in a reduced area of operation for the law of peaceful coexistence. In short, this law must be fragmented in the Soviet interest without destroying .the overall claim of universality. 92
b. Confronted with a task of this nature, the Soviets have "amended" the concept of universality of the law of ppacefid coexistence by stating that it is composed ". . .of socially different components, . . . general international law, the princ$les and norms which have a general demo- cratic nature9+d socialist principles and norms that have come into being or are coming into being in the relations between the countries of the world system of social- Qm." 93 Thus, in the Soviet view, contemporary interna- tibnal law is comprised of two basic principles which are mutually exclusive in their operation. These concepts, peaceful coexistence and socialist internationalism, regu-late international relations between socialist and non-socialist states and among socialist states inter se, respec-tively. 94 Such a departure from universality is rationalized as. follows:
Socialist international law does not contradict general international

law: rather, in reflecting the special nature of the relations between
socialist states, it broadens and deepens the democratic character of
general' international law. 95
Socialist principles and norms relate to the principles and norms of

general international law as a new and higher quality does to an older
quality. While they incorporate positive factors and go further than the
principles and norms of general international law is assuring friendly
relations among states, the socialist principles and norms do not conflict
with general international law. 96
.. . [Tlhe existence of principles of socialist internationalism and other socialist principles and norms in the relations between countries of the socialist system in no way contradict the needs of a general intema- tional law. 97
c. Tunkin, the foremost Soviet international legal spe- cialist, has introduced a changed concept of universality designed to meet the needs of the Soviets in this area.
.. .mhe basic principles of contemporary international law are bid- ing and states cannot establish in their bilateral or regional multilateral relationships norms which would conflict with the basic principles.
Nevertheless, states can create principles and norms biding upon a limited number of states, if these principles and norms do not conflict with the mentioned basic principles, especially if they go further than these principles of general international law in furthering friendly rela- tions and securing the peace. Such are the international legal principles of socialist internationalism. 98
92. B. Ramundo, Peaceful Coexistence 19 (1 967).
93.
Lissitzyn, supra note 76, at 21-22.

94.
Id.

95. Mahdunarodnoe Pravo, supra note 85, at 9.

9-5. Tunkin, supra note 80, at 26. Tunkin's rationale reflects the dialectical approach to the process of legal development.
97. Ushakov and Meleshko, Novyi Uchebnyi Kurs Mahdumrod- novo Praw [The New Text on Inler~tiomlhuj, 10 SGIP 154 (1964).
98. G. TUNKIN, supra note 86, at 325.

1-14. Soviet Sources of International Law. a. The basic
concepts of the Soviet view of international law having
been reviewed, attention will now be focused on what the
Soviet Union considers to be the true sources of this
jurisprudence. The Soviet Union is a party to the Statute
of the International Court of Justice and presumably is
bound by the traditional sources of international law
enumerated in Article 38: treaties, international custom,
and general principles of law. Notwithstanding Article 38,
however, there is, under the Soviet view, a single source
of all international legal norms: the agreement of states.
Thisview limits the formal sources of international law to
treaties, where agreement of the parties is expressed, and
to those customary principles which have been agreed to
and, then, only as to states which have agreed and so long
as they continue to agree. 99 Treaties are considered the
principal source of international law, favored over
customary norms because of the unambiguous character
of the consent of the party states. 100 The broader
coverage of Article 38 of the Statute of the I.C.J. is ex-
plained on the ground that it enumerates legal principles
to be applied by the Court, and not the sources of interna-
tional law. 101
b. Treaties: The Charter of the United Nations. In the Soviet view, all treaties establish norms in the sense that biding obligations are created by the parties. If valid as international legal enactments, treaties may confi exist-ing law, develop it further, create new norms, or eliminate outdated ones. 102
(1)
The Soviets single out the Charter of the United Nations as the most important piece of international legis- lation because it embodies the principles of peaceful coex- istence. This document is described as ". . . the charter of contemporary international law, its most important source." 103 Using the Charter as a point of departure, the Soviets are active proponents of codification asa means of implementing and developing the law of peaceful coex- istence. The United Nations is expected to assist in and serve as the forum in this struggle for codification. 104

(2)
Bilateral agreements still appear to be preferred over multilateral treaties, presumably due to the greater influence and situational control inherent in the negotia- tion of the former. 105 There is, however, a growing ap- preciation of the compensating advantages of multilateral agreements, both within the socialist commonwealth and in dealing with capitalist states. As a result, Soviet treaty

Id. at 19 and 79. 99.
Mahdumrodnoe Pravo, supra note 8'5, at 19. It is said that the key element in the biding nature of international custom is the consent of the state concerned.

100.

101. P. Lukin, Istochniki Mahdunarodnovo Praw [Sources of In- It?r~ti0~/
hd 52-55 (1960).
102. G. Tunkin, supra note 86, at 66-72.
103. Chkhikvadze, supra note 82, at 71.

E. Mc Whinney, supra note 71, at 66-68. 104.
Mezhdumrodnoe Pravo [Inlernatioml Lad 41 (F. Kozher-nikov ed. 1964).

105.

practice has become more diversified and places greater emphasis upon multilateral agreements.
(3)
In the Soviet view, contemporary international law is basically treaty law. 106 Preference for treaties as the principal formal source of international law reflects the Soviet Union's basic positivist approach and is an impor- tant element in its bid for Western acceptance of the law of peaceful coexistence. 107 The Soviets consider "law by treaty" as an extremely flexible and useful device for achieving minimum and maximum international legal goals; defending against a hostile order, in the first in- stance, or transforming the international order, in the sec- ond. For the former purposes, a claim of lack of consent constitutes a universally accepted, traditional bar to the enforcement of a challenged norm; for the latter, accept- ance of the principles of peaceful coexistence in treaty form would provide a universally recognized legal basis for the new law. Thus, the Soviets claim, the Charter of the United Nations embodies the principles of coex- istence.

(4)
Soviet treaty practice generally follows that of the West, principally because the Soviet state had to accept the institution as a condition of membership in the interna- tional community. Indeed, the law of treaties was ex- pected to serve as the "bridge between the traditional and revolutionary systems." 108 Where differences in the Soviet approach to treaties exist, they appear to be politi- cally oriented and marked by purposeful ideology. 109

c.
Custom. In Soviet literature on international law, there is a conscious depreciation of the role of custom as a source of international law. Soviet writers reject as out- dated the proposition that custom, rather than treaties, represents true international law. 110 This view is simply reflective of a decided preference for treaties as the prin- cipal source of international law.

(1)
The objectionable feature of customary law from the Soviet point of view is the potential for loss of control in the creation of binding norms. For many years after the formation of the Soviet state, custom was rejected as a source of international law due to the need to protect itself against "hostile" customary law. However, the later recognition that custom can be useful as a source of inter- national law, if properly controlled, has resulted in a Soviet acceptance of customary law, with qualifications designed to meet specific foreign policy needs.

(2)
The Soviets have rejected the Western-sup- ported doctrine that customary norms recognized as such by a considerable number of states are binding upon all as to do so would pose a danger to peaceful coexistence. To

106.
Mezhdunarodnoe Pravo, supra note 85, at 80.

107.
J. Triska and R. SIusser, The Theory, Law and Policy of Soviet Treaties 9-29 (1962).

108. Id. at 28.
109. Id. at 172. See "The Soviet Law of Treaties," id. 34-172 for a detailed statement of Soviet treaty law. See also Romundo, supra note 92, at 53-60.
110. G. Tunkin, supra note 86, at 104-105.
be effective, it is said that custom must be in accord with thejus cogens 111 and be accepted by the state which is to be bound. 112 As in the case of treaties, a departure from the jus cogens in customary law requires acceptance ". . . by the states of both systems . . . to be regarded as a universal customary rule of international law." 113 Moreover, the contention is made that the applicability of a customary rule is subject to continuing review to deter- mine the extent to which it meets present-day require- ments.
(3) The Soviet position on consent is based upon tacit agreement (i.e., that one state's acceptance or recog- nition of an international custom is deemed to constitute a tacit proposal to other states to regard the custom as a norm of international law). This acceptance by other states can be expressed or simply indicated by a course of conduct. Once accepted, the custom becomes a customary norm of international law, with the same force, effect, and weight as a treaty norm. 114 The extreme positivism of the Soviet position on this point is evidenced in the following:
Customary international law may be changed or abolished either by treaty or by a new customary rule. In either case there is a new agree- ment between states. 115
Customary norms of international law Wig a result of agreement among states, the sphere of action ofrsuch norms is Sited to the rela- tions between the states which accepted these nonns as nonns of inter- national law, i.e., the states participating in this tacit agreement. . . .As for the newly emerging states, they have the juridical right not to recog- nize this or that customary norm of international law. . . . The concept that customary norms of international law recognized as such by a large number of states are biding upon all states not only has no foundation in modem international law but is fraught with great danger. 116
(4) Soviet commentaries reject the position of many Western jurists that the principle of "majority rule" ap- plies in the formulation of customary norms as a ". . . cry-ing contradiction to the basic generally recognized princi- ple of modem international law, the principle of the equality of states. . . ." 117 In making this argument, the Soviets depict the socialist states and newly emerging countries of Asia and Africa as victims of Western at-
11'. The concept of jus cogens continues to present problems in in- ternational law. There is no all-encompassing defhtion which is univer-sally acceptable to the various member states of the international com- munity. This problem of defhtion arises from the basic differences ex- isting among the various state systems of jurisprudence. There can, of course, be no true consensus of the proper scope or application of jus cogens absent a working defhtion. For an informative discussion of the various meanings given to jus cogens, see The Concept of Jus Cogens in Public International Law: Popers and Proceedings, Geneva, 1967 (Re-port of a conference organized by the Carnegie Endowment for Inter- national Peace, Lagonissi [Greece], April 1966).
112. Tunkin, Remarks on the Juridic01 Nature of Customary Norms of International Law, 49 Calif: L. Rev. 428 (1961).
113.
E. Mc Whinney, supra note 71, at 63-64, quoting Tunkin. It is said that the jus cogens of customary law cannot be rejected by in- dividual states.

114.
Tunkin, supro note 112, at 422-423.

115. G. Tunkin, supra note 86, at 103-104.
116. Tunkin, supra note 112, at 428-429.
117. Id. at 427.
Pam 27-161-1
tempts to impose international norms under the guise of customary law. 118 Accordingly, the Soviet approach toward customary law has had great appeal to African and Asian states.

d. General principles. Paragraph 1 (c) of article 38 of the Statute of the I.C.J. authorizes the Court to apply "the general principles of law recognized by civilized nations" in deciding, in accordance with international law, the dis- putes submitted to it. Various meanings have been at- tributed to this article, with the Western view being that "general principles'' are a true, if subsidiary, source of in-ternational law. 119 The general reluctance on the part of the Soviet Union to expand the competence and impor- tance of international tribunals has resulted in its rejection of general priiciples as an independent source of interna- tional law.
(1) In the Soviet view, article 38 does not purport to establish general principles as a source of international law, nor to empower the I.C.J. to create law on the basis of such principles:
In [Article 381 it is clearly stated that the Court decides disputes "on the basis of international law. . . ." The Court does not create interna- tional law, it applies it. 120
The majority of Soviet authors are of the view that paragraph 1 (c) of Article 38 of the Statute of the International Court does not contemplate a special source of international law or a special method of creating norms of international law. The "general principles of law" can only be principles of international law. 121
(2) The requirement that the court decide disputes "on the basis of international law" is viewed as support for the view that paragraph 1 (c) of article 38 does not con- template the application of domestic law, but only interna- tional law: 122
The International Court of Justice can in addition to international conventions and international customs apply "the general principles of law recognized by civilized nations" [Article 38(c), Statute of Intema- tional Court]. Many of these principles are still of great importance for the development and affiation of democratic rules of international law. They are realized either through the appropriate international treaties or through international custom and are in fact their generaliza- tion. Principles reflected neither in international treaties nor in interna- tional custom cannot be considered "general principles." 123
(3) Additionally, the Soviets claim that general prin- ciples of domestic law 124 do not exist, despite formal similarities in the various legal systems; the laws of socialist and capitalist states have a different class basis and, as a consequence, potentially different substantive content:
In the world there are states with two [different] social-economic systems and, as a consequence, two types of legal systems. The majority
118. G. Tunkin, supra note 86, at 103.

H. Briggs, The Law of Nations 48 (2d ed. 1952). 119.

120.
G. Tunkin, supra note 86, at 147-148. See also Kozhevnikov, Inter~tional Court at the Crossroads, 36 New Times 3 (Sept. 7, 1966).

121.
Id. at 152.

122.
Id. at 15.5.

123. MOSCOW:

Foreign Languages Publishing House, Intermtio~l Law 12 (n. d.).
124. G. Tunkin, supra note 86, at 155.
of the legal principles, despite their formal similarity, have, in some in- stances, different meanings in the legal systems of socialist and capitalist states. Therefore, it can be said with full justification that paragraph "c" of Article 38 of the Statute of the International Court of the U.N. was and remains for all intents and purposes a dead letter. 125

(4)
The Western interpretation that general princi- ples include domestic legislation is dismissed by the Soviet Union as simply a Western attempt to impose the bourgeois system of law upon socialist states and the newly evolved countries of Africa and Asia. 126

e.
Soviet auxiliary "sources" of international law. Rather than speaking in terms of "evidences" of interna- tional law, Soviet jurists recognize the existence of auxil- iary "sources" of international jurisprudence (e.g., resolu- tions of international organizations, decisions of interna- tional courts, and domestic legislation). These are more precisely described as auxiliary processes for the manifestation of the agreement of states (i.e., other than through treaties or the acceptance of custom): 127

There are also auxiliary processes (resolutions and decisions of inter- national organizations, international courts, and courts of arbitration; national legislation; and the decisions of domestic courts) which are a definite stage in the process of the formation of norms but do not ac- tually result in their formation. With rare exception, the process of norm formation in general international law takes the form of a treaty or an in-ternational custom. 128
(1) With regard to resolutions of international organizations, it is said that ". . . resolutions of the General Assembly, adopted unanimously or by a two-thirds majority where that majority includes socialist and capitalist states . . . are binding on the members of the
U.N. and, therefore, have juridical force." 129 This, it is argued, does not conflict with the view that the agreement of states is the sole source of international law, as such a resolution constitutes, at the very least, an oral agree- ment. 130
(2) Soviet commentaries treat domestic law as an auxiliary source in the context of the general view that, to become normative as "general principles," domestic law must be agreed to by states:
National legislation (for example, laws regarding state monopolies of foreign trade, etc.) exerts a great influence on the formation of Rules of International Law. But national legislation acquires the status of a source of International Law only when it is recognized as a Rule of Interna- tional Law either through international treaty or through international custom. National legislation cannot therefore be considered as an inde-pendent source of International Law. 131
The agreement of states is considered the key to the juridi- cal effectiveness of international judicial decisions and legal treaties, i.e., "[albsent the agreement of states, deci-
125.
P.Lukin, supra note 101, at 100.

126.
G. Tunkin, supra note 86, at 154.

127.
Id. at 157.

128.
Id. at 157-158.

129. Shurshalov, review of N.M. Minasian, Sushchnost' Sovremen- novo Mezhdunarodnovo Prava [The Essence of Contemporay Inlerna- tional Lad, 5 SGIP 159 (1964).
130. Id.
131. International Law, supra note 123, at 12-13.
Pam 27-161-1

sions of international courts, opinions of public organiza- tions, and scientific writings cannot be sources of interna- tional law, although they may influence its application and interpretation." 132 This position is said to be confirmed by paragraph 1(d) of Article 38 of the Statute of the I.C.J.:
Article 38(d) of the Statute of the International Court of Justice in- cludes legal decisions as auxiliary means of determining Rules of Inter- national Law. A court, in particular the International Court, does not make law, but applies existing law. . . . mhe International Court's ap- plication and interpretation of a legal Rule are biding only upon the parties to the given dispute and only concern the particular case in ques- tion. 133
Nevertheless, it is conceded that decisions of the Court and treatises ". . . have a very great importance in stating the existence or lack at a given period of Rules of Interna- tional Law." 134
f.
Central to the general Soviet approach to the sources of international law are the positivist insistence upon the agreement of states as the sole means of formulating inter- national legal norms, and the concept of the law of peaceful coexistence as jus cogens. This approach permits resistance to "hostile" international legal principles on the basis of either the lack of Soviet, or, in the peaceful coex- istence context, socialist consent, or of conflict with the principles of peaceful coexistence. The "agreement theo- ry" is principally relied upon in defending against Western views that the "general principles" referred to in para-graph 1(c) of Article 38 of the Statute of the I.C.J. are, in addition to treaties and custom, a source of international law.

g.
The purpose of the preceding discussion has been to give the reader a brief analysis of the Soviet view of inter- national law. As each of the chapters which follow is dis-cussed, it will be essential to bear in miid the different Soviet approach toward many of the legal concepts con- tained therein. Although largely self-serving, this ap- proach is currently of primary importance, and, for reasons spoken to above, it has proven to be most attrac- tive to, although not completely accepted by, evolving states throughout the world. 1-15. The Evolving States' View Toward International Law. a. The basic attitude of evolving states has been summarized as follows:

Most African States tend to view present rules of international law pri-marily as a product of the practice of Western States and not necessarily reflecting the common interest of all states. They are unwilling to have their disputes settled by these standards but are prepared to have them settled by standards to which they have themselves agreed in new con- ventions. In this connection they regard the International Court of Justice as an institution so predominately fffled with European judges that they cannot expect to receive a fair deal. 135
This statement accurately reflects the prevailing attitude of most evolving states toward the great majority of currently
132.
Mezhdunarodnoe Pravo, supra note 85, at 82.

133.
International Law, supra note 123, at 13.
'34. Id.
"5. Z. Cervenka, The Organization of African Unity and its

Charter 91 (1968).
existing international norms. For many years, these states have urged that public international law, in its present form, is a product of Western European and North Arner- ican states and thus formulated on the concepts of co- lonialism, capitalism, and Christianity. Several reasons have been offered as the underlying basis for the above stated view. Some have suggested that such an attitude merely reflects the difference in the values associated with distinctive cultural traditions. However, this view has met with vigorous opposition, typified in this statement by Friedmann:
An inflation of cultural distinctiveness in the field of interna-
artitkid tional relations and law is more than just a harmless exercise in hy- pocrisy and narcissism .. . It does no real service to the development of international law. 136
b.
As evidence of the fact that cultural differences play a minimal role in the evolving states' approach toward in- ternational law, attention is called to the impact European concepts have had on the judicial systems of these coun- tries. It has been observed that, as most evolving states existed as part of a colonial Europe prior to the ascendancy of their own inherent cultures, there was little or no cultural resistance to European teachings and concepts. Accordingly, the cultures of the various evolving states currently reflect a significant number of European values. These countries still retain European educators, utilize European texts and employ European administrative techniques and procedures. Moreover, most of these states' municipal judicial systems are based almost entirely on either Franco-German (Civil Law) or Anglo-Ameri- can (Common Law) systems of jurisprudence. 137

c.
Rather than cultural differences, the reason most generally 138 cited as the substantive basis for the current attitude of the evolving states toward international law is the sigdicant degree of disparity which exists between the economic and social development of these states and that of the more developed and industrialized countries. There do exist, in fact, other factors which contribute to the at- titude of evolving states toward current international norms. There is an inherent suspicion of developed states and "their law" as a result of long colonial experiences. Additionally, the generally united front shown by developed states when a challenge is posed to a "tradi- tional concept of international law" tends to generate a uniformly adverse reaction on the part of the evolving countries. 139 However, it is the fact that these states are, more or less, at the same stage of economic development and consequent political weakness that brings most Latin . American, Asian, and African states together in collective . opposition to many of the current international legal

136.
Friedmann, supra note 68, at 324. .:

137.
T.Elias, Africa and The Development of International Law 23 (1968).

138. It would be imprudent to identify a single cad& for the current attitude of evolving states toward existing internationdiaw.
139. 0.Lissitzyn, International Law Today and Tomorrow 102-105 (1965).

norms. In the words of L.C.Green:
. . . the economically underdeveloped countries may indeed modify cer- tain parts of the law of nations drastically. Rinciples of state respon- sibility, compensation for interference with the property and economic interests of foreign investors may undergo profound transformation as a result of this horizontal widening and the inclusion of groups of nations in different phases of development. This, however, is not caused by any inherently uniaue characteristic of Asian or African civilition as much as it is a product of a phrase of development through which many, if not all, nations pass at some time or another. 140
d. As evidenced by the preceding discussion, a growing number of evolving states are of the belief that present rules and concepts of international law do not meet the needs of developing countries. Yet, these same states are quick to urge that their intent is not to reject international law as a whole:
The underdeveloped nations today by no means reject the entire body of international law. On the contrary, they take a most active part in the work of many international organizations, including that of the Interna- tional Law Commission. . . . The fact that they should strive to alter as many of the existing rules of international law that are deterirnental to their state of development as possible is natural and in no way different from the entire history of international law. 141
This basic conflict of interests between developed and
evolving states presents one of the most diff~cult problems
currently confronting the international community. Thus,
in order to more fully appreciate the above stated attitude
and interests of the latter countries, it is essential to focus
attention on their views toward specik aspects of tradi-
tional international law.
1-16. Inequitable Features of the Traditional System of International Law. a. As noted above, the evolving states demand that traditional international norms be revised in order to respond to the needs of the entire in-ternational community, i.e., to be responsive to the new factual situation in which they must be applied:
It is not the primary function of international law in the second half of the twentieth century to protect vested interests arising out of an inter- national distribution of political and economic power which have ir-revocably changed, but to adjust conflicting interests on a basis which contemporary opiion regards as sufficiently reasonable to be entitled to the organized support of a universal community. 142
Evolving states maintain that the currently existing ineq-uitable rules of international law should be revised in light of their present needs and thereby given a much more definable and objective legal character. If, they con- tend, this is not done, then they should be permitted to pick and choose among legal rules which were developed before they became fully independent states.
b. No attempt is made by evolving states to specifically identifl each and every rule of traditional international law
C. Jenks, The Common Law of Mankind 85 (1958). Friedmann, supra note 68, at 324. 140.
Green, ,I$w States, Regionalism and International Law, 5 CAN. Y. B. INT~L. 119 (1967).

141.

142.

which they are reluctant to accept. 143 However, these countries are generally critical of three characteristic features of this law. 144
(1)
The traditional system of international law has been concerned primarily with creating immunities and establishing limits upon territorial authority. These con- cerns were simply a consequence of the increasing depend- ence of the world's developed states upon international trade and investment. Accordingly, the traditional rules of international law were designed to regulate the respon- sibility of the territorial sovereign toward alien interests and were formulated solely by those states which had common interests to be protected around the world. These rules of law are no longer applicable to the current world situation, as emerging states have a completely different set of interests to be protected and advanced.

(2)
The traditional system of international law sanc- tioned the use of force as a legitimate means of achieving national policy goals. Thus, the powerful and developed states could legitimately resort to war in order to force their wiU and policies on weaker countries. Evolving states, unable to function as equal sovereigns in this en- vironment, thus demand a sped~c and complete prohibi- tion on all forms of unilateral use of force and the development of a more equitable legal procedure by which to settle international disputes. 145

(3)
The traditional system of international law was developed in the context of the 1885 Congress of Berlin, which sanctioned the division and colonialization of Africa, and the Congress of Vienna, which sanctioned the concept of "balance of power" and recognized the supremacy of the states which formed the Concert of Europe. 146 Accordingly, this system of law ignores the in- terests of the less developed, and therefore politically weak states of the world, and endorses the colonial system of domination. 147 This particular feature of the traditional international legal system has, quite naturally, aroused the hostility of former colonial states which have now

143. The task of identifying each and every rule of traditional inter- national law which evolving states are reluctant to accept would be ar-duous, if not impossible, for a number of reasons. These states prefer to reject rules as they arise in spedic cases of controversy, rather than creatinga list of rules they fmd unacceptable. Secondly, it would be most dficult to specifically identify the traditional legal norms considered to be currently in force and universally biding. Finally, some evolving states may choose to accept certain traditional norms which other emerging countries reject out of hand. Acceptance or rejection is largely dependent upon the national interests of the state concerned.
144. Falk, The InternationalLegal Order, 8 HOW.L. J. 145 (1962).

145. This demand has been met for the most part by the U.N. Charter and the S ~ C
I prohibition against the unauthorized use of force contained therein. Evolving states are, nevertheless, sensitive to the traditional right of intervention, i.e., intervening to either protect and evacuate one's nationals or in response to a request by a state engaged in a legitimate right of self-defense against external aggression.
146.
Castaneda, The Underdeveloped Nations and the Development of International Law, 15 INT'L ORG.38 (1961).

147.
B. Roling, International Law in an Expanded World 69-74 (1 960).

Pam 27-161-1
achieved an independent status.
c. As evidenced by these criticisms leveled at a large portion of current international norms, evolving states consider the continued existence and enforcement of the present international legal system to be a denial of the emergence of former colonial countries. As a result, developed states are said to still be able to impose their will upon weaker members of the world community. In the words of one spokesman, ". . . the rules now in force were established, not merely without reference to small states but against them, and were based almost entirely on the unequal relations between great powers and small states." 148 1-17. Legal Basis of the Evolving States' Approach. a. Thus far, attention has been focused primarily on the policy objections of the evolving states toward traditional international law. These states also offer a legal basis for their claimed right to pick and choose among the tradi- tional concepts of international law which most affect them. Initially, emerging countries contend that they had no opportunity to participate in the formulation of the cur- rently existing traditional international norms. Under the colonial rule of European states from the 18th to the mid- dle of the 20th century, they were unable either to oppose or to support traditional rules of international jurispru- dence. With this in mind, these states call attention to the fact that international law is generally regarded to be con- sensual in nature, with its authority dependent upon its recognition and acceptance by those international entities which it seeks to bind and control. 149 This position regarding the necessity for consent is said to be specifically support by the Permanent Court of International Justice in the S.S. Lotus Case. In this decision, the tribunal declared:
International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as ex- pressing principles of law and established in order to regulate the rela- tions between these two coexisting independent communities or with a view to the achievement of common aims. Restrictions upon the inde- pendence of states cannot therefore be presumed. 150
b.
In further support of this consent doctrine, George

M.
Abi Saab contends that the sociological school of thought which bases international obligations on the will of the community best accommodates the views and in- terests of the evolving states. As these states now form a large part of the international community, he urges that through their cooperative will they can make a substantial contribution to international law and that this is the moral basis upon which the current demands of these countries

148. Statement of Luis Padilla Nervo, Mexican member of the I.L.C., before the International Law Commission, I INT'L L. COMM.
Y.B. 155 (1956).
149. Saab, The Newly Independent Smtes and the Rules of Interna- tional Law, 8 HOW. L. J. 102 (1962). See also, Castaneda, supra note 146, at 38.
150. Case of the S. S. "Lotus," [I9271 P.C.I.J., ser A, No. 9.
are made. 151 Additional support for the consensual basis
of international law is found in the writings of several con-
temporary publicists. The views of these individuals are
typified by the following:
In doctrine, the retreat, since the latter part of the 19th century, from the law of nature ideas and the increasing acceptance, especially in this country, of theories basing the law upon consent of States, though in one way retrogressive and calculated to enhance the importance of State sovereignty, did, in another way, help to release the forces of change and development. 152
1-18. Sources and Evidences of International Law: the Evolving States' View. a. Sources.
(1)
Treaties. As does the Soviet Union, evolving states view international agreements as the most viable and acceptable source of international jurisprudence. Reasons given for such a view are the immediate avail- ability of the texts of treaties for examination and the fact that these agreements are binding only upon those states which expressly consent to them. 153 Upon gaining their independence, colonial states generally assert the right to pick and choose those treaties to which they will suc- ceed. 154 For the most part, these countries have chosen to succeed to the vast majority of treaty obligations incur- red by their former colonial masters. 155 However, many of these states urge that the voluntary nature of their con- sent to assume these obligations, an element essential to the validity of such assumptions, is subject to debate. These countries contend that, in order to gain their final independence, they were forced to grant exclusive eco-nomic privileges and to sign unequal treaties of military alliance with their former colonial rulers. This, they con- tend, is the underlying basis for their strong support for the doctrine of Rebus sic stantibus. 156

(2)
Custom. Evolving states generally view custom- ary international law as too vague and inadequate for the purposes of the expanded international community and focus attention on the fact that there exists considerable disagreement between publicists and courts as to the mah- ner in which customary norms are formulated and defined. Nevertheless, the contention is made that the

151. Saab, supra note 149, at 102-103.
'
152. R. Jennings, The Progress of International Law 91 (1960).
153. This view conflicts, of course, with the Western European and: North American states' approach toward the relationship between treaties and customary international law, Le., that treaties simply codify- ing customary norms are binding on even nonsignatory states. See iqfra, chap. 8.
1-54. Involved here is a specific aspect of international law known as "state sumssion." This generally refers to the transfer of tenitory from one state to another and may be viewed in terms of a change in sovereignty or in international status. See irlfra, chap. 7. State succes-+ sion with regard to international agreements is analyzed in detail in in-fra, chap. 8.
155. F. Okoye, International Law and The New qfrican States
46-48 (1972).
156. Saab, supra note 149, at 108. Rebus sic stanlr$us (changed cir- cumstances) is a principle of treaty law which may seM as a legal basis for terminating or withdrawing from an international agreement. For a more complete analysis of this concept, see irlfra, chap. 8.

1:C.J. has consistently required that a party against whom a customary rule of law is invoked must both recognize and accept this international concept. In support of this assertion, reference is made to I.C.J. decisions: …when a custom satisfying the defmition in Article 38 is established, it
constitutes a general rule of international law which, subject to one reservation, applies to every state. The reservation concerns the case of a state which, while the custom is in the process of formation unam- biguously and persistently registers its objection to the recognition of the practice as law. 157
Drawing support from such decisions, the evolving states are firm in their contention that they are not bound by customary rules of international law to which they had no opportunity to object. 158
(3) General principles of law. The evolving states are united in their opposition to "general principles of law" as a legitimate source of international law. These countries contend that in addition to being vague and undefinable, these principles of law cannot be reasonably distinguished from customary rules of law. A spokesman of this view urges:
While conventions can be easily distinguished from the two other sources of international law, the line of demarcation between custom and general principles of law recognized by civilized nations is often not very clear, since international custom or customary international law, understood in a broad sense, may include all that is unwritten in interna- tional law, i.e., both custom and general principles of law. 159
(4)
In addition to their charge of ambiguity leveled against general principles of law, the evolving states challenge this source of jurisprudence on several other grounds. First, they contend that the utilization of these "general principles" as a source of a universal system of law vests constructive legislative power in a small number of developed states. This argument is based on the fact that the "general principles" spoken to in Article 38(l) (c) of the Statute of the I.C.J. have generally been interpreted as those municipal law concepts common to the Anglo-American and continental European legal systems. 160 Secondly, the phrase "recognized by civilized nations" contained in Article 38(l) (c) is uniformly re- sented by evolving states because of the implication con- tained therein they are, in fact, "uncivilized." Apart from the si&~cant psychological harm done, these countries submit that this phrase discrirninatorily excludes many sovereign states from full and effective participation in developing legal norms that will accommodate the in- terests of the entire international community. 161

b.
Evidences. The emerging countries contend that, though it would appear to be evident that the courts and publicists spoken to in Article 38(l) (d) of the Statute of the I.C.J. have no authority to make law but simply to

IS7. "Anglo-Nomegian Fisheries Case," [I9511 I.C.J. 131.

See supra, 8 1-6 c. 158.

159.
B. Chehg, General Principles of Law as Applied by Interna-tional Courts and\.rTribunals 23 (1953).

160. Id. at 24.
161. T.Elias, supra note 137, at 52.
Pam 27-161-1

identify and assert legal rules which have already acquired this status, this point is often overlooked. As a result, these "evidences" of existing international law are often viewed and cited as "law-making" authorities. 162 With this in mind, attention must be focused on the attitude of the evolving states toward both the I.C.J. and publicists.
(1) The International Court of Justice. 163 Of the more than sixty Asian and African member states of the United Nations, less than twenty have accepted the com- pulsory jurisdiction of the I.C.J. under the optional clause of its statute. 164 This would seemingly indicate a some- what less than positive attitude toward the Court by these countries. Several reasons for this posture have been ar- ticulated. Some have viewed it in terms of inadequate, evolving state representation on the Court. 165 Some wri- ters urge that emerging countries are simply not psy- chologically prepared to waive any of their newly won sovereignty by an acceptance of the Court's jurisdic- tion. 166 Still other publicists attribute the evolving states' attitude toward the I.C.J. to the existing status of substan- tive international law, contending that these states reject the Court's jurisdiction and authority because of the fact that this tribunal would merely apply "rules of law'' which the former refuse to accept as either representative of their interests or binding. In the words of a leading spokesman, ". .. without the progressive development and the clear statement of the rules of international law, it is extremely difficult for the newly independent states to adhere to a system of compulsory jurisdiction." 167 In a reaffirmation of this view, Jorge Castaneda writes:
. . . [Wlillingness to arbitrate controversies signifies a willingness to sub- mit to the application of the intemational rules that govern the subject matter of the dispute at any given time. It implies acceptance of the ap- plicable substantive law. It would be valid to conclude the reason for their refusal lies in the fact that such countries are not willing to accept the application, in general, of a great many provisions of present interna- tional law, in the formulation of which their needs and interests were not taken into account, but rather on the contrary, were created by prac- tice and in response to the needs of their probable adversaries. 168
(2) Publicists. Evolving states generally tend to minimize the works of publicists as authoritative evi- dences of international law. Initially, these countries point
162. G. Damte, The Attitude of Emergent States Toward The Exist- ing System of International Law 34 (1974) [unpublished thesis pre- sented to The Judge Advocate General's School, U.S. Army].
163. As noted in preceding pages, judicial decisions other than those of the I.C.J. are to be considered as evidence of existing interna- tional law. Emerging countries, however, generally refer to only I.C.J. decisions when speaking in terms of "Evidences" of international norms.
'64. Anand, Role of New Asian-4frcan Countries in the Present In- ternational Legal Order, 56 AM. J. INTZ L. 393 (1962). This refers to the Court's "compulsory jurisdiction" spoken to in Article 38(2) of the STATUTE OF THE I.C.J. A discussion of this and other aspects of the
I.C.J. is found in irlfra,chap. 9.
165.
Id.

166.
Id. at 404.

167.
Saab, supra note 149, at 116.

168.
Castaneda, supra note 146, at 39.

Pam 27-161-1
out that the vast majority of publicists in the area of inter- national law are nationals of developed European or North American states. Accordingly, these individuals seldom articulate the interests or attitudes of emerging states. 169 This assertion is often explained in terms of the fact that, as these writers obviously owe their allegiance to particular states of the world community, they will conse- quentially be deprived of true scholarly independence and objectivity.
c. As evidenced by the preceding discussion, evolving countries generally tend to regard international agree- ments as the only viable source of international jurispru- dence and view evidences of this law as reflective solely of the developed states' interests. Moreover, even in terms of the authoritativeness of treaties, the former countries reserve the right to pick and choose among those treaty commitments entered into by their prior colonial rulers before they will agree to be bound. Although many regard this to be a "totally negative" approach demonstrated by emerging states toward currently existing principles of in- ternational law, these countries do have future goals to achieve in the international legal sector. 1-19. Future Objectives of the Evolving States. a. To-day's emerging countries maintain that their aim is not to reject or to revise existing international legal norms simply for the sake of doing so. These states insist that current in- ternational law, far from being structured and rule pro- ductive, is anarchical in nature and fails to provide an ade- quate forum for equal and effective cooperation and com- petition among all states. This desire for a strengthened, but balanced, system of international jurisprudence professed by evolving countries has been summarized:
[I]t would be a mistake to discount the often expressed concern of the less-developed nations for the strengthening and development of inter- national law. Weak in material power, these nations must seek protec- tion and assistance in international law and organization. .. .[Tlhe less developed countries will insist on having their voices heard in the for- mulation and development of the law. 170
b. Having expressed a desire to participate in the development of a workable, responsible, and egalitarian system of international jurisprudence, evolving states have begun to seek the means and methods by which this goal might be achieved. In recent years, this search has centered on international organizations, particularly the United Nations General Assembly and its subsidiaries. 171
(1) The General Assembly. The evolving countries are generally unanimous in their belief that the United Nations General Assembly provides the most appropriate forum for the expression of their views and desires. Ac- cordingly, these countries urge that this organ be imbued with more responsibility and that the great weight of power be shifted from the Security Council to the General Assembly. This former body has long been charged with frustrating the development of the international com-
169.
T.Elias, supra note 137,at 43.

170.
0. Lissirzyn, supra note 139,at 102-105.
17'. Friedmann, supra note 29,at 87.

munity and negating the will of the majority by means of the veto power exercised by its five permanent mem- bers. 172 The increasing number of General Assembly resolutions are cited as clear evidence of the fact that the Assembly is, in reality, the legitimate and authoritative spokesman of the world community. 173 Moreover, a strong argument is made that, for want of better sub- stitutes, these resolutions should be considered the most authoritative pronouncements of international legal norms. In the words of one spokesman:
'
The United Nations is a very appropriate body to look to for indica- tions of developments in international law, for international custom is to be deduced from the practice of states. .. . The existence of the United Nations, especially in light of its accelerated trend towards universality of membership since 1955,thus provides a very clear, very concentrated focal point of state practice. 174
In support of this contention, emerging countries also call attention to the fact that past resolutions of the General Assembly have been accepted as having the force of law. A listing of such resolutions generally includes the 1950 Uniting for Peace Resolution, the 1945 GA Resolution on the Affiation of the Nuernberg Tribunal, the 1945 GA Resolution concerning the Crime of Genocide, and the 1948 Universal Declaration of Human Rights. 175 There exists little doubt that the evolving states will continue to argue the "law making" power of the General Assembly.
(2) The International Law Commission. 176 Since the increase in the number of its member states from fif-teen to twenty-one in 1961, the I.L.C., established under Article 13 of the United Nations Charter, has been viewed by the emerging countries as a most effective forum for the formulation of modem rules of interna- tional law. Seven Afro-Asian states now have representa- tives on the Commission, and the argument is in- creasingly made that the work of the I.L.C. is much more reflective of universally accepted legal norms than are decisions of the I.C.J. or the works of publicists:
It must be remembered that in providing an opportunity for change and growth of the law, the Commission is in fact providing just those procedures of legislation of which the international community is so much in need. . .. Further, there is a great value in a procedure by which the rival interests of states must be expressed in a scientific framework and made to speak the language of law. 177
1-20. Summary. Convinced that the major portion of
172.
Saab, supra note 149,at 105.See also, Elias, supra note 137, at 58.

173.
See generally, Friedmann, supra note 29,at 86-99.

174.
R. Jennings, supra note 152,at 3 1-32.

175.
C.Waldock, supra note 34,at 49-53.

176. The I.L.C. is now comprised of twenty-five members "of recognized competence" in international law, elected by the General Assembly for a 5-year term. The Commission is tasked with studying the methods by which the General Assembly should encourage the progressive development of international law and its eventual codifica- tion. The members do not serve as representatives of their governments but as experts on international law. The Commission holds an annual 8-to 11-week session in Geneva. For a concise explanation of the I.L.C. and its work, See C. Rhyne, International Law 140-141 (1971).
R. Jennings, supra note 152,at 31-32.

currently existing international legal norms reflects only the interests of the developed Western European and North American states which formulated these rules, evolving states contend that they are justified in refuting most of these concepts. Unable to participate in the for- mulation of these rules and fm in their belief that their voluntary consent to these principles is essential to their valid application, these countries regard treaties as the only legitimate source of international jurisprudence. Yet, even with regard to this source of legal norms, the emerg- ing countries reserve the right to pick and choose the treaty commitments undertaken by their former colonial rulers to which they must adhere. Buoyed by their vastly increased representation and resultant voting strength in the United Nations and its subsidiary commissions and agencies, evolving states are increasingly insistent that the
Pam 27-161-1

U&ted Nations General Assembly become the authorita- .rive source of modem legal norms. The emerging coun- tries will continue to become, on an ever increasing basis, a viable force in the formulation of public international
law.
1-21. Conclusion. It has been the purpose of this chapter to acquaint the reader with the overall structure of inter- national jurisprudence and the sources and evidences of its norms. A working knowledge of this subject matter, as well as some of the more contemporary views toward its content, serves asthe nexus between all of the legal con- cepts and principles contained in the following chapters. Before proceeding to any discussion of the various areasof international law that follow, however, it is essential that the relationship between international and state (munici- pal) law be examined in some detail.
Pam 27-161-1

CHAPTER 2
THE RELATIONSHIP BETWEEN
INTERNATIONAL AND STATE LAW

Section I. ON THE NATIONAL LEVEL
271. Dualism versus Monism. a. The relationship of in- which, and the degree to which, states have incorporated ternational law to state (municipal) law, and particularly international norms into their domestic legal systems. In the fact that state courts often apply international law, has that this varies from state to state, the relationship be- long troubled adherents of analytical jurisprudence. tween international and state laws, at the state level, will Moreover, the notion that only states, rather than in- also vary. 2 Conversely, international tribunals, dividuals, are "subjects of international law" has been unrestricted by state laws, find it much easier to achieve a distasteful to jurists who have sought the vindication and generally uniform application and interpretation of inter- protection of human rights in international law. Ac- national law. Accordingly, it is essential that the military cordingly, there have developed two principal "schools" attorney be fully aware of the legal relationship which ex- or approaches seeking to explain, in terms of traditional ists between his state's system of jurisprudence and public legal analysis, the relationship between international and international law. With this in mind, attention will be state law: the dualist (or pluralist) and the monist. There focused on the currently existing relationship between are several versions of both approaches. U.S. law and international norms.
(1)
In simplest terms, the dualists regard interna- 2-2. The U.S. Approach. a. The U.S.Constitution tional law and state law as entirely separate legal systems sets forth three sources of the supreme law of the land: the which operate on different levels. They contend that inter- Constitution itself, legislation enacted by Congress in ac- national law can be applied by state courts only when it has cordance with the Constitution, and all treaties constitu- been "transformed" or "incorporated" into state law and tionally entered into by the United States. 3 As a result, it emphasize the international legal personality of states would appear to be self-evident that all treaties, the pri- rather than individuals or other entities. mary source of international law, of which the U.S. is a

(2)
The monists, on the other hand, regard interna- party are an integral part of the American system of tional and state law as parts of a single legal system and jurisprudence. Specifically, the U. S. Constitution, Article

' find it easier to maintain that individuals have interna- VI, Clause 2, provides: tional legal personality. Ina prevalent version of monism, This constitution and the laws of the United States which shall be state law is seen as ultimately deriving its validity from in- made in pursuance thereof, and all treaties made, or which shall be ternational law, which stan& "higher" in a hierarchy of made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, legal norms. 1 any Thing in the Constitution or Lawsof any State to the Contrary not-
b. Any attempt to explain the relationship between in- ~thstanding.ternational and state law on the basis of either the dualistic or monist theory becomes somewhat theoretical and b. Given the validity of the preceding statements
generally proves to be highly unsatisfactory to the military regarding treaties, it is essential to examine the re~dts of a attorney. First, there is no complete agreement as to the possible contradiction between American domestic legis- definitive content of either theory. Secondly, the relation- lation and international agreements entered into by the ship of these two jurisprudential formsis of immediate in- U.S. A conflict of this nature may, hfact, arise in either of terest to the practicing attorney only when a conflict be- two ways. First, the agreement may be in conflict with a tween a rule of international and state law occurs. ~nthis rule of domestic law already in effect at the time the inter- situation, a decision must be made as to which particular national agreement becomes binding. Secondly, a rule of rule to apply. Viewed in realistic terns, the nature of this d~mestic law may come into effect after the agreement type of decision will generally depend upon whether the has become binding and be in coact with it. Where the
court the decision is a state tribunal or an inter-    conflict is between an international agreement and an- teri0r legislation, Courts have ~~lly
national body, l-his result flows from the fact that state not found it difficult courts must render decisions, even on questions of inter-to resolve a conflict in favor of the ihternationd agree- national law, in accordance with the laws of the countries ment; but in doing SO, courts usually do not take the posi- in which they sit. ~ ~ , tion that the agreement is intrinsically superior to existing
h~
state court decisions on matters of

international jurisprudence will reflect the manner in     legislation. Instead, they treat it as equal in rank with the
1. See generally J. Starke, an Introduction to International Law 2. In national legal systems, constitutional provisions may provide 68-90 (6th ed. 1967); I. Brownlie, Principles of Public International Law a legal basis for the application by the courts of rules of customary inter- 29-31, 50-51 (1966); H. Kelsen, Principles of International Law national law. See N. Leech, C.Oliver and J. Sweeney, The International 551-588 (2d ed. 1966); P. Jessup, Transnational Law (1956); and LegalSystem 12 (1973). For purposes of discussion in this publication, Ginsburg, The Validity of Treaties in the Municipal Law of the attention will be focused on the U.S. legal system. "Socialist" States, 59 AM. J. INT'L L. 523 (1965). 3. U.S. CONST. art. VI, cl. 2.
Pam 27-161-1
legislation and apply the rule of construction that as be- tween anterior and posterior laws in conflict, the one later in time prevails.
c.
In the United States, the equality in rank of treaties and acts of Congress is provided by Article VI, Clause 2, of the Constitution. Since neither is superior to the other, the one later in time is held to prevail. Hence a self-ex- ecuting treaty, i.e., one whose provisions are directly ap- plicable as rules of domestic law without the need of im- plementation by an act of Congress, supersedes the provi- sions of prior and inconsistent Federal legislation. Should the treaty not be self-executing, its provisions, once enacted into rules of domestic law by act of Congress, also supersede (because they are later in time) the provisions of prior and inconsistent Federal legislation.

d.
National courts are presented with a more difficult issue when, absent an applicable constitutional provision, they must resolve a conflict between an international agreement and domestic legislation that becomes effective at a later date. The rule of construction that the law later in time prevails operates to deprive of internaleffect the con- flicting provisions of the prior agreement.

The U.S. Supreme Court, in the 1870 Cherokee Tobacco case, 4 had an opportunity to comment upon the effect of just such a conflict. The question before the court con- cerned the effect to be given to, respectively, an 1868 Act of Congress 5 and the tenth article of an 1866 treaty be- tween the U.S. and the Cherokee Indian nation. If terms of the 1868 act were adjudged by the court to be applicable to the Cherokee territory in question, the earlier treaty would be contravened. In noting the obvious inconsisten-
cy, the court declared:
…it is insisted that the section [of the act of Congress] cannot apply to
The Cherokee nation because it is in conflict with the treaty. Undoub- tedly, one or the other must yield. The repugnancy is clear and they can-not stand together.
The [second paragraph] of the [sixth article] of the Constitution of the United States declares that "this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties which shall be made under the authority of the United States, shall be the supreme law of the land."
It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Con- stitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress (Foster v. Neilson, 2 Pet. 314), and an act of Congress may supersede a prior treaty (Taylor v. Morton, 2 Curt. 454; The Clinton Bridge, 1 Woolw. 155). In the cases referred to, these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful observance, cannot be more obligatory. They have no higher sanctity; and no greater in- violability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under considera-
4.
The Cherokee Tobacco, 78 U.S. 616 (1870).

5.
15 Stat. 167 (1868).

tion the act of Congress must prevail as if the treaty were not an element to be considered. If a wrong has been done the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief. 6
The "last-in-he" doctrine enunciated by the court in Cherokee Tobacco has been consistently adhered to in subsequent decisions, as shown by The Over the Topdeci-sion of 1925:
THEOVERTHETOP
SCHROEDER v. BISSELL
United States District Court, D.Conn., 1925.
5 F.2d 838.

Three Libels by the United States, one against the schooner Over the
Top, and two against its cargo, with application by A. L. Schroeder,
owner of the cargo, against Harvey Bissell, Collector, for return of cargo.
Libels dismissed.
THOMAS, DISTRICT JUDGE.
****
From the evidence I fmd the following facts established: On August 27, 1924, the schooner Over the Top, carrying a cargoof whisky and operating under the British flag and under British registry, cleared for Cuba from St. Johns, New Brunswick. It arrived at a point off the coast of Block Island several weeks prior to October 19, 1924.
****
On the 19th of October, 1924, at about 10 o'clock in the evening, the supercargo on board the schooner sold 25 cases of whisky for $550 to a special agent of the Internal Revenue Department. The sale was made in the presence of the captain, and thereupon the crew of the vessel, in the presence and under the direction of the Captain, unloaded these cases of whisky and transferred the same to a sea sled employed in the government service. . . . The transaction occurred at a point approx- imately 19 miles distant from the shore, or 115 degrees true from the southeast light of Block Island, * * *
On the following day, Over the Top was seized by officers of the United States coast guard, and the captain and crew were placed under arrest, and the ship and her cargo were towed into the Port of New Lon- don and turned over to the collector of customs and are now in his custody. .. .
The government bases its claim of forfeiture upon the alleged viola- tion of sections 447,448,450,453,585,586,593, and 594 of the Tariff Act of 1922 * as well as upon the provisions of the American-British Treaty which became effective May 22, 1924. The above sections of the Tariff Act provide as follows:
Sec. 447. Unlading-Place.-It shall be unlawful to make entry of
any vessel or to unlade the cargo or any part thereof of any vessel
elsewhere than at a port of entry ***.
Sec. 586. Unlawful Unlading-Exception.-The master of any
vessel from a foreign port or place who allows any merchandise (in-
cluding sea stores) to be unladen from such vessel at any time after its
arrival within four leagues of the coast of the United States and before
such vessel has come to the proper place for the discharge of such
merchandise, and before he has received a permit to unlade, shall be
liable to a penalty equal to twice the value of the merchandise but not
less than $1,000, and such vessel and the merchandise shall be sub-
ject to seizure and forfeiture: ***
But before we proceed to discuss the above-quoted sections of the Tariff Act as well as the treaty, it may be well to dispose of one of the contentions made by counsel in behalf of the cargo and schooner.
The proposition is advanced that, regardless of our municipal legis- lation, the acts complained of could not constitute offenses against the United States when committed by foreign nationals, on foreign bot- toms, on the high seas at a point beyond the territorial jurisdiction of the country. Well-known principles of international practice are invoked in support of this contention accompanied with the citation of authority.
6. 78 U.S. 616, 620-21.
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Upon careful consideration, however, I am led to conclude that a mis-
conception exists here as to the status, in a federal forum, of so-called
international law when that law encounters a municipal enactment.
If we assume for the present that the national legislation has, by its

terms, made the acts complained of a crime against the United States
even when committed on the high seas by foreign nationals upon a ship
of foreign registry, then there is no discretion vested in the federal
court,.once it obtains jurisdiction, to decline enforcement. International
.practici.is law only in so far as we adopt it, and lie all common or
statute law it bends to the will of the Congress. It is not the function of
courts to annul legislation; it is their duty to interpret and by their
judicial decrees to enforce it–and even when an act of Congress is
declared invalid, it is only because the basic law is being enforced in that
declaration. There is one ground only upon which a federal court may
refuse to enforce an act of Congress and that is when the act is held to be
unconstitutional. The act may contravene recognized principles of inter-
national comity, but that affords no more basis for judicial disregard of it
than it does for executive disregard of it. These libels, therefore, cannot
be attacked upon the ground that the territorial jurisdiction of the
United States cannot be extended beyond the three-mile sea zone under
international law.
If, however, the court has no option to refuse the enforcement of leg-

islation in contravention of principles of international law, it does not
follow that in construing the terms and provisions of a statute it may not
assume that such principles were on the national conscience and that the
congressional act did not deliberately intend to infringe them. In other
words, unless it unmistakably appears that a congressional act was in-
tended to be in disregard of a principle of international comity, the
presumption is that it was intended to be in conformity with it. It is with
such a principle in mind that we now proceed to an examination of the
legislation upon which the government relies.
Section 447 of the Tariff Act of 1922, quoted supra, makes it unlawful for the vessel to make entry of or to unlade any part of its cargo elsewhere than at a port of entry. Part of the cargo of Over the Top was unloaded on the high seas, and the government contends that the statute was thereby violated. To me it seems that the statute was in- tended to prevent entry or unlading at a port or place in the country other than a port of entry. It had no reference to unlading on the seas even when done within the three-mile zone. But waiving that question, it is to be noted that the act is phrased in general language and that it bespeaks no suggestion of territorial limitation. The proposition has not heretofore been advanced that for that reason the act has attempted to extend the territorial jurisdiction of the United States over the whole earth. Almost all criminal statutes, or statutes prohibiting defmed con- duct, are phrased in general language without mention of territorial limitation. But they are all to be read in the light of the principle that ju- risdiction is not extraterritorial and that the municipal legislation is not attempting to regulate or to punish conduct performed outside of the national domain. For exainple, the statutes of Connecticut do not forbid larceny in Connecticut-they forbid larceny. The statutes of the United States do not forbid counterfeiting in the United States-they forbid counterfeiting. That the Congress may, in disregard of the law of na- tions, prohibit acts by foreign nationals not committed within our do- main, has already been conceded; but unless such intent clearly appears from the language of the statute such intent is not to be presumed.
****

The same considerations apply with equal force to the provisions of sections 448, 450, 453, 585, 593, and 594 of the Tariff Act of 1922. These enactments of the Congress are implicit with the proviso that the acts therein denounced be accomplished within the territory of the United States. No attempt is there discernible to extend the legislative jurisdiction of the United States beyond its boundaries.
****

Here we have a distinct extension of our sea jurisdiction to a point 12 miles from the &–an assertion of authority which may perhaps clash with international practice, but which, whether challenged or not, is un-mistakable, and which, therefore, it is the business of ow courts to en- force. Had the master and super cargo of Over the Top been guilty of unlading the liquor at a point within this 12-mile zone, it may be that we would have had no dficulty in sustaining the libels.
**I*
My conclusion, then, is that as no statute embracing the subject-mat.

ter of sections 447,448,450, 453, 585, 586, 593, and 594 of the Tariff
Act of 1922 has extended our territorial jurisdiction to a point on the
high seas distant 19 miles from our coast, conduct which would have
been in violation of these sections if performed lthin our territory can-
not constitute an offense against the United States when performed at
such a distance by foreign nationals on ships of foreign registry. If, for
the purpose of our treasury, we canextend our sea jurisdiction to a point
four leagues from the coast, I see no reason why we cannot extend it
four leagues more. I merely observe that we have not done so yet.
1 now come to the provisions of the American-British Treaty, which

was obviously contracted for the purpose of preventing hovering ships
from supplying intoxicating liquor to carriers running between the ships
and the shore. * * '*
****

Whether therefore the Senate and the Executive may constitutionally enact criminal legislation by the device of a mere treaty is a question which fortunately we need not discuss. It is suficient to conclude that the American-British Treaty did not in fact enact new criminal legis- lation.
****

The considerations as above expressed therefore impel the conclusion that there is no legal basis for these libels, and it follows that they must be and the same are dismissed. **'
In Tag v. Rogers 7, the appellant argued that international practice, formalized in a rule of law, forbids the seizure or confiscation of the property of enemy nationals during time of war, at least where that property had been ac- quired by enemy nationals before the war and in reliance upon international agreements. In rejecting this argument the court said in part:
Once a policy has been declared in a treaty or statute, it is the duty of the federal courts to accept as law the latest expression of policy made by the constitutionally authorized policy-making authority. If Congress adopts a policy that conflicts with the Constitution of the United States, Congress is then acting beyond its authority and the courts must declare the resulting statute to be null and void. When, however, a constitu- tional agency adopts a policy contrary to a trend in international law or to a treaty or prior statute, the courts must accept the latest act of that agency. 8
e. The preceding cases clearly demonstrate the fact that treaties are indeed an integral part of U.S. law. Just as clearly evidenced, however, is the fact that Congress may denounce previous treaties if it see fit to do so and pass superseding and contravening legislation to this effect. 9 Though a Congressional decision to contravene prior treaty commitments does have the effect of law within the
7.
Tag v. Rogers, 267 F.2d 664, cert. denied, 362 U.S. 904 (1959).

8.
Id. at 668.

9.
In a 1972 case, Diggs v. Schultz, 470 F.2d 461, cert. denied, 411

U.S. 931, 93 S. Ct. 1897, a group of black Congressmen attempted, inter alia, to challenge the validity of a 1971 law sponsored by Senator Byrd of Virginia which had set the stage for importing chrome from Rhodesia in derogation of the United Nations embargo previously adopted with the affiative vote of the United States. See Executive Order Nos. 11322, 11419, 22 USCA 5 287c. See also Strategic and Critical Materials Stock Piling Act, 55 1-10, 50 U.S.C.A. 55 98-98h-1. The D.C.Court of Ap- peals held that ". . . under our constitutional scheme, Congress can de-nounce treaties if it sees fit to do so, and there is nothing the other branches can do about it." 470 F.2d at 466.

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United States, it cannot absolve the U.S. of its previously
incurred international obligations and responsibilities. 10
The same is true of any state in the international com-
munity.
j As noted, the Constitution specifically mentions
treaties as a primary source of "the supreme law of the
land." This document is silent, however, as to the role
that customary international law is to play in the American
legal system. The U.S. Supreme Court was not long in fill-
ing this apparent void. In the case of The Paquete
Habana, 11 previously discussed in chapter 1, 12 the court
referred to customary international law in this manner:
International law is part of our law, and must be ascertained and ad- ministered by the courts ofjustice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their deter- mination. For this purpose, where there is no treaty and no controlling executive or legislative act orjudicial decision, resort must be had to the customs and usages of civilized nations. . . . [emphasis supplied] 13
g. It is evident, therefore, that customary international law, like treaties, is a vital part of U.S. law. Notwithstand- ing this fact, however, as in the case of international agreements, courts often prefer to yield to other branches of the government in certain matters of international legal concern.
UNITED STATES v. BERRIGAN
United States District Court, D.Md., 1968.
283 F.Supp. 336.

NORTHROP, DISTRICT JUDGE. The defendants before this court are charged in three counts that they did willfully
1.
injure property of the United States;

2.
mutilate records filed in a public office of the United States; and

3.
hinder the administration of the Military Selective Service Act.

Defendants wish to proffer an opening statement to the jury as to what they would present for their defense. Specifically, they contend that, by virtue of what they have read, heard, and seen, the war in Viet- nam is immoral and illegal; and that the United States, in carrying on the war in Vietnam, is violating certain precepts of international law, constitutional law, and judgments which were handed down at Nurnberg.
To serve as a foundation and a basis for their beliefs, defendants wish to produce in court, among other evidence, "the outstanding experts" on international law who would testify that the acts of the United States government in Vietnam are illegal. Their conduct, they say, was prompted by their belief that the United States is acting illegally and was intended to prevent criminal acts from being committed. Because this belief prompted their acts, they argue that the necessary mens rea is lacking.
Initially, it must be pointed out that in law once the commission of a crime is established-the doing of a prohibited act with the necessary in- tent-proof of a good motive will not save the accused from conviction.
****
Counsel also contends that the defendants' acts are symbolic expres- sions of speech which are protected by the Fist Amendment of the United States Constitution and thus he is entitled to offer this defense
10.
The inability of a state to absolve itself of international obliga- tions and responsibilities is addressed at chapters 7 & 8, irlfra.Means by which to legitimately terminate or suspend treaties do exist under inter- national law. This subject will be examined in detail chapter 8.

11.
The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290 (1900).

12. Seep. 1-6, supra.
13. 175 U.S. 677, 700.
before the jury.
****
This court finds that under the circumstances of this case the conduct which is charged in the indictment is not afforded the protections of the Fist Amendment and a conviction under these criminal statutes would not deny to these defendants any of the guarantees of that Amendment.
Finally, counsel contends that these defendants should be allowed to present to the jury what is popularly known as the "Nurnberg Defense." The trial of the Nazi war criminals at Nurnberg was premised on the generally accepted view that there are, as a part of international law, certain crimes against peace and humaiiity which are punishable. The Numberg Trial, 6 F.R.D. 69 (1946). It is urged here that the belief of these defendants that the United States was waging a war of aggres- sion, and thus committing a crime against peace, justified the acts charged.
It is not clear what standing these defendants have to raise the legality of this country's involvement in Vietnam when they have not been called to serve in the armed forces, are not directly affected by our government's actions in that country, and are not even directly affected by the Selective Service apparatus. As pointed out by Judge Charles E. Wyzanski in an article in the February 1968 issue of the Atlantic Monthly:
As the Nuremberg verdicts show, merely to fight in an aggressive war is no crime. What is a crime is personally to fight by foul means. [Emphasis supplied.]
The important element in this defense, assuming its applicability in an American court, is the individual responsibility which is necessary before it can be raised. These defendants do not have standing to raise the validity of governmental actions, either under international law or constitutional law, on the grounds that the rights of parties not before this court are violated. Courts "must deal with the case in hand, and not with imaginary ones." Yazoo & M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 218, 33 S.Ct. 40, 41, 57 L.E.. 193 (1912).
I refer again to the opinions expressed by Judge Wyzanski because they are timely articulations of ancient principles found in scores of cases. In our disturbed times, modem expressions seem to have more persuasion than the authority of antiquity.
For men of conscience there remains a less risky but not a less wor- thy moral choice. Each of us may bide his time until he personally is faced with an order requiring him as an individual to do a wrongful act. Such patience, fortitude, and resolution find illustration in the career of Sir Thomas More. He did not rush in to protest the Act of Henry VIII's Parliament requiring Enghshmen to take an oath of supremacy attesting to the King's instead of the Pope's headship of the English Church. Only when attempt was made to force hito subscribe to the oath did he resist. * * *
This waiting until an issue is squarely presented to an individual and cannot further be avoided will not be a course appealing to those who have a buming desire to intervene affmatively to save his na- tion's honor and the lives of its citizens and citizens of other lands. It seems at fist blush a not very heroic attitude. But heroism sometimes lies in withholding action until it is compelled, and using the interval to discern competing interests, to ascertain their values, and to seek to strike a balance that marshals the claims not only of the accountant and of others in his society, but of men of distant lands and times.
But irrespective of the lack of standing of these defendants to raise the issue of the legality of the government's actions as they relate to the Vietnam situation, the proffered defense suffers from a more funda- mental bar. It is clear that there are certain questions of substantive law, that is, "political questions," which are not cognizable in our courts because of the nature of our governmental system which is based upon a separation of functions among different branches of the government. The doctrine
"is one of 'political question,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional
Pam 27-161-1
authority. Baker v. Cam, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962)."
Certain clearly defmed areas have traditionally and necessarily been

left to other departments of the government, free from interference by
the judiciary. One such area is foreign relations. Baker v. Cam, supra, at
211, 82 S.Ct. at 691.
It is true that not every case which touches the foreign-relations power of the country is necessarily a "political question." Courts have usually decided the constitutional questions concerning international agreements, Reid v. Covert, 354 U.S. 1,77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), but the corresponding question of international law has been treated as a "political question."
The activities of these defendants were directed towards the Selective Service System, which system counsel has admitted is not criminal or il- legal in and of itself. What is called into question here in the utilization of the armed forces by the executive and legislative branches. It cannot be disputed that the recognition of belligerency abroad, and the measures necessary to meet a crisis to preserve the peace and safety of this country, is uniquely an executive and a legislative responsibility. Whether the actions by the executive and the legislative branches in utilizing our armed forces are in accord with international law is a ques- tion which necessarily must be left to the elected representatives of the people and not to the judiciary. This is so even if the government's ac- tions are contrary to valid treaties to which the government is a signato- ry. And the Supreme Court has held that Congress may constitutionally override treaties by later enactment of an inconsistent statute, even though the subsequent statute is in violation of international law.
The categorization of this defense as a "political question" is not an abdication of responsibility by the judiciary. Rather, it is a recognition that the reswnsibilitv is assumed bv that level of aovernment which

under the Constitution and international law is authorized to commit the nation.
The "Numberg Defense" is premised on a finding that the govern- ment is acting in violation of international law in waging an aggressive war, and, as such, cannot be raised here because the question of viola- tions of international law by the government is uniquely a "political" question.
Counsel will govern themselves accordingly, and the court's instruc- tions to the jury will reflect this decision if any transgression makes it necessary.

h. The purpose of the preceding discussion has been to demonstrate the manner in which and degree to which in-ternational law, in the form of treaties and customary norms, has been integrated into the American legal system. As noted, international jurisprudence is con- sidered a part of U.S. law. 14 The role it plays, however, is largely dependent on whether it is considered by courts to be in contlict with existing U.S. law or practice. In speak- ing to this point, Restatement, Second, Foreign Relations Law of the United States urges accommodation:
5 3. Effect of Violation of International Law . . .

(3)
If a domestic law of the United States may be interpreted either in a manner consistent with international law or in a manner that is in contlict with international law, a court in the United States will in- terpret it in a manner that is consistent with international law.

Comment:
J. Application of international law in courts in the UnitedSiates. Inter-national law is applied by courts in the United States without the necessity (i) of pleading and proving it; or (i) of showing an affirmative acceptance by legislative or other national authority of the rule of inter- national law applied. However, if there is domestic legislation contrary to international law that is also pertinent, courts in the United States will normally apply the legislation. But courts in the United States interpret general or ambiguous words in statutes in a manner consistent with in- ternational law as understood by them.
i. This examination of the relationship between inter- national and state law has, until this point, limited itself to the national level, i.e., to an interpretation of international norms by state courts in light of domestic legislation. At- tention must now be focused on the relationship between these two forms of jurisprudence on the international plane.
Section 11. ON THE INTERNATIONAL LEVEL
2-3. Introduction. a. A former legal adviser to the Department of State was discussing with the late Mr. Justice Frankfiuter the position of national courts in the international legal system and said:
Mr. Justice, with all due deference, I would say that from the stand- point of international law, your court is but another municipal court and a decision of your court does not have any more effect internationally than a decision by a bureaucrat. 15
6. The principle that a state cannot plead its own law as an excuse for noncompliance with international law has been long established and generally recognized. In 1887, for example, U.S. Secretary of State Bayard declared:
[It is only necessary to say, that ifa Government wuld set up its own municipal laws as the fmal test of its international rights and obligations, then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals It has been wnstantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfhent of international duties. Such regulations may either exceed or fall short of the require- ments of international law, and in either case that law furnishes the test of the nation's liability and not its own municipal rules. . . . 16
c. Article 13 of the Declaration of Rights and Duties of

States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke p6vT sions in its constitution or its laws as an excuse for failure to perform this duty.'' There is an abundance of decisions of international courts and tribunals recognizing this prin- ciple. 17 The principle is also recognized by Soviet jurists: Proceeding from one and the same supreme authority, both the rules
14. The United States Supreme Court, like the courts of other federations, often refers to rules of international law in settling disputes between the states of the Union. See, e.g., New Jersey v. Delaware, 291
U.S. 361,54S.Ct. 40,78 L.Ed.847 (1934); Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 27 L.Ed.55 (1893); Handly's Lessee v. Anthony, 18 U.S. (5 Wheat.) 374, 5 L.Ed.113 (1820).
1s. Leech, supra note 2, at 2.

U.S. For. Rel. 751, 753 (1887). 16.

17.
Seecase Conceming Certain German Interests in Polish Upper Silesia, [I9261 P.C.I.J. 19, 22, 42; Chorzow Factory Case, [I9281

P.C.I.J. 33-34; Free Zones Case, [I9321 P.C.I.J. 167; Treatment of Polish Nationals in Danzig, (19321 P.C.I.J. 24; and Case Conceming Rights of Nationals of the United States of America in Morocco, (19521
I.C.J. 176.
Pam 27-161-1
of International Law and those of domestic origin should have the same
biding force for all organs and nationals of the countries concerned. By
concluding an international agreement a governing authority under-
takes, if necessary, to bring its domestic legislation into line with the in-
ternational commitments it has assumed. On the other hand, by pro-
mulgating a law clearly contrary to International Law, the government
concerned commits a violation of International Law, for which the State
concerned is responsible under International Law. . . .
Therefore, International Law and National Law must not in their very
nature either contradict 'each other or have primacy one over the
other. 18
d.
In many cases, international tribunals have awarded damages because a state's courts have disregarded or misapplied international law. For example, after the American Civil War, an arbitral tribunal awarded damages to Great Britain for the detention or condemna- tion in the United States of six British vessels as prizes during the Civil War. It held that, in these cases, the con- demnation or detention was contrary to international law, although it had been upheld by the Supreme Court as law- ful. 19 It should be further noted that, in such cases, the international tribunal normally has no power to reverse or set aside the judgment of the municipal court, which may continue to have legal effect (e.g., with respect to passage of title to property). The international tribunal, however, will award damages to the aggrieved state.

e.
Although international law is normally controlling on the international level, questions of municipal law may arise in disputes between states, and international tri- bunals may find it necessary to interpret such law. This may happen, for example, in disputes arising out of alleged breaches of state contracts. In the Serbian Loans and Brazilian Loans cases, 20 the Permanent Court of In-ternational Justice had to determine the meaning and effect of French legislation governing payments of debts in gold or at gold value. In construing this legislation, the Court attached controlling weight to the manner in which it had been applied by the French courts, saying in the lat- ter case:

Though bound to apply municipal law when circumstances so require, the Court, which is a tribunal of international law, and which, in this capacity, is deemed itself to know what this law is, is not obliged also to know the municipal law of the various countries. All that can be said in this respect is that the Court may possibly be obliged to obtain knowledge regarding the municipal law which has to be applied. And thls it must do, either by means of evidence furnished it by the Parties or by means of any researches which the Court may think fit to under- take or to cause to be undertaken.
18. Academy of Sciences of The U.S.S.R., Institute of State and Law, International Law 15 (Ogden trans]. 1961).
19.
Alabama Claims (United States v. Great Britain), 3 J. Moore, International Arbitralions 3209-10 (1898); 4 J. Moore, at 3902, 3911, 3928, 3935, 3950 (1898).

20.
Serbian Loans and Brazilian Loans Cases, [I9291 P.C.I.J. 5, 40-47, 93, 120-125.

Once the Court has arrived at the conclusion that it is necessary to ap-
ply the municipal law of a particular country,'there seems no doubt that
it must seek to apply it as it would be applied in that country. It would
not be applying the municipal law of a country if it were to apply it in a
manner different,from that in which that law would be applied in the
country in which it is in force.
It follows that the Court must pay the utmost regard to the decisions
of the municipal courts of a country, for it is with the aid of their
jurisprudence that it will be enabled to decide what are the rules which,
in actual fact, are applied in the country the law of which is recognized as
applicable in a given case. If the Court were obliged to disregard the
decisions of municipal courts, the result would be that it might in certain
circumstances apply rules other than those actually applied; this would
seem to be contrary to the whole theory on which the application of mu-
nicipal law is based.
Of course, the Court will endeavour to make a just appreciation of the jurisprudence of municipal courts. If this is uncertain or divided, it will rest with the Court to select the interpretation which it considers most in conformity with the law. But to compel the Court to disregard that jurisprudence would not be in conformity with its function when apply- ing municipal law. As the Court has already observed in the judgment in the case of the Serbian loans, it would be a most delicate matter to do so, in a,caseconcerning public policy-+ conception the definition of which in any particular country is largely dependent on the opinion prevailing at any given time in such country itself–and in a case where no relevant provisions directly relate to the question at issue. Such are the reasons according to which the Court considers that it must construe Article VI of the Special Agreement to mean that, while the Court is authorized to depart from the jurisprudence of the municipal courts, it remains en- tirely free to decide that there is no ground for attributing to the munici- pal law a meaning other than that attributed to it by that jurisprudence.
Exceptionally, however, an international tribunal may reject an in- terpretation of a state's law by a court of that state if it is obviously fraudulent or erroneous. 21
2-4. Summary. a. The place of international law within a particular municipal legal system, though both giving rise to intricate domestic legal problems and adding to or sub- tracting from the effectiveness of international law, does not affect the international rights and obligations of the state. These rights and responsibilities are founded in in-ternational law. Domestic constitutions and other state laws are, alone, incapable of adding to or subtracting from the existing norms of international jurisprudence. This is both logical and just. International law is not foreign law. Far more being a legal system imposed upon states against their will, it consists of rules and regulations designed both to protect and to promote the interests of all members of the world community.
b. It is upon the question of membership in the interna- tional community that attention must now be focused. If, in fact, states are the only true subjects of public interna- tional law, it is essential that the military attorney fully un-derstand the characteristic~ of these principal participants in the international legal system.
21. Id. at 121, 22. See generally A. Freeman, The International Responsibility of States for Denial of Justice 342-354 (1938); C. Jenks, The Prospects of International Adjudication 547-603 (1 964).
Pam 27-161-1

CHAPTER 3
SUBJECTS OF INTERNATIONAL LAW

3-1. Introduction. a. As mentioned in chapter 1, inter- national law has been thought to apply only to states. The notion has been that only states may claim rights under in- ternational law and, consequently, only states are bur- dened with the duties imposed by this jurisprudence. A large body of law has developed dealing with the charac-
teristics of states for purposes of international law, the
recognition of states and their government by other states, and the legal consequences of such recognition or non- recognition. This chapter will survey this body of law.
b. In recent years, the historical view that only states have rights and duties under international law has given way to a less restrictive view regarding the subjects of in-
Section I. THE BASIC NATURE OF 3-2. Necessary Qualifications for Statehood. a. Public international law has been, and remains, primarily a law applicable to the conduct of sovereign states in their in- terstate relationships. Although there are many definitions of a state, one widely accepted definition stipulates that a state is an entity possessing the following qualifications:
As a practical matter, every treaty entered into be- (1)
a permanent population; (2) a defined territory; (3) a government; and (4) capacity to enter into relations with other states. 2

b.
Certain nation states, such as the United States, are recognized by all as "states" having full rights and duties under international law. Likewise, it is clear that a state within a federal system, such as the State of New York, is not a "person" for purposes of international law, i.e., it is not a "state" in the international law sense inasmuch as it does not carry on international relations. 3 The same is true of municipalities, (e.g., Boston) and territories (e.g., Puerto Rico), neither of which are "states." 3-3. Sovereignty: The Key to Statehood. a. The basic test of statehood and the thrust of the traditional require- ments mentioned above is sovereignty, which may be defined as legal (as distinguished from actual) self-suffi- ciency. A sovereign state does not rely for its juridical ex- istence on anything foreign to itself. 4 Subject to its treaties and other international legal obligations, it is independent of other states both within its territory and in its interna- tional. affairs. 5 International organizations, on the other hand, rely for their existence upon the states that create them. For example, the United Nations and the European Economic Community came into being by the act of their member-states. Their existence can be terminated simply by the member-states withdrawing from them. By con- trast, the existence of a state cannot be terminated by the action of other states. This lack of reliance upon the will of other states is the core meaning of the phrase "States are sovereign."

b.

ternational law. For example, international organizations, such as the United Nations, have been held to have inter- national personality. Similarly, it is gradually becoming ac- cepted that individuals and corporations may also have rights and duties under international law in certain cir- cumstances.
c. Although only states were formerly regarded as pro-

per subjects of international law, for many years groups recognized as belligerents have been treated as having certain rights and duties under international law. On the
other hand, insurgents (groups not yet accorded belliger- ent rights with respect to neutrals) have a less sharply defined status as "persons" subject to international law. 1
STATES AND GOVERNMENTS
tween sovereign states restricts, to some extent, the exer- cise of the power incidental to sovereignty. Likewise, the norms of international law tend to restrict the exercise of the individual state's sovereign power. Such restrictions on a state's freedom of action do not, however, affect its status as a sovereign state. As long as a state is not under the legal authority of another state, it remains a sovereign state, regardless of how extensive or burdensome its in- ternational legal obligations may be. 6
c. Although the concept of sovereignty implies a cer- tain amount of independence, it is apparent from what already has been said that the two terms are not syn- onymous. A state can be sovereign without being com- pletely independent in either a legal or a practical sense. For analytical purposes, states may be classified as either independent or dependent. There are, or have been, many types of dependent states, each largely governed by the facts of the particular situation. They may be called vassal states, protected states, protectorates, suzerainties, or by other names. These terms do not have precise juristic meaning, and do not necessarily imply that the dependent state lacks international legal personality. Rather, each de-
1.
This topic is dealt with extensively in International Law, Volume II, DA Pam 27-161-2.

2.
Art. 1, Convention on Rights and Duties of States, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19. For other defmitions, see Restate-ment (Second) Foreign Relations Law of The United States § 54 (1965) [hereinafter cited as RESTATEMENa; J. Brierly, The Law of Nations 137 (6th ed. 1963) [hereinafter cited as Brier&]; I. Hyde, International Law 22-23 (2d rev. ed. 1945); 1. Oppenheim, International Law 118 (8th ed. Lauterpacht 1955) [hereinafter cited as Oppenheim.]

3.
Article 2 of the Convention on Rights and Duties of States, supra note 2, expressly provides that ''Vlhe federal state shd constitute a sole person in the eyes of international law."

4.
See Korowicz, Introduction to International Law 274 (1959).

5.
Id. See Chief Justice Marshall's statements in The Antelope, 23

U.S. (10 Wheat.) 66 (1825).
6. See Advisory Opinion on Customs Regime between Germany and Austria, [I9311 P.C.I.J., ser. NB, No. 41, at 37,4546, 57-58, 77.
pendent state has individual legal characteristics resulting from its origins, the treaties it has entered, and the stage of its development. 7
d. A well-known British case, Dyff Development Co. Ltd. v. Government of Kelantan, 8 illustrates this point. The House of Lords affirmed an order staying proceedings against the Government of Kelantan (a princely Malay State under British protection) on the ground that Kelan- tan was a sovereign state over which the court had no ju- risdiction. This result was reached even though, by agree- ment between the two states, the British government had assumed the conduct of Kelantan's foreign affairs, and even though the agreement severely limited the control of the Sultan of Kelantan over his country's internal affairs. Kelantan had contracted away to a great deal of its independ- ence, but it had not forfeited its status as a sovereign power. Similarly, the states that have joined the European Economic Community have obviously contracted away, for so long as they remain members of the Community, a substantial degree of their independence. Yet they remain sovereign states in their dealings with one another and with other states. 3-4. Legal Consequences of Statehood. Once the neces- sary qualifications for statehood are present (i.e., there ex- ist the elements of territory, people, government, and engagement in foreign relations), the question arises as to what legal consequences normally follow from this. The potential ramifications are myriad; it is feasible here to refer only to a few of the more basic legal consequences of statehood.
First, all states are legally equal, i.e., all states have equality before the law. 9 This principle is expressly recog- nized in Article 2(1) of the Charter of the United Nations: "[Tlhe Organization is based on the priniciple of the sovereign equality of all its members." Yet, although ev- ery state is juristically equal in the sense that no state has greater sovereignty or greater right to equal protection of law than any other, it is not empirically true that all states have equal rights and duties. The rights and duties of a state that has a seacoast are necessarily different than
7. See Advisory Opinion on Nationality Decrees in Tunis and Morocco, [I9231 P.C.I.J., ser. B, No. 4, at 27. Examples of protectorates and of other kinds of openly-avowed dependent states are few at pres- ent. Andorra is under the joint protectorate of France and Spain, San Marino under the protectorate of Italy, and Monaco under that of France. As Brierly points out, the "growth of national sentiment in all parts of the world makes any extension of the status unlikely." Brierly, supra note 2, at 136. Of course, a relation of dependency sometimes ex- ists between two states hi fact, but for political reasons is not avowed. For example, the U.S. at one time exercised extensive control over some of the nominally independent states of Central America. Id. at
134. The Soviet Union today exercises far-reaching control over some of the nominally independent states of Eastern Ewope. The American Indian nations or tribes are generally considered to be "domestic dependent nations." W.Bishop, International Law Cases and Materials 315 (3d ed. 1971) [hereinafter cited as Bishop].
8.
[I9241 A.C. 797.

9.
See Convention on Rights and Duties of States, supra note 2, art. 4.

those of a state that is landlocked. The rights of a state that
is a member of an international organization, such as the
United Nations, are different in some ways from those of
nonmembers. Every state to some extent either cir-
cumscribes or increases its rights and duties by the treaty
commitments into which it has entered. 10 Thus, it has
been contended that the principle of equality simply
means application of the law in conformity with the law,
i.e., that in applying the law only those differences shall be
regarded which are recognized in the law itself. 11
Second, only states may be parties in cases before the
International Court of Justice. 12 This rule, however, does
not bar the United Nations from seeking advisory opin-
ions of the Court. 13
Third, every state, whatever its other duties may be, has the duty to respect the rights enjoyed by every other state in accordance with international law. 14 The right of each state to exercise its sovereign power does not author- ize it to commit unlawful acts against another state. 15
Fourth, sovereignty entails the power to exclude states from exercising their sovereign functions within the ter- ritory of another state. This is a universally accepted core principle of international law. Thus, for example, in 1957 the U.S. Department of State instructed the American
10.
See Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States (memorandum submitted by the Secretary- General) U.N. Doc. AICN 4/2, at 66 (1948).

11.
See Kelsen, The Drqft Declaration on Rights and Duties of States, 44 Am. J. Int'l L. 259, 269 (1950). The considerations men- tioned in the text above detract from the plausibility of the Draft Recommendations on Equality of States, adopted on April 22, 1966, by the 1966 Special Committee on Principles of International Law Con- cerning Friendly Relations and Cooperation Among States, U.N. Doc. A/6230, at 176, 183 (1966), Article 1 of which states, inter alia, that all states "have equal rights and duties." This document nevertheless rep- resents a useful attempt to flesh out the meaning of "sovereign equality." Articles 1 and 2 thereof read as follows:

1.
All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political, or other nature.

2.
In particular, sovereign equality includes the following ele- ments:

(a)
States are juridically equal.

(b)
Each State enjoys the rights inherent in full sovereignty.

(c)     
Each State has the duty to respect the personality of other States.

(4The territorial integrity and political independence of the State are inviolable.

(e)     
Each State has the right freely to choose and develop its political, social, economic and cultural systems.

(t)
Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

12. Statute of The International Court of Justice, Art. 38-1.
13. See, e.g., Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, [I9491 I.C.J. 174.
14. See Charter of the Organization of American States, Art. 10, 2
U.S.T. 2394, 119 U.N.T.S. 3, as amended21 U.S.T. 607 (1967).
1s. This principle is expressed in article 14 of the Charter of the Organization of American States, supra note 14.
Pam 27-161-1
Embassy in Spain that the conduct of public hearings by a
Corigressional committee is an exercise of a sovereign
function by a branch of the United States Government.
Accordingly, if such hearings were conducted in another
country (Spain) without its consent, this would constitute
an infringement of that country's sovereignty. 16
Fifth, every state is entitled to represent its nationals in
claims proceedings against another state for injury caused
by the latter's violation of international law. 17 Although
the actual injury is to the person or property of nationals of
the state asserting the claim, international law treats the
injury as having been suffered by that state. Therefore,
only the-state of which the aggrieved persons are nationals
has standing to bring claims against another state for viola-
tions of international law. 18 Except as otherwise provided
in the municipal law of the offending state, the aggrieved
persons do not have standing to prosecute such claims
against that state. Their normal recourse, municipal law

remedies having been exhausted, is to request that the
proper authorities of their national state intercede on their
behalf. 19

3-5. Statehood and U.N. Membership. Article 4 of the
Charter of the United Nations opens membership in the
U.N. to "all . . . peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." It is arguable whether or not mem- bers of the U.N. are required to admit as additional mem- bers only those entities meeting the standard minimurn qualifications for statehood as defined by international law. 20 In any event, Article 4 makes membership availa- ble to "states" that also meet other criteria ("peace-lov- ing," etc.) besides statehood. Thus, denial of U.N. mem- bership to a political entity is not necessarily (and usually would not be) a denial of statehood. Major political en- tities that are not members of the U.N. are Switzerland, the two Koreas, and the two Germanies. 3-6. State Distinguished from Government. a. A government is (1) a small group of people (2) who are in effective control of the state. 21 Many defmitions of a state include a government as an essential part of the defini- tion. 22 A distinction, however, between the two is useful for several reasons. First, it assists in understanding the historical instances of a state continuing to exist for short periods without a government: for example, China, dur- ing periods of interim anarchy in the 19th century, Austria from 1938 to 1945,23 and Germany from 1945 to 1949. 24 Certainly, a state cannot exist very long without a government, as its independence would soon be in jeopar- dy. Nevertheless, the fact that it can exist shows that the two are distinct concepts. Second, the recognition of governments often entails the selection of one faction over another by the recognizing government. These fac- tions are always groups of people vying for control of the already-existing state. It has been the practice of govern- knents to treat these groups as distinct from the state itself,
which remains internationally unchanged by the change of governments. Third, a government may bind a state in- ternationally. The state thereafter remains bound by many of the acts of its government regardless of the changes in administration. 25 Likewise, the rights of a state remain unaffected by changes in government. 26
b. The essential ingredient of a government in interna- tional law is that it must be in control. The manner in
16. 1 M. Whiteman, Digest of International Law 256 [hereinafter cited as Whiteman]. See generally I. Hyde, supra note 2, at 641-44.
17.
The subject of international claims is treated more fully in chapter 7, iqfra.

18.
See Mavrommatis Palestine Concessions (Jurisdiction), [I9241 P.C.I.J., ser. A, No. 2. See also note 177, idra.

19.
See Bishop, supra note 7, at 742; chapter 7, idra.

20.
Byelorussia and the Ukraine have separate memberships in the United Nations, even though they are but parts of the Soviet Union and do not conduct international relations. This strongly suggests that ad- mission into the United Nations depends largely upon political, rather than legal, considerations.

In 1948, during debate over the admission of Israel to the United Na- tions, Professor Jessup, then United States representative to the Security Council, observed that "the term 'State,' as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term 'State' as it is used and defined in classic text- books of international law." See W. Friedmann, 0.Lissikyn. & R. Pugh, International Law Cases and Materials 154 (1969) [hereinafter cited as Friedmann].The basic issue regarding Israel's statehood con- cerned her lack of a precisely defined territory. Besides arguing that classical international law does not necessarily govern the meaning of the term "State" for article 4 purposes, Professor Jessup also contended that "the concept of territory does not necessarily include precise delimitation of the boundaries of that territory." Id, at 155. Israel was admitted to United Nations membership, but because of the political nature of this action it cannot be presumed that either of Professor Jessup's arguments necessarily was accepted. For purposes of the ad- mission of former colonial tenitories to the United Nations, the tradi- tional requirement of a stable and effective government in a territory claiming statehood has been deemphasized. It has been argued that this traditional requirement runs counter to developments in international law regarding a legal right of self-determination, and that it is often at variance with the political reality (anti-colonial pressures and unaccepta- ble economic costs) that has caused Western European states in several cases to withdraw from their former colonies before any adequate in- digenous system of government has been established. See Higgins, The Development of International Law Through The Political Organs of The United Nations 22 (1963), discussing the admission of Ruanda and Burundi to United Nations membership.
21. Control is the quality stressed in judicial decisions as well as in practice. See Wulfsohn v. Russian Socialist Federated Soviet Republic, 234 N.Y. 372, 138 N.E. 24 (1923), and Salimoff v. Standard Oil Co. of New York, 262 N.Y. 220, 186 N.E. 679 (1933).
See note 2, supra. 22.

23.
Marek, Identi@ and Continui~ of Stabs in Public International Law ch. 7 (1954).

24.
See Yon GIahn The Occupation of Enemy Territory ch. 21 (1957) and citations therein. See also The Sfahrs of Germany, I World Polity 177 (1957).

25.
Oppenheim, supra note 2, at 925, 949; Tinoco Claims Arbitra- tion (Great Britain-Costa Rica) 1 U.N.R.I.A.A. 369; Hopkins Claims (United States-Mexico) 21 Am. J. Int'l L. 160 (1927).

26.
See The Sapphire, 78 U.S. (1 1 Wall.) 164 (1871), where a suit by France in a U.S. court was unaKected by a revolutionary change in France.

which the government gains control is not of primary im- portance. However, it may be of the utmost importance in
Section 11. RECOGNITION OF
3-7. Nature of Recognition. a. Recognition is essentially a political act, taken by the government of a state in the conduct of foreign affairs. It may be extended to another state, to the government of another state, or to a belligerency. Generally, the need for recognition arises only when there has been some extraordinary political change, such as the creation of a new state by separation from an existing state 27 or the formation by coup d'etat (or some other departure from orderly transition) of a new government of an existing state. As a practical mat- ter, most recognition problems involve recognition of new governments of already-recognized states. 28
b.
Recognition of belligerency rarely occurs. It arises only in cases of armed conflict-rebellion or civil war- within a particular state. This type of recognition means the recognition by one state that a revolt or insurrection within another state has attained such a magnitude as to constitute a state of war, entitling the revolutionaries (or insurgents) to the benefits, and imposing upon them the obligations, of the laws of war. 29 The state granting such recognition demands for itself all the legal consequences that flow from the existence of a war; it claims the rights of a neutral, and accords the rights of belligerents to the war- ring factions. 30 If a state is unwilling to accord the rights of a belligerent to an insurgent group within another state, it may nevertheless accord them a more limited status, i.e., a recognition of insurgency. 31 Although the status of belligerency gives rise to definite rights and duties, the status of insurgency does not. At least, however, recogni- tion of insurgency indicates a desire to treat the insurgents as something more than outlaws. 32

c.
In the case of a new state or government, recognition is evidenced by an act acknowledging the existence of such state or government and indicating a readiness on the part of the recognizing state to enter into formal (but not necessarily diplomatic) relations with it. 33 Recognition is fundamentally a matter of intention, and may be express or implied. The mode by which it is accomplished is of no special signif~cance. 34 An act that would normally have the effect of recognition may be deprived of that effect if the government performing it indicates that it is not in-

27. A recent example of extraordinary political change resulting in recognition of a new state is the case of Bengladesh.
28.
Leech, Oliver, & Sweeney, The International Legal System 768 (1973) Fereinafter cited as Leech].

29.
1 G. Hackwork, Digest of International Law 161 (1940) bereinafter cited as Hackworth].

30.
Brierb, supra note 2, at 142.

31.
See Friedmann, supra note 20, at 163.

32.
Id. DA Pam 27-161-2 deals comprehensively with the recogni- tion of belligerency and insurgency. Accordingly, these topics are given only passing mention here.

33. Hackworth, supra note 29, at 161.
34. Id. at 166-67.
international politics and may be a decisive factor in the decision by other states to grant or withhold recognition.

STATES AND GOVERNMENTS
tended to coktitute recognition. 35 Recognition of a new state usually carries with it recognition of the government of that state, as states can speak and act only through their governments. 36
3-8. International Legal Aspects of Recognition. a. Theories of Recognition. The two principal theories pro- posed to explain the legal effect of recognition are the con- stitutive and the declaratory.
(1)
The Constitutive Theory. 37 According to this theory, recognition has a "constitutive" effect, i.e., it is through recognition (and only through recognition) that a state becomes an international person and a subject of in- ternational law. This view has two si@icant weaknesses. First, if a state is recognized by some states but not by others, then under the constitutive theory that state is both an international person and not an international per- son at the same time. Second, and perhaps more irnpor- tant, it follows from the constitutive theory that an unrecognized state has neither rights nor duties under in- ternational law. Although nonrecognition may make the enforcement of rights and duties more difficult than it would otherwise be, international practice does not sup- port the view that a state has no legal existence before recognition. 38

(2)
The Declaratory Theory. 39 This theory main- tains that both states and governments are facts. Once the objective criteria mentioned earlier are met, international legal personality exists. Recognition merely declares the existence of the state or government, which existence has preceded the recognition in time. A state may exist with- out being recognized, and if it does exist in fact, then it is an entity having rights and duties under international law,

whether or not it has been formally recognized by other states. 40 Under this view, the granting of recognition merely enables the recognized state to exercise its interna- tional legal personality with the state that extends recogni-
35. For example, the conclusion of a bilateral treaty ordinarily im- plies recognition, but that implication may be negatived by appropriate language or conduct. Thus, during 1919 and 1920 the British, French, Danish, and Belgian governments entered into bilateral agreements with the Soviet Union (which had not yet been recognized by those con- tracting governments) for the repatriation of prisoners of war, without those agreements beiig considered as constituting recognition. See 2 Whiteman, supra note 16, at 52. See also Restatement, supra note 2, at 5
104. Although recognition by implication can occur, a disclaimer is sufli- cient to negate it.
36. See Hackworth, supra note 29, at 167.
37. For a comprehensive treatment of the constitutive theory, see
H. Lauterpacht, Recognition in International Law (1 948).
38.
Brierly, supra note 2, at 138-39.

39.
For a detailed analysis of the declaratory theory, see I. Chen, The International Law of Recognition (195 1).

40.
Brierly, supra note 2, at 138-39.

Pam 27-161-1
tion. 41 An unrecognized state or government, however, does not depend upon recognition from anyone for its in- ternational legal personality. Rather, its juridical existence is complete when the objective criteria of statehood or government are satisfied.
b. Criteria for Recognition. (1) The Objective Criteria. If the four elements of a state (i.e., people, territory, inde- pendence, and governmental structure) or the two ele- ments of a government (i.e., (a) a group which is (b) in effective control) exist, formal recognition may follow by other states. If formal recognition is not extended it would be difficult in practice for the withholding government to ignore entirely the factual existence of the other state or government. This it seldom attempts to do. The withhold- ing government merely attempts to keep its international deals with the other to a minimum. The result is that the withholding of recognition from a factually existing state or government is often very similar to the breaking off of diplomatic relations between two governments that have previously extended recognition to one another. 42

(A)
If a foreign government extends recognition when all the objective criteria of a state or government are not present, particularly those of independence and con- trol, then it may be viewed as interfering in the internal affairs of another state. 43 The government of the latter state may consider the recognition a hostile act. For exam- ple, if Group A attempts to unseat Group B, which is and has been in control of State X, any recognition of Group A before it has actually gained control may work to the disadvantage of Group B. 44 Similarly, if a portion of State X attempted to separate itself from State X, any recogni- tion of the separatists before they had achieved their inde- pendence would be detrimental to State X. 45

(B)
Some governments have, from time to time, adopted the practice of following only the objective cri- teria. However, it is dacult to prevent additional subjec- tive criteria from entering the considerations of govern- ments. criteria, other than the objective facts of people, territory, independence, and a group in actual control,

41. see convention on Rights and Duties of States, supra note 2, art. 6. Article 3 of this Convention,which appears expressly to adopt the declaratory theory of recognition, states in part: "[Tlhe political exist- ence of the state is independent of recognition by other states."
42. Jaffe, Judicial Aspects of Foreign Relations 148 (1 933).

43.
Brierly, supra note 2, at 138. Such recognition is termed "pre- cipitate recognition." Oppenheim, supra note 2, at 128. An example was the recognition of the Provisional Government of the Algerian Republic by seventeen states as of 1959 while France was still actively seeking to retain Algeria. Algerian Of&, White Paper on the Application of the Geneva Convention of 1949 lo the French Algerian Coqflict 9 (1960).

44.
The newly recognized group may request aid from the recogniz- ing state. Such took place shortly before the Soviet-Finnish War when the U.S.S.R. was alleged to have recognized a faction which did not con- trol the Finnish State.

45.
Usual examples given are the recognition of the American States by France in 1778, and the recognition of Panama by the U.S.A. in 1903. Oppenheim, supra note 2, at 129. More recently, Egypt took offense at the recognition of Syria by Turkey and Jordan in September 1961, and France at the recognition of Algeria by the U.S.S.R. in 1962.

may come into play as a result of the fact that international law, according to most authorities, does not require for- mal recognition once the objective criteria have been met. 46 The more common of these subjective criteria will now be considered.

The Subjective Criteria. It should be made clear at the outset that the subjective criteria are not a substitute for the objective criteria discussed above. Subjective cri- teria are considered only after the objective criteria have been met. Moreover, the various subjective considera- tions usually come into play in conjunction with the recog- nition of governments rather than with the recognition of states. They may be grouped under three major headings. (2)

(A)
Willingness to abide by international law. The peaceful intentions of the new government and its respect for the prior international obligations of the state are generally considered by governments before recognition is extended. This is particularly true if the government con- sidering recognition suspects that the new government may not intend to honor bilateral treaties existing between the two states. For example, treaties of alliance or of friend-. ship and cooperation ,nonaggression pacts, trade agree- ments, and treaties concerning the protection of foreign assets are among the many that a new government, particularly a revolutionary one, may be reluctant to fulfi.

@) Lawfulness of the control assumed by the new group. This lawfulness may be tested in three ways.

(i)
By the municipal laws of the state. If a new group comes into power by revolution the constitution of the state has usually been broken in the process. If a foreign government has a policy of discouraging revolu- tions and of promoting free democratic elections in neigh- boring states it may withhold recognition until the revolu- tionary group has agreed to elections and other constitu- tional processes.

(ii)
By international law. If an aggressor invades a foreign state and annexes it contrary to international law, other states may wish to discourage such unlawfulness by withholding recognition of the fruits of the conquest. 47

(ii)
By means of the will of the nation substan- tially declared. This is the Jeffersonian principle that a government derives its power to govern from the consent

46.
J. Moore, Digest of Inlernational Law 72 (1906). Professor Lauterpacht's contrary view that states are under a legal duty to recog- nize new states that meet the objective criteria is criticized by Kunz, Cri-tical Remarks on Louterpacht's Recognition in International Law, 44 Am. J. Int'l L. 713-719 (1950).

47.
This was the primary purpose of the Stirnson Doctrine. On Jan. 7, 1932, the United States sent the following message to both China and Japan: "The American Govemment . . . does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which both China and Japan, as well as the United States, are parties. . . ." 26 Am. J. Int7 L. 342 (1932); 119321 Docu-ments on Foreign Affairs 262; see also Oppenheim, supra note 2, at 143. Moreover, there may well be an affumative duty under Article l(1) of the U.N. Charter to withhold recognition of territorial gains resulting from acts of aggression.

of the people. This principle has a deeper meaning than mere compliance by the group in power with the munici- pal laws of the state. These laws may not even provide for a means whereby the will of the nation may be substan- tially declared.
(C)
Gain or loss to the state extending recogni- tion. This third subjective criterion places the extention of or the withholding of formal recognition upon the basis of national self-interest. 48 3-9. Practice of the United States. a. Since its inception, the United States generally has followed the declaratory theory of recognition. But in recognizing or not recogniz- ing new states and governments, our government has not been guided solely by the objective criteria mentioned above. Rather, the United States has tended to regard recognition as an act of policy signifying something more than the recognition of a situation of fact and law. Subjec- tive criteria, the content of which has varied from time to time, have been used. Jefferson, for example, in instruct- ing the United States Minister to France regarding recog- nition of the new government produced by the French Revolution, expressed the view that the essential test for recognition of a new government is whether or not that government has been formed by "the will of the nation, substantially declared. . . ." 49 Later, Chief Justice Taft referred to "illegitimacy or irregularity of origin" of the Tinoco government of Costa Rica as a basis for nonrecog- nition by the United States of that government. 50 Another subjective criterion sometimes used is that of willingness of the new government to fulfill the interna- tional commitments of the state it represents. 51 Still another is whether or not the new government has been created by formal constitutional process. 52

b.
Although the United States has, at times, granted recognition upon a straightforward application of the ob-

40. As mentioned at the beginning of this discussion of recogni- tion, for one govemment to extend recognition to another government or to a state is essentially a political act. De Visscher emphasizes this aspect of recognition. He sees a tendency for recognition to be used as a weapon of power politics, especially in periods of high tensions in inter- national relations. See De Visscher, Theory and Realiw in Public Interna- tional Law 239 (rev. ed. Corbett trans]. 1968).
49.
Moore, supra note 46, at 120.

50.
Tinoco Claims (Great Britainxosta Rica), 1 U.N.R.I.A.A. 369; see also 18 Am. J. Int'l L. 147 (1934).

51.
For example, the United States refused to recognize the Soviet Govemment in 1919 because, among other things, it was not willing to abide by the international obligations of the Russian State. See I. Hyde, supra note 2, at 169-70.

52.
Use of this criterion was initiated in 1913 by President Wilson. See I. Hyde, supra note 2, at 166. In 1915 its application resulted in the denial of dejure recognition to the Carranza Government in Mexico. Id. at 168. Abandonment of this criterion was announced by Secretary of State Stirnson in 1931. See Bishop, supra note 7, at 342. Meanwhile Mexico, reacting against the United States practice of withholding recog- nition from revolutionary govenunents in Latin America, in 1930 pro- nounced the so-called "Estrada Doctrine," which declares there is no more reason for new recognition following a revolution or a coup d'etat than for new recognition following a constitutional change of govem- ment. See Jessup, The Estrada Doctrine, 25 Am. J. Int'l L. 719 (1930).

jective criteria, subjective criteria continue to play an im- portant role in particular cases. 53 That fact is demon-strated by the nonrecognition of the Communist govern- ment of China, a policy clearly based more upon political and national security considerations than upon legal ones. 54 Since recognition is a political act and a tool in the conduct of foreign relations, it is hardly surprising that ex- tra-legal factors may be decisive. Recognition is a discre- tionary matter; international law does not require any government to extend recognition to any other state or government. 55 Ultimately, then, all states, including the United States, formulate their policies on recognition in accordance with their perceptions of national self-in- terest. 56
c. Although the United States has asserted that non- recognition denies to an aspiring state or government cer- tain international rights, 57 it also has insisted upon com- pliance with international law by regimes it has refused to
53. The period 1823-1855 probably saw the high-water mark of use of solely objective criteria by the United States in extending recognition. The Monroe Doctrine includes the statement: "Our policy in regard to Europe [is] . .. to consider the government 'de facto' as the legitimate government for us. . .." 4 Moore, supra note 46, at 401. Secretary of State Van Buren elaborated on that theme in 1830 when explaining why the United States was one of only three states that had recognized the Dom Miguel Government in Portugal. 1 Moore, supra note 46, at 137. And Secretary of State Buchanan reiterated the policy of adherence to objective criteria in 1848: "It is sufficient for us to know that a govem- ment exists, capable of maintaining itself, and then its recognition on our part inevitably follows." Id. at 124. But consistent application of that policy lasted no longer than 1855, when recognition was denied the Walker-Rivas Government in Nicaragua because it "was as yet unsanc- tioned by the will or acquiescence of the people." Id. at 140.
More recently, during the 1960's coup after coup in sub-Sahara Africa and southeast Asia resulted in routine recognition of the new regimes, apparently by reason of application of the objective criteria. Yet in 1962, President Kennedy delayed for nearly a month in recognizing a coup in Peru, on the grounds that the new government had not come to power by democratic means. See Leech, supra note 28, at 813.
54. In 1958, the Department of State sent a memorandum to its missions abroad outlining U.S. policy with regard to the nonrecognition of Communist China. This document states in part:
Basically the United States policy of not extending diplomatic recognition to the Communist regime in China proceeds from the conviction that such recognition would produce no tangible benefits to the United States or to the free world as a whole and would be of material assistance to Chinese Communist attempts to extend Communist dominion throughout Asia. It is not an "inflex-ible" policy which cannot be altered to meet changed conditions. If the situation in the Far East were so to change in its basic elements as to call for a radically different evaluation of the threat Chinese Communist policies pose to United States and free-world security interests, the United States would of course readjust its present policies. .. .
55.
See note 46, supra. See also Restatement, supra note 2, at 5 99(1): "[A] state is not required by international law to recognize an en- tity as a state or a regime as the government of a state."

56.
A state's perception of its self-interest may lead it to adopt a policy of granting recognition to any state or government that meets the objective criteria. An apparent example is the United Kingdom. See Leech, supra note 28, at 810-12.

57. See Friedmann, supra note 20, at 175-77.
recognize. 58 The United States also has taken the position that the adherence of nonrecognized states to a multilateral treaty is without legal significance. 59

d. United States policy in recent years has tended to de- emphasize the importance of recognition. Indeed, it has been suggested that the United States may have virtually abandoned the act of recognition altogether. 60 That perhaps is an overstatement, yet recent developments in this country's relations with the Peoples' Republic of China at least demonstrate that extensive dealings can take place even in the absence of recognition. Moreover, in the Panamanian and Peruvian coups of 1968, the United States took the position that the occurrence of a coup did not necessarily mean that a new act of recogni- tion would be essential to ongoing relations. Instead, the government adjusted relations according to the stage of the coup, the stability of the regime, and the national in- terests of the United States. The ambassadors to these countries were not withdrawn, and "full" relations were resumed without any formal acts, such as presentations of credentials. 61 3-10. De Facto and De Jure Recognition. a. When used in connection with problems of recognition, the terms de
facto and de jure may have several different meanings. The context in which they are used must be noted carefully to determine precisely what is meant. They are used principally in the following four meanings: 62
(1)
The Prospects for Permanency of the State or Government Recognized. De facto recognition is some- times extended to a government whose control is still tenuous, or to a state whose independence is not yet en- tirely secure. De jure recognition would follow this type of de facto recognition once the precariousness of the situa- tion implied in the de facto recognition had passed. 63

(2)
The Legitimacy of the State or Government. De facto recognition is sometimes extended to states or governments where a question of legitimacy exists under either international or municipal law. 64 De jure recogni-

tion is withheld from the usurper until it has legally vali- dated its position, usually by conducting free elections. An example of the use of such recognition occurred in the
58.' For examples of this practice, see id. at 176-77.

59. See Id. at 177-78, giving examples but indicating this practice lacks consistent application.
60. See Leech, supra note 28, at 810.

61.
ThiS shift toward a "modified Estrada Doctrine" is referred to in Leech, supra note 28, at 813. For a concise statement of the Estrada Doctrine, see note 52 supra. The Department of State's approach in the Panamanian and Peruvian cases seems entirely consistent with the later announcement by President Nixon, pursuant to his "Low Posture" doctrine, that the United States will deal with governments as it fmds them.

62.
As to varying uses of the term de facto, see Restatement, supra note 2, at 8 96, Reporter's Note 2.

63. Oppenheim, supra note 2, at 135.

64. This type of de facto recognition is criticized in Brierly, supra note 2, at 139, and by Moore, Fifty Years of International Law, 50 Harv. L. Rev. 395 (1937).
Italian-Ethiopian War when the United Kingdom recog- nized the King of Italy as the de facto sovereign of Ethiopia but still extended de jure recognition to the Government of Haile Selassie. 65 The United States prac- tice has sought to avoid such questions of legitimacy at the time of recognition by considefig the government de fac- to to be the government de jure. 66 Therefore, except on two occasions, 67 the United States has not distinguished between the kinds of recognition it extends.

As a Substitute for Formal Recognition. The de facto recognitions described above are intentional recog- nitions by one government or another. 68 However, one government may withhold recognition from another, yet conduct transactions with that government.. The govern- ment which is withholding recognition is sometimes said under the circumstances to have recognized de facto the other government. It has been contended that such con- duct is an implied recognition, with as much weight in in- ternational politics as any express recognition. 69 However, governments in practice do not stumble into recognition; it is a deliberate political act. Thus, they see nothing inconsistent in withholding recognition due to the failure of the other government to meet some subjective criterion, and at the same time conducting a minimum of transactions with that government. (3)

(4)
By Courts in Deciding the Effect to be Given the Acts of Nonrecognized Regimes. The term de facto has been used by national courts and international tribunals in deciding the legal effect to be given the acts of nonrecog- nized regimes that are in actual control of that state. For example, in the Tinoco claims arbitration Chief Justice Taft, serving as arbitrator of a dispute involving Great Bri- tain and Costa Rica, characterized the Tinoco regime as the de facto government of Costa Rica, with the result that the acts of that regime were given binding effect. The con- clusion that the Tinoco regime was the de facto govern-ment of Costa Rica was not altered by the fact that the United States, Great Britain, and other leading countries had not recognized that regime. 70 Other decisions dealing with the effect given to acts of states and governments

65. SeeHaile Selassie v. Cable and Wireless, Ltd. (19391 chap. 182.

subsequent!^, the United hgdom granted retroactive de jure recogni-tion to the King of Italy while the aforementioned case in the course of being appealed.
66.
For early American practice in this regard, see Hyde, supra note 2, at 148-97, particularly the citations contained therein; Goebel, The Recognition Policy of The United States (1 91 5);'and Newman, Recogni- tion of Governments in The Americas (1947).

67.
De fact0 recognition was extended to the Carranza Govem-ment of Mexico in 1915. De jurerecognition did not follow until 1917. Similarly, in 1948 de facto recognition was extended to the Provisional Government of the new state of Israel. De jure recognition followed in 1949.

68.
Brierly correctly points out that de facto and dejure describe the thing recognized, and not the act of recognition. Brierly, supra note 2, at

139.
69.
Moore, supra note 46, at 166.

70.
Tinoco Claims, supra note 50.

(recognized and unrecognized) are summarized in para- graph 3-15, infra.

6. Although the terms de facto and de jure frequently are used in one or more of the senses mentioned above when recognition is discussed, it appears there is little if any difference in legal effect between recognition that is labeled "de jure recognition" and recognition that is labeled "de facto recognition." 71 In current United States practice, when the Government extends recogni- tion it is recognition per se, not de facto recognition. 72 3-11. Actions Constituting Recognition. a. As men- tioned earlier, 73 recognition is fundamentally a matter of intent, and may be either expressed or implied. Thus far, the discussion has dealt primarily with express recogni- tion. Under what circumstances may recognition be im- plied? The general test is that recognition can be implied only from acts that unequivocally show the intention of a government to recognize a state or a regime. 74 More specifically, it has been said that recognition of a state or government may be implied legitimately only on three oc- casions: (1) the conclusion of a bilateral treaty between the recognizing state and the unrecognized state, such as a treaty of commerce and navigation, regulating more or less permanently relations of a general character between the two states; (2) the formal initiation of diplomatic rela- tions; and (3) the issue by the recognizing state of a certifi- cate to a consul of the unrecognized state, accepting his of- ficial character and authorizing him to fulfill his consular duties. 75
6. As previously mentioned, the implication of recog- nition arising from a bilateral treaty can be negated by an appropriate disclaimer. 76 The overriding question is al- ways whether recognition was intended. In a case of asserted implied recognition based upon entry into a bilateral treaty, the answer to this question of intention will depend largely upon the subject matter of the treaty (or other agreement) and the circumstances under which it was concluded. In general, the more formal the agree- ment, the more comprehensive its subject matter, the more it involves the establishment of political relations, and the longer its intended duration, then the greater the presumption of recognition to which it would give rise. 77
c. Participation in a multilateral treaty does not give rise

71. See Cochran, De Facto and De Jure Recognition: Is There a Difference?,62 Am. J. Int'lL. 457,459-60 (1968). Butsee Lauterpach~, supra note 37, at 343-46, suggesting that (1) a government recognized dejure is entitled, as against the de facto government, to property of the state located abroad, and (2) representatives of a government recog- nized only de facto may not be entitled to full diplomatic immunities.
72. 2 Whiteman, supra note 16, at 3.
73. See text at notes 33-36, supra.

See Chen, supra note 39, at 192-94. See note 35, supra. See Oppenheim, supra note 2, at 147-48. 74.
See Opinion of the Legal Adviser, U.S. Dep't of State, Hearings on the Nuclear Test Ban Treaty before the Senate Committee on Foreign Relations, 88th Cong., 1st Sess., at 15-17 (1963) [hereinafter cited as Hearings].

75.

76.

77.

to recognition by implication. 78 Although the application of this rule is clearest when the 'treaty is open for adherence by any state, the rule appears to apply regard- less of whether the treaty is open for general adherence. However, in the case of a closed multilateral treaty negoti- ated with a small number of known parties, a cogent argu- ment for implied recognition could be made by analogy to implied recognition in the case of bilateral treaties.

The practice of the United States has consistently afliumed that participation in a multilateral treaty does not accord recognition to entities that the U.S. has not other- wise recognized. 79 The United States has also taken the position that in such cases no disclaimer is necessary in order to avoid recognition. 80 Further, the United States contends that, within the framework of a general multilateral treaty, it can have dealings with a nonrecog- nized regime without thereby recognizing that regime, and that any possible implication canbe negated by an ap- propriate disclaimer. 81 When acting as depositary for a multilateral treaty, the United States submits that it can receive and circulate communications from regimes it does not recognize without thereby extending implied recognition. 82 d.

e.
It is apparent that entering into diplomatic discus- sions (even at a very high level) does not imply recogni- tion. The current relations of the United States and the Peoples' Republic of China afford and excellent example of this principle in operation. 83 3-12. Existence or Nonexistence of Duty to Recognize.

a.
Authority exists for the proposition that international law requires the recognition of new states and new governments that meet the necessary objective criteria. 84 Some states have purported to carry out this requirement in their policies concerning recognition. 85 It appears, however, that there has been in~~cient

state practice of this asserted requirement to establish it as a rule of customary international law. Indeed, the Restatement flatly concludes that no such requirement exists. 86 The practice of the United States has been to view recognition as being within the sound discretion of the recognizing government, i.e., as being a privilege and not a right of the unrecognized state or regime. 87
6. There may, however, be a duty imposed by interna- tional law to not recognize a state or regime when the minimum criteria for recognition are not satisfied. The
78.
See Lauterpacht, supra note 37, at 374.

79.
Hearings, supra note 74, at 16.

80. Id.
8'. Id.

82. Id. at 16-17.

83. See Schwebel, Is the "Recognition" of Governments Obsolete?, Washington Post, Feb. 23, 1972, 5 A, at 16, col. 3.
84. See Lauterpacht, supra note 37, at 32-33, 50-51, 62-63, 73. 8s. See notes 43-48, supra, and accompanying text.

See Dep't of State memorandum cited supra note 54. 86.
Restatement, supra note 2, at 5 99(1). For other authorities supporting the Restatement position, see note 46 supra.

87.

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Restatement takes the position that there is such a duty and that unwarranted recognition violates the rights of any state adversely affected thereby, although the recognition is nevertheless effective. 88 3-13. Recognition and Diplomatic Relations. a. Recog-nition of a government implies a willingness to carry on diplomatic relations with that government. However, recognition does not require the initiation or resumption of diplomatic relations between the government of the recognizing state and the recognized government. 89. Thus, it is possible for a government to be recognized and for the establishment of a diplomatic mission to be delayed or postponed, or not maintained, for a variety of reasons. 90
b. Likewise, diplomatic relations can be broken with- out effect upon a previous recognition of a state or its government. 91 The severance of diplomatic relations with a state recognized by the United States does not deny that state access to courts of the United States under principles of comity which allow sovereign states to sue in those courts. 92
3-14.The Status of Recognized and Unrecognized States and Governments Under Municipal Law. a. General. Legal problems concerning recognition and non- recognition frequently have arisen in the domestic courts of the United States, Great Britain, and other states. Typically, the problem is whether or not a court may treat a state or regime as having juridical existence in the ab- sence of recognition of that state or regime by the govern- ment of the forum state. In other words, does recognition or nonrecognition have any effect upon the ability of a state to maintain suit and to have its acts represented in the courts of other states? The following is a summary of selected judicial responses (mainly by United States courts) to this question and other related ones.
b. Standing to Sue. (1) Generally, friendly foreign states are permitted, as a matter of comity, to bring proceedings in the courts of another state. 93 But access to domestic courts is usually denied to foreign powers that have not been recognized by the forum state. 94 The recognition of a state or government before a decision denying it access to the courts becomes final gives rise retroactively to its capacity to maintain the action. 95 With-drawal of recognition prevents the state or government
88. Restatement, supra note 2, at 5 99(2).
89. Id. at 5 98(1).
90. See 2 Whiteman, supra note 16, at 29.
91. Id.; Restatement, supra note 2, at 5 98(2).

92. Bunco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-12 (1964).
93. The Sapphire, 78 U.S. (11 Wall.) 164 (1871).
94. See Russian Socialist Federated Soviet Republic v. Cibrario, 235

N.Y. 255, 139 N.E. (1923). See also decisions in other legal systems noted in Leech, supra note 28, at 791-92.
95. Republic of China v. Merchants' Fire Assurance Co., 30 F.2d 278 (9th.Cn. 1929).
from maintaining an action already commenced. 96
(2) Although a foreign government not recognized by the political arm of the United States may not maintain suit in American courts, if the foreign government is not the suitor its lack ofjuridical status is not determinative of whether transactions with it or within its territory will be denied enforcement. 97 The acts of a de facto government (even though the government is not recognized) may affect private rights and obligations arising either as a result of activity within, or with persons or corporations within, the territory controlled by the de facto govern-ment. The private rights and obligations thus arising are
judicially cognizable, unless to permit suit thereon would violate United States law or public policy. 98 Even a creature corporation of the nonrecognized regime could perhaps maintain suit in a United States court to enforce such rights and obligations. 99 As stated in a widely-noted New York decision:
There are many things which may occur within the purview of an unrecognized government which are not evil and which will be given customary legal significance in the courts of nations which do not recog- nize the prevailing de facto government. In a time in which govern- ments with established control over territories may be denied recogni- tion for many reasons, it does not mean that the denizens of such ter- ritories or the corporate creatures of such powers do not have the juridi- cal capacity to trade, transfer title, or collect the price for the merchan- dise they sell to outsiders, even in the courts of nonrecognizing nations.
.. . 100
c.
Sovereign Immunity from Suit. Under the doctrine of sovereign immunity, it is the traditional rule that a foreign state may not be sued without its consent in the courts of another state. 101 Thus, United States courts may not bring a foreign sovereign before the U.S. bar, not because of comity, but because that state has not submitted itself to U.S. laws. 102 This result depends not upon recognition or nonrecognition by the United States, but upon funda- mental considerations regarding the nature of sovereignty. 103 Moreover, sovereign immunity is not limited to the foreign state or its government, but may ex- tend to its property, its agents, and its instrumen-talities. 104

d.
Law-Making Authority of Foreign Governments. (1) The courts of the United States generally will not question the validity of acts of another government done within its own territory. 105 This result obtains even though diplo- matic relations between the United States and the foreign

96. Gov't of France v. Lobrandtsen-Moller Co., 48 F. Supp. 631

(S.D.N.Y. 1943).
g7. See Upright v. Mercury Business ~a'chines Co., 13 A.2d 36, 213 N.Y.S. 2d 417 (1st Dep't 1961).
98.
Id.

99.
Id.

100. Id. at 41, 213 N.Y.S. 2d at 422.
101.
See ch. 5, irlfra.

102.
See Wulfsohn v. Russian Socialist Federated Soviet Republic,

234 N.Y. 372, 138 N.E. 24 (1923).
103.
Id.

104.
Friedmann, supra note 20, at 642.

105.
Bunco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

government have been severed, 106 and this apparently is the rule even in cases in which the foreign government has not been recognized by the United States. 107 However, if the act of the unrecognized foreign govern- ment purports to destroy title to either real or personal property located outside its territorial jurisdiction, then the courts of a nonrecognizing state will probably not give effect to such an act, especially if the property involved is within the territorial jurisdiction of the nonrecognizing state. 108
(2)
It has been held that the recognition of a revolu- tionary government is retroactive and validates all acts of that government from the commencement of its exist- ence. 109 Such recognition binds conclusively the courts of the recognizing state. 110 However, when the executive branch of the Government has adopted a policy of non- recognition of a specific foreign decree (including those of a recognized government) regarding property that was not within the territory of the foreign state at the time of the decree in question, U.S. courts have refused to give effect to such a decree. 111 Likewise, the courts have refused to give extraterritorial effect to the decrees of subsequently recognized governments, when those decrees are contrary to the public policy of the United States. 112

(3)
The retroactivity principle has generated con- siderable confusion in both American and British courts. 113 Basically, however, retroactivity of recognition operates to validate acts of a de facto government that subsequently has become a de jure government, and not to invalidate acts of a previous de jure government. 114 3-15. Termination or Withdrawal of Recognition. a. The Restatement declares that the binding effect of the recognition of a state can be terminated by withdrawal of

106. Id.
107.
See Salinofl& Co. v. Standard Oil Co. of New York, 262 N.Y. 220, 186 N.E. 679 (1933), giving effect to confiscatory decrees of the then unrecognized Soviet government and the seizure of oil lands thereunder.

108.
See Petrogradsky M.K. Bank v. National Ciw Bank of New York, 253 N.Y. 23, 170 N.E. 479 (1930), wherein the court refused to give effect to decrees of the then unrecognized Soviet government na- tionalizing Russian banks, where the result of giving effect to such decrees would have been to divest plaintiff Russian bank of funds on deposit with defendant New York bank.

109.
Oepn v. Central Leather Co., 246 U.S. 297 (1918); U.S. v. Pink, 315 U.S. 203 (1942).

110. US. v. Pink, supra note 109.
11 1. See Latvian Stale Cargo and Passenger S.S. Line v. McGrath, 188 F.2d 1000 @.C. Cir. 1951); Estonian State Cargo and Passenger
S.8. Liner v. U.S., 116 F. Supp. 447 (1953) (both cases dealing with Soviet nationalization decrees).
112, See Republic of Iraq v. First National City Bank, 353 F.2d (2d Cir.1965), cert. denied, 382 U.S. 1027 (1966).
113.
See Leech, supra note 28, at 789-90.

114.
Guaran@ Trust Co. v. U,S., 304 U.S. 126 (1938) (rejecting argument that valid judgments obtained in United States by Provisional Government of Russia, rewgnizedby United States as the dejure repre-sentative of the Russian State, became invalid upon subsequent recog- nition of Soviet Government as the successor of prior governments of Russia).

the recognition only if the recognized state no longer meets the minimum criteria necessary for recognition. 115 Similarly, the Restatement sharply limits the ability or right of the recognizing state to withdraw its recognition of a government, permitting such withdrawal only Zone of three tests is satisfied: (1) the withdrawal involves recog- nition of a successor government; (2) the previously recognized government is no longer functioning; or (3) the recognizing state announced that the recognition of the government in question was tentative. 116
b. Withdrawal of recognition by any state is a concept not known to have been used in modem times. 117 There being a dearth of state practice to support any asserted rule regarding withdrawal, there is doubt as to the authority of the rules set forth in the Restatement. Moreover, the limitations imposed by those rules appear to conflict with the admittedly political nature of the decision to extend recognition to a state or government. 118 In any event, it seems likely that national courts would give effect to a decision by the political branches of government to with- draw recognition. 119
3-16. Continuity of States and Change of Government.
a.
In much the same sense in which corporations have perpetual duration, states also have perpetual exist- ence. 120 Once a state has come into beii, it continues until extinguished through absorption by another state or by dissolution. 121 A government, on the other hand, is simply the instrumentality through which a state func- tions. 122 Changes of government, whether in the form of the government (as from a monarchy to a republic) or in the head of the government, do not affect the continuity or identity of the state as an international person. 123

b.
Traditionally, a mere change of government in an existing state has no legal effect upon the treaty and other international obligations of state; it remains bound by all such obligations. 124 The rule to be applied when there is a change in the state itself, i.e., a change of sovereignty, is less clearly established, two conflicting theories having been advanced.

(1) The Theory of "Universal" Succession. This theory is based on the Roman law concept of succession after death, and its application results in the view that the successor state inherits all the treaties, debts, and con- tracts of its predecessor. 125
115. Restatement, supra note 2, at 5 96(1).
116.
Id. at 8 96(2).

117.
Leech, supra note 28, at 825.

116. Friedmann, supra note 20, at 199.
119.
See Meeker, Recognition and the Restatement, 41 N. Y.U.L. Rev. 83, 90 (1966).

120.
See The Sapphire, 78 U.S. (11 Wall.) 164 (1871); Lehigh Valley R. Co. v. State of Russia, 21 F.2d 396 (2d Cir. 1927), cert denied, 275 U.S. 571 (1927).

121.
1 Hackworth, supra note 29, at 127.
'22. Id.

123. Id.
124. Friedmann, supra note 20, at 200.
125. Id. at 432.
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(2) The "Clean Slate" Theory. The more recent theory, favored by many writers and governments during the nineteenth and early twentieth century, is the "clean slate" theory. Under this approach, a new or successor state does not inherit any of the rights or obligations of the predecessor state. 126
Neither theory appears to accord with present state prac- tice, which is admittedly inconsistent regarding questions of state succession. 127 Since World War I1 most new states, without adhering to any general doctrine, have tended to opt for flexible techniques that give them freedom to pick and choose the treaty rights and obliga- tions they wish to retain. Most of the older states have tolerated this approach by the evolving countries. 128
c. The distinction between changes in government and the creation of a new state may be dmcult to draw in par- ticular situations, there being no clear criteria applicable to all cases. 129 For example, Italy regards itself as being, and has been accepted as being, not a new state formed by the union of the several formerly independent states of the Italian Peninsula, but a continuation of the kingdom of Piedmont territorially enlarged by the annexation of other Italian states. 130 However, a Federal district court in California saw the closely analogous case of Yugoslavia in a different light, and held that Yugoslavia is not the old kingdom of Serbia enlarged, but a new state that came into existence after World War I. 131
d. In recent years, the distinction between changes of government and the creation of new states has become blurred, and its utility has been questioned. 132 The prob- lems engendered by the transition of former colonial ter- ritories in Africa and Asia to independent status have con- tributed largely to this reevaluation. 133
Section 111. INTERNATIONAL LEGAL PERSONALITY
3-17. The Concept of "International Legal Per- sonality." a. One of the more significant developments of contemporary international law is the extension of inter- national legal personality to entities other than states. 134 This is, of course, merely another way of saying that cer- tain entities other than states have come to be regarded as having rights and duties under international law and as being endowed with capacity to act. As a result of this gradual (and ongoing) development, international organizations, corporations, and even individuals may now be said to possess international legal personality in varying degrees.
b. It is important to note not only the extension of in- ternational legal personality but also its relativity. In neither a theoretical nor a pragmatic sense can the scope of legal personality accorded to states, public international organizations, corporations, and individuals be the same. 135 The state is still, and doubtless will continue to be, the basic and most complete subject of international law. 136 Yet it is clear that the traditional view-that only states can be subjects of international law-is changing. The following discussion will suggest some of the ways, and the extent to which, this change has occurred. 3-18. International Organizations. a. In 1949, the In-ternational Court of Justice held that the United Nations, as an international organization, has the capacity to bring an international claim against the responsible government for injury suffered by an agent of the United Nations in the performance of his duties. 137 This was a signifcant extension of international personality, for theretofore only states had been regarded as being competent to advance such international claims. 138 The Court was careful to
sovereign organizations performing acts in international law, and thus implicitly being recognized as having inter- national personality. 140 The growth of international capacity as a result of practice and interpretation continues today. This point can be illustrated by reference to the for- mation and administration of United Nations peacekeep- ing forces, which have entailed various agreements be- tween the United Nations and the "host" states and also between the Secretary-General and the states providing
126. With the possible exception of "dispositive" or "localized" treaties. Id. at 432,439. A "dispositive" or "localized" treaty is defined by Brierly as one "regarded as impressing a special character on the ter- ritory" to which it relates, and which creates "somethiig analogous to the servitudes or easements of private law." Brierly, supra note 2, at
154.
127. Friedmann, supra note 20, at 432.

Brierly, supra note 2, at 151. Id. at 200. 128.
Id. at 439. A more detailed discussion of succession to treaties appears in chapter 8, irlfra.

129.

130.

131.
That decision was reversed by the Nith Circuit Court of Ap-peals. See Certupovic v. Boyle, 107 F.Supp. 11 (S.D.Cali.1953), rev2 sub nom. Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir. 1954), cert. denied, 348 U.S. 818 (1954).

132. Friedmann, supra note 20, at 200.

133. See, e.g., O'Connell, Independence and Problems of State Suc- cession in The New Nations in International Law and Diplomacy 7 (O'Brien ed. 1965). The author argues that because the problems of co-lonial independence raise new, important and urgent social questions, a "new look" is in order, and a "new breakdown in the process of ex- amination is necessary if the peculiar problems of the contemporary breakup of colonial empires are to be handled in a juristically satisfying way." Id. at 8-9.
134.
See Friedmann, supra note 20, at 201.

135.
Id.
'36. Id.

point out, however, that to conclude' that the United Na- 137. Adviso~y Opinion on Reparations for Injuries Suffered in the tions is an international is not equivalentto saying Semce of the United Nations 119491 I.C.J. 174.
.TO
la…

that its legal personality and accompanying rights and 139. StiU less is it the same thing as saying the Organization is a duties are the same as those of a state. 139 "su~erstate." whatever that expression may mean. Id.
Law 105-06 (1965).

b. Surprisingly, there is actually a long history of non- '140. see 1 OSConneII, ~nteinationa~
Pam 27-161-1
personnel for the forces. 141 The de facto acquisition of in- ternational capacity by nonsovereign organizations has resulted in widespread acknowledgment of the extension of international legal personality to such entities. 142
c.
Generally, international organizations have treaty- making capacity only insofar as this power is necessary in order to effite clearly defined purposes of the organ- ization. 143 The agreements concluded by an international organization may be governed by a municipal law system, but they are more often governed by international law. 144

d.
The mere fact that states have created an interna- tional organization is insufficient to establish its interna- tional personality. It may be merely a mechanism by which the states carry out their interstate relations, in which case it would have no independent role and thus no need for international personality. 145 On the other hand, if the organization has the capacity for independent action in carrying out its purposes, it may then be said to have in- ternational legal personality. 146 A further criterion is the extent to which the organization operates autonomously rather than under the control of its members. 147 AC-cordingly, it would seem that the proper approach toward determining the existence of international legal per- sonality is a functional one centering on the capacities necessary for adequate performance by the international organization of the responsibilities that states have confer- red upon it. 148 3-19. Corporations. a. Intergovernmental corporations and consortiums. Many international corporations and consortiums, public in purpose, but private or mixed public and private in legal form, have been organized since World War 11. 149 They exist for the fulfillment of certain joint purposes of the participating governments or of governments and private enterprises. 150 Their reach generally extends to matters that are beyond the scope of any one state or of any corporation created by one state. 151 These transnational organizations are governed in the first instance by the international agreement pur- suant to which they are established. 152 If the venture takes the form of a corporation, it will be subject in its

141.
See Friedmann, supra note 20, at 213.

142.
See, e.g., 1 Whiteman, supra note 16, at 38-58; P. Jessup, A Modern Law of Nations 8-9, 15-19 (1949).

143.
See Friedmann, supra note 20, at 212.

144. Id.
145. Id. at 213.
146.
Id.

147.
Id.

148. Id.; 1 O'Connell, supra note 140, at 109.

Friedmann, supra note 20, at 213-15. 149.
Friedmann, supra note 20, at 213. Examples of such transna- tional organizations include the European Company for Financing Rail-way Equipment (Eurofma), established by a 1955 agreement among 16 European states for the purpose of standardizing and improving the con- struction and performance of railway rolling stock; and, in the field of river navigation, the International Moselle Company formed by France, Luxembourg, and the Federal Republic of Germany in 1956.

150.

151. Id. at 214.
l52. Id.

organizational and operational aspects to the law of the state in which the corporation ischartered or has its head- quarters. 153 Because these entities are to some extent governed by international agreements, and because they perform transnational public functions, they may be regarded as having international personality.
b. Private corporations. (1) As a result of the increased participation by governments in business and commercial ventures and due to the increased participation by private corporations in the economic development plans of many newly emerged states, there are a growing number of transactions and projects involving governments on the one side and foreign private corporations on the other. 154 Private corporations also are becoming involved in publicly important international ventures. 155
(2)
International law does not govern the contrac- tual relations between a private corporation and a foreign state in transactions of this kind unless the parties so in- tend. 156 But the parties, expressly or by implication, may select public international law, rather than any national system of law, to govern the transaction. 157 For that reason, and also because private corporations may per- form transnational public or quasi-public functions, such corporations may be regarded as having a measure of in- ternational personality. 158

(3)
In addition, there is a growing number of ar- bitrations arising from transactions of this kind; these decisions form the basis of a developing public interna- tional commercial law. 159 It should be noted, however, that for most purposes international law treats private cor- porations as nationals of a particular state. 160 Like in- dividuals, corporations in most instances must rely on their governments to protect them from unredressed in-jury by foreign states and do not have access to interna- tional legal proceedings to protect their rights. 161 3-20. Individuals. a. It has been historically true, and it remains true today, that international law is made by states or by international bodies deriving their authority from states. Thus states, not individuals, are the creators of international legal norms. 162 These norms, however,

153. Id.
154.
Id. at 215.

155.
Id. at 216.

156.
McNair, The General Principles of Law Recognized by Civilized Nations, [I9571 Brit. Y.B. Int'l L. 1.

157.
See W. Friedmann, The Changing Structure of International Law 221-231 (1964).

158.
Friedmann, supra note 20, at 216.

159. Id. For an example of this kind of arbitration, see Sapphire-

N.I.O.C.Arbitration, 13 Int7 & Comp. L.Q. 987 (1964).
160.
See McNair, The National Character and Status of Corpora-tions, [1923-241 Brit. Y. B. In17 L. 44.

161.
See Friedmann, supra note 20, at 217.

162. It may, of course, be argued that states operate by virtue of the will of individuals and that the individual is thus the ultimate source of authority. Although this view accords with modem theories 04 repre-sentative government, the international state system is firmly entrenched in both the theory and practice of public international law. See, e.g., Jessup, A Modern Law of Nations 17-18 (1948).
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may apply not only to states in their mutual relations, but also to individuals in their relations with states and even to
)     interrelationships among individuals. 163 For example, a treaty may create rights and obligations for individuals that are enforceable in the national courts of the contract- ing states. 164 Similarly, a treaty may confer upon in- dividuals direct rights of international action. 165 Thus, it is clear that individuals may have both rights and duties arising from international law, and that they may properly be regarded in certain contexts as subjects of international law. Lauterpacht sums up the point: The question whether individuals in any given case are subjects of inter- national law and whether that quality extends to the capacity of enforce- ment must be answered pragmatically by reference to the given situation and to the relevant international instrument. That instrument may make them subjects of the law without conferring upon them procedural capacity; it may aim at, and achieve, both these objects. 166
b. An individual who suffers an international legal wrong at the hands of a state other than his own usually will not have access to an international adjudicatory body. In the absence of a treaty authorizing the individual to take independent steps in his own name to enforce his rights, he must look to his national state for the espousal of his claim in the international arena. His national state is not required to take up his claim, but may do so if it wishes. It is a basic principle of international law that a state is entitled to protect its subjects when they have been injured by acts contrary to international law committed by another state from whom they have been unable to obtain satisfaction. 167 In doing so, the protecting state makes the case its own and becomes, in the eyes of the international tribunal that hears the case, the sole claimant. 168 3-21. International Law and Human Rights. a. As in- dicated in the preceding paragraph, the violation of the human rights of an alien can be redressed at the interna- tional level through processes initiated by the injured in- dividual's national state. Options available to the injured individual's state include diplomatic protest, international arbitration, and international adjudication. Recent developments in human rights law under the aegis of the
163. Id.

164.
See Advisory Opinion on the Jurisdiction of the Courts of Danzig, [I9281 P.C.I.J., ser. B., No. 15, at 17-21. This case establishes, in effect, that the traditional state system concept of international law does not prevent the individual from becoming the subject of interna- tional rights if states so wish.

165.
For example, the Convention for the Establishment of a Central American Court of Justice, art. II, [I9071 2 For. Rel. U.S. 697, 2 Am. J. Int'l L. Supp. 231 (1908), gave individuals access to an interna- tional court to bring claims against any contracting government except their own, providing that certain conditions were met. This iight was available regardless of whether the individual's own government was willing to press the claim.

166. H. Lauterpacht, International Law and Human Rights 27-28 (1950).
167.
See Mavromrnatis Palestine Concessions (Jurisdiction), [I9241 P.C.I.J.

168.
Id. The topic of protection of nationals is treated in greater detail in chap. 6, idra.

United Nations suggest that, either by the growth of inter- national law or by convention, internationally-recognized human rights may be asserted by an individual even against his own state. 169 A comprehensive survey of these recent developments is beyond the scope of this chapter. 170 The principal documents involved in the emerging law of international human rights are certain ar- ticles of the U.N. Charter, 171 the Universal Declaration of Human Rights, 172 and the so-called Human Rights Covenants. 173 Although the Charter provisions and the Declaration are not directly binding on U.N. member- states, municipal courts may nevertheless treat them as indicative of public policy or even as part of the law of the land, and thus give them effect in adjudicated cases. 174 Moreover, international tribunals may treat these provi- sions, or at least some of them, asbeing part of customary international law and hence binding on all states. 175 As for the various Human Rights Covenants, they are, of course, intended to operate as treaties. Oncein force, such conventions would legally obligate states that become par- ties to them to accord specific rights to all individuals. 176 It is not apparent, however, what means are available to
Leech, supa note 28, at 629. 169.

170.
For a useful collection of basic materials on international human rights, see id., at 606-655; Friedmann, supra note 20, at 217-235.

171.
The Charter refers generally to fundamental human rights in articles 1(3), 55(c), 62(2), 68, and 76(c). It does not, however, defme these rights in any detail.

172.
G.A. Res. 217, U.N. Doc. A1810 at 71. The Declaration proclaims the rights listed therein as a "common standard of achieve- ment for all peoples and all nations." It includes such rights as equal protection of the law, the right to a fair hearing, to freedom from torture or degrading punishment, to freedom of movement and asylum,to mar-ry and found a family, to work, and to form and join trade unions. These and the other rights set forth in the Declaration apply to "all human beings," to "everyone." In the words of the U.S. representative in the General Assembly, "It [the Declaration] is not a treaty; it is not an international agreement. It is not and does not purport to be a state- ment of law or of legal obligations. 19 Dep't State Bull. 751 (1948).

173.
International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200, 21 U.N. Gaor Supp 16, at 49, U.N. Doc. A/6316 (1966); International Covenant on Civil and Political Rights, id. at 52. Neither is yet in force. There are many other conventions already in force dealing with human rights but the U.S. is party to very few of them. Leech, supra note 28, at 626. The aforementioned two covenants carry into detailed treaty form most of the provisions of the Universal Declaration of Human Rights, but they do not entirely parallel the Declaration. Id.

174.
See Re Drummond Wren [I9451 O.R. 778, [I9451 4 D.L.R. 674 (Ontario High Ct.), in which the court declared a racially restrictive covenant void, inter alia, as against public policy, citing the Charter pro- visions on human rights as indicative of public policy. See also Oyama v. California, 332 U.S. 633, 649-50, 673 (1948), holding a section of the California Alien Land Law unconstitutional as violative of the Four- teenth Amendment. In concurring opinions Justices Black, Douglas, Rutledge, and Murphy referred to the section's inconsistency with the

U.N. Charter.
175. See the separate opinion of Vice President Ammoun in the Advisory Opinion on the Continued Presence of South Ajrica in Namibia
(South West Africa), [I9711 I.C.J. 16, 76.
176. Friedmann, supra note 20, at 222.
vindicate such rights at the international level if the in- dividual's state fails or refuses to accord them to him. In-deed, in today's world it is obvious that a great many human rights are being grossly violated in a great many countries. No effective international machinery for deal- ing with this problem has yet been forthcoming. 177
b. Aside from U.N. efforts in the field of human rights, there are noteworthy programs in this field at the regional level.
(1) Particularly significant is the European Conven- tion for the Protection of Human Rights and Fundamental Freedoms. 178 The substance of this convention is com- parable in scope and purpose to that of the U.N. Covenant on Civil and Political Rights. 179 But unlike the U.N. document, the European Convention provides a working system for the international protection of individuals whose rights (as defined in the Convention) have been violated by the state of which they are nationals. The in- ternational organs of enforcement are the European Com- mission on Human Rights and the European Court of Human Rights. These organs have developed a substan-

213 U.N.T.S.221. This convention, which became effective in 1953, was sponsored by the Council of Europe. It is open to accession by all members of the Council; all the major states of Western Europe, ex- cept France and Switzerland, have ratified it. A number of possible procedures for international implemen- tation of the law of human rights are explored in Leech, supra note 28, at 629-47. International adjudication (state versus state) is a possibility, but presents a serious question as to the "standing" or "interest" of a state to take up the cause of an individual who is not one of its nationals. See Nottebohm Case (Lichtenstein v. Guatemala), [I9551 I.C.J. 4, dis- cussed and cited in chap. 4, irlfra. 177.

178.

179.
Basically, the substantive provisions of the Convention prohibit unlawful arrest or detention and establish a minimum standard of due process that must be accorded individuals by each ratifying state. For example, the Convention provides, inter alia, that "no one shall be deprived of his liberty [except in several broadly defmed classes of cases encompassing the normal criminal and civil spectrum] and in accordance with a procedure prescribed by law" (Art. 5a)); that "In the determina- tion of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" (art. 6(1)); that "Everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law" (art. 6(2)); and that everyone charged with a criminal offense has spedic minimum rights (art. 6(3)).

tial body of precedent under the Convention. 180
(2) In the Western Hemisphere, the Inter-American Commission on Human Rights, established in 1959 by the Organization of American States, is empowered to receive and examine individual communications charging the violation of fundamental human rights and to make recommendations to governments with respect thereto. In 1969, a Conference of the American States approved the American Convention on Human Rights, 181 which widens the earlier American Declaration of the Rights and Duties of Man and establishes the Inter-American Court of Human Rights. 182
3-22. The Legal Responsibility of Individuals in Inter-national Law. The development of rights enforceable by individuals at the international level is in an embryonic stage. It has long been held, however, that individuals are capable of violatinginternational law. For example, piracy has been deemed an offense "against the law of nations" and the offender has been subject to punishment by any state that captures him. 183 More recently, there has been widespread acceptance of the principle that individual members of belligerent armed forces are criminally responsible for violations of the laws of war, and may be punished by enemy or international authorities. 184 A dis- cussion of war crimes and related offenses is beyond the scope of this chapter. These matters are mentioned here merely to make the point that individuals may incur penal sanctions under international law and thus are, to that ex- tent, subjects of international law. 18s
180. For a description of the work of the Commission and the Court, see Friedmann, supra note 20, at 230-31; Leech, supra note 28, at 649-51.
181.
See 65 Am. J. Intl L. 679 (1971).

182.
See generally Fox, The Protection of Human RighB in the Americas, 7 Colum. J. Transnat'l L. 222 (1968).

183. See, e.g., U.S. v. Smith, 18 U.S.(5 Wheat.) 153, 161-62
(1820). Cf: Respublica v. DeLongchamps, 1 U.S. (1 Dall.) 11 1 (assault on a foreign diplomat held an infraction of the law of nations).
184. See Ex Parte Quirin, 317 U.S. 1 (1942). See also Attorney General of Israel v. Eichmann, 36 Int'l L. Rep. 277 (1968) (Israel Sup. Ct. 1962).
185. For a collection of materials dealing with individual respon- sibility for war crimes, see Leech, supra note 28, at 656-724; see also Parks, Command Responsibili@ for War Crimes, 62 Mil. L. Rev. 1 (1973).
Pam 27-161-1

CHAPTER 4 JURISDICTION
Section I. BASES OF JURISDICTION UNDER INTERNATIONAL LAW
4-1. General. a. Having examined the essential charac- teristics of states, the primary actors in the framework of public international law, attention must now be focused on the manner in which these entities might exercise juris- diction over territory, individuals and events. In doing so, it is important to note that the term "jurisdiction," or its equivalent in other languages, expresses a concept which is common to municipal legal systems.
b.
In the United States, for example, reference is made to "Federal jurisdiction," as opposed to the jurisdiction of the States of the Union. This is true in that under U. S. do- mestic law-the Constitution in this instance–certain categories of persons, events or places are subject to Federal law and others to the law of the several States. Whenever it is said that a matter is one of "Federal juris- diction," this means that the Federal Government is em- powered under the domestic law of the United States to act-by way of legislation, juridical decision or executive action-with respect to the particular category of persons, events, or places involved in the matter at hand. The same concept applies when one speaks of the jurisdiction of the states.

c.
In the international legal system, the term "jurisdic- tion" expresses a concept similar to the concept it ex- presses in municipal legal systems. When reference is made to the "jurisdiction" of a state in the international system, this means the state is entitled under international law to subject certain categories of persons, events, or places to its rules of law. It does not follow, however, that the rules of international law determining whether a state has jurisdiction over a particular person, event, or place are the same as those used in a State legal system in deter- mining, for example, whether this court or that court has jurisdiction over a particular person, event, or place.

d.
Jurisdiction may also refer to the jurisdiction of the state as a whole and not of its constituent units or political subdivisions. The United States is a federation, while France, for example, is not. The question as to whether an alien is to be tried by a court of New York State or a U. S. Federal court or whether he is to be tried by a court in Paris or Marseilles does not create an international issue of jurisdiction. The jurisdictional question in the interna- tional system is whether the United States or France is en- titled to try the alien.

e.
Moreover, the international legal system is not con- cerned with a state's allocation of its jurisdiction among its branches of government. In a legal system,-the making of legal rules might be vested in a legislature and their enforcement vested in the executive Or judicial branch. However, this division of functions is not always SO distinctive. The House of Lords in the United Kingdom

has legislative functions and also functions as a law court. In turn, a court of law in a municipal legal system may not have been instructed by its legislature to apply a particular rule and may thus have to articulate one of its own devis- ing before it can proceed to give it effect. Additionally, the executive may be empowered to make legal rules. Inter- national law does not determine which branch of govern- ment should perform various legislative and judicial func- tions. Accordmgly, it is advisable, if not necessary, to dis- cuss the jurisdiction of states under international law in terms which are neutral so far as the organs of govern- ment exercising the jurisdiction are concerned.
J The term jurisdiction is all too often used im-precisely. A sharp distinction between rule-making and rule-enforcing jurisdiction is essential to effective analysis. First, the state "prescribes" a rule, which is to say that either by act of the legislature, decree of the executive or decision of a court, it declares a generalized principle or legal norm. Second, the state "enforces" the rule. That is, it arrests, subpoenas witnesses and documents, and tries and punishes for violation of the rule. Any one of these actions-and of course all of them together-is enforce-ment. Hence, jurisdiction is discussed in terms of the ju- risdiction of a state "to prescribe" rules of domestic law and its jurisdiction "to enforce" them.
g. A state normally has jurisdiction to prescribe rules of domestic law governing conduct taking place physically within its territory. At the other extreme, no state has ju- risdiction to prescribe rules of domestic law governing the conduct of everyone everywhere in the world. Normally, a state also has jurisdiction to enforce within its own ter- ritory the rules of law it has properly prescribed. Yet, a state may not normally send its police and courts outside its borders to arrest and punish people even for murders committed within its territory. Accordingly, the following provisions are contained in Restatement, Second, Foreign Relations Law of the United States.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)

8 6. Jurisdiction Defined
"Jurisdiction," as used in the Restatement of this Subject, means the capacity of a state under international law to prescribe or to enforce a rule of law.

Comment:
a. Prescriptive and enforcement jurisdiction distinguished. Jurisdic- tion to "prescribe" refers to the capacity of a state under international law to make a rule of law, whether this capacity be exercised by the legis- lative branch or by some other branch of government. Jurisdiction to "enforce" refers to the capacity of a state under international law to en- force a rule of law, whether this capacity be exercised by the judicial or the executive branch . . . or by some other branch of government. . . .
The action taken by a branch of the government of a state may be an exercise of both jurisdiction to prescribe and jurisdiction to enforce, rather than the exercise of only one of them.
Jurisdiction to prescribe in Subsection (2) includes jurisdic- tion to prescribe the applicable rule of conflict of laws. … A state does not have jurisdiction to enforce a mle of law prescribed by it unless it had jurisdiction to prescribe the rule. A state having jurisdiction to prescribe a rule of law does not necessarily have jurisdiction to enforce it in all cases. 5 7. Relationship between Jurisdiction to hescribe and Jurisdiction to Edorce

(1)

(2)

(3)

5 8. Effect of Lack of Jurisdiction

Action by a state in prescribing or enforcing a rule that is does not have jurisdiction to prescribe or jurisdiction to enforce, is a violation of international law. …

h.
This chapter will examine some of the factual bases of jurisdiction generally accepted in the international legal system as adequate foundation for a state's prescription and enforcement of rules of municipal law. Thus, atten-tion will be focused on state jurisdiction based on territo- ry, the nationality of the accused, agreement with the ter- ritorial state, the protection of certain state interests, and the concept of universality. 4-2. Jurisdiction Based on Territory. a. A state has ju- risdiction over everything within its territorial boundaries. A derogation from territorial sovereignty cannot be recog- nized unless its legal basis is established in each particular case. 1 The United States Supreme Court, as early as 1812, observed this general principle when Justice Marshall stated, "It is an admitted principle of interna- tional law that a nation possesses and exercises within its own territory an absolute and exclusive jurisdiction, and that any exception to this right must be traced to the con- sent of the nation, either express or implied." 2 Thus,no state may exercise its police powers in another state, even against its own citizens, without the consent of this state. The jurisdiction to perform any governmental acts within a state's borders belongs exclusively to that state, unless and until it consents to the exercise of jurisdiction by a foreign state. 3 The territorial basis of jurisdiction is universally accepted throughout the world, and it is the basic system adopted in the law of the United States, Eng- land, and many other countries. 4

b.
What are the areas where the United States exercises its jurisdiction without valid international objection? Clearly, they include all the land area of the United States and its

Colombian-Peruvian Asylum Case, [I9501 I.C.J. 226. 1.

2.
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, at 136 (1812).

3.
For ample, the British government properly protested the seizure of Sun Yet Sen in London in 1896 by the Chinese legation with the intended purpose of forceably taking him back to China. 1 L. Op- penheim, International Law 796 (8th ed. Lauterpacht 1955). Serbia showed a similar sensitivity to its jurisdiction when it rejected that por- tion of the Austrian ultimatum of 1914 which demanded that Austria be allowed to conduct an investigation in Serbian territory independent of the Serbian government. Serbia maintained that such a demand was not "in accordance with international law" and asked that it be referred to the Hague for adjudication." 1 Halsey, Literary Digest History of World

War I 70-72 (1919).
4. J. Brierly, The Law of Nations 232 (5th ed. 1955).
islands, its inland waters, lakes, and rivers within its fron-
tiers; the territorial waters along its coast; and the air space '
above this land and these waters. Similarly, by a special ar-
rangement, the United States exercises jurisdiction over
the trust territories which have been placed under its con-
trol s and bases or zones over which it exercises personal
or, to some extent, territorial jurisdiction unde; certain
treaties. 6 Finally, by means of a fiction, international law
accepts the idea that every state exercises "territorial
jurisdication" over its ships, wherever these may be.

4-3. Acquisition of Sovereignty over Temtory. Quite naturally, in order to legitimately exercise jurisdiction based on territory, a state must have sovereignty over this territory. Thus, it is imperative that attention be focused on the means by which sovereignty over territory can be acquired. Given the interrelationship of several of these ,methods of territorial acquisition 7 with many of the basic concepts of conflict management, they should be of sig-
nificant interest to the military attorney.
a. Discovery and contiguity.
THE ISLAND OF PALMAS CASE WED STATES
AND THE NETHERLANDS)
Scott, Hague Court Reports 2d 83 (1932) (Perm. Ct. Arb. 1928)
2 U.N. Rep. Intl. Arb. Awards 829

[Palmas, an island about two miles long by three fourths of a mile wide, with a population of 750, having at the time little strategic or eco-nomic value, lies about 48 miles southeast of Midanao in the Philip pines (then part of the United States territory) and about 51 miles from Nanusa in the Netherlands Indies. Situated at about 5" 35' N., 126" 36' E., it lies within the boundaries of the Philippines as ceded by Spain to the United States in 1898. At the time of a visit by General Leonard Wood in 1906, United States authorities learned that The Netherlands also claimed sovereignty over Palmas (or Miangas, as it was often called). By a "Special Agreement" signed January 23, 1925, the two states submitted to the Swiss jurist Max Huber, as arbitrator acting for the Permanent Court of Arbitration, the question "whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory."]
HUBER,Arbitrator: The United States, as successor to the rights of Spain over the Philippines, bases its title in the fmt place on discovery. The existence of sovereignty thus acquired is, in the American view, confied not merely by the most reliable cartographers and authors, but also by treaty, in particular by the Treaty of Munster, of 1648, to which Spain and the Netherlands are themselves Contracting Parties. As, according to the same argument, nothing has occurred of a nature, in international law, to cause the acquired title to disappear, this latter ti- tle was intact at the moment when, by the Treaty of December loth, 1898, Spain ceded the Philippines to the United States. In these circum- stances, it is, in the American view, unnecessary to establish facts show- ing the actual display of sovereignty precisely over the Island of Palmas
5. These are the former Japanese mandated islands (Micronesia) in the Pacific, held by the U.S. under Articles 77, 82, and 83 of the U.N. Charter. In 1975, a segment of Micronesia, the Commonwealth of the Northern Mariana Islands, entered into a commonwealth status with the
U.S. The future status of other elements of this island chain, the Marshalls, the Carolines, and the Palau Islands, was in the process of negotiations.
6.
The many Status of Forces Agreements entered into by the United States around the world are examples of this type of special ar- rangement. See chap. 10, irtfra.

7.
Most notably, the concepts of prescription and conquest. See paras. 4-3 6and e, irtfra.

Pam 27-161-1

(or Miangas). The United States Government fmally maintains that
Palmas (or Miangas) forms a geographical part of the Philippine group
and in virtue of the principle of contiguity belongs to the Power having
the sovereignty over the Philippines. .. .
Sovereignty in the relation between States signities independence. In-

dependence in regard to a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the functions of a State. The
development of the national organization of States during the last few
centuries and, as a corollary, the development of international law, have
established this principle of the exclusive competence of the State in
regard to its own territory in such a way as to make it the point of depar-
ture in settling most questions that concern intemational relations. . . .
Titles of acquisition of territorial sovereignty in present-day interna-

tional law are either based on an act of effective apprehension, such as
occupation or conquest, or, like cession, presuppose that the ceding and
the cessionary Power or at least one of them, have the faculty of effec-
tively disposing of the ceded territory. In the same way natural accretion
can only be conceived of as an accretion to a portion of territory where
there exists an actual sovereignty capable of extending to a spot which
falls within its sphere of activity. It seems therefore natural that an ele-
ment which is essential for the constitution of sovereignty should not be
lacking in its continuation. So true is this, that practice, as well as
doctrine, recognizes-though under different legal formulae and with
certain differences as to the conditions required-that the continuous
and peaceful display of temtorial sovereignty (peaceful in relation to
other States) is as good as a title. The growing insistence with which in-
ternational law, ever since the middle of the 18th century, has de-
manded that the occupation shall be effective would be inconceivable, if
effectiveness were required only for the act of acquisition and not
equally for the maintenance of the right. . . .
Territorial sovereignty, as has already been said, involves the ex- clusive right to display the activities of a state. This right has as corollary a duty: the obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and in war, together with the rights which each state may claim for its na- tionals in foreign temtory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the state can- not fulfil this duty. Territorial sovereignty cannot limit itself to its nega- tive side, i.e., to excluding the activities of other states; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protec- tion of which international law is the guardian. . . .
The principle that continuous and peaceful display of the functions of state within a given region is a constituent element of temtorial sovereignty is not only based on the conditions of the formation of inde- pendent states and their boundaries (as shown by the experience of po'i litical history) as well as on an intemational jurisprudence and doctrine widely accepted; this principle has further been recognized in more than one federal state, where a jurisdiction is established in order to apply, as need arises, rules of intemational law to the interstate relations of the states members. . . . 8
Manifestations of temtorial sovereignty assume, it is true, different fom, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of territory. The intermittence and discontinuity compatible
'with the maintenance of the right necessarily differ according as in- habited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the hlgh seas. It is true that neighbouring states may by convention fuc limits to their own sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this way each may prevent the other from any penetration of its territory. qe deliitation of hinterland may also be mentioned in this connec-tion. .. .
8. The arbitrator cited Rhode Island v. Massachusetts, 4 How. 591

(U.S. 1845), and Indiana v. Kentucky, 136 U.S. 479 (1890).
The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Article 111 of the said Treaty and therefore also those concerning the Island of Palmas (or Miangas).
It is evident that Spain could not transfer more rights than she herself

possessed. . . .
It is recognized that the United States communicated, on February 3rd, 1899, the Treaty of Paris to the Netherlands, and that no reserva- tions were made by the latter in respect of the delimitation of the Philip- pines in Article 111. The question whether the silence of a thud Power, in regard to a treaty notified to it, can exercise any influence on the rights of this Power, or on those of the Powers signatories of the treaty, is a question the answer to which may depend on the nature of such rights. Whilst it is conceivable that a conventional delimitation duly notifed to third Powers and left without contestation on their part may have some be. on an inchoate title not supported by any actual dis- play of sovereignty, it would be entirely contrary to the principles laid down above as to territorial sovereignty to suppose that such sovereignty could be affected by the mere silence of the temtorial sovereign as regards a treaty which has been notified to him and which seems to dispose of a part of his territory. .. .
…In any case for the purpose of the present affair it may be admitted that the original title derived from discovery belonged to Spain. . . .
If the view most favourable to the American arguments is adopted- with every reservation as to the soundness of such view-that is to say, if we consider as positive law at the period in question the rule that dis- covery assuch, i.e., the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an "inchoate title," a jus adrem, to be com- pleted eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, i.e., the moment of conclusion and coming into force of the Treaty of Paris.
As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called in- tertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act aeative of a right to the law in force at the time the right arises, de- mands that the existence of the right, in other words its continued madestation, shall follow the conditions required by the evolution of law. International law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of states members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid down the principle that occupation, to constitute a claim to temtorial sovereignty, must be effective, that is, offer certain guarantees to other states and their nationals. It seems therefore incompatible with this rule of positive law that there should be regions which are neither under the effective sovereignty of a state, nor without a master, but which are reserved for the exclusive influence of one state, in virtue solely of a ti- tle of acquisition which is no longer recognized by existing law, even if such a title ever conferred territorial sovereignty. For these reasons, dis- covery alone, without any subsequent act, cannot at the present time suflice to prove sovereignty over the Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an abandonment prop dy speakhg of sovereignty by one state in order that the sovereignty of mther may take its place dognot arise.
. . . Even admitting that the Spanish title still existed as inchoate in 1898 and must be considered asincludedin the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the con- tinuous and peaceful display of authority by another state; for such dis- play may even over H prior, defitive title put forward by another state. Thispoint will be considered, when the Netherlands argument has been examined and the allegations of either party as to the display of

Pam 27-161-1
their authority can be compared. . . .
In the last place there remains to be considered title arising out of con-
tiguity. Although states have in certain circumstances maintained that
islands relatively close to their shores belonged to them in virtue of their
geographical situation, it is impossible to show the existence of a rule of
positive international law to the effect that islands situated outside ter-
ritorial waters should belong to a state from the mere fact that its territo-
ry forms the terra fma (nearest continent or island of considerable
size). Not only would it seem that there are no precedents sufficiently
frequent and sufficiently precise in their bearing to establish such a rule
of international law, but the alleged principle itself is by its very nature
so uncertain and contested that even governments of the same state
have on different occasions maintained contradictory opinions as to its
soundness. The principle of contiguity, in regard to islands, may not be
out of place when it is a question of allotting them to one state rather
than another, either by agreement between the parties, or by a decision
not necessarily based on law; but as a rule establishing ips0 jure the
presumption of sovereignty in favour of a particular state, this principle
would be in conflict with what has been said as to territorial sovereignty
and as to the necessary relation between the right to exclude other states
from a region and the duty to display therein the activities of a state. Nor
is this principle of contiguity admissible as a legal method of deciding
questions of territorial sovereignty; for it is wholly lacking in precision
and would in its application lead to arbitrary results. This would be
especially true in a case such as that of the island in question, which is
not relatively close to one single continent, but forms part of a large
archipelago in which strict delimitations between the different parts are
not naturally obvious. .. .
It is, however, to be observed that international arbitral jurisprudence
in disputes on territorial sovereignty (e.g., the award in the arbitration
between Italy and Switzerland concerning the Alpe Craivarola; Lafon-
taine, Pasicrisie international, p. 201-209) would seem to attribute
greater weight to-even isolated+cts of display of sovereignty than to
continuity of territory, even if such continuity is combined with the ex-
istence of natural boundaries. . . .
In the opinion of the Arbitrator the Netherlands have succeeded in
establishing the following facts:

The Island of Palmas (or Miangas) is identical with an island desig- nated by this or a similar name, which has formed, at least since 1700, successively a part of two of the native States of the Island of Sangi (Talautse Isles). a.

b.
These native States were from 1677 onwards connected with the East India Company, and thereby with the Netherlands, by contracts of suzerainty, which conferred upon the suzerain such powers as would justify his considering the vassal state as a part of his territory.

c.
Acts characteristic of state authority exercised either by the vassal state or by the suzerain Power in regard precisely to the Island of Palrnas (or Miangas) have been established as occurring at different epochs be- tween 1700 and 1898, as well as in the period between 1898 and 1906. The acts of indirect or direct display of Netherlands sovereignty at

Palrnas (or Miangas), especially in the 18th and early 19th centuries are
not numerous, and there are considerable gaps in the evidence of con-
tinuous display. But apart from the consideration that the manifestations
of sovereignty over a small and distant island, inhabited only by natives,
cannot be expected to be frequent, it is not necessary that the display of
sovereignty should go back to a very far distant period. It may suffice
that such display existed in 1898, and had already existed as continuous
and peaceful before that date long enough to enable any Power who
might have considered herself as possessing sovereignty over the island,
or having a claim to sovereignty, to have, according to local conditions, a
reasonable possibility for ascertainiing the existence of a state of things
contrary to her real or alleged rights. .. .
There is moreover no evidence which would establish any act of dis-

,play of sovereignty over the island by Spain or another Power, such as might counterbalance or annihilate the manifestations of Netherlands sovereignty.As to third Powers, the evidence submitted to the Tribunal does not disclose any trace of such action, at least from the middle of the
17th century onwards. These circumstances, together with the absence
of any evidence of a conflict between Spanish and Netherlands
authorities during more than two centuries as regards Palmas (or
Miangas), are an indirect proof of the exclusive display of Netherlands
sovereignty. . . .
The conditions of acquisition of sovereignty by the Netherlands are
therefore to be considered as fulfied. It remains now to be seen
whether the United States as successors of Spain are in a position to
bring forward an equivalent or stronger title. This is to be answered in
the negative.
The title of discovery, if it had not already been disposed of by the
Treaties of Munster and Utrecht, would, under the most favourable and .
most extensive interpretation, exist only ai an inchoate title, as a claim
to establish sovereignty by effective occupation. An inchoate title
however cannot prevail over a defhte title founded on continuous and
peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial sovereignty,
has no foundation in international law. . . .
The Netherlands title of sovereignty, acquired by continuous and
peaceful display of state authority during a long period of time going
probably back beyond the year 1700, therefore holds good. . . .
For these reasons the Arbitrator .. . decides that: The Island of
Palmas (or Miangas) forms in its entirety a part of Netherlands temto-
ry.
(1)
Discovery. In reaching his decision in this case,

M.
Huber spoke to both discovery and contiguity as methods of acquiring sovereignty over territory. With reference to the former, primary importance was placed on the "effectiveness" of the occupation of the temtory in question. This concept has been dealt with in several other cases. In the ClMperton Island arbitration, 10 involving a dispute between France and Mexico over territorial rights to a small and unpopulated Guano Island situated in the Pacific Ocean about 670 miles southwest of Mexico, the Arbitration, in holding for France, declared that, although the exercise of effective, exclusive authority ordinarily re- quired the establishment of an administration capable of securing respect for the sovereign's rights, this was not necessary in the case of uninhabited territory which is at the occupying state's absolute and undisputed disposition from the latter's fist appearance. In the Eastern Green- land case,11 an adjudication between Norway and Den- mark resulting from a Norwegian attempt to place por- tions of Eastern Greenland under its sovereignty, the Per- manent Court of International Justice declared: . .. a claim to sovereignty based not upon some particular act or title

such as a treaty of cession but merely upon continued display of authority, involves two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. 12
The Court then went on to say, however, that in the case of conflicting claims to sovereignty over areas in thinly
9. On this case, see Jessup, The Palmas Island Arbitration, 22 Am.
J. Int7 L. 735 (1928) Seegenerally, Y. Blum, Historic Titles in Interna- tional Law (1965).

Clipperton Island Arbitration, 2 U.N.R.I.A.A. 1105,26 Am. J. Int'l L. 390 (1931). 10.

11.
Legal Status of Eastern Greenland, [I9331 P.C.I.J., ser. A/B, No. 53.

12. Id.

populated or unsettled countries, the requirement of effective occupation is satisfied with very little in the way of an actual exercise of sovereign rights, provided that the other state cannot establish a superior claim. 13 Third state recognition of Danish sovereignty over the territory in question, by means of treaties, was also cited as a factor in the Court's decision in favor of Denmark. Thus,it would appear that in cases of conflicting territorial claims based on discovery, the arbitrator or Court will look most favorably on that state most "effectively occupying" the territory in question. Moreover, in thinly populated or un- settled areas, this degree of occupation may be minimal. 14
(2) Contiguity. As was noted, the arbitrator in the Island of Palmas case 1s also spoke to contiguity as a means by which to acquire sovereignty over territory. In doing so, however, he declared it was impossible to show the existence of a rule of positive international law which stood for the proposition that islands situated outside the territorial waters of any state should be considered to be a part of the territory of the state whose land mass con- stitutes the terraflrma (nearest continent or island of con- siderable size). 16 Thus, the title of contiguity, understood as a basis of territorial sovereignty, had, in his opinion, no foundation in international law. This rejection of the con- cept of contiguity is generally accepted and acknowledged by international publicists. However, there are those who contend the principle does possess some validity as an in- ternational norm. Lauterpacht submits that the Island of Palmas award:
…related only to islands; that, in a sense, it was obiler inasmuch as the claim of the United States wasnot based mainly on contiguity; that the arbitrator admitted that a group of islands may form 'in law a unit, and that the fate of the principal part may involve the rest'; and that he held in effect, with regard to occupation of territories which form a geographical unit, that the appropriation must be presumed, in the in- itial stages, to extend to the whole unit (a rule which is one of the main aspects of the doctrine of contiguity) and that the only consideration to which contiguity must cede is that of actual adverse display of sovereignty by the competing state. l7
Even in light of Lauterpacht's favorable comments regarding contiguity, however, it would appear that the concept is generally viewed, at best, as a minimally effec- tive means of territorial acquisition.
b. Prescription. Prescription, as a title to territory, is ill-defined, and some writers deny its recognition altogether. International law does appear, however, to admit that, by a process analogous to the prescription of municipal law, long possession may operate either to confm the exist-
For &ample, a claim in the form of a valid treaty of cession. 13.

14.
Territorial conflicts of this nature still occur, as evidenced by the controversy between the former Republic of Viet Nam and the Peo- ples' Republic of China in 1974 regarding the Spratley Islands in the South China Sea.

1s. See page 4-2, supra.
16.
See Page 4-4, supra.

17.
Lauterpacht, Sovereign& over Submarine Areas, (19501 Brit.

Y.B. Int7 L. 376, 428-29 (footnotes omitted).
ence of a title the precise origin of which cannot be shown or to extinguish the prior title of another sovereign. In the absence of definite evidence that the possession began as a wrongful assumption of a sovereignty already belonging to another state, peaceful and continuous possession raises a presumption that the original assumption of sovereignty was in conformity with international law and has the effect of consolidating the claimant's title. Possession of territory consists in the exercise or display of state authority in or in regard to the territory in question. In the Island of Palmas Arbitration, M. Huber spoke of the acquisition of sovereignty by way of continuous and peaceful display of state authority as 'so-called prescription' and also said that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other states) is as good as a title. Again, even in the Eastern Greenland case, which is commonly referred to as the leading case on 'oc-cupation,' the Court emphasized that Denmark did not
,found her claim upon any 'particular act of occupation' but alleged a title 'founded on the peaceful and continuous display of state authority,' and it awarded sovereignty to Denmark on the basis of the latter's display of state authority with regard to the whole of Greenland during successive periods of history. In fact, it is neither very easy nor very necessary to draw a precise line between an an-cient title derived from an original 'occupation' and one founded simply on long and peaceful possession.
(1)
In the Island of Palmas case, M. Huber emphasized that proof of an original taking of possession is not enough and that possession must be maintained by display of state authority. On the other hand, both he in that case and the Court in the Eastern Greenland case pointed out that proof of peaceful possession in the most recent period before the rival claimant attempts to assume the sovereignty is sufficient by itself to establish a title to the territory-without proof of a long historic possession. The truth seems to be that peaceful display of state authority is in itself a valid title to sovereignty and that proof either of an original act of occupation or of the long duration of a display of state authority is important pri- marily as confirming the peaceful and nonadverse character of the possession. Peaceful display of state authority over a long period excludes the existence of any valid prior title in another state and makes it unnecessary to rely upon the principle of extinctive prescription by long adverse possession.

(2)
The principle of extinctive. prescription, under which the passage of time operates ultimately to bar the right of a prior owner to pursue his claim against one who, having wrongfully displaced him, has continued for a long time in adverse possession, is recognized in almost all systems of municipal law, and it appears equally to be ad- mitted by international law. It is debatable as to exactly how far diplomatic and other paper forms of protest by the dispossessed state sateto 'disturb' the possession of the occupying state, so as to prevent the latter from acquiring

Pam 27-161-1
a title by prescription. Paper protests may undoubtedly be effective for a certain length of time to preserve the claim of the dispossessed state. lf,however, the latter makes no effort to carry its protests further, by referring the case to the United Nations or by using other remedies that may be open to it, paper protests will ultimately be of no avail to stop the operation of prescription. 18 Thus, it was largely for the purpose of avoiding any risk of the ex- tinguishment of its claims by prescription that in 1955 the United Kmgdom filed a unilateral application with the

Cession. Cession of temtory involves the transfer of sovereignty by means of an agreement between the ceding and acquiring states. It is a derivative mode of territorial acquisition. The cession may comprise a portion only of the territory of the ceding state, or it may comprise the totality of its territory. In this latter situation, as for exam- ple, in the treaty of August 22, 1910, between Japan and Korea, the ceding state disappears and becomes merged into the acquiring state. The consent of the population of ceded territory has generally not been considered essential to the validity of the cession; however, it should be noted that the last instances of cession were frequently condi- tioned upon the will of the people as expressed in a plebiscite. 21 Moreover, acquisition of territorial sovereignty by means of cession is now generally con- sidered to be a thing of the past, a concept no long applica- ble to today's international community. Accretion. Accretion is the expansion of a state's ter- ritory by operation of nature; that is, by the gradual shift- ing of the course of a river, the recession of the sea, or the building up of river deltas. This concept is generally free of controversy and is mostly spoken to in terms of land, river, and lake boundaries. 20 J., challenging alleged encroachment by Argentina and Chile on the Falkland Islands Dependencies. 19 I.C.

c.

d.

e.
Conquest. With the formation of the U.N.and the specific prohibitions against the use of force contained within its Charter, 22 war has been outlawed as a legiti- mate instrument of national policy. Consequentially, logic would dictate that a state can no longer acquire sovereignty over territory by conquering an enemy and declaring an intent to annex this state. Reality, however, does not allow for such legal simplicity. Despite the universally accepted prohibition against the use of force, conflict still occurs and often results in a change in ter-ritorial sovereignty of an undefined nature. Moreover, this shift in territorial control may occur as a result of

'8. J. Brierly. The Law of Nations 167-71 (6th ed. Waldock 1963).

19. The dispute between the U.K.and Argentina over the Falkland Islands continues to exist. See The Washiiton Post, Dec. 10, 1972, 4 G, at 1, col. 1. Likewise, Arab states continue to lodge official protects in the U.N. with regard to the Israeli occupation of certain Arab territo-
ry.

1 G.Hackworth, Digest of In&?rMHoMI Law 421-22 (1940). 20.
See 2 M. Whiteman, Digest of International Law, 1084-85 (1963) (hereinafter cited as 2 M. Whireman).

21.

22. Specifically, U.N.Charter Art. 2, paras 3 and 4.
either an overt invasion of another state's territory or from what might perhaps be regarded as a legitimate act of self-defense. Two examples suffice to illustrate these points.
(1) The status of Goa. On December 18, 1961, In- dian troops invaded the territories of Goa, Damao, and Diu, comprising the Portuguese State of India. In a letter to the President of the Security Council, the Permanent Representative of Portugal requested him ". . . to con- vene the Security Councii immediately to put a stop to the condemnable act of aggression of the Indian Union, or- dering an immediate cease-frre and the withdrawal forth- with . . . of all the invading forces of the Indian Union. " 23 The following excerpts are from the Security Council's debate.
Mr. ha [India]: . . . I have already said that this is a colonial question, in the sense that part of our country is illegally occupied by right of con- quest by the Portuguese. The fact that they have occupied it for 450 years is of no consequence because, during nearly 425 or 430 years of that period we really had no chance to do anything bemuse we were under colonial domination ourselves. But during the last fourteen years, from the very day when we became independent, we have not ceased to demand the return of the peoples under illegal domination to their own countrymen, to share their independence, their march forward to their destiny. I would like to put this matter very clearly before the Council: that Portugal has no sovereign right over this territory. There is no legal frontier-there can be no legal frontierdetween India and Goa. And since the whole occupation is illegal as an issue–it started in an illegal
manner, it continues to be illegal today and it is even more illegal in the
light of resolution 1514 0[I5 GAOR, Supp. 16(A/4684), at 66
@ec. 14, 1960), entitled "Declaration on the Granting of Independ-
ence to Colonial Countries and Peoples"]-there can be no question
of aggression against your own frontier, pl against your own people,
whom you want to liberale.
That is the situation that we have to face. If any narrow-minded legalistic considerations-considerations arising from international law as written by European law writers–should arise, these writers were, after all, brought up in the atmosphere of colonialism. I pay all respect due to Grotius, who is supposed to be the father of international law, and we accept many tenets of international law. They are certainly regulating international life today. But the tenet which . . . is quoted in support of colonial Powers having sovereign rights over territories which they won by conquest in Asia and Africa is no longer acceptable. It is the European concept and it must die. It is time, in the twentieth century, that it died. . . .

Mr. Garin [Portugal]: . . . Indian attempts to annex the territories of the other sovereignties in the neighbourhood cannot fmd any legal justif~cation. Such attempts could be legitimized only by the other sovereignties concerned, if they agreed to a formal transfer of their ter- ritories, but only if the transfer coqld be voluntary, never compulsory, much less by means of an armed aggression. It matters little whether those other sovereignties are held by whites or coloured people or, as in the case of the Portuguese State of India, by both whites and coloured people together. It likewise matters little if the temtories belonging to those other sovereignties are large or small in size. The principle of sovereignty ought to be respected. The Indian Union has not done this in respect of the Portuguese State of India and is, therefore, guilty 0f.a base breach of international law.
It has been said here that international law in its present form was made by Europeans. I submit that, so long as it is not replaced, it must be accepted and followed by civilized nations, and I am not aware that international law relating to sovereignty has been changed so far . . .
Mr. Stevenson [United States]: . . . [Wlhat is at stake today is not co-
23. U.N. Doc. S/5030 (1961).
Pam 27-161-1

lonialism; it is a bold violation of one of the most basic principles in the United Nations Charter, stated in these words from Article 2, paragraph
4:
AU Members shall refrain in their international relations from the threat or use of force against the temtorial integrity or political inde- pendence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

We realize fully the depths of the differences between India and Por- tugal concerning the future of Goa. We realize that India maintains that Goa by right should belong to India. Doubtless India would hold, therefore, that its action is aimed at a just end. But, if our Charter means anything, it means that States are obligated to renounce the use of force, are obligated to seek a solution of their differences by peaceful means, are obligated to utilize the procedures of the United Nations when other peaceful means have failed. .. . 24
At the end of the Security Council debate on December 18, 1961, Ceylon, Liberia, and the United Arab Republic submitted a draft resolution which cited G.A. Res. 1514, "Declaration on the Granting of Independence to Co- lonial Countries and Peoples," 25 rejected the Portuguese complaint of Indian aggression, and called upon Portugal to terminate hostile action and to cooperate with India in the liquidation of her colonial possessions in India. 26 This resolution was defeated by a vote of 4 in favor and 7 against. France, Turkey, the United Kingdom, and the United States then introduced a draft resolution which recalled the obligation of members under Article 2 of the Charter to settle disputes by peaceful means, called for an immediate cessation of hostilities, called upon India to withdraw its forces, urged the parties to work out a perma- nent solution of the problem by peaceful means, and re- quested the Secretary-General to provide appropriate assistance. 27 Although a majority of the Council voted in favor of this resolution, it was vetoed by the Soviet Union. The territory in question remains in Indian hands. 28
(2) The 1967 Middle East War. International publicists disagree as to whether the military action under- taken by Israel in 1967 constituted a "legitimate" act of self-defense in terms of the currently existing international norms. 29 For purposes of this chapter, however, this question is not the primary point of concern. Instead, it focuses attention on the issue of whether a state may ex- tend its sovereignty over territory through the use of force which is "lawful" under the U.N. Charter; that is, armed measures taken in "self-defense." Israel's success in the Six Day War of 1967 resulted in its military occupation of substantial territory: the Sinai, the Gaza Strip, parts of
See U.N. Doc. S/5033 (1961). See U.N. Doc. S/5032 (1961). 15 U.N. GAOR, Supp. 16 at 66, U.N. Doc. N4684 (1961). 24.
16 U.N. SCOR, 987 meeting, 10-11, 16, 988th meeting 7-8 (1961).

25.

26.

27.

Wright, The Goo Incident, 56 Am. J. Int'l L. 617 (1962). 28.

29.
See J. Stone, Legal Controls of International Corlflct, 244, n. 8 (1955); Wright, The Cuban Quarantine, 57 Am. J. Int'l L. 546, 559 (1963); McDougal, The Soviet-Cuban Quarantine and Sev-Defense, 57

Am. J. Int'l L. 597-98 (1963); and Henkin, Force, Intervention and Neutrali~ in Contemporaty International Law, Proc., Am. Soc. Int'l L.
147, 150 (1963).
Jerusalem, portions of Jordan on the West Bank of the
Jordan River, and the Syrian Golan Heights. In Security
Council Resolution 242, adopted November 22, 1967,
the Council called for the withdrawal of Israel armed
forces from these territories. 30 For a number of reasons,
political as well as military, this withdrawal did not occur.
Moreover, following the 1967 war, Israel took certain
measures to accomplish the "administrative unification"
of Jerusalem. Reacting quickly to this development, the
Genera Assembly, by a vote of 99-0-20, adopted the
following resolution:
The General Assembly, Deeply concernedat the situation prevailing in Jerusalem as a result of the measures taken by Israel to change the status of the City,
Considers that these measures are invalid; 1.

2.
Calls upon Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem;

3.
Requests the Secretary-General to report to the General Assembly and the Security Council on the situation and the implementation of the present resolution not later than one week from its adoption. 31

As of 1977, Israel continues to both occupy most of the territory taken by its military forces in 1967 and to ad- minister the City of Jerusalem.
(3) The purpose of the discussion of these two events, is not to assess blame or to adjudge the legality of events examined. They are offered only as topical exam- ples of what might be viewed as territorial acquisition by conquest. The legal status of the territory in question will be dependent upon whether other states agree or refuse to recognize "title" to the land occupied by India and Israel. Moreover, these actions serve to demonstrate to the mili- tary attorney the interdependent nature of the two major components of public international law, the Law of Peace and Use of Force. That is, the legality of acquisition of sovereignty over territory by conquest can be fully dis-cussed only if currently existing conflict management norms are taken into consideration.
J: The Polar Regions. Although various states have at- tempted to claim sovereignty over portions of the polar regions, 32 the United States refuses to recognize these claims. In a note dated June 16, 1955, to the Secretary of State, the Australian Ambassador at Washington stated:
I have the honour to refer to my letter of 1 lth March, 1949, deposit- ing with the Government of the United States the Australian Instru- ment of Ratification of the Convention of the World Meteorological Organization signed at Washington, D.C. on 11th October, 1947.
I wish to inform you that the Australian Government has now decided, by virtue of its membership of the World Meteorological
30.
S.C. Res. 242, SCOR, Resolutions and Decisions of the ,Security Council at 8 (22 Nov. 1967).

31.
G.A. Res. 2253, U.N. GAOR, 5th Emergency Special Session, Annexes and Resolutions, Supp 1, at 4, U.N. Doc. M6798 (1967); 57 Dep't State Bull. 113 (1967).

32.
States have attempted to claim sovereignty over portions of the polar regions on the basis of discovery, contiguity, and the polar sector theory. For a discussion of these claims and a concise explanation of the polar sector theory, See W. Friedmann, 0.Lissitzyn, & R. Pugh, Inter- national Law 458-63 (1969) (hereinafter cited as 2 W. Friedman).

Pam 27-161-1
Organization, to apply the Convention to the Australian Antarctic Ter- ritory which does not maintain its own meteorological service.
In his reply dated January 30, 1956, the Secretary of
State, after acknowledging receipt of the Australian Am-
bassador's note and summarizing its contents, stated:
My Government wishes to point out, as it has on previous occasions, that it does not recognize any claims so far advanced in the Antarctic and reserves all nghts accruipg to the United States out of activities of na- tionals of the United States in the area.
The American Embassy in Santiago delivered the follow-
ing aide-memoire to the Foreign Minister of Chile on
August 2, 1955:
The Government of the United States of America notes Chilean law 11,846 was promulgated on June 17, 1955. That law purports to incor- porate into Chilean provincial administration those areas claimed by Chile in the Antarctic. The Government of the United States wishes to reiterate that it has recognized no claims advanced with respect to the Antarctic by other countries and that it reserves all rights of the United States with respect to the area.
The Department of State replied in like manner on November 5, 1956, to a Chilean memorandum transmit- ting a copy of a Decree implementing the above law. On May 14, 1958, the Legal Advisor of the Department of State, Loftus Becker, said in the course of testimony before the Special Committee on Space and Astronautics of the United States Senate:
.. .There [in Antarctica], for many, many years, the United States has been engaged in activities which under established principles of in- ternational law, without any question whatsoever, created rights upon which the United States would be justified in asserting territorial claims. I mean by that, claims to sovereignty over one or more areas of the Ant- arctic.
Notwithstanding this fact, the United States has not asserted any claim of sovereignty over any portion of Antarctica, although the United States has, at the same time, made it perfectly plain that it did not recog- nize any such claims made by other States.
It is the position of the United States Government, and one well founded in international law, that the fact that the United States has not based a claim of sovereignty over one or more areas of Antarctica, upon the basis of the activities it has engaged in there, in no way derogates from the rights that were established by its activities. 33
Influenced perhaps by the momentum generated during the International Geophysical Year of 1957-58, during which scientific expeditions from many countries con- ducted research and experiments in Antarctica without regard to questions of territorial sovereignty, a conference called by the United States of those states having substan- tial interests in that continent succeeded in producing the Antarctic Treaty, signed on December 1, 1959. 34 The most important provision of the treaty states that Ant- arctica "shall be used for peaceful purposes only" (Art. I), and to that end, the treaty prohibits military installa- tions, maneuvers, and weapons tests, including nuclear explosions of all kinds. The free exchange of scientific in- formation and personnel is provided for (Art. ID),and provision is made for the meeting at suitable intervals of
33.
2 ~T~hiteman,

supra, note 20 at 1250-53.

34.
[I9591 12 U.S.T. 794, 402 U.N.T.S. 71.

representatives of contracting states in order to formulate and recommend measures in furtherance of the objectives of the treaty (Art. M). In addition to other articles deal- ing with mutual inspection of Antarctic activities and in- stallations by the contracting parties and with the exercise of jurisdiction over certain Antarctic personnel, the treaty provides in Article IV:
1. Nothing contained in the present Treaty shall be interpreted as:
(a)
a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

(b)
a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

(c)
prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.

2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in
-Antarctica. No new claim, nor enlargement of an existing claim, to ter- ritorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.
The Treaty contains no general provision governing juris- diction over persons in Antarctica. 35 It entered into force on June 23,196 1. As of the beginning of 1975, the parties to the treaty were: Argentina, Australia, Belgium, Chile, Czechoslovakia, Denmark, France, Japan, Netherlands, New Zealand, Norway, Poland, Romania, South Africa, Union of Soviet Socialist Republics, United Kingdom, and the United States. The Treaty may be amended at any time by unanimous vote of the contracting parties. At the expiration of thirty years from the date of entry into force, any of the original contracting parties may call for a con- ference of all contracting parties. The conference may amend the Treaty by majority vote. Failure to ratify any amendment constitutes withdrawal from the Treaty.
g, The Moon and Other Celestial Bodies. With the ad- vent of space travel and exploration, still another area of potential jurisdictional dispute has evolved. In an attempt to prevent such conflicts, early efforts have been made to
regulate state activities in this area. Of primary importance is the 1967 Outer Space Treaty 36 of which the most im-portant articles are the following:
Art. 1. The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the
3s. The failure of the treaty to include general jurisdictional provi- sions has produced interesting results. In July of 1970, Mario Escamilla shot and killed a fellow U.S. government researcher on Arctic ice island T-3, a 28-mile-square ice slab floating in the Arctic. Defense attorneys argued the U.S. had no jurisdiction to try Escarnilla, while the Justice Department asserted the crime was covered by U.S. maritime jurisdic- tion, 18 U.S.C.A. 8 7(1) (see n. 174, irlfra). The Fourth Circuit, in overturning Escamilla's original conviction, decided the case without speaking to the issue of jurisdiction. The proposed Federal Criminal Code now under consideration deals with this type of situation, Criminal Justice Reform Act of 1975, 8 204.
36. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205.
Pam 27-161-1

interests of all countries, irrespective of their degree of economic
or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be

free for exploration and use by all States without discrimination of any
kind, on a basis of equality and in accordance with international law, and
there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, in-

cluding the moon and other celestial bodies, and States shall facilitate
and encourage international co-operation in such investigation.
Art. 2. Outer space, including the moon and other celestial bodies, is

not subject to national appropriation by claim of sovereignty, by means
of use or occupation, or by any other means.
Art. 3. States Parties to the Treaty shall carry on activities in the ex-

ploration and use of outer space, including the moon and other celestial
bodies, in accordance with international law, including the Charter of
the United Nations, in the interest of maintaining international peace
and security and promoting international co-operation and understand-
&.
Art. 4. States Parties to the Treaty undertake not to place in orbit

around the Earth any objects carrying nuclear wapons or any other kinds
of weapons of mass destruction, install such weapons on celestial bodies,
or station such weapons in outer space in any other manner.
The moon and other celestial bodies shall be used by all States Parties

to the Treaty exclusively for peaceful purposes. The establishment of
military bases, installations, and fortifications, the testing of any type of
weapons and the conduct of military maneuvers on celestial bodies shall
be forbidden. The use of military personnel for scientific research or for
any other peaceful purposes shall not be prohibited. The use of any
equipment or facility necessary for peaceful exploration of the moon and
other celestial bodies shall also not be prohibited.
Art. 5. States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle.
In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties.
States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the lie or health of astronauts.
Art. 6. States Parties to the Treaty shall bear international respon- sibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by govern- mental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall re- quire authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, includ- ing the moon and other celestial bodies, by an international organiza- tion, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organhtion.
Art. 7. Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally Liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, includ- ing the moon and other celestial bodies.
Art. 8. A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space
or on a celestial body. Ownership of objects launched into outer space,
including objects landed or constructed on a celestial body, and of their
component parts, is not affected by their presence in outer space or on a
celestial body or by their return to the Earth. Such objects or component
parts found beyond the limits of the State Party to the Treaty on whose
registry they are carried shall be returned to that State Party, which
shall, upon request, furnish identifying data prior to their return.
Art. 12. AU stations, installations, equipment and space vehicles on

the moon and other celestial bodies shall be open to representatives of
other States Parties to the Treaty on a basis of reciprocity. Such repre-
sentatives shall give reasonable advance notice of a projected visit, in
order that appropriate consultations may be held and that maximum
precautions may be taken to assure safety and to avoid interference with
normal operations in the facility to be visited.
Art. 13. The provisions of this Treaty shall apply to the activities of

States Parties to the Treaty in the exploration and use of outer space, in-
cluding the moon and other celestial bodies, whether such activities are
carried on by a single State Party to the Treaty or jointly with other
States, including cases where they are carried on within the framework
of internationalintergovernmental organizations.
Any practical questions arising in connection with activities carried on

by international intergovernmental organizations in the exploration and
use of outer space, including the moon and other celestial bodies, shall
be resolved by the States Parties to the Treaty either with the appropri-
ate international organization or with one or more States members of
that international organization, which are Parties to this Treaty.
The Treaty incorporates the principles enunciated in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space. 37 The major difference between the Treaty and the Declara- tion is the inclusion in the Treaty of articles concerning the military uses of space and providing for mutual inspection of facilities on the moon and other celestial bodies. 38
(1)
There is no generally accepted boundary be- tween air space and outer space. Although the U.N. Com- mittee on the Peaceful Uses of Outer Space placed the problem of such a boundary on its agenda, it has done lit- tle work on it. Scholars and commentators have discussed a wide variety of possible boundaries. The physical charac- teristics of space and the atmosphere offer no sure guid- ance, but there is a tendency to agree that the boundary, if one is necessary, should be somewhere between the highest altitude at which aircraft dependent on the reac- tions of the air for lift and control can operate and the lowest altitude (perigee) at which artificial earth satellites can remain in orbit without being destroyed by friction with the air, roughly between 40 and 90 miles above the surface of the earth. 39

(2)
A more recent treaty, of considerable impor- tance to the United States, is The Agreement on the

37. G.A. Res. 1962, 18 U.N. GAOR Supp. 15, at 15, U.N. Doc. A/5515 (1963).
38.
See general!^, Demblig and Arons, The Evolution of the Outer Space Treaty, 33 J. Air L. & Corn. 419 (1967).

39.
See M. McDougal, H. Laswell & I. Vlasio, Law and Public Order in Space 323-59 (1963) (hereinafter cited as M. McDougal, Space Law), and J. Fawcett, International Law and the Uses of Outer Space 20-24 (1968). For a Soviet view, see Zhukov, Space Flights and the Problem of the Altitude Frontier of Sovereign&, [I9661 Y.B. of Air and Space L. 485.

Pam 27-161-1
Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space. 40 4-4. Extent of Territory. a. Having examined the various means by which states may acquire territory over which to exercise jurisdiction, attention must next be directed toward the extent of this territory. Such an analysis generally entails an examination of land, river, and lake boundaries. In this regard, spedic provisions of Restatement, Second, serve as pronouncements of the relevant international legal norms.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)

4 12. Land, River, and Lake Boundaries
(1)
The boundary separating the land areas of two states is deter- mined by acts of the states expressing their consent to its location.

(2)
Unless consent to a different rule has been expressed,

(a)
when the boundary between two states is a navigable river, its location is the middle of the channel of navigation;

(b)
when the boundary between two states is a nonnavigable river or a lake, its location is the middle of the river or lake.

Comment
a.
Land boundaries. . . . Many boundary disputes have been settled by peaceful means including, in particular, boundary conventions and arbitration, as in the case of the continental land boundaries of the United States. Because, in a dority of cases,the location of land bound- aries between states is defmed by agreement (frequently as interpreted by arbitration) almost no smc principles of international law have developed in this field.

b.
Thalweg doctrine. The rule locating the boundary in the middle of the channel of navigation rather than the middle of the stream is called the "thalweg" doctrine. See Louisiana v. Miissippi, 202 U.S. 1, 26 S.Ct. 408,50 L.Ed.913 (1906); New Jersey v. Delaware, 291 U.S. 361, 54 S.Ct. 407, 78 L.Ed.847 (1934).

c.
Effect of nanrral shifr. In disputes between the states of the United States, the Supreme Court has applied the distinction between accretion and avulsion, under which the boundary between two states shifts with the gradual shifting of the channel caused by erosion and deposit of alluvium (accretion) but does not shift when the river is suddenly diverted from the previous channel (avulsion). See Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396,36 L.Ed.186; Arkansasv. Tennessee, 246

U.S. 158, 38 S.Ct. 301, 62 L.Ed.638 (1918); 12 Am.J. Int'l L. 648 (1918). . . .
Although, as noted in the Comment to Q 12, the majority of land boundaries are defined by srnic agreement be- tween the states concerned, disputes still arise concerning the proper interpretation or application of such agree- ments. 41 One such boundary dispute of long standing in- volved the U.S. and Mexico. Inasmuch as this dispute in- volves several of the concepts spoken to in § 12 of the Restatement, it is of particular interest.
b. In the Treaty of Guadalupe Hidalgo of 1848 and the Gadsden Treaty of 1953, the United States and Mex- ico attempted to fix the boundary line between their respective territories. Because the Colorado and Rio Grande Rivers constantly shifted their channels, the two countries agreed in 1884 that the dividingline should con- tinue to "follow the center of the normal channel" of
40.
19 U.S.T. 7570; T.I.A.S. 6599; 672 U.N.T.S. 119.

41.
Seecase Concerning the Temple of Preah Vihear, (19621 I.C.J.

6.
each river, "notwithstanding any alterations in the banks
or in the course of those rivers, provided that such altera-
tions be effected by natural causes through the slow and
gradual erosion and deposit of alluvium. .. ." Other
changes brought about by the force of the current, such as
the sudden abandonment of an existing river bed and the
opening of a new one ("avulsion"), were to produce no
change in the dividmg line, which would continue to
follow the middle of the original channel bed, even
though this should become wholly dry or obstructed by
deposits. 42 In 1889, an International Boundary Commis-
sion was created by agreements between the United States
and Mexico and charged with the task of deciding whether
changes in the course of the Colorado River and the Rio
Grande had occurred "through avulsion or erosion" for
the purposes of the 1884 treaty. 43 In 1895 a dispute arose
over a tract of land in El Paso, Texas, known as "El
Charnixal." Each country claimed the entire tract. The
Boundary Commission was unable to agree on the bound-
ary line, and a convention was signed by the two govern-
ments on June 24, 1910, establishing a commission to
"decide solely and exclusively as to whether the interna-
tional title to the Chamizal tract is in the United States of
America or Mexico." 44 In rendering the award, the
Presiding Commissioner of the arbitral tribunal, with the
Mexican Commissioner concurring in part, said:
. .. [Tlhe Presiding Commissioner and the Mexican Commissioner are
of the opinion that the accretions which occurred in the Chamizal tract
up to the time of the great flood in 1864 should be awarded to the
United States of America, and that inasmuch as the changes which oc-
curred in that year did not constitute slow and gradual erosion within the
meaning of the Convention of 1884, the balance of the tract should be
awarded to Mexico. 45
The American Commissioner dissented. At the session of the Commission in which the award was read, the agent for the United States protested against the decision and award, inter alia, on the following grounds:
1. Because it departs from the terms of submission in the following particulars:
a.
Because in dividing the Chamizal tract is assumes to decide a question not submitted to the commission by the convention of 1910 and a question the commission was not asked to decide by either party at any stage of the proceedings;

b.
Because it fails to apply the standard prescribed by the Treaty of 1884;

c.
Because it applied to the determination of the issue of erosion or avulsion a ruling or principle not authorized by the terms of the submis- sion or by the principles of international law or embraced in any of the treaties or conventions existing between the United States and Mexico;

d.
Because it departs from the jurisdictional provision of the Treaty of 1889 creating the International Boundary Commission. 46

Shortly after the Commission had adjourned, the United States notified Mexico ". . . [fJor the reasons set forth by
42.
24 Stat. 101 1, 1 Malloy 1159.

43.
26 Stat. 1512, 1 Malloy 1167.

44.
36 Stat. 2481, 2483.

45.
Charnizal Arbitration (tTnited States v. Mexico), [I91 1) For Re1 U.S. 572, 586 (Int'l Boundary Commission 191 1).

46.
Id. at 597-98.

Pam 27-161-1

the American commissioner in his dissenting opinion, and by the American agent in his suggestion of protest, [it did] not accept this award as valid or binding." 47 The United States suggested the negotiation of a new boundary con- vention to settle the matter, but Mexico declined on the ground that the matter had been fully adjudicated and that there remained only the admittedly difficult task of relocating the line of 1864. Discussion of the matter was terminated because of disturbed conditions in Mexico, and no further action was taken until the conclusion in 1963 of a treaty by which the disputed territory was divided between the two countries. 48 The agreement en- tered into force on January 14, 1964.49 4-5. Scope of Territorial Jurisdiction. a. As was noted earlier in this chapter, jurisdiction is dependent upon the capacity to both prescribe and enforce rules of law. 50 It is essential to keep this fact in mind when examining the scope of territorial jurisdiction. With the increasing facility of communication and transportation, the opportunity for committing crimes, the constituent elements of which oc-cur in more than one state, have grown apace. Ac- cordingly, the jurisdiction of crime founded upon the ter- ritorial principle has been expanded in several ways. First, national legislation and jurisprudence have developed the subjective territorial principle, which establishes the juris- diction of the state to prosecute and punish for crime com- menced within the state but completed or consummated abroad. Secondly, there has, over the years, evolved the so-called objective territorial principle, which establishes the jurisdiction of the state to prosecute and punish for crime commenced outside of the state but consummated within its territory. 51 These concepts are reflected in the following provisions of the Restatement.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)

517.     Jurisdiction to Prescribe with Respect to Conduct, Thing, Status, or Other Interest within Territory
A state has jurisdiction to prescribe a rule of law
(a)
attaching legal consequences to conduct that occurs within its territory, whether or not such consequences are determined by the effects of the conduct outside the temtory, and

(b)
relating to a thing located, or a status or other interest localized, in its territory.

518. Jurisdiction to Prescribe with Rapt to Effect within Territory
A state has jurisdiction to prescribe a rule of law attaching legal conse- quences to conduct that occurs outside its territory and causes an effect within its territory, if either

'     47. Id.
15 U.S.T. 21, T.I.A.S. 5515, 505 U.N.T.S. 185. 48.

49.
See generally, 3 M. Whiteman, Digest of International Law 680-99 (1973) (hereinafter cited as 3 M. Whiteman). (1964). For a dis-cussion of the controversy from a Mexican point of view, see Antonio Gomez Robledo, Mexico y el Arbitrqje Inter~cio~I,

161-293 (1965). On international boundaries, see generally 3 M. Whiteman, supra. at 1-871.
50. See Page 4-1, supra.

51. See, Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am. J. Int'l L. Supp. 435, 484, 487-88 (1935) (hereinafter cited as Harvard Research, Criminal Jurisdiction).
(i) the conduct and its effect are constituent elements of ac-tivity to which the rule applies; (i) the effect within the territory is substantial; (iii) it occurs as a direct and foreseeable result of the con- duct outside the temtory; and (iv) the rule is not inconsistent with the principles of justice generally remgnized by states that have reasonably developed legal systems. the conduct and its effect are generally recognized as consti- tuent elements of a crime or tort under the law of states that have reasonably developed legal systems, or (a)

(b)

b.
The subjective territorial principle, embodied in Q 17 of Restatement, Second, has generated very little con- troversy. The objective territorial concept of Q 18, however, has consistently been criticized as an invalid ex- tension of the territorial base of jurisdiction. Nearly all European publicists have been critical of the Restate- ment's notion of extraterritorial application of a state's laws to its citizens. The European Advisory Committee on the Restatement criticized the Restatement rule of ex- traterritorial jurisdiction in the following manner:

In our view, the exercise of jurisdiction based on territory is not justified in cases where all that has occurred within the territory is the effects of certain conduct and not at least part of the conduct itself. 52
c.
As noted, the objective territorial principle is often said to apply where the offense "takes effect" or "pro- duces its effects" in the territory. In relations to elemen- tary cases of direct physical injury, such as homicide, this is only natural, for here the "effect" is an essential ingre- dient of the crime. Once out of the sphere of direct physi- cal consequences, however, the "effects" formula is most difficult to apply. Here, the effects within the territory may be fairly remote. Thus, the extension of the notion of effects, without qualification, from the simple cases of direct physical injury to cases such as defamation and sedi- tion, introduces a certain degree of ambiguity into the basis of the doctrine.

d.
Most of the major problems regarding the scope of territorial jurisdiction and conflicts between the territorial jurisdiction of several states have occurred in commercial and antitrust matters, i.e., basically concerns of private in- ternational law. 53 The reader should also be alert to the fact that though a state may prescribe rules against conduct which occurs outside of its territory, it is, due to the widespread opposition to the objective territorial concept, most mcult to enforce these norms on the basis of ter- ritorial jurisdiction. Effective enforcement thus depends generally on whether the state actually has custody of the individual or property in question. 4-6. Extradition. a. Basic Principles. Extradition is the surrender of an individual accused or convicted of a crime by the state within whose territory he is found to the state under whose laws he is alleged to have committed or to

52. Riedweg, The Exrra-Territorial Application of Restrictive Trade Legislatio~urisdiction and International Law, oNAL
INTERNATI LAW A~~OC~ATION,
Report of the FYw-First Cogerence, 357, 372-73, (1 964).
53. SeeU.S. v. Aluminum Co. of America, 148 F.2d 416 (1945), and the cases cites therein. See also, Pacific Seafarers, Inc. v. Pacific Far East Lie, Inc., 404 F.2d 804 (1968), cert. denied, 89 S.Ct. 872 (1969).
have been convicted of the crime. Until the nineteenth century, the extradition of fugitives was rare and was a matter of sovereign discretion rather than of obligation. With the dramatic improvements in transportation in the nineteenth century, however, the number of criminals fleeing to foreign states increased, and states began to con- clude bilateral treaties providing for their extradition. In Factor v. Laubenheimer, 54 the court noted that
. . . the principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its om con- stitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled . . .the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty.
In fact, the municipal law of many states prevents arrest and extradition of a fugitive except pursuant to a treaty operating as internal law or a statute providing for extradi- tion. 55 In the United States, international extradition is governed by Federal law. 56 The States have no power to extradite fUgitives to foreign countries.
(1)
Since most instances of extradition arise under bilateral or multilateral treaties, many of the problems raised by extradition are questions of treaty interpretation. Most bilateral treaties contain a list of acts for which a fugi-tive may be extradited. Multilateral and some bilateral treaties merely stipulate that the act for which extradition is sought be a crime in both the asylum and requisitioning states, punishable by a certain minimum penalty, usually imprisonment for at least one year.

(2)
Difficult problems arise under the treaties that list extraditable crimes when the act committed by the fbgitive is punishable in the requisitioning state and listed in the treaty, but not punishable in the asylum state because the law of the latter defines the crime differently. 57 In such a situation, if the asylum state ap- plies its own law to define the crime, it may violate its obligations under the treaty. If the asylum state applies the law of the requisitioning state, it would be extraditing the fugitive for an act that was not an offense under its own law. The solution to the problem may be found in the re- quirement of "double criminality,"i.e., that extradition is available only when the act is punishable under the law of both states. The name of the offense and the elements that make it criminal need not be precisely the same, pro- viding that the fugitive could be punished for the act in both states. 58 Under the requirement of "double crimi- nality," the act must be characterized as a crime by the law of the asylum state. However, in Factor v.

54.
290 U.S. 276, 287, 54 S.Ct. 191, 193 78 L.Ed. 315 (1933).

55.
See 2 D. O'Connell, International Law 793-94 (2d ed. 1970) (hereinafter cited as 2 D. O'Connell). Valentine v. U.S. ex re]. Neidecker, 299 U.S. 5, 9, 57 S.Ct. 100, 102, 81 L.Ed.5 (1936).

56.
18 U.S.C.A.58 3184-3195.

57. See Note, The Eisler Extradition Case, 43 Am. J. Int'l L. 487 (1 949).
$8. See Harvard Research in International Law, Drqft Convention on Extradition, 29 Am. J. In17 L. Spec. Supp. 81-86 (1935).
Laubenheimer, 59 the Court approved extradition to Great Britain for the crime of receiving money, knowing it to have been fraudulently obtained, although the law of Il-linois, where the fugitive was found, did not make such an act criminal. The Court felt that the extradition treaty be-tween the United States and Great Britain did not require "double criminality" for the particular offense and stressed the fact that the offense was criminal under the laws of several of the States. 60 The principle of "double criminality" would also require that the act be criminal in both states when it was committed. 61
(3)
Treaties frequently provide that extradition shall not take place if the prosecution of the fugitive is barred by a statute of limitations in either the asylum state or requisi- tioning state. 62 Moreover, according to the principle of specialty, the requisitioning state may not, without the permission of the asylum state, try or punish the fugitive for any crimes committed before the extradition except the crimes for which he was extradited. The permission of the asylum state is also required for the requisitioning state to re-extradite the fugitive to a third state. 63

(4)
The majority of extradition treaties contain pro- visions exempting nationals of the asylum state from ex- tradition. The usual provision is that neither party shall be obligatedto surrender its nationals, thusleaving the matterin the discretion of the asylum state. The policy, which is most commonly reflected in civil law jurisdictions, ap-parently stems from a feeling that individuals should not be withdrawn from the jurisdiction of their own courts. 64 However, the courts in many civil law countries have broad jurisdiction to try and punish their nationals for crimes committed in other countries. 65 Most common law states, including the U.S., limit their jurisdiction over a crime to the location of the offense. 66 The United States has not adopted a criminal code that generally provides for punishment of its own nationals for ordinary crimes com- mitted in other states. 67 me U.C.M.J. is, of course, an

59. 290 U.S. 276, 54 S.Q. 191, 78 L.Ed. 315 (1933).
60. For a critical analysis of this case, see Hudson, The Factor Case andDouble Criminaliw in Extradition, 28 Am. J. Int'l L. 274 (1934); c$, Borchard, The Factor Extradition Case, 28 Am. J. Int'l L. 742 (1934).
61.
But see U.S. ex rel. Oppenheirn v. Hecht, 16 F.2d 955 (1927), granting extradition for an act which was made criminal in the United States after it had been committed.

62.
See, e.g., Extradition Treaty between the United States and Great Britain, Dec. 22, 1931, art. 5, 47 Stat. 2122, T.S. 849, 163

L.N.T.S. 59.
63.
U.S. ex rel. Domefly v. Mulligan, 74 F.2d 220 (1934). See also, U.S. v. Rauscher, 119 U.S. 407,7 S.Ct. 234,30L.Ed. 425 (1886).

64.
See Havard Research, Criminal Jurisdiction, supra, note 51 at

125.
65. I. Shearer, Extradition in International Law 15-16 (1971) (hereinafter cited as I. Shearer).
66.
See, e.g., U.S. Const., Art. m,5 2, cl. 3.

67.
If criminal conduct by American citizens abroad were con- sidered an offense against the law of nations, Congress could defme and provide for the punishment thereof. U.S. Const., Art. I, 5 8, cl. 10. See Blackmer v. U.S., 284 U.S. 421,436-37 (1931); Steelev. Bulova Watch Co., 344 U.S. 280, 285-86 (1952); c$ herican kana Co. v. United Fruit Co., 213 U.S. 347, 353-57 (1909).

Pam 27-161-1

important exception to this rule. It is, however, limited to individuals on active duty in the Armed Forces.) 68 AC-cordingly, the U.S. enters into extradition treaties provid- ing only limited requirements for extradition of nationals to civil law countries. 69
(5)
In order to avoid creating absolute immunity for citizens who have committed crimes outside of its territo- ry, the United States is generally willing to allow extradi- tion of its nationals on a reciprocal basis. 70 Civil law coun- tries are reluctant to agree to this, however. 71 The U.S. also generally includes a clause in its extradition agree- ments which permits both states to deliver fugitive citizens when, in their discretion, they decide to do so. 72 The U.S. Supreme Court has upheld the validity of the refusal to extradite an American citizen who proved that the re- questing state, in clear violation of its bilateral treaty com- mitments, had refused to extradite its own nationals to the United States. 73 Multilateral extradition conventions which recognize the principle of nonextradition of na- tionals generally provide that if the asylum state refuses to extradite a national, it shall itself prosecute the person re- quested. 74

b.
The U.S.Extradition Process. Depending on munic- ipal law, extradition may be exclusively an executive func- tion or may require a judicial hearing. The United States requires a judicial hearing of the evidence against the fugi- tive. 75 Article 9 of the 1931 Extradition Treaty between the United States and Great Britain provides: "The ex- tradition shall take place only if the evidence be found sufficient, according to the laws of the High Contracting Party applied . . . to justify the committal of the prisoner for trial, in case the crime or offense had been committed in the territory of such High Contracting Party. . .." 76 If, on such hearing, [the judge] deems the evidence ~~cient to sustain the charge under the provisions of the proper treaty or convention, he shall cem the same, together with a copy of all the testimony taken before him, to the Secretary of State. The Secretary of State then may grant or refuse extradition. 77 The function of the judicial hear- ing is to permit the fugitive to insure that the proceedings comply with the applicable statutes and treaties. He may produce evidence that he did not commit the offense or object that the offense was political. The decision of the committing magistrate on the sufficiency of the evidence is not subject to correction by appeal. 78 The fugitive may, however, petition for a writ of habeas corpus to challenge the legality of his detention and may urge upon the Secre- tary of State that his extradition not be granted. 79

c.
Normtradition for Political Offenses. In the eight- eenth century, extradition was most frequently sought and canted for what are now termed political offenses. By the nineteenth century, public opinion in Western Europe turned against the extradition of fugitives accused of only political offenses. Belgium, which enacted the first ex- tradition law in 1833, incorporated the principle of nonex- tradition for political offenses into the law. Today, most

6s. See Art. 5, U.C.M.J., 10 U.S.C. 805 (1970); Toth v. Quarles, 350 U.S. 11 (1955); Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Kruger, 361 U.S. 234 (1960); McElroy v. U.S. ex re]. Gungliardo, 361
U.S. 281 (1960); U.S. v. Averette, 19 U.S.C.M.A. 363,41 C.M.R. 363 (1970). The Supreme Court casesheld unconstitutional a Congressional grant of limited authority for the exercise of court-martial jurisdiction over discharged servicemen (Art. 3(a), UCMJ, 10 U.S.C. 5 803(A) (1970)), and civilian employees and other persons accompanying the Armed Forces outside the United States (Art. 2(11), UCMJ, 10 U.S.C. 5 802(11) (1970)). The Court of Military Appeals in the Averette case decided that a provision of the Code (Art. 2(10), UCMJ, 10 U.S.C. 5 802(10) (1970)), purporting to grant jurisdiction over civilians amm- panying the Armed Forces oversees in wartime was not operative is an undeclared war such as the Vietnam conflict. For an excellent discussion of whether existing Status of Forces Agreements might be used as a substitute for extradition proceedings, see W. Norton, United States Obligation. Under Status of Forces Agreements: A new Method of Ex-tradition?, 1973 (unpublished thesis, The Judge Advocate General's School of the Army).
69.
I. Shearer, supra, note 65 at 68-72. Under the doctrine of, Charlton v. Kelly, 229 U.S. 447 (1913), extradition treaties containing no mention of the nationality of the fugitive compel the United States to surrender American citizens if all the other requirements of the treaty are satisfied.

70.
1. Shearer, supra, note 65 at 110. See, e.g., Extradition Treaty with Bavaria, Preamble, Sept. 12, 1853 [I8541 10 Stat. 1022, T.S. No.

17.
71.
See, e.g., Grundgesetz, Art. 16(2) (1949) w.Ger.). At least one miter from a civil law country considers that nonextradition of na- tionals is almost a principle of international law. S. Lazareff; Status of Military Forces under Current International Law, 232, 266 (1971).

72.
The extradition treaties with the following countries came into effect after the November 9, 1936, Supreme Court decision in United States ex rel. Valentine v. Niedecker, 299 U.S.5. Five contain provisions permitting extradition of the requested state's nationals when that state's appropriate authorities deem it proper: Liberia, Nov. 1, 1937, [I9391 54 Stat. 1733, T.S. No. 955; Sweden, Oct. 24, 1961 [I9631 14

U.S.T. 1845, T.I.A.S. No. 5496; Brazil, Jan. 16, 1961, [I9641 15 U.S.T. 2093, T.I.A.S. No. 5691; New Zealand, Jan. 12,1970, [I9701 22 U.S.T. 1, T.I.A.S. No. 7035; France, Feb. 12, 1970, [I9711 22 U.S.T. 407,
T.I.A.S. No. 7075; Spain, May 19,1970, [I9711 22 U.S.T. 737, T.I.A.S. No. 7136; Argentina, Jan. 21, 1972, [I9721 23 U.S.T. 3501, T.I.A.S. No. 7310. The only presently effective United States extradition treaty which precludes surrender of nationals and which was signed after the Valentine decision is the Extradition Treaty with Monaco. Older United States extradition treaties permitting discretionary sur- render of nationals and in effect on January 1, 1976, were with the following countries: Japan, Apr. 29, 1886, [I8861 24 Stat. 1015, T.S. No. 191; Mexico, Feb. 22, 1899, [I8991 31 Stat. 1818, T.S. No. 242; Argentina, Sep. 26, 1896, [I9001 31 Stat. 1883, T.S. No. 6; Guatamala, Feb. 27, 1903, [I9031 33 Stat. 2147, T.S. No. 425; Nicaragua, Mar. 1, 1905, [I9071 35 Stat. 1869, T.S. No. 462; Uruguay, Mar. 11, 1905, [I9081 35 Stat. 2023, T.S. No. 501. U.S. Dep't of State, Treaties in Force (1972).
73.
Charlton v. Kelly, 229 U.S. 447 (1913); see also, Neely v. Henkel, 180 U.S. 109 at 123 (1901).

74.
See, e.g., Convention on Extradition, signed at Montevideo, Dec. 26, 1933, Art. 2, 49 Stat. 3111, T.S. 882, 165 L.N.T.S. 45.

18 U.S.C.A. 5 3184. 47 Stat. 2125. 18 U.S.C.A. 5 3184. 75.

76.

77.

78.
Collins V. Mier, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920).

79. As has been noted, the U.S. extradition process is governed by Federal law, 18 U.S.C.A. 5 3184-3195. A complete treatment of U.S. extradition procedures is found in 6 M.Whiteman, Digest of lnternu- tional hw 905-1 117 (1968).
treaties exempt fugitives accused of political offenses from extradition. Though the principle has been almost univer- sally accepted, "political offenses" have never been pre- cisely defmed. The fvst attempt to delineate the principle was the "attentat" clause in many treaties, which pro- vides that the murder of the head of a foreign government or a member of his family is not to be considered a politi-cal offense. 80 Some treaties extend the exclusion to any murder or attempt, on life in general. 81 However, in 1934, in the absence of such a clause in the applicable treaty, the Turin Court of Appeal refused to extradite the assassins of King Alexander of Yugoslavia to France on the ground that the crime was political. 82
(1)
In 1892, Switzerland adopted a law which pro- vided that a crime was not to be considered political if it was primarily a common offense, even though it had a po- litical motivation or purpose. The decision on extradition was left to the highest Swiss Court. 83 Some treaties pro- vide that ". . . [clriminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations" shall not be con- sidered political offenses. 84 British and American courts have held that for an offense to be political, it must be committed in furtherance of a political movement or in the course of a struggle to control the government of a state. 85 However, this strict rule has been relaxed recently to provide refuge for private individuals fleeing totalitarian states. 86 Treaties also frequently prohibit extradition for purely military offenses. 87

(2)
The inability to define "political offense" con-tinues to be of primary concern to the international com- munity. Most treaties which speak to the extradition of in- dividuals who fall within the context of the agreements continue to grant states the right to unilaterally determine whether the offense of which the accused is charged is, in fact, political in nature. Accordingly, individuals who hi- jack aircraft or engage in other terrorist activities are, for

80. See, e.g., Treaty of Extradition Between the U.S. and, Venezuela, Jan. 19, 1922, Art. 3,43 Stat. 1698, T.S. 675,49 L.N.T.S.
435.
81.
See. e.g., Extradition Treaty Between Italy and Finland, 1928, Art. 3(3), 111 L.N.T.S. 295.

82.
In re Pavelie, [1933-341 Ann.Dig. No. 158 (Italy).

83. See 2 D. 0'Connell, supra, note 55 at 802.
84. Treaty of Extradition Between the U.S. and Brazil, Jan. 13, 1961, Art. V(6), 15 U.S.T. 2093, T.I.A.S. 5691, 532 U.N.T.S. 177.
85. In re Castioni, 1 Q.B. 149, 156, 166 (1891); In re Ezeta, 62 F. 972, 999 (1894).
86. See Reg, v. Governor of Brixton Rison, Ex parte Kolczynski, 1
Q.B. 540 (1954). For a discussion of political offenses, see Reg. v. Governor of Brixton Prison, Ex parte Schtraks, A.C. 556, 581-84, 587-92 (H.L.) (1964); Garcia Mora, Crimes Against Humanity and the Principle of Nonatradition of Political Offenders, 62 Mich. L. Rev. 927 (1964); Harvard Research, Criminal Jurisdiction, supra, note 51, at 107-19; Spanish-German Extradition Treaty case, Ann. Dig. No. 234 ' (Germany 1926).
87. See Convention on Extradition between the United States and Sweden, Oct. 24, 1961, Art. V(4), 14 U.S.T. 1845, T.I.A.S. 5496,494
U.N.T.S. 141.
the most part, able to find refuge in states which are sym- pathetic to their particular "political" cause. 88
d. Nonextradition for Military Offenses. Strictly mili- tary offenses such as desertion and absence without leave are as a general rule nonextraditable offenses. 89 a A miii-tary offense for purposes of extradition is one which is punishable only under military law. It does not constitute primarily an infraction of the ordinary penal law. Treaties usually use phrases such as "purely," "strictly," or "es-sentially" military offenses to delimit the type of offense which is nonextraditable. To fall within the exception of a "military offense," it must be shown that" . . . the acts charged do not con- stitute a crime under the ordinary laws of the requesting state." 89 b The crime of murder, for example, would not be considered a strictly military offense. As a Swiss Court stated in granting a French request for extradition, ". .. murder has never been regarded as a 'purely military' offense, because it affects human life and does not relate to military organization or military duties." 89 c Among the other crimes that would be punishable by military courts but which are not deemed to be "strictly military" are violations of the laws of war.
88. The U.N. has failed to take action on the recommendation of several of its members that aircraft hijacking and temorist activities be considered as crimes resulting in automatic extradition.
89 a. See, e.g., M. Bassiouni, International Exlradition and World Public Order 430-33 (1974); S. Bedi, Extradition in International Law and Practice 196 (1966); 4 G. Hackworth, Digest of International Law 192-93 (1942); 6 M. Whiteman, Digest of International Law 858-59 (1968); Shamgar, Extradition for Military Offenses, in 2 L'fitradition Pour Deli& Militaires 201, 205 (1969); I. Shearer, Extradition in Inter- national Law 9 (1971). A case illustrating this principle is In Re Girar- din,[1933-19341 Annual Digest of International Law Cases 357 (No. 153) (Camara Federal De La Plata, Argentina 1933). An example in a treaty is the Convention on Extradition Between the United States of America and Sweden, Oct. 24, 1961, 14 U.S.T. 1845, T.I.A.S. No. 5496, 494 U.N.T.S. 141. Article V states that extradition shall not be granted "[wlhen the offense is purely military." See York, Ektradition
for Militaty Offenses, in 2 L'Extradition Pour Deli& Militaires 273, 275-76 (1969). The principle stated above applies to formal extradition requests. It should be noted that serviceman stationed in countries with which the United States has a status of forces agreement can under certain circum- stance be transferred to the foreign country concerned for trial for cer- tain limited offenses. This does not involve an extradition procedure since the transfer is basically made pursuant to the custody provisons of the status of forces agreement. Seee.g., Holmes v. Laird, 459 F.2d 121 1 @.C. Ci. 1972), cert. denied, 409 U.S. 869 (1972); United States ex. re]. Stone v. Robinson, 309 F.Supp. (W.P.D.
Pa. 1970), qffd, 431 F.2d 548 (3d Ci. 1970); and William v. Rogers, 449 F.2d 513 (8th Ci. 1971); cert. denied, 405 U.S. 926 (1972).
89 b. M. Bassioni, supra note 89, at 433. The distinction between strictly military offenses that are not extraditable and ordinary crimes that are extraditable is made in the European Convention on Extradi- tion, Dec. 13, 1957, Art. 4. E.T.S. No. 24,359 U.N.T.S. 273; The Inter American Convention on Extradition, Dec. 26, 1933, Art. 3, 165
L.N.T.S. 45; and the Harvard Research in International Law, Draft Convention on Extradition, 29 Am. J. In17 L. Supp. 21, 119-122 (1935).
89 =.Ktu v. Ministere Public Federal, 34 International Law Reports 143, 145 Federal Tribunal, Switzerland 1961).
treaties exempt fugitives accused of political offenses from extradition. Though the principle has been almost univer- sally accepted, "political offenses" have never been pre- cisely defined. The first attempt to delineate the principle was the "attentat" clause in many treaties, which pro- vides that the murder of the head of a foreign government or a member of his family is not to be considered a politi- cal offense. 80 Some treaties extend the exclusion to any murder or attempt on life in general. 81 However, in 1934, in the absence of such a clause in the applicable treaty, the Turin Court of Appeal refused to extradite the assassins of King Alexander of Yugoslavia to France on the ground that the crime was political. 82
(1)
In 1892, Switzerland adopted a law which pro- vided that a crime was not to be considered political if it was primarily a common offense, even though it had a po- litical motivation or purpose. The decision on extradition was left to the highest Swiss Court. 83 Some treaties pro- vide that ". . . [clriminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations" shall not be con- sidered political offenses. 84 British and American courts have held that for an offense to be political, it must be committed in furtherance of a political movement or in the course of a struggle to control the government of a state. 85 However, this strict rule has been relaxed recently to provide refuge for private individuals fleeing totalitarian states. 86 Treaties also frequently prohibit extradition for purely military offenses. 87

(2)
The inability to define "political offense" con-tinues to be of primary concern to the international com- munity. Most treaties which speak to the extradition of in- dividuals who fall within the context of the agreements continue to grant states the right to unilaterally determine whether the offense of which the accused is charged is, in fact, political in nature. Accordingly, individuals who hi- jack aircraft or engage in other terrorist activities are, for

80. See, e.g., Treaty of Extradition Between the U.S. and, Venezuela, Jan. 19, 1922, Art. 3,43 Stat. 1698, T.S. 675,49 L.N.T.S.
435.
81.
See. e.g., Extradition Treaty Between Italy and Finland, 1928, Art. 3(3), Ill L.N.T.S. 295.

82.
In re Pavelie, [1933-341 Ann. Dig. No. 158 (Italy).

83. See 2 D. O'Connell, supra, note 55 at 802.
84. Treaty of Extradition Between the U.S. and Brazil, Jan. 13, 1961, Art. V(6), 15 U.S.T. 2093, T.I.A.S. 5691, 532 U.N.T.S. 177.
85. In re Castioni, 1 Q.B. 149, 156, 166 (1891); In re Ezeta, 62 F. 972, 999 (1894).
86. See Reg. v. Governor of Brixton Prison, Ex parte Kolczynski, 1
Q.B. 540 (1954). For a discussion of political offenses, see Reg. v. Governor of Brixton Prison, Ex parte Schtraks, A.C. 556, 581-84, 587-92 (H.L.) (1964); Garcia Mom, Crimes Against Humanity and the Principle of Nonextradition of Political Offenders, 62 Mich. L. Rev. 927 (1964); Harvard Research, Criminal Jurisdiction, supra, note 51, at 107-19; Spanish-German Extradition Treaty case, Ann.Dig. No. 234 , (Germany 1926).
87. See Convention on Extradition between the United States and Sweden, Oct. 24, 1961, Art. V(4), 14 U.S.T. 1845, T.I.A.S. 5496,494
U.N.T.S. 141.
the most part, able to find refuge in states which are sym- pathetic to their particular "political" cause. 88
d. Nonextradition for Military Offenses. Strictly mili- tary offenses such as desertion and absence without leave are as a general rule nonextraditable offenses. 89 a A mili- tary offense for purposes of extradition is one which is punishable only under military law. It does not constitute primarily an infraction of the ordinary penal law. Treaties usually use phrases such as "purely," "strictly," or "es- sentially" military offenses to delimit the type of offense which is nonextraditable. To fall within the exception of a "military offense," it must be shown that" . . . the acts charged do not con- stitute a crime under the ordinary laws of the requesting state." 89 b The crime of murder, for example, would not be considered a strictly military offense. As a Swiss Court stated in granting a French request for extradition, ". . . murder has never been regarded as a 'purely military' offense, because it affects human life and does not relate to military organization or military duties." 89 c Among the other crimes that would be punishable by military courts but which are not deemed to be "strictly military" are violations of the laws of war.
88. The U.N. has failed to take action on the recommendation of several of its members that aircraft hijaclung and terrorist activities be considered as crimes resulting in automatic extradition.
89 a .See, e.g., M. Bassiouni, International Extradition and World Public Order 430-33 (1974); S. Bedi, Extradition in International Law and Practice 196 (1966); 4 G. Hackworth, Digest of International Law 192-93 (1942); 6 M. Whiteman, Digest of International Law 858-59 (1968); Shamgar, Extradition for Military Offenses, in 2 L'Extradition Pour Delits Militaires 201, 205 (1969); 1. Shearer, Extradition in Inter- national Law 9 (1971). A case illustrating this principle is In Re Girar- din,[1933-19341 Annual Digest of Intemational Law Cases 357 (No. 153) (Camara Federal De La Plata, Argentina 1933). An example in a treaty is the Convention on Extradition Between the United States of America and Sweden, Oct. 24, 1961, 14 U.S.T. 1845, T.I.A.S. No. 5496, 494 U.N.T.S. 141. Article V states that extradition shall not be granted "[wlhen the offense is purely military." See York, Extradition
for Militaty Offenses, in 2 L'fitradition Pour Delits Militaires 273, 275-76 (1969).
The principle stated above applies to fonnal extradition requests. It should be noted that serviceman stationed in countries with which the United States has a status of forces agreement canunder certain circum- stance be transferred to the foreign country concerned for trial for cer- tain limited offenses. This does not involve an extradition procedure since the transfer is basically made pursuant to the custody provisons of the status of forces agreement. Seee.g., Holmes v. Laird, 459 F.2d 121 1 @.C. Cir. 1972), cert. denied, 409 U.S. 869 (1972); United States ex. rel. Stone v. Robinson, 309 F.Supp. (W.P.D. Pa. 1970), qffd, 431 F.2d 548 (3d Ci.1970); and William v. Rogers, 449 F.2d 513 (8th Cir. 1971); cert. denied, 405 U.S. 926 (1972).
89 b. M. Bassioni, supra note 89, at 433. The distinction between strictly military offenses that are not extraditable and ordinary crimes that are extraditable is made in the European Convention on Extradi- tion, Dec. 13, 1957, Art. 4. E.T.S. No. 24,359 U.N.T.S. 273; The Inter American Convention on Extradition, Dec. 26, 1933, Art. 3, 165
L.N.T.S. 45; and the Harvard Research in International Law, Draft Convention on Extradition, 29 Am. J. lntl L. Supp. 21, 119-122 (1935).
89 c .Ktir v. Ministere Public Federal, 34 Intemational Law Reports 143, 145 (Federal Tribunal, Switzerland 1961).
Pam 27-161-1

The concept of nonextradition for military offenses is illustrated in an extradition case decided in 1977. 89 d An Irish national in the United States armed forces was con- victed by a general court-martial in Vietnam for several offenses, including murder and absence without leave. He escaped from confinement and was subsequently irn-prisoned for a different offense in Canada. At the request of the Secretary of the Army, the Secretary of State for- mally asked for the serviceman's extradition to the United States for the murder offense only. Canada granted the extradition request and the serviceman was returned.
e. Methods Other Than Extradition. Where extradition is not possible because of the lack of a treaty or for some other reason, or where extradition is not feasible because of the time and expense involved, states may resort to other methods of surrendering or recovering fugitives. If the fugitive is not a national of the asylum state, it may deport him as an undesirable alien or exclude him (i.e., deny him permission to enter the country). In either case, the fugitive may be turned over directly to the state that desired to prosecute him, or may be sent to a third state from which his extradition is possible. The United States and Mexico and the United States and Canada have fre- quently resorted to exclusion or deportation in order to deliver fugitives to each other without going through the process of extradition. 89 e States may also acquire custody of fugitives by kidnapping or through the failure of police officials to observe the procedures governing extradition, deportation, or exclu- sion. In these situations, the United States courts have assumed jurisdiction over the fugitive in spite of the illegal manner in which he may have been brought into the country. 90 These methods of acquiring custody do, nevertheless, constitute violations of municipal or inter- national law. 91 4-7. Jurisdition Based on Nationality. a. A state has ju- risdiction to prescribe rules governing the conduct of its nationals outside its territory. As a result, it may use its enforcement jurisdiction to give effect to such rules by ac- tions taken against its nationals if they are found in the ter- ritory or, if they are not, by action taken against their property in the territory. Upholding a judgment for con- tempt against an American citizen who refused to return from France to testifl when ordered to do so, the
89 *. See DAJA-IA 1977/1064, dated 31 August 1977, Subject: Extradition of Servicemen from Canada; DAJA-IA 1977/1084, dated 20 December 1977, Subject: Extradition Case.
89 e. See Evans, Acquisition of Custody over the International Fugitive Offender-Alternatives to Extradition: A Survey of United States Practice, [I9641 Brit. Y.B. Int7 L. 77.
90.
SeeU.S. v. Insull, 8 F. Supp. 310 (1934); Ex parte Lopez, 6 F. Supp. 342 (1934); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Evans, supra at 89-93.

91.
The most celebrated case of illegally acquired jurisdiction is that of the Israeli kidnapping of Adolf Eichmann from Argentina. For the in- ternational issues raised by this act, see W. Friedmann, supra, note 32 at 495-97. A bibliography on the Eichmann trial is included in G. Mueller & E. Wise, International Criminal Law, 370-71 (1965).

Supreme Court said, in Blackmer v. United States, 92 "With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his government." 93 Hall writes:
Its laws travel with them [its nationals] wherever they go, both in places within and without the jurisdiction of other powers. A state can-not enforce its laws within the territory of another state, but its subjects remain under an obligation not to disregard them, their social relations for all purposes as within its territory are determined by them, and it preserves the power of compelling observance by punishment if a per- son who has broken them returns within its jurisdiction. 94

6. States exercise their jurisdiction to prescribe rules governing the conduct of their nationals in various degrees. In the United States, a number of statutory pro- visions, in addition to that under which Blackmer was convicted, specifically apply to the conduct or income of United States nationals abroad. 95 The U.S. does not, however, use extensively its prescriptive jurisdiction based on nationality. Generally, the use of this jurisdic- tional theory is the exception, rather than the rule, in common law states. Civil law countries usually make much more use of this concept, sometimes going so far as to provide that all, or nearly all, offenses committed by their nationals abroad are punishable if these citizens are ever found in the national territory. Some examples follow.
(1) In the United Kingdom, statutes provide for the punishment of not only treason, but also homicide, bigamy, perjury, and other crimes, when committed abroad by a British subject. 96 India has provided that its criminal law applies to Indian nationals everywhere, no
284 U.S. 421, (1932). 92.

93.
Id. at 437. The statute involved in Blackmer v. United States is now as 28 U.S.C.A. 5 1783 (1964), and is incorporated by reference into Fed.R.Civ.P. 45(e)(2) and Fed.R.Crim.P. 17(e) (2). It provides in relevant part that a United States court may order the is- suance of a subpoena requiring the appearance as a witness of a "na- tional or resident of the United States who is in a foreign country" if such testimony is "necessary in the interest of justice." For another case upholding jurisdiction over nationals abroad, see United States v. Bowman, 260 U.S. 94 (1922) (Prosecution for acts committed abroad to defraud the United States): "[Tlhe three defendants who were found in New York were citizens of the United States and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance." 260 U.S. at 102.

94. W. Hall, International Law 56-57 (8th ed. 1924).

95. See 18 U.S.C.A. 8 2381 (1964), proscribing treason by anyone "owing allegiance to the United States within the United States or elsewhere"; 18 U.S.C. 5 953 (1964), punishing unauthorized attempts by "any citizen of the United States, wherever he may be," to influence a foreign government in its relations with the United States; Internal Revenue Code 8 1, imposing an income tax on "all citizens of the United States, wherever resident"; and 50 U.S.C.A. app. 5 435 (1964), requiring "every male citizen of the United States," inter alia, to register for military service.
96. 10 Halsbuty's Laws of England 322-24 (Simonds ed. 1955). See also, 2 D. O'Connell, supra, note 55 at 898-99.
matter how minor the offense. 97 In France, a citizen can be prosecuted for any crime (roughly equivalent to felony) and many delits (misdemeanors) committed abroad. 98

(2)
In the case of In re Guttierez, 99 the defendant was a Mexican national charged with stealing a truck in Texas. The Mexican court dismissed his challenge to its jurisdiction on the broad ground, apparently, that a crime committed abroad by a Mexican national is punishable in Mexico.

(3)
A Dutch national ". .. is liable to prosecution in Holland for an offense committed abroad, which is punishable under Netherlands law and which is also punishable under the law of the country where the offense was committed. . . ." 100

(4)
In the case of In re Roquain, 101 Belgium, Court of Cassation, 1958, the defendant, while lawfiiy mar- ried, committed adultery in Paris. The court held the de- fendant could not be prosecuted because under "the law governing criminal proceedings in respect of offenses committed outside Belgian territory," the offense of adul- tery may be prosecuted only if it was committed against a Belgian national.

(5)
As to offenses generally, Spain apparently will not prosecute a Spanish national for an offense committed abroad unless the victim is also of Spanish na-tionality. 102

(6)
In X. v. Prosecutor, Netherland. 103 District Court of Middleburg, 1952, Court of Appeal of the Hague, 1952, the defendant was a national of the Netherlands. She lost her nationality by marriage, then committed outside the Netherlands a criminal offense for which she was prosecuted and convicted in the state where it was committed. Upon the dissolution of her marriage, she recovered her former Dutch nationality. She was then prosecuted for the same offense in the Netherlands. It was held that the previous prosecution abroad did not preclude a new prosecution in Holland, though it might mitigate the punishment, and moreover, she could not object to the prosecution on the ground that she had lost her na- tionality at the time the offense was committed. Any alien committing an offense abroad could be prosecuted if and when such person subsequently became a citizen of the

X v. Prosecutor (Netherlands), 19 Int'l L. Rep. 226 (1957). 26 Int'l L. Rep. 209, (1963). Public Prosecutor v. Y., 24 Int7 L. Rep. 264-265 (1961). 24 Int7 L. Rep. 265 (1961). Indian Penal Code, 5 4 (3d ed. 1965). 97.

98.
Code de Procedure Penale, Art. 689 (Dalloz ed. 1966); see Delaume, Jurisdiction over Crimes Committed Abroad: French and American Law, 21 Geo. Wash. L. Rev. 173 (1952); 1 Travers, Le Droit Penal International 584-631 (1920). See also, German Penal Code (Strafgesetzbuch) 5 3 (German criminal law applicable to Germans whether act committed in Germany or abroad), 5 4 (German criminal law applicable to persons acquiring German citizenship after criminal act has been committed).

99.

100.

101.

102.
Forgery Committed in Venezuela by a Spaniard, 89 Journal du Droit International 189 (1962).

103.

Netherlands.
c.
In United States v. Bowman, 104 the Supreme Court spoke to the circumstances under which a U. S. statute will be held to apply to conduct occurring outside United States territory, where the statute does not expressly so provide. In this decision, the Court held that a statute punishing conspiracy to defraud a United States-owned corporation was applicable to conduct taking place on the high seas. The Court stated that to limit the statute's scope to "the strictly territorial jurisdiction" would be greatly to curtail its usefulness and to leave open "a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home." In such cases, the Court continued, Congress had not "thought it necessary to make specific provision in the law that the locus shall in- clude the high seas and foreign countries, but allows it to be inferred from the nature of the offense." 10s The con- viction of three United States nationals was accordingly affimed on the ground that they were "certainty subject to such laws as [the United States] might pass to protect it- self and its property." 106 The Court expressly reserved the question whether there was jurisdiction to try to a fourth conspirator, a British subject, who had not been ap- prehended. 107

d.
Difficult questions arise when there is a conflict be- tween the demands of the state of which the individual is a national and those of the state in which he is residing. It has been held, however, that a state has jurisdiction to try and punish one of its nationals for an offense committed against its laws while he is residing abroad. 108

e.
The problem of civil jurisdiction is one in which in- ternational law leaves to each state a very wide choice. For instance, U. S. courts may deal with contracts made be- tween two French citizens in France with regard to con- duct performed in that state. Although applying French law, the court will nevertheless take jurisdiction, because, under U. S. law, the question of civil jurisdiction depends usually on the service of a summons or the attachment of property within U. S. territorial jurisdiction. 109 Under ex- isiting admiralty law, an individual may bring civil suit against a vessel, regardless of the location of the port in which it is located and "arrested." 110

Id. at 102. Id. at 98. 260 U.S. 94 (1922). 104.

105.

106.

107.
AS noted in n. 35, supra, the proposed Federal Criminal Code deals with extraterritorial jurisdiction in 5 204 of the Criminal Justice Reform Act of 1975.

108.
It has been held that a state has jurisdiction to try and punish one of its nationals for an offense committed abroad, even though he is also a national of the state in which the offense was committed. Coumas

v. Superior Court, 31 Cal.2d 682, 192 P.2d 449 (1948); Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952).
109.
McDonald v. Mabee, 243 U.S. 90 (1917); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

110.
Suits against vessels are in rem proceedings. For that reasor). the cases generally contain only the name of the ship which has been libeled.

f. In summary, then, jurisdiction based on nationality operates on the principle that a state may prescribe rules for the conduct of its own citizens, even when these in- dividuals are outside its territory. It is a theory universally recognized in international law as a proper basis for the exercise of jurisdiction. However, it is important to note that, although some U.S. laws apply to American citizens abroad, the U. S. views jurisdiction based on nationality as a secondary jurisdiction concept. On the other hand, civil law states generally regard it as the primary basis upon which to exercise jurisdiction over nationals outside these countries' territorial confines.
4-8. Jurisdiction Based on Agreement with the Ter-
ritorial State. a. As has been noted, a state " . ..
possesses and exercises within its own territory an ab-
solute and exclusive jurisdiction and . . . any exception to
this right must be traced to the consent of the nation,
either express or implied." 111 Accordingly, no state may
exercise its police powers in another state, even against its
own subjects, without the agreement of this state. An
analysis of several such agreements follows. These juris-
dictional arrangements should be of particular interest to
the military attorney.
6. After World War 11 the United States continued to control islands captured from Japan, including Okinawa and the other Ryukyu Islands. Article 3 of the 1951 Treaty of Peace with Japan gave to the United States, pending the creation, at the option of the United States, of a United Nations trusteeship administered by the United States, "the right to exercise all and any powers of admin- istration, legislation and jurisdiction, over the territory and inhabitants of these islands, including the territorial waters." 112 At the time the United States denied any in- tent of acquiring permanent possession of the islands and stated that Japan retained "residual sovereignty." 113 Sovereignty over the Ryukyu Islands did, in fact, revert to Japan on May 15, 1972. 114
c. The basis for United States jurisdiction in the Panama Canal Zone is a treaty of November 18, 1903, @tween the United States and Panama, by which the United States is granted "in perpetuity" the use, occupa- tion, and control of the ten-mile wide Canal Zone. Article III of the agreement provides that the United States may exercise all the rights, power, and authority " . .. which the United States would possess and exercise, if it were the sovereign of the territory within which said lands and water [i.e., of the Canal Zone] are located, to the entire exclusion of the exercise by the Republic of Panama of
25 Dep't State Bull. 455, 463 (1951). [I9511 3 U.S.T. 3169, T.I.A.S. 2490, 136 U.N.T.S. 45 (1951). 111.
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).

112.

113.

114.
For an excellent discussion of the Okinawan reversion, see Albertson, The Reversion of Okinawa: Its Effect on the International Law of Sovereignty over Territoty, 1973 (unpublished thesis, The Judge Advocate General's School of the Army).

any such sovereign rights, power or authority." 11s By an agreement of February 23, 1903, Cuba leased to the United States certain territory in Guantanamo for use by the latter as a naval station. Article III of the agreement recited the United States' recognition of Cuba's continu- ing "ultimate sovereignty" over the leased territory and Cuba's consent that the United States should exercise "complete jurisdiction and control over and within" the leased areas. 116 A later agreement of the same year fixed the conditions of the lease and also provided for the mutual extradition of persons committing offenses against the law of Cuba or the United States in areas under their respective control. 117 A signif~cant revision of jurisdic- tional arrangements in the Canal Zone is now under active consideration and negotiation.
d.
Another example ofjurisdiction based on agreement arises out of the trusteeship arrangements under chapter XII of the 'United Nations Charter and the mandate system under the Covenant of the League of Nations. The trustee state, while not sovereign of the trust territory, has the power to prescribe and enforce rules of law. Under the Trusteeship Agreement for the former Japanese Man- dated Islands, the United States was given full powers of administration, legislation and jurisdiction. 118 The powers of the trustee state are exercised under the super- vision of the Trusteeship Council of the United Nations.

e.
The territory of South West Africa, of which the Re- public of South Africa is the mandatory, is the only League of Nations mandate in which the mandatory still exercises jurisdiction. The International Court of Justice decided in 1950 that the supervisory functions provided for in the mandate were to be exercised by the United Na- tions. 119 The Court subsequently held that the mandate was still in existence and that charges of violations of the mandate and Charter were justiciable before the Court. 120 However, the Court, in effect, reversed its 1962 decision by holding, in 1966, that Liberia and Ethiopia lacked a legal right or interest in South Africa's administration of South West Africa and dismissed their action against South Africa. 121 Thereafter, the General Assembly passed a resolution declaring that South Africa's mandate over South West Africa was terminated, and that ". . . South West Africa comes under the direct

responsibility of the United Nations." 122 The Republic of South Africa, however, continues to exercise jurisdiction
South West Africa Cases, Preliiary Objections, [I9621 61 Stat. 3302, T.I.A.S. 1665, 8 U.N.T.S. 189. Id. at 360. 1 Malloy 358. 33 Stat. 2234. 115.

116.

117.

118.

119.
Advisory Opinion on the International Status of South West Africa, [I9501 I.C.J. 128.

120.

I.C.J. 319.
South West Africa Cases, Second Phase, [I9661 I.C.J. 6. 121.

122.
G.A. Res. 2145, 21 U.N. GAOR Supp. 16, at 2, U.N. Doc. A/63 16 (1966).

over South West Africa. 123
j States may also agree to exercise jurisdiction jointly over a territory. The resulting arrangement, the so-called condominium, may call for a joint or some form of divided administration of the conjoint sovereignty of the parties. Under one such agreement the United Kingdom and France govern the New Hebrides. 124 Neither party may exercise separate authority over the New Hebrides; however, each retah sovereignty over its nationals. De- pending on t!le subject matter, a resident may be subject to one of several courts. The Joint Court administers law binding on all residents. National Courts, of which there are two, administer the pertinent laws of either the United Kingdom or France. Each has jurisdiction over the na- tionals of the state whose laws it administers. Nationals of other states must opt for the legal system of one of the parties.
g. The types of jurisdictional arrangements based on agreement with the territorial state of most interest and relevance to the military attorney are those concerning
U.S. military forces stationed overseas. These agree-
ments-the Military Assistance Advisory Group
(MAAG) Agreement, the Military Mission Agreement,
and the Status of Forces Agreement (SOFA) will be ex-
amined fully in chapter 10.
4-9. Jurisdiction Based on Protection of Certain State,
Universal, and Other Interests. a. Protective Principles.

RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THEUNITED STATES (1965)

5 33. Protective Principle

(1)
A state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, pro- vided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.

(2)
Conduct referred to in Subsection (1) includes in particular the counterfeiting of the state's seals and currency, and the falsification of its official documents.

Section 33 of Restatement, Second, accurately reflects an extraterritorial theory of jurisdiction known as the protec- tive principle. An accepted, but ill-defined jurisdictional concept, this theory stands for the proposition that a state may exercise its jurisdiction over a national of another country who commits a particular act in his or a third state. The necessary jurisdictional linklies in the fact that the act is one directed against and adversely affecting particular interests of the state exercising this form of jurisdic- tion. 125
(1) A concise explanation of the U. S. view of the protective principle, as well as a clearly articulated distinc- tion between this concept and the objective territorial principle, is found in the following case.
123.
The U.N. and many other states now refer to South West Africa as Namibia.

124.
Protocol respecting the New Herbrides, Aug. 6, 1914, [I9221

Gr. Brit. T.S. 7, Cmd. 1681, 10 L.N.T.S. 333. 12'. C. Hyde, Znternational Law, 804-07 (2d rev. ed. 1945).
UNITED STATES v. PIZZARUSSO
United States Court of Appeals, Second Circuit, 1968.
388 F.2d 8 126

MEDINA, JUDGE. This case is of interest because it brings
CIRCUIT

before this Court for the fist time the question of the jurisdiction of the District Court to indict and convict a foreign citizen of the crime of knowingly making a false statement under oath in a visa application to an American consular official located in a foreign country, in violation of 18 U.S.C. Section 1546.1 Supreme Court cases give some guidance but none of them passes on this question directly. 2 A Ninth Circuit deci- sion, Rocha v. United States, 288 F.2d. 545 (9th Cu.),cert.denied 366
U.S. 948, 81 S.Ct. 1902,6 L.Ed.2d 1241 (1961), is in point but we sus- tain jurisdiction on the basis of somewhat different reasons.
The indictment charges that on March 4, 1965 Jean Philomena
PizzanrssowilfuUy made under oath a number of false statements in her
"Application for Immigrant Visa and Alien Registration" at the Ameri-
can Consulate, Montreal, Canada. Each of these false statements was
patently material to the matter in hand. For example: she falsely swore
that since her sixteenth birthday her only places of residence for six
months or more had been London, England and Montreal, Canada; she
falsely swore that she had been in the United States only for short visits
for pleasure; she falsely swore that she had never been arrested, and so
on. Although at all times pertinent to this case she was a citizen of
Canada, she was taken into custody in the Southern District of New
York on April 18, 1966.
Upon the issuance of the visa and by its use Mrs. Pizzarusso im-
mediately entered the territory of the United States, but this fact is not
alleged in the indictment nor required by the tern of the statue, nor is
it material, as we find the crime wascomplete when the false statements
were made to an American consular official in Montreal. We shall return
later to this feature of the case.
The evidence to sustain the charge is so ovewhelming that we shall not pause to discuss it. Indeed, the only contention made on this appeal is that the District Court lacked jurisdiction to indict appellant and con- vict her of the crime alleged. 3 As we fid no lack of jurisdiction, we affi the judgment. Our reasons follow.

International law has recognized, in varying degrees, five bases of ju- risdiction with respect to the enforcement of the criminal law. See Har- vard Research In International Law, Jurisdiction with Respect to Crime, 29 Am.J.Int'l L.Spec.Supp. 435, 445 (1935) (hereinafter cited as Har- vard Research). Thus both the territoriality and nationality principles under which jurisdiction is determined by either the situs of the crime or the nationality of the accused, are universally accepted. The thud basis, the protective principle, covers the instant case. By virtue of this theory a state "has jurisdiction to prescribe a rule of law attaching legal conse- quences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the con- duct is generally recognized as a crime under the law of states that have reasonably developed legal systems." Restatement (Second), Foreign Relations, Section 33 (1965). See also Harvard Research Section 7.5
Traditionally, the United States has relied primarily upon the ter- ritoriality and nationality principles, Harvard Research at p. 543, and judges have often been reluctant to ascribe extraterritorial effect to
1 . Fraud and misuse of visas, permils and other entry documents: "Whoever knowingly mnkes under oath my false statement with respect to a material fact in my application, allidavit, or other document roquind by the immigration laws or regulations pr&W thereunder, or knowingly presenls any such application, allidavit, or other document containing any such false slatement–shall be fied not more than S2,000 or imprisoned not more than live years, or both." '
2.
UnlredSIotes v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). cited by sp pllbeasauthority for upholding jurisdiction in the instant case is distinguishable, as thnt easein-volved imposition of crimii lisbility on United Slntes citizens for acts committed abroad.

3.
Appellant wived a one-year suspended sentenoe and was placed on probation for two Y-.

5 .The other two principles anuniversality, where jurisdiction is determined by the custody of the person committing the olTense and passive personality, where jurisdidon is determined by reference tothe nationality of the person ~ured.Harvard Research at p. 445.
126. Cert. denied, 392 U.S. 936, 88 S.Ct. 2306 (1968).
Pam 27-161-1

statutes. See, e.g., American Banana Co. v. United Emit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). Nonetheless, our courts have developed what has come to be termed the objective territorial principle as a means of expanding the power to control activities detrimental to the state. This principle has been aptly defmed by Mr. Justice Holmes in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560,55 L.Ed.735 (191 1). "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect * * * ." See also Judge Learned Hand's opinion in United States v. Aluminum Co. of America, 148 F.2d. 416 (2d Cir. 1945). Underlying this principle is the theory that the ''detrimental effects" constitute an element of the offense and since they occur within the country, jurisdiction is properly invoked under the territorial principle. See also Restatement (Second), Foreign Relations Law Section 18.
However, the objective territorial principle is quite distinct from the protective theory. Under the latter, all the elements of the crime occur in the foreign country and jurisdiction exists because these actions have a "potentially adverse effect" upon security or governmental functions, Restatement (Second) Foreign Relations Law, Comment to Section 33 at p. 93, and there need not be any actual effect in the country as would be required under the objective temtorial principle. Courts have often failed to perceive this distinction.
Thus, the Nmth Circuit, 6 in upholding a conviction under a factual situation similar to the one in the instant case, relied on the protective theory, but still felt constrained to say that jurisdiction rested partially on the adverse effect produced as a result of the alien's entry into the United States. The Ninth Cucuit also cited Strassheim and Aluminum Company of America as support for its deckion. W~th all due reference to our brothers of the Ninth Cucuit, however, we think this reliance is unwarranted. A violation of 18 U.S.C.A. Section 1546 is completeas the time the alien pe jures himself in the foreign criminal sanctions of Sec-tion 1546 will never be enforced unless the defendant enters the coun- try, but entry is not an element of the statutory offense. Were the statute re-drafted and entry made a part of the crime we would then be presented with a clear case of jurisdiction under the objective territorial principle.
Statutes imposing criminal liability on aliens for committing pe jury in United States Consulates in foreign countries have been in existence for over one hundred years, see, e.g., 22 U.S.C. Section 1203, which was derived from an act of 1856, and oftentimes courts have routinely sus- tained convictions without even considering the jurisdictional question. See, e.g., United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cu. 1956).7 Only one court has ever held that the United States did not have jurisdiction to proceed against an alien under the legislation governing this case. United States v. Baker, 136 F. Supp. 546 (S.D.N.Y. 1955). In Baker it was conceded that there was authority for deporting an alien for making perjurious statements to a United States Consul, United States ex re]. Majka v. Palmer, 67 F.2d 146 (7th Cu. 1933), but the court thought the imposition of criminal sanctions was "far different" from deportation and dismkd the indictment. We would have sustained jurisdiction in Baker had the case been before us, and in this view we are apparently joined by the judge who decided Baker, since he presided over the instant case in the court below. Affumed.
(2) In United States v. Rodriguez, 127 the defendant

6. Roeha v. UnifedSfufes,288 F.2d 545 (9th Cu.),cerf. denied. 366 U.S. 948, 81 S.Ct. 1902; 6 L.Ed.2d 1241 (1961).
7 .One other court has upheldjurisdiction under a statute comparable to 18U.S.C. -on 1546on an alternativeground. The District court for the Southern District of California, relying in pan on the lerrilorialprinciple, sustained the convictionof an.alienfor falseswearingin a visa application, on the somewhat novel theory that the United StatesConsulate was pan of United States territory. United Sfufes v. Archer, 51 F. Supp. 708 (1943).
127. 182 F. Supp 479(1960). Affumed sub nom. Rocha v. United States, 288 F.2d 545 (1961), with respect to the substantive counts of the indictment, reversed as to conspiracy counts not at issue in Rodriguez, cert. denied, 366 U.S. 948, 81 S.Ct. 1902 (1961).
aliens were charged with making false statements in im-migration applications while they were outside the United States. The court discussed the territorial and the protec- tive principles in the following terms:
Acts committed outside the territorial limits of the State but intended to produce, or producing, effects withim the boundaries of the State are subject to penal sanctions; . . .Where the effect is felt by private persons within the State, penal sanctions rest on the "objective," or "subjec- tive," territorial principle . . .Where the effect of the acts committed outside the United States is felt by the government, the protective theo- ry affords the basis by which the state is empowered to punish all those offenses which impinge upon its sovereignty, wherever these actions take place and by whomever they may be committed. The results of such a theory are, in many ways, similar to those reached in the Strassheim case …where the court directed its attention to the objec- tive results of the criminal act and the location of its effect. Any act which would offend the sovereignty of a nation must, of necessity, have some effect within the territorial limits of that state or there would be no adverse effect upon the government justifying a penal sanction. 128
(3)
The court in Pizzarusso holds the principle to be applicable because the conduct of the aliens abroad had a "potentially adverse effect" upon the governmental func- tion. The Court in Rodriguez holds the principle applicable because the conduct of the aliens abroad of necessity had "some effect" upon the governmental function in the United States. It may be that the difference between the two formulations is metaphysical. What is important, however, is the wiJlingness of both courts to use the pro- tective principle. The alternative in both cases would have been to hold that an effect in the territory had taken place when the aliens entered the United States. Had the courts involved adopted this position, they would have reflected a traditional attitude towards the protective principle, for little use has been made of it in the United States in the past. A manifestation of this traditional attitude can be found in legislation concerning counterfeiting: it is a Federal offense to counterfeit foreign currency in the United States, but not a Federal offense to counterfeit United States currency abroad.

(4)
It is beyond doubt that the protective principle applies to crimes such as the counterfeiting of state seals, currency, stamps, passports or other public documents. Most states punish these offenses wheresoever and by whomever committed. The danger, however, is that the principle can be abused due to its susceptibility to prac- tically unlimited expansion. The danger is particularly great when the principle is formulated in broad terms, as it often is, and made to cover any crime against the security, temtorial integrity, or political indept3ndence of the state.

b.
Nationality of the Victim. This so-called "passive personality" theory has failed to gain universal acceptance and has always been challenged by the United States. The concept is based on the proposition that a state may exer- cise its jurisdiction on the basis of the nationality of the victim. Two cases serve to demonstrate this principle.

128. 182 F. Supp. 488-89.
(1) In the Lotus Case 129 Turkey tried and convicted a French national on the basis of a Turkish criminal statute which provided that Turkey might try and punish any individual who injured a Turkish citizen. This particu- lar case involved a collision between a French vessel, the Lotus, and a Turkish ship, the Boz-Kourt, five to six miles off the coast of Turkey. Upon the docking of the Lotus in Turkey, a Lt. Demons, officer of the watch on the Lotus on the day of the crash, was arrested and con- victed of manslaughter on the basis, partially, of the above-mentioned Turkish statute. As a result of strong French protests, Turkey agreed to submit the question of the legality of Lt. Demons' conviction to the Permanent Court of International Justice. The Court, in upholding the conviction, decided the case on other grounds, one of which was the fact that, as the Turkish citizens killed in the collision were abroad a Turkish vessel, Turkey had ter- ritorial jurisdiction. The majority of the Court did not, however, hold the Turkish statute in question to be in- valid. 130 In his dissenting opinion in the Lotuscase, Judge Moore stated that basing jurisdiction on the nationality of the victim meant that:
.. . . the citizen of one country, when he visits another country, takes with him for his "protection" the law of his own country and subjects those with whom he comes into contact to the operation of that law. . .. It is evident that this claim is at variance not only with the principle of exclusive jurisdiction of a State over its own territory, but also with the equally well-settled principle that a person visiting a foreign country, far from radiating for his protection the jurisdiction of his own country, falls under the dominion of the local law. .. . 131
(2) The Cutting incident of 1886-88 arose out of the Mexican prosecution of an American citizen who had allegedly libeled a Mexican by means of a statement published in a Texas newspaper. Judge Moore, then a State Department Officer, had prepared the Report on Ex-traterritorial Crime and the Cutting Case, 132 on which subsequent United States protests were based. The Mex- ican Government relied on Article 186 of the Mexican Penal Code, which provided, in part, that "[plenal offenses committed in a foreign country . . . by a foreigner against Mexicans, may be punished . . . [in Mexico] ac- cording to its laws," if the accused was present in Mexico, if he had not been "definitively tried in the country where the offense was committed," and if the offense was a "penal offense" by the laws of both states. Secretary of

[I8871 U.S. For. Rel. 757. "Lotus" Case, supra, note 129 at 92. Case of the S.S. "Lotus," [I9271 P.C.I.J., ser. A, No. 9 (hereinafter cited as "Lotus" Case). 129.

130.
The Geneva Convention on the High Seas, 13 U.S.T. 2312 (1958) (hereinafter cited as High Seas Convention) provides in Article 11 that penal or disciplinary action arising out of collision or other inci- dent of navigation may be instituted only before judicial or administra- tive authorities either of the state of which the individual proceeded against is a national, or the flag state of the vessel on which he sewed. Ships may be arrested or detained, even as a measure to aid investiga- tion, only by authorities of the flag state. Only the state which issued a master's certificate or other license may revoke the certificate.

131.

132.

State Bayard stated in an instruction dated November 1, 1887, to the United States Charge d'Affaires in Mexico: [Tlhe assumption of the Mexican tribunal, under the law of Mexico, to punish a citizen of the United States for an offense wholly committed and consummated in his.orm country against its laws was an invasion of the independence of this Government. . . . .. .It is not now, and has not been contended, by this Government . ..that if Mr. Cutting had actually circulated in Mexico a libel printed in Texas, in such a manner as to constitute a publication of the libel in Mexico within the terms of Mexican law, he could not have been tried and punished for this offense in Mexico. . . . As to the question of international law, 1 am unable to discover any principle upon which the assumption of jurisdiction made in Article 186 of the Mexican penal code can be justified. . . . It has constantly been laid down in the United States as a rule of ac- tion, that citizens of the United States cannot be held answerable in foreign countries for offenses which were wholly committed and con- summated either in their own country or in other countries not subject to the jurisdiction of the punishing state. When a citizen of the United States commits in his own country a violation of its laws, it is his right to be tried under and in accordance with those laws, and in accordance with the fundamental guaranties of the Federal Constitution in respect to criminal trials in every part of the United States. To say that he may be tried in another country for his offense, simply because its object happens to be a citizen of that country, would be to assert that foreigners coming to the United States bring hither the penal laws of the country from which they come, and thus subject citizens of the United States in their own country to an indefinte criminal respon- sibility. .. .133
c. Universal Jurisdiction. The last basis of jurisdiction to merit discussion is the "universality" theory. As in the case of "passive personality," this jurisdictional concept enjoys limited acceptance. The only crime to which its ap- plicability appears to be wisely recognized is that of piracy. In this regard, Hackworth writes:
It has long been remgnked and well settled that persons and vessels engaged in piratical operations on the high seas are entitled to the pro- tection of no nation and may be punished by any nation that may ap prehend or capture them. This stem rule of international law refers to piracy in its intemational law sense and not to a variety of lesser maritime offenses so designated by municipal law. 134
The 1958 Geneva Convention on the High Seas 135 con-tainsspecific articles pertaining to piracy and the universal right of states to apprehend and punish those guilty of this crime.
Art. 14.AU States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the ju- risdiction of any state.
Art. 19. On the high seas, or in any other place outside the jurisdic- tion of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
Art. 21. A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government sentice authorized to that effect.
(1) The characteristic of piracy as a crime of univer-
133. Id. at 751.
'34. 2 G. Hackworth, Dkest of International Law 681 (1941).

135. Geneva Convention on the High Seas, supra, note 130.
Pam 27-161-1

sal interest is that any state apprehending the alleged pirate outside the territory of any other state, that is, upon the high seas, may exercise prescriptive and enforcement ju- risdiction over him. 136
(2) Certain other crimes are universally, or almost universally, condemned and made the subject of multilateral international conventions aimed at their elimination. Theseinclude the slave trade, to which Arti- cle 13 of the Convention on the High Seas 137 makes reference. This particular provision commits the parties to this Agreement to adopt effective measures to prevent and punish the transport of slaves in vessels authorized to fly their flags and to prevent the unlawful use of their flags for this purpose. Under Article 22(1) (b) of this Conven- tion, a warship may board a foreign merchant vessel on the high seas ifthere is reasonable grounds for suspecting that the latter is engaged in the slave trade.
(3) In addition to slave trade, traffic in women for prostitution, traffic in narcotic drugs, and war crimes have been the subject of similar universal condemnation. However, with the possible exception of war crimes, universal interest in the suppression of slavery and these other crimes has not as yet been carried to the point of recognition either in customary law or in international agreements, of the principle of universal jurisdiction that obtains in the instance of piracy. 138
Section 11. CASES OF MULTIPLE JURISDICTION
4-10. General. As indicated by the preceding discussion of the various jurisdictional theories, there do arise cases of dual or multiple jurisdiction. For example, if an Italian citizen commits murder in the United States, the U.S. may exercise jurisdiction on the basis of the territorial theory, while Italy may claim jurisdiction on the basis of either the nationality or universalityconcept. The jurisdic- tional complexities can be even further multiplied if the accused has dual nationality, that is, if he has both Italian and Greek citizenship. Finally, still another state may seek
to exercise jurisdiction on the basis of the passive per- sonality theory. In most instances of dual jurisdiction, the state having the accused in custody will exercise jurisdic- tion over him. This, as noted above, results from the fact that, subject to specific agreement, the police of one state may not legally exercise their authority in the territory of another. This general rule is, of course, subject to treaties of extradition and other agreements arrived at between states on the diplomatic level.
Section 111. JURISDICTION OVER AIRCRAFT AND SPACE VEHICLES
4-11. Jurisdiction Over National Aircraft and Space Vehicles. a. General. When the twentieth century began, the techniques of fight and space exploration were drnost all in the future. Little in the way of positive law existed for the regulation of the technology that exploded in the fust decade of the century. It is instructive to ob- serve the ways in which international.law has been created by a process that either anticipated changes or reacted to events that have not been foreseen.
b. Nationality of aircraft and space vehicles.
CONVENTION ON INTERNATIONAL CNIL AVIATION
Signed at Chicago, December 7, 1944
61 Stat. 1180,T.I.A.S. 1591, 15 U.N.T.S. 295

Art. 17.Aircraft have the nationality of the State in which they are registered. Art. 18.An aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another.
Art.19.The registration or transfer of registration of aircraft in any contracting State shall be made in accordance with its laws and regula- tions.
l7 and l9 of the Chiago Convention are as that law regards &Ich state's of its nationality to aircraft as con-chive. 139 Earlier aviation agreements had contained similar provisions. Whether articles 17 and 19 of the chicaso convention and COTTesponding provisions of earlier agreements merely codify rules that would be bind- ing as customary international law in the absence of agree- ment is a question still under debate. 140
c. Scope of Jurisdiction Over National Aircraft, Space Vehicles, and Persons Thereon.
CONVENTION ON INTERNATIONAL CIVIL AVIATION
Sied at Chicago, December 7, 1944
61 Stat. 1180,T.I.A.S. 1591, 15 U.N.T.S. 295

Art.12.Each contracting State undertakes to adopt measures to in- sure that every aircraft flying over or maneuvering within its territory and that every aircraft canying its nationality mark, wherever such aircraft may be, shall comply with the rules and the regulations relating to the flight and maneuver of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible dxtent, withthose established from time to time
136. On piracy, see generally. Harvard Research in International Law,Piracy, 26 Am. J. Int'l L. Supp. 739 (1932); Lenior, Piracy Cases in the Supreme Court, 25 J. Crim. L. and Crimir 532 (1934); Johnson, Piracy in ~odern International Law, 43 ~rans.-Grot. Soc j, 63 (1 957);
the municipal law of a number of states provides for the punishment of so-called delicta juris gentium other than piracy on the same basis as the latter. See Harvard Research, Criminal Jurisdiction, supra, note 51 at 569-72.
Hi Seas Convention, supra, note 130. 137.

138.
A strong argument exists that S@IC provisions of each of the four 1949 Geneva Conventions, to which reference was made in chapter I, establish a "universal" jurisdiction on the part of signatories over "grave breaches" of the Conventions. Each Convention contains similar articles to this effect. In the Geneva Convention Relative to the Treatment of Prisoners of War, these articles 129-131.See D.A. Pam 27-1,Treaties Governing Land WaLre (Decembn 195b).

139.
See, e.g., M. McDougal, Space Law, supra, note 39at 552-54 (1963).

140.
Compare, e.g., id. at 553-54,with B. Cheng, The Law of In- ternational Air Transport 130-31 (1962).

under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State under- takes to insure the prosecution of all persons violating the regulations applicable.
d. The International Civil Aviation Organization. The Convention on International Civil Aviation created the International Civil Aviation Organization U.C.A.O.), an intergovernmental organization, the objectives of which are to "develop the principles and techniques of interna- tional air navigation and to foster the planning and development of international air transport." The conven- tion entered into force for the United States on April 4, 1947. As of January 1, 1975, 119 states were parties to the convention, including the United States and the USSR. In 1945 the United States became a party to the International Air Services Transit Agreement. 141 Article 1, section 1, provides the so-called "two freedoms" for scheduled air services:
Each contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled intemational air services:
(1)
The privilege to fly across its temtory without landing;

(2)
The privilege to land for nontraffic purposes.

The privileges of this section shall not be applicable with respect to air- ports utilized for military purposes to the exclusion of any scheduled in- ternational air services. In areas of active hostilities or of military occupa-tion, and in time of war along the supply routes leading to such areas, the exercise of such privileges shall be subject to the approval of the competent military authorities.
As of January 1, 1975, 86 states were parties to the Tran- sit Agreement.
(1)
There is no widely accepted multilateral treaty which provides for the granting of trafKc rights to foreign airlines. Consequently, the operation of international scheduled airlines depends on the consent of the states to or through the territory of which they fly.

(2)
The possession of these privileges by a foreign airline depends either on a unilateral grant by a state, or on a bilateral agreement between the state of the airline and the other state. Since World War 11, close to a thou- sand bilateral agreements concerning these privileges have been made between the states of the world. Before World War 11, the United States government generally permitted its airlines to obtain operating rights abroad through their own arrangements with the foreign governments con- cerned. In that period, few governments outside North America desired reciprocal rights in the United States for their airlines. During the war, however, the policy of the United States was changed in favor of operating rights abroad being obtained by inter-governmental agree- ments, whenever feasible, and the United States has bilateral air transport agreements with some ffty nations. Such agreements are concluded as "executive agree-ments" rather than "treaties," and are negotiated by teams composed of officials of the Department of State and Civil Aeronautics Board, with the Department of

141. 49 Stat. 1693; 84 U.N.T.S. 389.
State having the primary responsibility. A representative of the United States air carriers sits in during the negotia- tions as an observer. 142 4-12. Jurisdiction Over Foreign Aircraft and Space Vehicles. a. Sovereign0 Over Airspace.
CONVENTION ON INTERNATIONAL CIVIL AVIATION
Signed at Chicago, December 7, 1944
61 Stat. 1180, T.I.A.S. 1591, 15 U.N.T.S. 295

Art. 1.The contracting States recognize that every State has complete
and exclusive sovereignty over the airspace above its territory.
Art. 2. For the purposes of this Convention the temtory of a State
shall be deemed to be the land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty, protection, or mandate of
such State.
Art. 5. Each contracting State agrees that all aircraft of the other con-
tracting States, being aircraft not engaged in scheduled intemational air
services shall have the right, subject to the observance of the terms of
this Convention, to make flights into or in transit nonstop across its ter-
ritory and to make stops for non-traffic purposes without the necessity
of obtaining prior permission, and subject to the right of the State flown
over to require landing. Each contracting State nevertheless reserves the
right, for reasons of safety of flight, to require aircraft desiring to
proceed over regions which are inaccessible or without adequate air
navigation facilities to follow prescribed routes, or to obtain special per-
mission for such flights.
Such aircraft, if engaged in the carriage of passengers, cargo, or mail
for remuneration or hue on other than scheduled intemational air ser-
vices, shall also, subject to the provisions of Article 7, have the privilege
of taking on or discharging passengers, cargo, or mail, subject to the
right of any State where such embarkation or discharges takes place to
impose such regulations, conditions, or limitations as it may consider
desirable.
Art. 6. No scheduled international air service may be operated over or
into the territory of a contracting State, except with the special permis-
sion or other authorization of that State, and in accordance with the
terms of such permission or authorization.
(1)
The Convention goes on to provide a legal framework regulating flights of civil aircraft (excluding state aircraft. which include aircraft used in military, customs, and police services). Under Article 3, state aircraft are not permitted to fly over or land in the territory of a state without authorization by special agreement or otherwise.

(2)
The question is often raised as to whether aircraft enjoy a right of "innocent passage" through the air space of a foreign state in the absence of the latter's express agreement. 143 The International Air Services Transit Agreement 144 grants limited transit and landing rights to scheduled aircraft. As a matter of practice, no state con- cedes or claims a right of innocent passage for aircraft in the air space of another state, absent international agree- ment. Statements made by delegates to the Geneva Con- ference on the Law of the Sea (1958) indicate a widespread conviction that aircraft enjoy no right of inno- cent passage, such comparable privileges as exist being

142. Lissitzyn, Bila~eral Agreements on Air Transport, 30 J. Air L. & Corn. 248 (1 964). See also chap. 8, infra.
143. On the tight of innocent passage of vessels through a foreign state's territorial waters, see pages 4-31 thru 4-33, iqfra.
144. Dec. 7, 1944, 59 Stat. 1693, 84 U.N.T.S. 389, E.A.S. 487.
Pam 27-161-1
solely the result of international agreement. 145
(3) Another question often posed is whether a right

) of "entry in distress' exists for aircraft. Article 25 of the Convention on International Civil Aviation provides: "Each contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable. . . ." Whether the foregoing provision imposes any obligation with respect to state aircraft, or whether states not parties to the Chicago Con- vention are under any similar obligation with respect to aircraft of any type, are still open questions. The ad hoe committee of the General Assembly on the peaceful uses of outer space, however, "considered that certain sub- stantive rules of international law already exist concerning rights and duties with respect to aircraft and airmen land- ing on foreign territory through accident, mistake or dis- tress. The opinion was expressed that such rules might be applied in the event of similar landings of space vehi- cles." 146
(4) A problem related to that of landing rights is raised when an aircraft enters another state's air space because of either navigational error or because it is forced by bad weather to do so. In 1946 five United States air- men were killed when their unarmed transport was shot down over Yugoslavia. The United States claimed that the plane had been forced by bad weather to deviate from its course. Yugoslavia, however, denied that there was bad weather in the vicinity of the incident and alleged that the aircraft had ignored landing signals. In paying an indem- nity, "inspired by human feelings," to the United States on behalf of the families of the airmen, Yugoslavia reserved its position on the facts. 147 Numerous subse- quent disputes involving a number of Western and Soviet-bloc states were characterized by disagreement over factual issues, such as the location of aircraft, the reason for their presence in foreign territory, and whether they had been warned to land. 148 The conclusion has been offered, however, that:
. . . there is a right of entry for all foreign aircraft, state or civil, when such entry is due to distress not deliberately caused by persons in control of the aircraft and there is no reasonably safe alternative. . . . Foreign aircraft and their occupants may not be subjected to penalties or to un- necessary detention by the territorial sovereign for entry under. such cir-cumstances or for entry caused by a mistake, at least when the distress or mistake has not been due to negligence chargeable to the persons in control of the aircraft. 149
6. Sanctions Against Aircraft Entering Airspace. Does the fact that a state has jurisdiction to prescribe law governing the airspace above it mean that it has freedom of choice in the methods used to exercise that jurisdic-
145. See, e.g.,3 U.N.Conf. on the Law of the Sea, Of$ Rec. 8, 104 (United Kingdom), 26 (United States), 90-91 (Canada) (1958); 1 Id. 336 (comments by International Civil Aviation Organization) (1958).
14-5. U.N.Doc.A/4141, at 67 (1959). 14'. See Lissitzyn, The Treatment of Aerial Intruders in Recent Practice and International Law, 47 Am. J. Int7 L. 559, 569-73 (1953).
148.
Id. at 573-85.

149.
Id. at 588-89.

tion? Does a state have a right to shoot down any plane that enters its airspace? In 1955 an El A1 Israel Airlines Ltd. commercial airplane, with passengers aboard, en- tered the airspace of Bulgaria for "some unknown reason." Bulgarian fighter aircraft frred at the plane; it ex- ploded in flight and crashed in Bulgarian territory. All 58 persons aboard were killed, including American and Brit- ish passengers. Proceedings were instituted against Bulgaria in the International Court of Justice by Israel, the United States and the United Kingdom, protesting the in- human and excessive use of force by the Bulgarians, the lack of adequate warning, the failure of Bulgaria to recog- nize the right of entry in distress. The cases did not proceed to the merits because of Bulgaria's having failed to consent to the jurisdiction of the Court. 150

(1)
In May 1960 a United States U-2 reconnaissance plane was shot do* while flying over the Soviet Union at an altitude of approximately 60,000 to 68,000 feet. The United States did not protest the Soviet action; nor did it protest the trial, conviction and imprisonment for es-pionage of the American pilot. However, issues other than "technical" trespass of Soviet airspace were involved in the U-2 incident. The criminal charge against the American pilot in the Soviet Union was espionage, as defined in the domestic law of that state. In the tradition of the international spy, fictional and real, the espionage agent is " out in the cold." 151 When Soviet fire brought down a United States RB-47 two months later, however, the United States made vigorous protests on the ground that the aircraft had been over the high seas at the time of its interception. The Soviet Union claimed that the Amer- ican plane had deliberately intruded into Soviet airspace and had disobeyed an order to land. 152

(2)
It is an accepted principle of international law that aircraft of one nation are not permitted to fly over another without the other's consent and that they may be obliged to land if' they stray. But, the degree of force which a country may use to enforce an order to land would de- pend on the facts of any s@~c incident and the reasonableness of the belief that the intruder aircraft con- stituted a threat. Subsequent to the 1967 conflict in the Middle East, Israel claimed sovereignty over the Sinai and the airspace above it. On February 21, 1973, a Libyan Arab Airlines passenger plane flying from Tripoli to Cairo apparently experienced navigational diff~culties, wandered 100 miles east of its normal track and was intercepted by two F-4 fighters of the Israeli Air Force over the Sinai. The Libyan airliner was visually signaled by the intercep- tors to follow them and the airliner lowered its landing gear but shortly thereafter retracted the landing gear and continued straight ahead. The lead interceptor then fired a

150.
9 k Whiteman, Digest of International Law 326-340 (1968).

151.
See Wright, Legal Aspects of the U-2Incident, 54 Am. J. Int7

L. 836, 838 (1960).
152. See Liitzyn, Some Legal Implications of the U-2and RB-47 Incidents, 56 Am. J. Int7 L. 135 (1962).
burst of tracer ammunition across the flight path of the Lib- yan craft and again gave the visual signal to "follow me." The airliner did not comply with this command. The final result of the incident was that after several attempts to compel the airliner to land, the Israeli pilot fired at the starboard wing roof of the plane. The airliner then at- tempted a forced landing in the desert but was unsuc- cessful, the ensuing crash killing over 100 passengers and crew. 153 While publicly regretting the tragedy, the Israelis maintained that their actions were motivated by self- defense and were a legitimate exercise of their sovereign power. The Israeli government characterized the incident as the result of a "tragic series of mistakes" and stated that it would not have forced the plane down ifit knew the true circumstance but that, at the time, it had reason to fear a possible "suicide bombing mission" on an Israeli town or military installation by an airliner loaded with ex- plosives. 154
c. Security Zones. To what extent may security con- siderations justify the extension by a state of its jurisdic- tion into zones of airspace contiguous to those in which it enjoys sovereignty? The United States (since 1950) and Canada (since 195 1) have promulgated regulations estab- lishing Air Defense Ident5cation Zones (ADIZ) ,extend-ing out some points several hundred miles over the high seas. Foreign aircraft entering such zones are required to file fight plans and to make periodic position reports. The United States regulations appear to be normally applicable to foreign aircraft only if they are bound for the United States, but there is no comparable limitation in the Cana- dian regulations. During the Algerian conflict, France es- tablished a "zone of special responsibility," extending some eighty miles from the coast of Algeria, within which aircraft were required to file detailed information regard- ing their flight, to stay within assigned corridors, and to maintain contact with ground identification stations. 155 4-13. Offenses Aboard or Against Aircraft. a. The spe- cial maritime and territorial jurisdiction of the United States is defined in 1 8 U.S.C. 7. In United States v. Cor-dova, 156 it was held that an aircraft was not a "vessel" within the meaning of 18 U.S.C.A. 7(1) and that a United States court therefore had no jurisdiction to try and punish a defendant accused of assaulting certain persons (including the pilot) on a United States aircraft flying over the high seas between Puerto Rico and New York. Con- gress thereupon amended 18 U.S.C. § 7 by an act of July
153. For an in-depth factual account of this incident, see Aviation
Week and Space Technology, July 9, 1973, at 51; July 16, 1973,85; and July 23, 1973, at 83.
154. N.Y. Times, Mar. 2, 1973, 5 1, at 4, col. 1.
155. See M. McDougal, Space Law, supra, note 39 at 307-1 1; Mac-Chesney, Situation Documents and Commentary on Recent Develop- ments in the International Law of the Sea 577-600 in Naval War College, International Law Situation and Documents 1956; J. Murchison, The Contiguous Air Space Zone in International Law (1957); Martial, Smte Control of the Air Space Over the Territorial Sea and the Contiguous Zone, 30 Can. Bar Rev. 245 (1952).
156. 89 F. Supp 298 (1950).
12, 1952 (69 Stat. 589), adding a new subsection (5) ,so
that the "special maritime and territorial jurisdiction of
the United States" now includes:
Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Tenitory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
Note that sec. 501 (b) of the Federal Aviation Act of 1958 157 permits the registration in the United States only of aircraft owned by citizens of the United States and not registered in any foreign country. United States citizens are not forbidden, however, to own or otherwise hold in- terests in aircraft that are registered in a foreign country.
b. Hijacking. A passenger in a commercial airplane threatens to explode a bomb which, he asserts, is in a handbag he is carrying. The pilot diverts the flight of the plane to a destination demanded by the passenger. The passenger leaves the plane at that destination and the plane is flown to its original destination. Even in this sim- ple example there may be a number of problems of domestic and international law. The plane may be registered in the United States or in some other country. The passenger may hijack the plane on the ground in New York, while it is over the Atlantic on its way to London, or while it is on the ground in London. The hijacker may be a U.S. national or the national of another state. He may or may not eventually return to the United States and thus be subject to its enforcement jurisdiction. The United States may ask the government of the foreign state in which the hijacker is located to return him to the United States by extradition proceedings. Additionally, the government of a state to which the hijacker has fled may decide to try him, even though that state has had no con- nection with the event other than having become a place of refuge.
(1) The 1963 Tokyo Convention. 158 This conven- tion was drafted under the auspices of the International Civil Aviation Organization and signed in 1963. It entered into force for the United States on December 4, 1969. Sev- enty-four states were parties to the Convention on Janu- ary 1, 1975. The Convention is concerned broadly with the question of crimes on board aircraft in flight, on the surface of the high seas, or any other area outside the ju- risdiction of a nation state. A special purpose of the Con- vention is to provide that there be no lapse of jurisdiction with respect to such crimes. To that end, Article 3 pro-vides that at least one state shall have jurisdiction:
Article 3
1.
The State of registration of the aircraft is competent to exercise ju- risdiction over offenses and acts committed on board.

2.
Each Contracting State shall take such measures as may be neces- sary to establish its jurisdiction as the State of registration over offenses

157.
49us.c.~.5 1401(b).

158.
Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 20 U.S.T. 2941 (Documentary Supplement) (1969).

committed on board aircraft registered in such State.
3. This Convention does not exclude any criminal jurisdiction exer- cised in accordance with national law.
Article 4

A Contracting State which is not the State of registration may not in- terfere with an aircraft in flight in order to exercise its criminal jurisdic- tion over an offence committed on board except in the following cases:
(a)
the offence has effect on the temtory of such State;

(b)     
the offence has been committed by or against a national or per- manent resident of such State;

(c)
the offence is against the security of such State;

(d)
the offence consists of a breach of any rules or regulations relat- ing to the flight or manoeuvre of aircraft in force in such State;

(e)
the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.

The Convention deals in detail with the powers of the aircraft commander to "off-load" and to restrain offend- ers or suspected offenders. Article 11 deals specifically with hijacking:
Article 11

1.
When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight or when such an act is about to be com- mitted, Contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft.

2.
In the cases contemplated in the preceding paragraph, the Con- tracting State in which the aircraft lands shall permit its passengers and crew to continue their journey as soon as practicable, and shall return the aircraft and its cargo to the persons lawfully entitled to possession. The provision on extradition (Article 16) is relatively weak:

1.
Offences committed on aircraft registered in a Contracting State shall be treated, for the purpose of extradition, as if they had been com- mitted not only in the place in which they have occurred but also in the temtory of the State of registration of the aircraft.

2.
Without prejudice to the provisions of the preceding paragraph, nothing in this Convention shall be deemed to create an obligation to grant extradition.

(2) The 1970 Hague Convention. 159 The Hague Convention was a product of the work of the ICAO. It was approved at a diplomatic conference at The Hague in 1970 and entered into force for the United States on Octo- ber 14, 1971. Fifty-nine states were parties to the Con- vention on January 1, 1975. In contrast to the Tokyo Convention, the Hague Convention is directed narrowly to the question of hijaclung. Its major provisions create universal jurisdiction for the prosecution of hijackers and impose an obligation on the states either to prosecute the hijacker or to extradite him:
Article 1

Any person who on board an aircraft in flight:
(a)
unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or at- tempts to perform any such act, or

(b)
is an accomplice of a person who performs or attempts to per-

form any such act commits an offence (hereinafter referred to as "the offence").
Article 4
1. Each Contracting State shall take such measures as may be neces-

159. Convention for the Suppression of Unlawful Seizure of Aircraft, T.I.A.S. 7192 (Documentary Supplement).
sary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases:
(a)
when the offence is committed on board an aircraft registered in that State;

(b)
when the aircraft on board which the offence is committed lands in its temtory with the alleged offender still on board;

(c)
when the offence is committed on board an aircraft leased with- out crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.

2.
Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its temtory and it does not ex- tradite him pursuant to Article 8 to any of the States mentioned in para- graph 1 of this Article.

3.
This Convention does not exclude any criminal jurisdiction exer- cised in accordance with national law.

Article 7
The Contracting State in the territory of which the alleged offender is

found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed in its temto-
ry, to submit the case to its competent authorities for the purpose of
prosecution.
Those authorities shall take their decision in the same manner as in

the case of any ordinary offence of a serious nature under the law of that
State.
Article 8

1.
The offence shall be deemed to be included as an extraditable of- fence in any extradition treaty existing between Contracting States. Contracting States undertake to include the offence as an extraditable offense in every extradition treaty to be concluded between them.

2.
Ifa Contracting State which makes extradition conditional on the existence of a treaty receives a request for extradition from another Contracting State with which it has no extradition treaty, it may as its op- tion consider this Convention as the legal basis for extradition in respect of the offence. Extradition shall be subject to the other conditions pro- vided by the law of the requested State.

3.
Contracting States which do not make extradition conditional on the existence of a treaty shall recognize the offence as an extraditable of- fence between themselves subject to the conditions provided by the law of the requested State.

4.
The offence shall be treated, for the purpose of extradition be-tween Contracting States, as if it had been committed not only in the place in which it occurred but also in the territories of the States required to establish their jurisdiction in accordance with Article 4, paragraph 1.

(3) U. S. legislation relevant to the 1970 Hague Convention follows:
U.S. FEDERAL A VIA TION ACT OF 1958 (AS AMENDED), SECTION 902
75 Stat. 466 (1961), 49 U.S.C.A. 5 1472
Title 49, Section 1301.
As used in this chapter, unless the context otherwise requires-

.. . .

outside the United States which has its next scheduled destination or last point of departure in the United States provided that in either case it next actually lands in the United States. For the purpose of this def~tion,an aircraft is considered to be in flight from the moment when power is applied for the purpose within the United States, or any other aircraft- aircraft of the national defense forces of the United States; and civil aircraft of the United States; (32)
The term "special aircraft jurisdiction of the United States" in-cludes the following aircraft while in flight-

(a)

(b)

(c)

(i)

(ii)

of takeoff until the moment when the landing run ends.
Title 49, Section 1472.

(i)
(1) Whoever commits or attempts to commit aircraft piracy, as herein defined, shall be punished-

(A)
by death if the verdict of the jury shall so recommend, or, in the case of a plea of guilty, or a plea of not guilty where the defendant has waived a trial by jury, if the court in its discretion shall so order; or

(B)
by imprisonment for not less than twenty years, if the death penalty is not imposed.

(2)
As used in this subsection, the term "aircraft piracy" means any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft within the special aircraft jurisdiction of the United States.

6) Whoever, while aboard an aircraft within the special aircraft ju- risdiction of the United States, assaults, intimidates, or threatens any Mt crew member or hght attendant (iiluding any steward or steward- ess) of such aircraft, so as to interfere with the performance of such member or attendant of his duties or lessen the ability of such member or attendant to perform his duties, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon shall be imprisoned for any term of years or for life.
(k)
(1) Whoever, while aboard an aircraft withiin the special aircraft jurisdiction of the United States, commits an act which, if committed within the special maritime and territorial jurisdiction of the United States, as defmed in section 7 of Title 18, would be in violation of [sec-tions defming, inter alia, murder, robbery, assault] shall be punished as provided therein.

(2)
Whoever, while aboard an aircraft within the special aircraft jurisdiction of the United States, commits an act, which, ifcommitted in the District of Columbia would be in violation of section 9 of the Act en- titled "An Act for the preservation of the public peace and the protec- tion of property within the District of Columbia," approved July 29, 1892, as amended (D.C. Code, sec. 22-1 112), shall be punished as pro- vided therein.

c.
Sabotage. The Sabotage Convention 160 was adopted by a Conference on International Air Law at Montreal in 1971. It entered into force on January 26, 1973, and as of January 1,1975, had 59 signatories. The scope of the con- vention is described by the head of the U.S. delegation to the conference as follows:

Although this convention is similar to the Hijacking Convention in many respects, it is significantly distinct: It does not, basically, require states to define any new offenseeit covers acts which already are com- mon crimes; it does not, for the most part, establish new crimes to fall within the extradition process-most of the acts already are extraditable crimes. These were important elements of the Hijacking Convention. It might be said that states could punish offenders or extradite them with- out this convention.
What this convention does is to impose an obligation on states requir-ing them to prosecute or extradite offenders. It serves as a waning to any person who contemplates such acts that the intemational com- munity has responded with unanimity to condemn such acts. In this respect it is like the Hijacking Convention.
And in an important respect this convention does more than the Hi- jacking Convention. It covers acts against aircraft in a state's domestic service, even when the acts take place wholly withiin that same state, if the offender escapes to another state. While this element is not critical for the Hijacking Convention, it is crucial for the effectiveness of the convention we have concluded, because of the possibility that offenders may escape before they are discovered. This convention declares that no one who sabotages a civil aircraft-whether in domestic or intemational service-no one who places a bomb on board such an aircraft, no evil-
160. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, T.I.A.S. 7570 (Documentary Supplement).
doer who commits violence aboard such an aircraft in flight, no criminal of this character shall ever find sanctuary anywhere- in the world, no matter how deviously he may seek to evade retribution for his deeds., The parties to this convention have declared that this despicable criminal shall be pursued without respite. 161
4-14. Jurisdiction Over Vessels and Individuals Thereon. a. The importance of international norms com- prising the Law of the Sea becomes increasingly apparent, as there is now under way a signif~cant struggle over the control and use of the world's oceans. There exists an ongoing debate over whether navigation, fishing, and the extraction of minerals can be engaged in freely by all states in all parts of the oceans, or whether countries can carve out areas of the sea for their exclusive use and control. There is agreement that a state has jurisdiction over its "internal waters" and an area of the sea adjoining the coastline, the "territorial sea." There is no agreement, however, as to how wide an area may be lawfully claimed as territorial sea. The United States, though claiming a ter- ritorial sea of three miles, has indicated it might accept a twelve-mile limit. In contrast, while the claims of most states do not exceed twelve miles, a few countries claim an area as extensive as 200 miles. Beyond the territorial sea, there are claims to more limited use of the oceans, with respect to so-called contiguous zones, and beyond these zones, with respect to portions of the seabed such as the continental shelf. Moreover, though an older body of law governs many of the uses of the high seas, new law is being formulated with respect to the bed of the deep sea.
(1)
The 1958 Geneva Conference on the Law of the Sea has had 'a significant impact on the development of legal norms in this area. The conventions emanating from that conference variously codified portions of the custom- ary law or created new law. Not all of the problems that were then perceived were solved by the conventions, however, The conference was unable, for example, to agree on the breadth of the territorial sea. Moreover, technological developments have created new problems about the exploitation of the seabed. 162

(2)
In 1970, the General Assembly of the United Nations decided to convene a third conference on the law of the sea in 1973. Accordingly, the taskof preparing draft articles was assigned to the Assembly's Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction. The conference, scheduled for 1973, actually convened in 1974 in Caracas, Venezuela. As a result of little substantive progress, further sessions were held in 1975 and 1976. In 1976 the conference issued a Revised Single Negotiating Text and recommended that another session be held in

65 Dep't State Bull. 464 (1971). 161.

162.
The conventions are: Convention on the Territorial Sea and the Contiguous Zone, 516 U.N.T.S. 205, 15 U.S.T. 1606; Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2312; Convention on the Continental Shelf, 49 U.N.T.S. 31 1, 15 U.S.T. 471; and Convention on Fishing and Conservation of the Living Resources of the High Seas, 17

U.S.T. 138. 559 U.N.T.S. 285.
Pam 27-161-1
1977. 163 The Revised Single Negotiating Text may prove to be the single most important document regarding the law of the sea since the 1958Geneva Convention in terms of its influence on state practice, whether by way of an ulti- mate treaty produced by the conference or by the effect it will have on how the law is regarded by states even with- out a treaty.
4-15. Nationality of Vessels.
CONVENTION ON THE HIGH SEAS
Geneva, April 28, 1958
13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82

.Art. 4. Every State, whether coastal or not, has the right to sail ships
under its flag on the high seas.
Art. 5. (1) Each State shall fix the conditions for the grant of its na-
tionality to ships, for the registration of ships in its territory, and for the
right to fly its flag. Ships have the nationality of the State whose flag they
are entitled to fly. There must exist a genuine link between the State
and the ship; in particular, the State must effectively exercise its jurisdic-
tion and control in administrative, technical and social matters over
ships flying its flag.
(2)
Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.

Art. 6. (1) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high ?as. A ship may not change its flag during a voyage or whiie in a port of call, save in the case of a real transfer of ownership or change of registry.

(2)
A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in

163. For a concise discussion of the third Conference and the unresolved issues, see Stevenson and Oxman, The Third United Nations Corlference on the Law of the Sea: The 1974Caracas Session, 69 Am. J. Int7 L. 1 (1975); The Third United Nations Co@rence on the Law of the Sea: The 1975 Geneva Session, 69 Am. J. Int'l L. 763 (1975); The Third United Nations Corlference on the Law of the Sea: The New York Sessions, 71 Am. J. Int7 L. 247 (1977). For the 1976 Revised Single Negotiating Text, see U.N. Doc. AICONF. 62/WP.8/REV 1, May 6, 1976. The negotiations at the Third Conference are basically deadlocked over three critical issues: a regime for exploiting the resources of the deep seabed, the rights of landlocked and geographically disadvantaged states, and the legal status of the agreed 200-mile economic zone. Regarding the latter issue, the Revised Single Negotiating Text, id., in providmg for a 200-mile zone, reflects what had essentially become a fait accompli as a result of the tide of state claims in recent years running to approximately this extent. In March of 1977, the United States began to roll with this tide by claiming such a zone in order to control foreign fishing within 200 miles of U.S. coasts. See Fishery Conservation and Management Act, P. L. 94-265, 90 STAT 331 (1 March 1977). Since then, states, such as Canada, Denmark, the Federal Republic of Ger- many, France, India, Norway, Pakistan, South Africa, the U.K., and the
U.S.S.R. have declared their intent to claim such zones regardless of the outcome of the Thud Conference. Unresolved, however, is the issue concerning the scope of "national jurisdiction" in the zone. One group of states, mostly South American, contend that such jurisdiction should be total, making the zone in effect a territorial sea in which other coun-tries only enjoy such rights as navigation, overtlight, and cormnunica- tion. Another group, mostly maritime nations, want to lit coastal state jurisdiction to a right to exploit the natural resources in the zone. They would limit the territorial sea to 12 miles and would defme the re- mainder of the 200-mile zone as part of the high seas, subject only to certain economic rights of the coastal state. Still another position, perhaps a popular middle ground, would classify this area as neither high seas nor territorial sea but subject to "national jurisdiction," except for the freedoms of navigation and overflight and the right to lay cables.
question with respect to any other State, and may be assimilated to a ship without nationality.
The report of the Senate Committee on Foreign Relations explained the final version of Article 5 as follows: The International Law Commission did not decide upon a definition of the term "genuine link." This article as originally drafted by the Commission would have authorized other states to determine whether there was a "genuine link" between a ship and the flag state for pur- poses of recognition of the nationality of the ship. It was felt by some states attending the Conference on the Law of the Sea that the term "genuine link" could, depending upon how it were defined, limit the discretion of a state to decide which ships it would per- mit to fly its flag. Some states, which felt their flag vessels were at a com- petitive disadvantage with vessels sailing under the flags of other states, such as Panama and Liberia, were anxious to adopt a definition which states like Panama and Liberia could not meet. By a vote of 30 states, including the United States, against, 15 states for, and 17 states abstaining, the provision was eliminated which would have enabled states other than the flag state to withhold recognition of the national charter of a ship if they considered that there was no "genuine link" between the state and the ship. Thus, under the Convention on the High Seas, it is for each state to determine how it shall exercise jurisdiction and control in adrniinistra- tive, technical and social matters over ships flying its flag. The "genuine link" requirement need not have any effect upon the practice of registering American built or owned vessels in such countries as Panama or Liberia. The existence of a "genuine link" between the state and the ship is not a condition of recognition of the nationality of a ship; that is, no state can claim the right to determine unilaterally that no gen- uine link exists between a ship and the flag state. Nevertheless, there is a possibility that a state, with respect to a particular ship, may assert before an agreed tribunal, such as the International Court of Justice, that no genuine link exists. In such event, it would be for the Court to decide whether or not a "genuine lii" existed. 164
4-16. Scope of Jurisdiction Over National Vessels and Persons Thereon. a. Control over the movements and activities of national vessels. It is generally recognized that it is ". . . unquestioned practice that the state which is responsible for a ship's conformity with international law has a competence equal to its responsibility and may con- trol the movement and activities of its ships as its in-terpretation of community obligations and its national .policies require." 165 An example of this authority, as ex-ercised by the United States, follows.
U.S. DEP'T OF COMMERCE, TRANSPORTATION ORDER
T-2 (AMENDED)

Section 1. Prohibition of movement of American carriers to Communist
China; North Korea, or to the Communist-controlled area of Viet
Nam.
No person shall sail, fly, navigate, or otherwise take any ship docu-

mented under the laws of the United States or any aircraft registered under the laws of the United States to any Chinese Communist port; North Korea, any other place under the control of the Chinese Com- munist, or to the Communist-controlled area of Viet Nam. Section 2. Prohibition on transportation of goods destined for Com-
164. Executive Report No. 5-Law of the Sea Convention, 106 Cong. Rec. 11189, 90, 86th Cong., 2d Sess., 1960. See generally, M. McDougal & W. Burke, The Public Order of the Oceans 1013-15, 1033-35, 1073-75, 1080-82, 1087-88, 1137-39 (1962) (hereinafter cited as M. McDougal, Oceans Law), and B. Bonek, Flags of Conven- ience 2766-3 (1 962).
165. M. McDougal, Oceans Law, at 1066.

munist China; North Korea, or the Communistcontrolled area of
Viet Narn.
No person shall transport, in any ship documented under the laws of

the United States or in any aircraft registered under the laws of the
United States, to Chinese Communist ports, North Korea, any other
place under the control of the Chinese Communists, or to the Com-
munist-controlled area of Viet Nam, any material, commodity, or cargo
of any kind. . . .
b. Acts committed aboard national vessels.
m D STATES v. mm
Supreme Court of the United States, 1933
289 U.S. 137, 53 S.Ct. 580, 77 L.Ed.1086

JUSTICE STONE:By indictment found in the District Court for

Eastern Pennsylvania it was charged that appellee, a citizen of the
United States, murdered another citizen of the United States upon the
Steamship Padnsay, an American vessel, while at anchor in the Port of
Matadi, in the Belgian Congo, a place subject to the sovereignty of the
Kingdom of Belgium, and that appellee, after the commission of the
crime, was fmt brought into the Port of Philadelphia, a place within the
territorial jurisdiction of the District Court. . . . mhe Padnsay, at the
time of the offense charged, was unloading, beii attached to the shore
by cables, at a point 250 miles inland from the mouth of the Congo
River.
The District Court . .. sustained a demurrer to the indictment and

discharged the prisoner on the ground that the court was without juris-
diction to try the offense charged. 3F. Supp. 134.The case comes here
by direct appeal. . . .
Sections 273 and 275 of the Criminal Code, 18 U.S.C. 55 452, 454 (18USCA $8 452,454),define murder and fix its punishment. Section 272,upon the construction of which the court below rested its decision, makes punishable offenses defmed by other sections of the Criminal Code, among other cases, "when.committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States" or any of its nationals. And by section 41 of the Judicial Code, 28 U.S.C. 5 102 (28 USCA 5 102),venue to try offenses "committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district," is "in the district where the offender is found, or into which he is fmt brought." As the offense charged here was committed on board a vessel lying outside the territorial jurisdiction of a state . . ., and within that of a foreign sovereignty, the court below was without jurisdiction to try and punish the offense unless it was with- in the admiralty and maritime jurisdiction of the United States.
Two questions are presented on this appeal, fmt, whether the exten- sion of the judicial power of the federal government "to all Cases of ad-miralty and maritime Jurisdiction," by article 3,§ 3,of the Constitution confers on Congress power to define and punish offenses perpetrated by a citizen of the United States on board one of its merchant vessels lying in navigable waters within the territorial limits of another sovereignty; and, second, whether Congress has exercised that power by the enact- ment of section 272of the Criminal Code under which the indictment was found.
me Court held that Congress had the constitutional power to define and punish crimes on American vessels in foreign waters, and that the language of the statute making it applicable to offenses committed on an American vessel outside the jurisdiction of a state "within the admiralty and maritime jurisdiction of the United States" was broad enough to in- clude crimes in the "territorial waters" of a foreign country. Mr. Justice Stone continued:]
It is true that the criminal jurisdiction of the United States is in general based on the territorial principle, and criminalstatutes of the United States are not by implication given an extraterritorial effect. United States v. Bowman,260U.S. 94,98,43S.Ct. 39,67 L.Ed. 149; compare Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. But that principle has never been thought to be applicable to a merchant vessel which, for purposes of the jurisdiction of the courts of the sovereignty whose flag it flies to punish crimes committed upon it, is
deemed to be a part of the territory of that sovereignty, and not to lose
that character when in navigable waters within the territorial limits of

another sovereignty. .. . Subject to the right of the territorial sov-
ereignty to assert jurisdiction over offenses disturbing the peace of
the port, it has been supported by writers on international law, and has
been recognized by France, Belgium, and other continental countries,
as well as by England and the United States. . ..
A related but different question, not presented here, may arise when

jurisdiction over an offense committed on a foreign vessel is asserted by
the sovereignty in whose waters it was lying at the time of its commis-
sion, since for some purposes, the jurisdiction may be regarded as con-
current, in that the courts of either sovereignty may try the offense.
There is not entire agreement among nations or the writers on inter-
national law as to which sovereignty should yield to the other when the

jurisdiction is asserted by both. See Jessup, The Law of Territorial
Waters, 144-193.The position of the United States exemplified in
Widenhus's Case,120U.S. 1,7S.Ct. 385,30L.Ed.565,has been that
at least in the case of major crimes, affecting the peace and tranquility of

the port, the jurisdiction asserted by the sovereignty of the port must
prevail over that of the vessel. . . .
This doctrine does not impinge on that laid down in United States v. Rodgers [I50U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 (1893)], that the United States may defme and punish offenses committed by its own citizens on its own vessels while within foreign waters where the local sovereign has not asserted its jurisdiction. In the absence of any controll- ing treaty provision, and any assertion of jurisdiction by the territorial sovereign, it is the duty of the courts of the United States to apply to offenses committed by its citizens on vessels flying its flag, its own statutes, interpreted in the light of recognized principles of international law. So applied the indictment here sufficiently charges an offense with- in the admiralty and maritime jurisdiction of the United States and the judgment below must be
Reversed.

c.
In Regina v. James Anderson, 166 an American crewman serving on a British vessel had been convicted of murder committed on board the vessel while the latter was in the Garome River in France, about 45 miles from the sea and about 300 yards from the nearest bank. The court upheld the conviction despite defendant's argument that the court had no jurisdiction, pointing out that although "the prisoner was subject to the American jurisprudence as an American citizen, and to the law of France as having committed an offense within the territo- ry of France, yet he must also be considered as subject to the jurisdiction of British law, which extends to the protec- tion of British vessels, though in ports belonging to another country." 167

d.
Pertinent provisions applicable to jurisdiction over national vessels follow.

166. 11 Cox Crim. Cas. 198.

167. Id. at 204.Bi on an American vessel on the high seas is not, under the law of the United States, equivalent to bii "in the United States," and a child born on such a vessel of alien parents does not ac- quire United States nationality. 3 G. Hackworth, Digest of International Law, 11-12 (1942).
Pam 27-161-1
CONVENTION ON THE HIGH SEAS Geneva, April 28, 1958
13 U.S.T. 2312, T.I.A.S. 5200,450 U.N.T.S. 82
. Article 11

1.
In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

2.
In disciplinary matters, the State which has issued a master's cer- tificate or a certificate of competence or license shall alone be compe-tent, after due legal process, to pronounce the withdrawal of such certifi-

. cates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investiga- tion, shall be ordered by any authorities other than those of the flag State.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965)
against a member of its military service. 4 31. A state has jurisdiction to prescribe rules attaching legal conse- quences to

(a)
conduct of any person aboard a vessel or aircraft having its na- tionality while the vessel is under the control of its commanding offcer, and

(b)
conduct of any person who is a member of its national military se~ces.

5 32. (1) A state having jurisdiction to prescribe a rule of law has juris- diction to enforce the rule outside of its territory:

(a)
aboard a vessel or aircraft having its nationality while under the control of its commanding officer,

(b)

(2)
The exercise of the jurisdiction to enforce a rule of law stated in this Section is subject to the rights of the territorial state as indicated in Q

44.
5 44.(1) A state may not exercise in the territory of another state the ju- risdiction to enforce rules of law that it has under the rule stated in Q 32, except to the extent that

(a)
the exercise of the right of innocent passage or entry in distress into the territory of the other state permits it to exercise such jurisdic- tion on board a vessel under the rules stated in QQ 46-48;

(b)
consent from the other state to the visit of one of its vessels or consent to the presence of its military force impliedly permits the exer- cise of such jurisdiction with respect to such vessel or force under the rules stated in 85 49 and 50 and QQ 51-62;

(c)
the other state otherwise permits its exercise of such jurisdic- tion.

(2)
A state that exercises its enforcement jurisdiction when, under the rules stated in Subsection (I), it may not do so, violates the other

168. The effect of Article 11 is to overrule in part the holding of the Permanent Court of International Justice in the "Lotus" Case, supra, note 129. To some extent, this result has already been achieved as among the parties to the International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions and .Other Incidents of Navigation, signed at Brussels on May 10, 1952. [I9601 Gr.Brit.T.S. No. 47, at 14, Cmnd. 1128 (entered into force Nov. 20, 1955).
state's rights under international law. 169
4-17. Exercise of Jurisdiction in Particular Situations.
a. Foreign vessels in internal waters; resolution of con- flicts of jurisdiction.
WILDENHUS' CASE
Supreme Court of the United States, 1887
120U.S. 1,7S.Ct.385,3OL.Ed.565

[Wddenhus, a Belgian national, killed another Belgian national below

the deck of the Belgian vessel of which they were both crew members,
which was at the time of the slaying moored to a dock in Jersey City.
The local police authorities arrested Widenhus, charging him with the
killing, and held two other crew members as witnesses. The Belgian
consul applied for a writ of habeas corpus, citing Article 11 of the treaty
of March 9, 1880 (21 Stat. 776) between Belgium and the United
States, which provided: "The respective consuls-general, consuls, vice-
consuls, and consular agents shall have exclusive charge of the internal
order of the merchant vessels of their nation, and shall alone take cog-
nizance of all differences which may arise, either at sea or in port, be-
tween the captains, officers and crews, without exception, particularly
with reference to the adjustment of wages and the execution of con-
tracts. The local authorities shall not interfere except when the disorder
that has arisen is of such a nature as to disturb tranquillity and public
order on shore, or in the port, or when a person of the country or not
belonging to the crew shall be concerned therein." The Circuit Court
refused to order the release of the prisoners, and the consul appealed to
the Supreme Court.]
WAITE,C.J.. ..By sections 751 and 753 of the Revised Statutes, the courts of the United States have power to issue writs of habeas cor- pus which shall extend to prisoners in jail when they are in "custody in violation of the constitution or a law or treaty of the United States," and the question we have to consider is whether these prisoners are held in violation of the provisions of the existing treaty between the United States and Belgium.
It is part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it sub- jects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understand- ing or agreement; for, as was said by Chief Justice Marshall in The Ex- change, 7 Cranch. 144: "It would be obviously inconvenient and dan-gerous to society, and would subject the laws to-continual infraction, and the government to degradation, if such . . . merchants did not owe tem- porary and local allegiance, and were not amenable to the jurisdiction of
169. For discussion regarding the extent to which a state may exer- cise aboard a vessel having its nationality the enforcement jurisdiction recognized by the Restatement, 54 32,44, when the vessel is subject to another skte's territorial jurisdiction, see Reslatement Q 46(3) (permit- ting "detention or such other interim enforcement measures as the in- ternal management or discipline of the vessel requires" when the vessel is in innocent passage through territorial waters of another state), and 5 50(a) (permitting enforcement measures to the "extent necessary to detain on board the vessel a person with respect to whom the coastal state does not exercise its jurisdiction" when the vessel is in internal waters of another state). See also Arts. 19 and 20 of the Geneva Con- vention on the TerrirLiial Sea and the Contiguous Zone. Compare the extent of United States jurisdiction asserted in 18 U.S.C.A. 5 7(1), pro- viding that the "special maritime and territorial jurisdiction of the United States" includes:
The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdic- tion of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corpora- tion created by or under the laws of the United States, or of any State, Territory, District or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

Pam 27-161-1

the country." . . . And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cmningham, Bell, Cr.Cas. 72; S.C. 8 Cox, Crim.Cas. 104; Regina v. Anderson, 11 Cox, Crim.Cas. 198, 204; S.C.L.R. 1 Cr.Cas. 161, 165; Regina v. Keyn, 13 Cox, Crirn.Cas. 403,486, 525;
S.C. 2 Exch.Div. 63, 161, 21 3. As the owner has voluntarily taken his vessel, for his own private purposes, to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes'that government such allegiance, for the time being, as is due for the protection to which he becomes entitled.
From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from in- terfering with the internal discipline of the ship, and the general regula- tion of the rights and duties of the officers and crew towards the vessel, or among themselves. And so by comity it came to be generally under- stood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tran- quillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. But, if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the of- fenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tri- bunals see fit to assert their authority. Such beimg the general public law on this subject, treaties and conventions have been entered into by na- tions having commercial intercourse, the purpose of which was to settle and defme the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions.
. . . .

[The Court then analyzed a number of treaties subsequently entered into by the United States, and concluded that these treaties either im- pliedly, or as in the case of the Belgian treaty under consideration ex- plicitly] gave the consuls authority to cause proper order to be main- tained on board, and to decide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were of such a nature as to disturb the public tranquillity, and that is substantially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the con- duct of the United States and Belgium towards each other in this particu- lar. Each nation has granted to the other such local jurisdiction within its own dominion as may be necessary to maintain order on board a merchant vessel, but has reserved to inself the right to interfere if the disorder on board is of a nature to disturb the public tranquillity.
. . . [T]he only important question left for our determination is whether the thing which has been done–the disorder that has arisen- on board this vessel is of a nature to disturb the public peace, or, as some writers term it, the "public repose," of the people who look to the state of New Jersey for their protection. If the thing done-"the dis-order," as it is called in the treaty-4s of a character to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done, is a matter of no moment. Those who are not on the vessel pay no special attention to the mere disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they, as a rule, care for anything done on board which relates only to the discipline of the ship, or to the preservation of order and authority. Not so, however, with crimes which from their gra-vity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation considers it- self bound to provide a severe punishment for when committed within its own jurisdiction. In such cases inquiry is certain to be instituted at once to ascertain how or why the thing was done, and the popular ex- citement rises or falls as the news spreads, and the facts become known. It is not alone the publicity of the act, or the noise and clamor which at-
tends it, that fixes the nature of the crime, but the act, itself. If that is of
a character to awaken public interest when it becomes known, it is a
"disorder," the nature of which is to affect the community at large, and
consequently to invoke the power of the local government whose people
have been disturbed by what wasdone. The very nature of such an act is
to disturb the quiet of a peaceful community, and to create, in the
language of the treaty, a "disorder" which will "disturb tranquillity and
public order on shore or in the port." The principle which governs the
whole matter is this: Disorders which disturb only the peace of the ship
or those on board are to be dealt with exclusively by the sovereignty of
the home of the ship, but those which disturb the public peace may be
suppressed, and, if need be, the offenders punished, by the proper
authorities of the local jurisdiction. It may not be easy at all times to
determine to which of the two jurisdictions a particular act of disorder
belongs. Much will undoubtedly depend on the attending circumstances
of the particular case, but all must concede that felonious homicide is a
subject for the local jurisdiction; and that, if the proper authorities are
proceeding with the case in a regular way the consul has no right to in-
terfere to prevent it. . . .

….
The judgment of the circuit court is aff~rmed.

As the Chief Justice indicated in Wildenhus' Case, states customarily resort to international agreements in order to reconcile potential conflicts of jurisdiction that might arise from the presence of merchantmen in foreign ports. 170 The Consular Convention of 1951 between the United States and the United Kingdom provides in Article 22(2) :
Without prejudice to the right of the administrative and judicial authorities of the territory to take cognizance of crimes or offenses com- mitted on board the vessel when she is in the ports or in the territorial waters of the territory and which are cognizable under the local law or to enforce local laws applicable to vessels in ports and territorial waters or persons and property thereon, it is the common intention of the High Contracting Parties that the administrative and police authorities of the territory should not, except at the request or with the consent of the consular officer,
(a)
concern themselves with any matter taking place on board the vessel unless for the preservation of peace and order or in the interests of public health or safety, or

(b)
institute prosecutions in respect of crimes or offenses commit- ted on board the vessel unlessthey are of a serious character or involve the tranquillity of the port or unless they are committed by or against persons other than the crew. 171

It may be doubted whether in the absence of a concession by treaty, the territorial sovereign is deterred by the operation of any rule of inter- national law from exercising through its local courts jurisdiction over civil controversies between masters and members of a crew, when the judicial aid of its tribunals is invoked by the latter, and notably when a libel in rem is fded against the ship. It is to be observed, however, that ; American courts exercise discretion in taking or withholding jurisdiction
3 U.S.T. 3426, T.I.A.S. 2494, 165 U.N.T.S. 121. 170.
The British view regarding the exercise of jurisdiction in a foreign port is that "the subjection of the ship to the local criminal juris- diction is . . . complete and that any derogation from it is a matter of comity in the discretion of the coastal state." J. Brierly, The Law of Na- tions 223 (6th ed. Waldock 1963). When the United States prohibition laws were held in Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894 (1923) to be applicable to foreign vessels temporarily in United States ports, the protests of foreign governments were based almost entirely on appeals to comity. P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 221-28 (1927). For general discus- sions of criminal jurisdiction over visiting foreign vessels, see id at 144-94; R. Stanger, Criminal Jurisdiction Over Visiting Armed Forces, [1957-581 Naval War College International Law Studies, 43-54.

171.

according to the circumstances of the particular case.Their action in so
'
doing is not to be regarded as indicative of any requirement of public in- ternational law. 172
b. After the court has decided to retain a case for deci- sion, whether in the exercise of its sound discretion or in compliance with legislative mandate, it must decide whether the forum's jurisdiction to prescribe shall be deemed to have been exercised so that United States law applies to the issue presented. 173 In the Kate A. Hoff claim, the General Claims Commission 174 hearing this claim spoke to the degree of jurisdiction to be exercised over a merchant vessel forced into internal waters by a superior force.
The enlightened principle of comity which exempts a merchant vessel, at least to a certain extent, from the operation of local laws has been generally stated to apply to vessels forced into port by storm, or compelled to seek refuge for vital repairs or for provisioning, or carried into port by mutineers. It has also been asserted in defense of a charge of attempted [breach] of blockade. It was asserted by as early a writer as Vattel.
4-18. Foreign Vessels in the Territorial Sea: The Right of Innocent Passage. a. General.
The right of innocent passage seems to be the result of an attempt to reconcile the freedom of ocean navigation with the theory of territorial waters. While recognizing the necessity of granting to littoral states a zone of waters along the coast, the family of nations was unwilling to prejudice the newly gained freedom of the seas. As a general principle, the right of innocent passage requires no supporting argument or cita- tion of authority; it is firmly established in international law. 175
Codified norms applicable to foreign vessels in the ter- ritorial sea and the right of innocent passage follow.
b. Convention on the territorial sea and the contiguous zone.
Geneva, April 28, 1958 15 U.S.T. 1606, T.I.A.S. 5639, 516 U.N.T.S. 205 SECTION111. RIGHT OF INNOCENT
PASSAGE
Sub-section A. Rules applicable to all ships

Art. 14. (1) Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.
(2)
Passage means navigation through the territorial sea for the pur- pose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from inter- nal waters.

(3)
Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force mqieure or by distress.

172.
I. Hyde, International Law 742-43 (2d rev. ed. 1945). On the application of the doctrine of forum non conveniens in litigation involv- ing foreign merchant vessels and seamen, see The Estes, 109 F. 216 (191 1); Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty, 35 Cornel L. Q. 12 (1949).

173.
See, e.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10,83 S.Ct. 671,9 L.Ed.2d 547 (1963); Lauritzen

v. Larson, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953).
174. United States v. Mexico, 4 U.N. R.I.A.A. 444.

175. P. Jessup, The Law of Territorial Waters and Maritime Juris- diction 120 (1927) (hereinafter cited as P. Jessup, Territorial Waters). See also Franklin, The Law of the Sea: Some Recent Developmen&, [1959-601 NAVAL WAR COLLEGE LAW STUDIES
INTERNATIONAL 127-56.
(4)
Passgeis innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.

(5)
Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.

(6)
Submarines are required to navigate on the surface and to show their flag.

Art. 15. (1) The costal State must not hamper innocent passage through the territorial sea.

(2)
The coastal State is required to give appropriate publicity to any dangers to navigation, of which it has knowledge, within its territorial

sea.

Art. 16. (1) The coastal State may take the necessary steps in its ter- ritorial sea to prevent passage which is not innocent.
(2)
In the caseof ships proceeding to internal waters, the coastal State shall also have the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to those waters is subject.

(3)
Subject to the provisions of paragraph 4, the coastal State may, without discrimination amongst foreign ships, suspend temporarily in sWed areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published.

(4)
There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation be- tween one part of the high seas and another part of the high seas or the territorial sea of a foreign State.

Art. 17. Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal State in con- formity with these articles and other rules of international law and, in particular, with such laws and regulations relating to transport and navigation. 176
Sub-section B. Rules applicable to merchant ships

Art. 18. (1) No charge may be levied upon foreign ships by reason only of their passage through the temtorial sea. . . .
Art. 19. (1) The criminal j-ction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in comexion with any crime committed on board the ship during its passage, save only the following cases:
If it is neceswy for the suppression of illicit traffic in narcotic If the consequences of the-crime extend to the coastal State; or (a)

(b)
If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or

(c)
If the assistance of the local authorities has been requested by the captain of the ship or by the consul of the country whose flag the ship flies; or

(d)

dm3.
(2)
The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or in- vestigation on board a foreign ship passing through the territorial sea after leaving internal waters.

(3)
In the cases provided for in paragraphs 1 and 2 of this article, the coastal State shall, if the captain so requests, advise the consular authority of the flag State before taking any steps, and shall facilitate contact between such authority and the ship's crew. In cases of emergency this notification may be communicated whiie the measures are beii taken. . . .

(5)
The coastal State may not take any steps on board a foreign ship passing through the temtorial sea to arrest any person or to conduct any investigation in comexion with any crime committed before the ship

176. On the question of the coastal state's duty to publicize dangers to navigation, compare the Conventions requirement of actual knowledge of such dangers with the conditions laid down in the Corfu Channel case, [I9491 I.C.J. 4.
entered the territorial sea, if the ship, proceeding from a foreign port, is
only passing through the territorial sea without entering internal waters.
Art. 20. (1) The coastal State should not stop or divert a foreign ship
passing through the territorial sea for the purpose of exercising civil ju-

risdiction in relation to a person on board the ship.
(2)The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obliga- tions or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.
(3)The provisions of the previous paragraph are without prejudice to the right of the coastal Siate, in accordance with its laws, to levy execu- tion against or to arrest, for the purpose of any civil proceedings, a foregin ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.
Sub-section C. Rules applicable to government ships other than warships Art. 21. The rules contained in sub-sections A and B shall also apply to govenunent ships operated for commercial purposes. 177
Sub-section D. Rule applicable to warships

Art. 23.If any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and dis-regards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea. 178
A warship's right of innocent passage under customary law is unclear. Jessup concluded, in 1927, that ". . . the sound rule seems to be that they [warships] should not en- joy an absolute legal right to pass through a state's ter- ritorial waters any more than an army may cross the land territory." 179 The Hague Codification Conference con- fined itself to observing that states ordinarily "will not for- bid the passage of foreign warships" and "will not require a previous authorization or notification." 180
c. Innocent passage through straits. In the Corfu Chan- nel Case, 181 the United Ktngdom sought to hold Albania responsible for damage caused to British warships by mines moored in the Corfu Channel in Albanian ter- ritorial waters. Albania contended that the British war- ships had violated Albanian sovereignty by passing through its territorial waters without previous authoriza- tion. In deciding that the Corfu Channel belonged to "the class of international highways through which a right of passage exists," the Court held that the "decisive cri- terion" was "its geographical situation as connecting two parts of the high seas and the fact of its being used for in- ternational navigation.'' The Court rejected as immaterial Albanian arguments that the Channel was not a neces- sary, but only an alternative, passage between two parts of the high seas, holding that it was sufficient that the Chan-
177.
Reservations have been entered by the Communist states to the articles permitting coastal states to exercise civil jurisdiction over state trading vessels.

179. P. JESSUP, TERRITORIAL supra, note 175 at 120.96 (1966). 178.
Many states have, on ratifying the Convention, made reserva- tions asserting the coastal state's right to require warships to seek pre- vious authorization before passing through the territorial sea. See Slonim, The Right ofInnocent Passage and the 1958 Geneva Corlference on the Law of the Sea, 5 COLUM.J. TRANSNAT'L

L.

WATERS,

180. 24 AM.J. INT'L SUPP. 246 (1930). For a collection of view, see 4 M. WHITEMAN,DIGESTOF LAW404-17
INTERNATIONAL (1965) (hereinafter cited as 4 M. WHITEMAN).
181. Corfu Channel case, [I9491I.C.J. 4.
nel had been "a useful route for international maritime traKic." 182 The decision has been criticized as giving in- suffcient weight to functional considerations; i.e., as fail- ing to balance "the interest which the coastal state has in its own territorial sea against that which the international maritime community has in traversing that passage." 183

The International Law Commission, in its final version of the predecessor of Article 16 (4), limited the right of passage through straits to those which are "nor- mally used for international navigation between two part of the high seas." 184 In the First Committee, however, the word "normally" was deleted and the article was further amended to its present form by a vote of 31-30-10, over vigorous objection by the Arab states. (Prior to the occupation of the Sinai Peninsula by Israeli forces in 1967, Egypt and Saudi Arabia controlled the Straits of Tiran which provided the sole access to the Gulf of Aqaba, on which Israel has several miles of front- age.) 185 In the Plenary Meeting, a motion by the U.A.R. for a separate vote on paragraph 4 of Article 16 was de- feated by a vote of 34-32-6; the Article was then approved in full. Several Arab states, however, have entered reser- vations to this provision. (1)

(2)
By the terms of the Treaty of Lausanne, 186 the Dardanelles and the Bosphorus came under the supervi- sion of an international commission, the only one of its type ever to function. Vessels of commerce were to be allowed free passage in time of war and in peace, but limits were placed on the number of naval vessels permitted to transit the Straits into the Black Sea. Turkey was permitted to take defensive measures against enemy ships in time of war. 187 But the Straits were demilitarized (Art. 4). The Straits Commission functioned as a supervisor of transit, assuring that warships could pass through the Straits with- out undue hindrance, upon occasion making representa- tions to Turkey on this subject. The Commission was ter- minated upon conclusion of the Montreux Convention of 1936. 188 The Convention transferred the functions of the Straits Commission to Turkey, the littoral state, which thus reasserted its sovereignty. Restrictions on the num- ber of warships transiting the Straits into the Black Sea were maintained, and Turkey assumed responsibility for assuring free passage. Free and unlimited navigation for merchant vessels was retained, but Turkey was granted the right to remilitarize the Straits. The Montreux Con- vention was to remain in force for twenty years from the

182. Id. at 28.
183. 1.D. O'CONNELL, LAW563 (2d ed. 1970)

INTERNATIONAL (hereinafter cited as 1 D. O'CONNELL).
184. 2 Y.B.INT'L L. C. 273 (1956).

Convention Relating to the Regime of the Straits (1928), 28 185.
3 U.N. Conf. on the Law of the Sea, OFF. REC. 93-96, 100 (1958).

186.

L.N.T.S. 115.
187.
Annex to Art. 2 of the Treaty of Lausanne.

188.
Convention Concerning the Regime of the Straits (1936), 173

L.N.T.S. 213.
date of its entry into force and was subject to denunciation upon two years' notice after 1956. The right of free transit for merchant vessels, however, is to continue without time limitation. As of January 1,1976, none of the parties had sought to denounce the Convention. 189
d. Innocent passage through international canals. The right of free passage through international straits is a product of state practice hardening into customary international law and thence into treaty. The right of free passage through interoceanic canals is a conse- quence of the opening of each waterway to usage by the international community. It is the origin of the right in a series of individual grants which distinguishes the law relating to canals from the law of straits. The privilege of free passage through the three major interoceanic canals, Suez, Panama, and Kiel, has been created in each case by a treaty to
which the territorial sovereign, acting freely or under the pressure of other powers, has been a party. 190
(1)
The right of free passage through the Suez Canal is usually said to be founded on the Convention of Con- stantinople of 1888, 191 although some writers maintain that the international character of the canal had already been established by concessions of 1854 and 1866. The Convention was signed by Great Britain, Germany, France, Austria-Hungary, Italy, the Netherlands, Russia, Spain, and the Ottoman Empire (then holding sovereignty over Egypt). After the Canal's nationalization in 1956, Egypt rediimed its obligations under the Convention. 192 The Convention provides in Article I that the Canal ". . . shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without dis- tinction of flag," and in Article IV that ". .. no right of war, no act of hostility, nor any act having for its object the obstruction of the free navigation of the Canal, shall be committed in the Canal and its ports of access, as well as within a radius of three marine miles from those ports, even though the Ottoman Empire should be one of the belligerent Powers." The Convention also includes restrictions on warships and fortifications. In practice, rights under Article I have usually been regarded as granted to all states whether or not they adhere to the Convention. 193 During the two World Wars, the United Kingdom justified measures inconsistent with the Con- vention as necessary to prevent the Canal's destruction. Since 1948, Egypt has justified anti-Israeli restrictions on the basis of its "inherent" right of self-defense. 194

(2)
The regime of the Panama Canal is governed by the Hay-Pauncefote Treaty of 1901 between the United

189. 4 M. WHITEMAN,supra, note 180 at 417-47; see also R. BAXTER, THE LAW OF INTERNATIONAL 159-68
WATERWAYS (1964) (hereinafter cited as R. BAXTER).For materials on the problem of the Gulf of Aqaba, see 4 M. WHITEMAN,supra at 465-80.
265 U.N.T.S. 299; 272 U.N.T:S. 225. R. BAXTER,supra at 168-69. 190.

191.
79 BRIT. & FOR. STATE PAPERS 18, Reprinted in 3 AM. J. INT'LL. SUPP. 123 (1909).

192.

193.
See 1 D. O'CONNELL,supra, note 183 at 643-48; R. BAX-TER,supra, note 189 at 89-91, 169-70, 183 n. 162.

194. See 1 D.O'CONNELL,Supra at 647-48 and Gross, Passage Through the Suez Canal of Israel-bound Cargo and Israel Ships, 51 AM.
J. INT'L L. 530 (1957).
States and Great Britain, 195 the rules of which are ex- pressly stated to be "substantially as embodied in the Convention of Constantinople." The agreement provides in Article I11 that ". . .the canal shall be free and open to the vessels of commerce and of war of all nations observ- ing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or changes of traffc, or otherwise." The foregoing language was sub- stantially reproduced in the 1903 treaty by which the United States acquired the Canal Zone from Panama. 196
(3)
The Kiel Canal had not, prior to the Treaty of Versailles of 19 19, been considered by Germany as an in- ternational waterway, open without restriction to all states. Article 380 of the Treaty of Versailles, however, provided that ". . .the Kiel Canal and its approaches shall be main- tained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of en- tire equality." 197 The Permanent Court of International Justice, in the Case of the S.S. Wimbledon,198 referred to the Canal as "an international waterway . . . for the benefit of all nations of the world," even though only 28 states were parties to Article 380. In 1936 Germany de- nounced Article 380 without effective protest from other states.

(4)
The legal position of states that are not parties to treaties guaranteeing passage through international canals has been rationalized by the doctrine of "international servitudes"; by the "third-party beneficiary" concepts drawn from municipal law; by the theory that certain treaties are "dispositive" in nature in the sense that they create "real rights" that attach to a territory and are therefore not dependent on the treaty which created them; and by analogy to treaties, such as the United Na- tions Charter, that have an objective, legislative character, in that they create international status that must be recog- nized by all states, whether contracting parties or not. Baxter states that: .. .the preferable theory concerning the rights of nonsignatories is that a

state may, in whole or in part, dedicate a waterway to international use, which dedication, if relied upon, creates legally enforceable rights in favor of the shipping of the international community. A treaty, a unilateral declaration–perhaps even a concession-may be the instru- ment whereby the dedication is effected. Its form is not important; what is important is that it speaks to the entire world or to a group of states who are to be the beneficiaries of the right of free passage. 199
4-19. Foreign Vessels On the High Seas (Contiguous Zone and Beyond).
CONVENTION ON THE HlGH SEAS
Geneva, April 28, 1958
13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82

Art. 1. The term "high seas" means all parts of the seas that are not
195.
32 Stat. 1903.

196.
R. BAXTER,supra, note 189 at 170-71.
'97, 112 BRIT. & FOR. STATE PAPERS 1, 189.

198.
119231 P.C.I.J., ser. A, No. 1.

199.
R.BAXTER,supra, note 189, at 182-83.

included in the territorial sea or in the internal waters of a State.
Art. 2. The high seas being open to all nations, no State may validly

purport to subject any part of them its sovereignty. Freedom of the high
seas is exercised udder the conditions laid down by this article and
by the other rules of international law. It comprises, inter
alia, both for coastal and non-coastal States:
(1)
Freedom of navigation;

(2)
Freedom of fishing;

(3)
Freedom to lay submarine cables and pipelines;

(4)
Freedom to fly over the high seas.

These freedoms, and others which are recognized by the general prin- ciples of international law, shall be exercised by all States with reasona- ble regard to the interests of other States in their exercise of the freedom of the high seas.
Art. 22. (1) Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasona-ble ground for suspecting:
If the suspicions prove to be unfounded, and provided that the ship That the ship is engaged in the slave trade; or That the ship is engaged in piracy; or (a)

(b)

(c)
That, though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

(2)
In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have ben checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

(3)

boarded has not committed any act justifying them, it shall be compen- sated for any loss or damage that may have been sustained.
CONVENTION ON THE TERRITORIAL SEA AND
THE CONTIGUOUS ZONE
Geneva, April 28, 1958
15 U.S.T. 1606, T.I.A.S. 5639, 516 U.N.T.S. 205

Art.24. (1) In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to:
(a)
Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;

(b)
Punish infringement of the above regulations committed within its temtory or territorial sea.

(2)
The contiguous zone may not extend beyond twelve miles from the base lie from which the breadth of the territorial sea is measured.

(3) Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.
The exercise of jurisdiction in contiguous zones of the high seas becomes necessary in view of the inadequacy under modem conditions of any reasonable breadth of territorial waters; whatever we may regard as the breadth of marginal sea now accepted under international law, there are occasions and purposes for which jurisdiction must be exer- cised farther out from shore. This differs from an attempt to declare such areas temtorial waters subject to the full sovereignty of the coastal state. 200
4-20. Comment on Materials Presented. As indicated in
the opening paragraph of this section, no attempt has been
made to examine fully the vast and rather complex area of
the Law of the Sea. Instead, attention has been focused on

those concepts which the &tary attorney is most likely to have. occasion to apply in the field: jurisdictional norms applicable to vessels and persons thereon. This chapter has dealt with one of the most significant, as well as substan- tive, aspects of public international .law: the various juris- dictional theories by which states exercise control over territory, individuals, and events. The necessity for a thorough analysis and comprehension of this area of the law is evident. While emphasis has been placed throughout this chapter on the right of state to control in- dividuals and activities under its jurisdiction, there do ex- ist instances where a state, its agents, and instrumentalities have an international right to immunity from the exercise ofjurisdiction over both their actions and property. An in- creasingly important aspect of international jurisprudence, these jurisdictional immunities are the subject of chapter 5, irlfra.
200. Bishop, The Exercise of Jurisdiction for Special Purposes in High Seas Beyond the Outer Limit of Territorial Waters, reprinted in 99 CONC.REC.2493 (1953).
Pam 27-161-1

CHAPTER 5
JURISDICTIONAL IMMUNITIES

5-1. General. Having examined the various means by which a state may exercise its jurisdiction in the interna- tional community, attention must now be focused on those instances when a state generally refrains from exer- cising this jurisdiction over certain individuals and proper- ty. In dealing with this somewhat technical subject ofjuris- dictional immunities, four specific areas will be analyzed. 1 Although discussed as distinctive elements of the total subject matter, each aspect of jurisdictional immunity re- lates to the other. Accordingly, it is imperative that the at- torney understand fully one area of this chapter before directing his attention to the next.
Section I. JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
5-2. The Current Importance of Jurisdictional Im- munities. a. Under international law, states enjoy certain immunities from the exercis'e by another state of jurisdic- tion to enforce rules of law. The primary impact of these immunities, which in some cases extend not only to the foreign state itself, but also to its property, its agents, and its instrumentalities, is felt when a private party finds it necessary to press a claim against a foreign government or the latter's agent or instrumentality in judicial or arbitral proceedings. Often, the major obstacle faced by the pri- vate party will be the immunity the foreign government enjoys under applicable principles of international law or under the law of the state in which the proceeding is to be brought. Under United States law, a broader measure of immunity is sometimes accorded to foreign states than is required by international jurisprudence.
b.
During the last thirty years, governments throughout the world have become increasingly involved in international commercial dealings with private parties. The most obvious manifestations of this trend have been the state foreign trade monopolies of the Communist states and the pervasive role that the governments of many developing countries have chosen or have been compelled by circumstances to play in international com- merce. An increased participation of government in com-mercial dealings has been a phenomenon clearly discerni- ble even in those industrialized countries that most vigorously champion private enterprise. A continuing in- crease in governmental participation in commerce, possi- bly accelerated by a growth in East-West trade and in trade between the industrialized countries and the developing countries suggests that problems of state immunities may well become more frequent and pressing in the years ahead.

c.
Any claimant bringing an action against a foreign state in a court within the United States must face prob- lems raised by the special status of the defendant at three key procedural stages. First, steps must be taken to give a court jurisdiction so that it may entertain the action. If the foreign state has no property within the territory of the forum that can provide the basis for in rem or quasi in rem jurisdiction, jurisdiction in personam must be sought. Sec- ond, even if jurisdiction can be acquired, a claim of im- munity by the foreign state may prevent the court from proceeding to decide the claim on the merits. Finally,

even if the claimant obtains a judgment against the foreign state, his victory will be a false one if he is unable to secure payment by the defendant state. The effect of a validly in- terposed plea of state immunity is to bar consideration of the merits of the claim presented by the claimant. 2 Ac-cordingly, as a general rule, it is only after the court ac- quires jurisdiction that a claim of immunity becomes im-portant. Thiswill be the case both when the claim is raised after the court has obtained in personam jurisdiction over the foreign state, and when a plea or suggestion of im-munity seeksto vacate an attachment of property effected in connection with acquiring in rem or quasi in rem juris- diction. If, moreover, the claimant should obtain a judg- ment against the foreign state, a claim of immunity may still be interposed to prevent execution of that judgment against the foreign state's property. Thus,assuming that the claimant can frnd a basis on which the court's jurisdic- tion can be founded, state immunity may deny the claimant his day in court, and even if he has, and carries, that day, immunity may make it impossible for him to en- force his judgment if voluntary satisfaction by the defen- dant is not forthcoming. 3
5-3. The Two Theories of Sovereign Immunity. a.
There have evolved through the years, two basic theories of jurisdictional immunity–the absolute and the restric- tive. There exists no universal approach toward the grant- ing of this very special form of protection to a sovereign, his agents, and instrumentalities. Often, states employ a combination of the two theories of immunity. Moreover, some countries, such as the United States, generally grant greater immunity than international law would seem to
1. These areas are: Jurisdictional Immunities of Foreign States, Im-munities of State Representatives, Immunities of International Organizations, and the Granting of Political Asylum or Temporary Refuge.
2. Restatement (Second) Foreign Relations Law of the United Stares. 5 65, comment c (1965).
3. It is important, at this point, to direct the reader's attention to the distinction between the concepts of jurisdictional immunity and the Act of State doctrine. Jurisdictional immunity stands for the proposition that a sovereign, his agents, and property will not be made the subject of a suit in another state, regardlessof where the activity giving rise to the cause of action occurred. The Act of State doctrine, discussed exten- sively in chapter 7, idra, declares that the actions of a state, taken solely within its territorial boundaries, will not be subjected to judicial review by U.S. courts.
require. Accordingly, it is necessary to examine closely both the manner in which these two basic theories of im-munity are employed and the problems often encountered in their utilization.
b. The Absolute Theory.
(1) The U.S.View.
THE SCHOONER EXCHANGE v. M'FADDON
Supreme Court of the United States, 1812 11 U.S. (7 Cranch) 116, 3 L.Ed. 287
[A libel was brought against the schooner Exchange by two American citizens who claimed that they owned and were entitled to possession of the ship. They alleged that the vessel had been seized on the high seas in 1810 by forces acting on behalf of the Emperor of France and that no prize court of competent jurisdiction had pronounced judgment against the vessel. No one appeared for the vessel, but the United States At- torney for Pennsylvania appeared on behalf of the United States Government to state that the United States and France were at peace, that a public ship (known as the Balaou) of the Emperor of France had been compelled by bad weather to enter the port of Philadel- phia, and was prevented from leaving by the process of the court. The United States Attorney stated that, even if the vessel had in fact been wrongfully seized from the libellants, property therein had passed to the Emperor of France. It was therefore requested that the libel be dis- missed with costs and the vessel released. The District Court dismissed the libel, the Circuit Court reversed (4 Hall's L.J. 232), and the United States Attorney appealed to the Supreme Court.]
MARSHALL,C.J.: . . . The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. . . .
This full and absolute territorial jurisdiction being alike the attribute of
every sovereign . . . would not seem to contemplate foreign sovereigns
nor their sovereign rights as its objects. One sovereign being in no RSW
amenable to another; and beiing bound by obligations of the highest
character not to degrade the dignity of his nation, by placing himself or
its sovereign tights within the jurisdiction of another, can be supposed
to enter a foreign territory only under an express license, or in the cod-
-. –
dence that the immunities belonging to his independent sovereign sta- tion, though not expressly stipulated, are reserved by implication, and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an in- terchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.
1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory.. . . 2d. A second case, standing on the same principles with the fmt, is the immunity which all civilized nations allow to foreign ministers.
3d. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. . . .

phe Court concluded that the territorial sovereign's license to foreign armies must be express, and not merely implied, but that a different rule applied in the case of foreign ships.] . . . If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are sup- posed to enter such ports and to remain in them while allowed to re- main, under the protection of the government of the place. . . .
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the
government to degradation, if such individuals or merchants did not
owe temporary and local allegiance, and were not amenable to the juris-
diction of the country. . . .
But in all respects different is the situation of a public armed ship. She
constitutes a part of the military force of her nation; acts under the im-
mediate and direct command of the sovereign; is employed by him in
national objects. He has many and powerful motives for preventing
those objects from beiig defeated by the interference of a foreign state.
Such interference cannot take without affecting his power and his dig-
nity. The implied license therefore under which such vessel enters a
friendly port, may reasonably be construed, and it seems to the Court,
ought to be construed, as containing an exemption from the jurisdiction
of the sovereign, within those territory she claims the rights of hospi-
tality.
Upon these principles, by the unanimous consent of nations, a
foreigner is amenable to the laws of the place; but certainly in practice,
nations have not yet asserted their jurisdiction over the public armed
ships of a foreign sovereign entering a port open for their reception.
Bynkershoek, a jurist of great reputation, has indeed maintained that
the property of a foreign sovereign is not distinguishable by any legal ex-
emption from the property of an ordinary individual, and has quoted
several cases in which courts have exercised jurisdiction over causes in
which a foreign sovereign was made a party defendant.
Without indicating any opinion on this question, it may safely be affumed, that there is a manifest distinction between the private proper- ty of the person who happens to be a prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation he is entrusted to govern. . . .
It seems then to the Court, to be a principle of public law, that na- tional ships of war,entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction.
Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tri- bunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions therefore which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that proper- ty in the courts of the country, in which it is found, ought not, in the opinion of this Court, to be so construed as to give them jurisdiction in a case, in which the sovereign power has impliedly consented to waive its jurisdiction.
The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration, that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been drawn to a length, which forbids a particular examination of these points. . . .
If the preceding reasoning be correct, the Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an im- plied promise, that while necessarily within it, and demeaning herselfin
a friendly manner, she should be exempt from the jurisdiction of the country.. . . [Judgment of the Cucuit Court reversed, and judgment of the Dis- trict Court, dismissing the libel, afliied.]
BERIZZI BROS. CO. v. S.S. PESARO
Supreme Court of the United States, 1926 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088

[A libel in rem was brought against the Pesaro, a merchant vessel owned and operated by the Italian Government and engaged in carrying cargo and passengers for hue, to enforce a claim for cargo damage. The vessel was released on the direct suggestion by the Italian Ambassador that the ship was owned and in the possession of the Italian Govern- ment, but the Supreme Court reversed, holding that inasmuch as the Ambassador had not appeared as a party, the suggestion must come through the official channels of the United States. The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592 (1921). Remanded to the District Court, the case was considered on an agreed statement of facts showing, inter alia, that the vessel would not be immune from suit in Italy, and that in Italy merchant vessels owned by the United States Government would not be immune. The State Department declined to take a position on the vessel's immunity, but a claim and plea in abatement was en- tered by the ship's master. Judge Mack ovemled objections to the juris- diction of the Court, The Pesaro, 277 Fed. 473 (S.D.N.Y.1921), stat- ing, at 481-83:
. . . To deprive parties injured in the ordinary course of trade of their common and well-established legal remedies would not only work great hardship on them, but in the long run it would operate to the disadvantage and detriment of those in whose favor the im- munity might be granted. Shippers would hesitate to trade with government ships, and salvors would run few risks to save the property of friendly sovereigns, if they were denied recourse to our own courts and left to prosecute their claims in foreign tribunals in distant lands. . .. The attachment of public trading vessels, in my judgment, is not incompatible with the public interests of any na- tion or with the respect and deference due a foregin power. .. .
[In] my opinion, a government ship should not be immune from seizure as such, but only by reason of the nature of the service in which she is engaged.
And as the Pesaro was employed as an ordinary merchant vessel for commercial purposes at a time when no emergency existed or was declared, she should not be immune from arrest in admiralty, especially as no exemption has been claimed for her, by reason of her sovereign or political character, through the official channels of the United States.

But if I err in believing that the accepted law of this country does not require a holding that merchant vessels owned and operated as such by a foreign sovereign state are, therefore, exempt from seizure, the Pesaro would, nevertheless, not be entitled to immunity.
I do not base this upon the fact that ships owned and operated for commercial purposes by the United States would not be exempt from ordinary process under Italian law, for retaliation and reprisal are for the executive branches of our government and not for the courts. . ..
But the fact that the steamship Pesaro itself is subject to the ordinary processes of the Italian court would seem to be vital and decisive. There is no reason of international comity or courtesy which requires that Italian property not deemed extra commercium in Italy should be treated as res publica and extra commercium in the United States. . . .
[Following the decision, however, of the Supreme Court in The Gul Djernal, 264 U.S. 90, 44 S.Ct. 244, 68 L.Ed. 574 (1924), that a ship's master was not a proper person to "vindicate the owner's sovereignty," the order of Judge Mack in The Pesaro was vacated by consent of the parties. The Italian Ambassador then fded a claim and answer. The court upheld the immunity of the Pesaro, finding the weight of authority against the position adopted by Judge Mack. 13 F.2d 468 (S.D.N.Y.1926). Libellant appealed to the Supreme Court.]
VAN DEVANTER, J.: . . . The single question presented for decision
by us is whether a ship owned and possessed by a foreign government,
and operated by it in the carriage of merchandise for hire, is immune
from arrest under process based on a libel in rem by a private suitor in a
federal district court exercising admiralty jurisdiction.
This precise question never has been considered by this Court before. Several efforts to present it have been made in recent years, but always in circumstances which did not require its consideration. The nearest ap- proach to it in this Court's decisions is found in The Exchange, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287.. ..
It will be perceived that the opinion, although dealing comprehen- sively with the general subject, contains no reference to merchant ships owned and operated by a government. But the omission is not of special significance, for in 1812, when the decision was given, merchant ships were operated only by private owners, and there was little thought of governments engaging in such operations. That came much later.
The decision in The Exchange therefore cannot be taken as excluding merchant ships held and used by a government from the principles there announced. On the contrary, if such ships come within those principles, they must be held to have the same immunity as warships, in the ab- sence of a treaty or statute of the United States evincing a different pur- pose. No such treaty or statute has been brought to our attention.
We think the principles are applicable alike to all ships held and used by a government for a public purpose, and that when, for the purpose of advancing the trade of its people or providing revenue for its treasury, a government acquires, mans and operates ships in the carrying trade, they are public ships in the same sense that warships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force. . . .
Decree afhned.
These early American opinions accurately reflect the basic concept of the absolute theory of jurisdictional im- munity, i.e., that a sovereign and its property are total& immune to suit and seizure. As will be discussed at a later point in this chapter, the U.S.approach has now become more restrictive in nature. 4

(2) The U.K.View. The case of the Parlement Belges involved proceedings in rem brought by the owners of a ship damaged by a collision with the Parle- ment Belge. No appearance was entered on behalf of the Parlement Belge, but the British Attorney General filed an information and protest asserting that the court had no ju- risdiction, inasmuch as the Parlement Belge was a mail packet in the possession, control, and employ of the King of the Belgians, and a public vessel of that sovereign and his state. It was not disputed that the Parlement Belge, besides carrying the mail between Ostend and Dover, car- ried merchandise and passengers for hire. The Admiralty Division overruled the Attorney General's protest, and the latter appealed. In allowing the appeal Brett, L. J., stated:
[Tlhe real principle on which the exemption of every sovereign from the jursidiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity-that is to say, with his absolute independence of every superior authority. . . .
[Wle are of the opinion that the proposition deduced from the earlier cases in an earlier part of this judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of every sovereign authority and of the international comity which in-
4.
Idra note 1 1.

5.
5 P.D. 197 (Court of Appeal 1880).

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duces every sovereign state to respect the independence of every other sovereign state, each and everyone declines to exercise by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but for the common agreement, sub- ject to its jurisdiction.
The adherence of English courts to the absolute theory of sovereign immunity may well result from a rigid applica- tion of the rule of precedent rather than from a conviction that international law requires them to continue applying the theory.
In The Porto Alexandre, 6 the immunity of foreign states, previously established with respect to litigation aris-ing from an activity which was not commercial, was granted in litigation involving a ship owned by a foreign state and used for trading. In The Cristina, 7 several of the Law Lords indicated they doubted the immunity should have been granted with respect to a commercial activity in The Porto Alexandre and suggested the extension of irn-munity in the case was not required by the previous deci- sion in point. However, the facts in The Cristina did not afford them the opportunity of passing anew on the issue. Thus, the theory of absolute immunity remains the rule of law in English courts. The precedents established in the United Kingdom with respect to sovereign immunity have been followed generally by courts in the British Common- wealth, though with occasional indications of doubt about the soundness of the absolute theory.
(3)
The Socialist States' View.

(a)
Socialist states are committed to the "absolute theory" of sovereign immunity and claim international law requires that it be granted even in cases where the litigation arises from commercial activities. In many states in western Europe and elsewhere, however, the courts ap- ply "the restrictive theory" and deny immunity to socialist states- and other states- in litigation arising from such activities. Socialist states look upon the denial of immunity in these cases as unwarranted interference with the conduct of their trade abroad through state monopolies.

(b)
In the Soviet system, foreign trade is a state monopoly, normally carried on through trade delegations in foreign countries.

Under Soviet law, these delegations . . . are an integral part of the diplo- matic missions of the U.S.S.R. abroad and enjoy the same privileges as the latter. Trade missions fulfil three main functions: a) the representa- tion of the interests of the U.S.S.R. in the field of foreign trade and the promotion of the commercial and other economic relations between the
U.S.S.R. and the country in which the mission is resident; b) the regula- tion of the trade between the U.S.S.R. and the country in which they are resident; c) the implementation of the trade between the U.S.S.R. and the country in which they are resident.. . .
Trade missions enjoy all the powers necessary for the fulfiient of these functions. They can conclude all kinds of agreements and con- tracts on behalf of the U.S.S.R., enter into commitments, including
6.     [I9201 P. 30 (C.A.).
119381 A.C. 485.

through the use of promissory notes, give guarantees, conclude agree- ments regarding the submission of disputes to arbitration courts and in general undertake all legal actions necessary to carry out the respon- sibilities with which they are vested, including appearing in foreign courts as a plaint8. Trade missions can be defendants only in cases aris- ing out of contracts concluded or guaranteed by them in the country concerned, and only in countries in relation to which the Government of the U.S.S.R. has by means of an international treaty or unilateral declaration clearly and precisely expressd its consent to the trade mission being subject to local courts in disputes of the character concerned. a
(c) Although the Soviet view is that, inasmuch as the wrying on of foreign trade is a sovereign activity of the Soviet Union, trade delegations and their property en- joy immunities in foreign countries derived directly from the sovereignty of the Soviet state itself, the Soviet Union has concluded a large number of bilateral treaties which contain provisions subjecting its trade delegations to the local jurisdiction in respect of their commercial activities. 9
(4 Since 1924, the Soviet Union has had legis- lation requiring the permission of the "Council of Peo- ple's Commissars" before property belonging to a foreign state could be attached or levied upon in satisfaction of a judgment. The immunity of foreign states receives more extensive regulation in the new Soviet legislation on civil procedure. While the Soviet Council of Ministers or other authorized organs may provide for retaliation against foreign states that do not respect Soviet immunity the new law, unlike the earlier, does not contain a reciprocity pro- vision. 10 Though the absolute theory still frnds favor in the courts of the United Kingdom and the socialist states, the majority of the international community has now moved toward the application of some form of the restric- tive concept of jurisdictional immunity. Thus, attention must now be focused in this direction. 5-4. The Restrictive Theory. a. The Tate Letter. The first major step in the U.S. shift toward the restrictive theory and an explanation of the conceptual basis of this approach were best set forth in 1952, in what has since come to be known as "the Tate Letter."
UNITED STATES: LETTER FROM THE ACTING LEGAL
ADVISER OF THE DEPARTMENT OF STATE TO THE
DEPARTMENT OF JUSTICE, MAY 19,1952.

26 United States Department of State Bulletin 984 (1952). MY DEAR MR. ATTORNEY GENERAL: The Department of State has for some time had under consideration the question whether the practice of the Government in granting im- munity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases. In view of the ob- vious interest of your Department in this matter I should like to point out briefly some of the facts which influenced the Department's deci-sion.
8. Academy of Sciences of the U.S.S.R., International Law 305-07 (Ogden transl. 1961).
9. For details, see J. Triska and R. Slusser, The Theory, Law, and Policy of Soviet Treaties 342-33 (1962), and S. Sucharitkul, State Im-munities and Trading Activities in International Law 152-61 (1959).
'0. See Soviet Civil Legislation and Procedure (Foreign Languages Publishing House, Moscow, 1965).
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A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and fiy established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respond- ent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). There is agree- ment by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property ex- cepted) or with respect to the disposition of the property of a deceased person even though a foreign sovereign is the beneficiary.
The classical or virtually absolute theory of sovereign immunity has generally been followed by the courts of the United States, the British Commonwealth, Czechoslovakia, Estonia, and probably Poland.
The decisions of the courts of Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal may be deemed to support the classical theory of immunity if one or at most two old decisions anterior to the development of the restrictive theory may be considered sum- cient on which to base a conclusion.
The position of the Netherlands, Sweden, and Argentina is less clear since although immunity has been granted in recent cases coming before the courts of those countries, the facts were such that immunity would have been granted under either the absolute or restrictive theory. However, constant references by the courts of these three countries to the distinction between public and private acts of the state, even though the distinction was not involved in the result of the case, may indicate an intention to leave the way open for a possible application of the restric- tive theory of immunity if and when the occasion presents itself.
A trend to the restrictive theory is already evident in the Netherlands where the lower courts have started to apply that theory following a Supreme Court decision to the effect that immunity would have been applicable in the case under consideration under either theory.
The German courts, after a period of hesitation at the end of the nine- teenth century have held to the classical theory, but it should be noted that the refusal of the Supreme Court in 1921 to yield to pressure by the lower courts for the newer theory was based on the view that that theory had not yet developed sufficiently to justify a change. In view of the growth of the restrictive theory since that time the German courts might take a different view today.
The newer or restrictive theory of sovereign immunity has always been supported by the courts of Belgium and Italy. It was adopted in turn by the courts of Egypt and of Switzerland. In addition, the courts of France, Austria, and Greece, which were traditionally supporters of the classical theory, reversed their position in the 20's to embrace the restrictive theory. Rumania, Peru, and possibly Denmark also appear to follow this theory.
Furthermore, it should be observed that in most of the countries still following the classical theory there is a school of influential writers favor- ing the restrictive theory and the views of writers, at least in civil law countries, are a major factor in the development of the law. Moreover, the leanings of the lower courts in civil law countries are more significant in shaping the law than they are in common law countries where the rule of precedent prevails and the trend in these lower courts is to the restrictive theory.
Of related interest to this question is the fact that ten of the thirteen countries which have been classified above as supporters of the classical theory have ratified the Brussels Convention of 1926 under which im- munity for government owned merchant vessels is waived. In addition the United States, which is not a party to the Convention, some years ago announced and has since followed, a policy of not claiming im- munity for its public owned or operated merchant vessels. Keeping in mind the importance placed by cases involving public vessels in the field of sovereign immunity, it is thus noteworthy that these ten countries (Brazil, Chile, Estonia, Germany, Hungary, Netherlands, Norway, Po- land,Portugal, Sweden) and the United States have already relinquished by treaty or in practice an important part of the immunity which they claim under the classical theory.
It is thus evident that with the possible exception of the United Kingdom little support has been found except on the part of the Soviet Union and its satellites for continued full acceptance of the absolute theory of sovereign immunity. There are evidences that British authorities are aware of its deficiencies and ready for a change. The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy. Furthermore, the granting of sovereign immunity to foreign governments in the courts of the United States is most inconsistent with the action of the Government of the United States in subjecting itself to suit in these same courts in both contract and tort and with its long established policy of not claiming im-munity in foreign jurisdictions for its merchant vessels. Finally, the Department feels that the widespread and increasing practice on the part of governments of engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. For these reasons it will hereafter be the Department's policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity.
It is realized that a shift in policy by the executive eannot control the courts but it is felt that the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so. There have been indications that at least some Justices of the Supreme Court feel that in this matter courts should follow the branch of the Govern- ment charged with responsibility for the conduct of foreign relations.
In order that your Department, which is charged with representing the interests of the Government before the courts, may be adequately informed it will be the Department's practice to advise you of all re- quests by foreign governments for the grant of immunity from suit and of the Department's action thereon.
Sincerely yours,
For the Secretary of State:
JACK B. TATE
Acting Legal Adviser

The purpose of the Tate Letter was, of course, to explain future U.S. policy with regard to jurisdictional immunity and to offer guidelines as to how the State Department would act upon requests for such protection. It soon became evident, however, that despite the guidance con- tained in this letter, uncertainty, as well as legal and politi- cal problems, continued to surround this jurisdictional concept. These issues will be discussed in the pages that follow. In order to appreciate the need for the recent shift away from executive to full judicial primacy in determina- tion of state immunity, 11 an examination of U.S. practice under and a critque of the Tate approach follows. It is of importance to note that the Tate Letter was simply tangi-ble evidence to continuing American movement toward the majority view of jurisdictional immunity.
b. Evolution of the Restrictive Theory.

(1) Prior to 1952, there had been a consistent turn away from the absolute to the restrictive theory ofjurisdic- tional immunity by the majority of the world community. The Supreme Court of Belgium adopted the Restrictive theory in 1903. In Egypt, the Court of Appeals of the Mixed Courts-then the highest court with jurisdiction
11. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891 (1976), 28 U.S.C. 1602.
Pam 27-161-1
over sovereign immunity cases–sanctioned in 1920 the Restrictive theory in a litigation involving the United Kingdom. By 19 18, the Supreme Court of Switzerland was applying the Restrictive theory, and in 1925, the Supreme Court of Italy adopted this approach when a trade mission of the USSR became involved in litigation before the Italian courts which arose from the mission's commercial activities. By 1928, the lower courts in Greece were declining to grant immunity to the USSR in a suit involving a commercial act, and in 1929, the Supreme Court of France sanctioned the Restrictive theo- ry, previously applied in the lower French courts, when a trade mission of the USSR was sued in connection with its commercial activities in France. Additionally, though refusing to apply the restrictive approach in 1921, the courts of the German Federal Republic have since become committed to this theory. Finally, both the Netherlands and Austria have become exponents of the restrictive view of jurisdictional immunity.
(2) In addition to these unilateral decisions to adopt the Restrictive theory, various states, in 1926, entered into the frrst multilateral convention embodying this con- cept-The Brussels Convention on the Unification of Cer- tain Rules Relating to Immunity of State-owned Vessels. 12 Article 1 (g) of this agreement provides that:
Seagoing vessels owned or operated by States, cargoes owned by them, and cargoes and passengers carried on Government vessels, and the States owning or operating such vessels, or owning such cargoes, are subject in respect of claims relating to the operation of such vessels or the carriage of such cargoes to the same rules of liability and to the same obligations as those applicable to private vessels, cargoes and equip- ments.
An essential element of the convention rests in the fact that when such vessels are involved in controversies relat- ing to collision, salvage, general average, repairs, supplies, or other contracts relating to the vessel, the claimant is en- titled to institute proceedings in the courts of the state owning or operating the vessel, without the state being permitted to avail itself of its immunity. 13
(3) This brief synopsis of the evolution of the restric- tive theory has a dual purpose. First, it evidences the fact that a major shift toward the restrictive approach has oc- curred throughout the international community. Addi- tionally, however, it is designed to alert the reader to the fact that, though many states do currently favor the restrictive theory, there still exists no universal approach toward the question of jurisdictional immunity. Even among those countries which favor the restrictive form of protection, the methods of implementation and in-terpretation vary. A clear understanding of this lack of uniformity is essential to an informed analysis of the sub- ject in question. 5-5. Procedures for Asserting Immunity. A foreign state may be required to follow certain procedures in asserting its immunity, provided that these procedures do
r
12. 176 L.N.T.S. 199 (1926).
13. The United States is not a party to this convention.
not unreasonably restrict its opportunity effectively to do so. Before the 1976 congressional change instituting the present practice, the procedures required of foreign states before United States courts and agencies were surn- marized in Restatement (Second), 14 as follows:
5 71. Assertion of Immunity: Law of the United States

(1)
In a federal court or other enforcing agency of the United States, an objection to its exercise of enforcement jurisdiction with respect to a foreign state, based on the rule stated in 5 65, is ineffective if made after the merits of the controversy have been placed in issue by the foreign state and unless made to the court or other enforcing agency either:

(a)
by the United States by means of a suggestion originating in the Department of State and communicated to the court or other en- forcing agency by the Department of Justice, or

@) by the government of the foreign state or its accredited diplo- matic representative upon an appearance before the court or other en- forcing agency that does not place the merits of the controversy in issue.
(2)
In a court of a state of the United States, the procedure for assert- ing immunity is determined by the law of that state. Such procedure is normally similar to that indicated in Subsection (1) but may permit assertion of immunity later or in a different manner than required by the rule stated in Subsection (1). A state may not prescribe more stringent requirements other than assertion before the merits of the controversy are placed in issue.

(3)
Failure to assert immunity as indicated in Subsections (1) and (2) does not affect immunity from execution unless the circumstances in- dicate a waiver of such immunity. . ..

5-6. The Evolving Status of Sovereign Foreign Lit- igants in U.S. Courts. a. Previous Role of the U.S. Executive Branch in Questions of Jurisdictional Immunity.
The suggestion by the State Department, as set forth in the Tate Letter, that the courts defer to the former's sug- gestions regarding various requests for jurisdictional im- munity was not a novel concept of the function of the American judiciary. U.S. Courts, both State and Federal, and prior to and after the Tate Letter, often deferred to suggestions from the Executive Branch in cases involving the Nation's foreign relations. For example, suggestions of the State Department 1s have played a role in connec- tion with recognition of foreign states and gover&ents and the Act of State Doctrine. 16 While this deference did provoke charges that the courts are abdicating their responsibility and that the State Department was intruding into the judicial sphere, 17 the constitutional supremacy'of the Executive Branch 18 in the conduct of foreign relations was generally seen before the recent statutory changes as requiring courts to defer to the Executive judgment with
14. Restatement (Second), supra note 2 at 5 71.
1s. The reader's attention is called to the fact that, as the State Department acts as the official spokesman for the Executive Branch on matters of sovereign immunity, these two terms are very often used in- terchangeably.
16. See chapter 6, irlfra.
17. See Jessup, Has the Supreme Court Abdicated One of Irs Func- tions? 40 Am. J. Int'l L. 168 (1946); Note, Sovereign ImmunipThe Last Straw in Judicial Abdication, 46 TUL. L. REV. 841 (1972).
18. This supremacy has often been confied by the Supreme Court, the most cited decision being United Stotes v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
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respect to certain issues involving foreign states and their property.
6. The Present Status of Jurisdictional Immunity Before United States Courts. To relieve this sometime awkward division of executive and judicial competencies, the Secre- tary of State and the Attorney General in January, 1973, promoted for consideration a draft bill which would place within exclusive judicial competence the function of deter- mining questions of jurisdictional immunity and the amenability to attachment of the property of a foreign sovereign. 19
Public Law 94-583, effective 19 January 1977, brought this scheme into law. 20 The Department of State Legal Advisor in a 10 November 1976 letter to the Attorney General assessed the effect and the mechanics of the shift from the Tate Letter era of judicial deference to that of judicial primacy. 21
DEAR MR. ATTORNEY GENERAL: Since the Tate Letter of 1952,26 Dept. State Bull. 984, my predecessors and I have endeavored to keep your Department apprised of Department of State policy and practice with respect to the sovereign immunity of foreign states from the jurisdiction of United States courts. On October 21, 1976, the Presi- dent signed into law the Foreign Sovereign Immunities Act of 1976,
P.L.
94-583. This legislation, which was drafted by both of our Depart- ments, has as one of its objectives the elimination of the State Depart- ment's current responsibility in making sovereign immunity determina- tions. In accordance with the practice in most other countries, the statute places the responsibility for deciding sovereign immunity issues exclusively with the courts.

P.L.
94-583 is to go into effect 90 days from the date it was approved by the President, or on January 19, 1977. We wish to advise you . . . what the Department of State's interests will be after that date.

….

P.L. 94-583 will make two important and related changes in the Department's sovereign immunity practice with respect to attachment. First, the statute will prescribe a means for commencing a suit against a foreign state and its entities by service of a summons and complaint, thus making jurisdictional attachments of foreign government property unnecessary.
Second, Section 1609 of the statute will provide an absolute immunity of foreigkgovernment property from jurisdictional attachment. Such ju- risdictional attachments have given rise to diplomatic irritants in the past and, in recent years, have been the principal impetus for a Department of State role in sovereign immunity determinations. It appears that after January 19, 1977, any jurisdictional attachment of foreign government property could, under Section 1609 of P.L. 94-583, be promptly vacated upon motion to the appropriate court by the foreign state defendant.
Immunily from execution. The Department of State has in the past recognized an absolute immunity of foreign government property from execution to satisfy a final judgment. The Department does not contem- plate changing this policy in the period before January 19, 1977. On or after that date, execution may be obtained against foreign government property only upon court order and in conformity with the other re- quirements of Section 1610 of P.L. 94-583.
Future Department of State interests. The Department of State will not make any sovereign immunity determinations after the effective date of
P.L. 94-583. Indeed, it would be inconsistent with the legislative intent of that Act for the Executive Branch to fde any suggestion of immunity on or after January 19, 1977.
19. Senate Bii 566. See Cong. Rec. 1297 (daily ed. Jan. 26, 1973).
20. Supra note 11.

21. Federal Register, V. 41, NO. 224, November 18, 1976, p. 50883.
After P.L. 94-583 takes effect, the Executive Branch will, of course,

play the same role in sovereign immunity cases that it does in other
types of litigation–e.g., appearing as amicus curiae in cases of significant
interest to the Government. Judicial construction of the new statute will
be of general interest to the Department of State, since the statute, like
the Tate Letter, endeavors to incorporate international law on sovereign
immunity into domestic United States law and practice. If a court should
misconstrue the new statute, the United States may well have an in-
terest in making its views on the legal issues known to an appellate
court.
Finally, we wish to express appreciation for the continuous advice and

support which your Department has provided during the ten years of
work and consultation that led to the enactment of P.L. 94-583. We
believe that the new statute will be a significant step in the growth of in-
ternational order under law, to which the United States has always been
committed.
Sincerely,
MONROELEIGH,
Legal Adviser.

The restrictive doctrine of jurisdictional immunity stated by Congress in section 1602 of new chapter 97 of the U.S. Code is an accurate statement of developed case law to this date.
8 1602. The Congress fmds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judg- ments rendered against them in connection with their commercial ac- tivities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.
The restrictive scope of immunity and the broad amenability of foreign states to suit flowing from "com- mercial" activity and from other cases, fairly states the developed U.S. case law.
5 1604. Immunity of a Foreign State From Jurisdiction
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. 5 1605. General Exceptions to the Jurisdictional Immunity of a
Foreign State

(a) A foreign state shall not be immune from the jurisdiction courts of the United States or of the States in any case-
"(1) in which the foreign state has waived its immunity either ex- plicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in ac-cordance with the terms of the waiver;
(2)
in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

(3)
in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commer- cial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that

Pam 27-161-1
agency or instrumentality is engaged in a commercial activity in the United States;
(4)
in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; or

(5)
not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to-

(A)
any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B)
any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

(b)
A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state. . . .

Beyond the threshold question of amenability to suit, the new legislation breaks some new ground in describing the ultimate status of states with regard to judgment. 5 1606. Extent of Liability
As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state ex- cept for an agency or instrumentality thereof shall not be liable for puni- tive damages; if, however, in any case wherein death wascaused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought. 5 1607. Counterclaims
In any action brought by a foreign state, or in which a foreign state in- tervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim-
(a)
for which a foreign state would not be entitled to immunity under section 1605 of this chapter had such claim been brought in a separate action against the foreign state; or

(b)
arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or

(c)
to the extent that the counterclaim does not seek relief exceed- ing in amount or differing in kind from that sought by the foreign state.

4 1609. Immunity From Attachment and Execution of Property of a Foreign State
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter. 5 1610. Exceptions to the Immunity From Attachment or Execution
(a)
The property in the United States of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execu- tion, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if-

(1)
the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any withdrawal of the waiver the foreign state may

purport to effect except in accordance with the terms of the waiver, or
(2)
the property is or was used for the commercial activity upon which the claim is based, or

(3)
the execution relates to a judgment establishing rights in prop- erty which has been taken in violation of international law or which has been exchanged for property taken in violation of international law, or

(4)
the execution relates to a judgment establishing rights in prop- erty-

(A)
which is acquired by succession or gift, or

(B)
which is immovable and situated in the United States: Pro-vided. That such property is not used for purposes of maintaining a diplomatic or consular mission of the residence of the Chief of such mission, or

(5)
the property consists of any mntractual obhgation or any proceeds from such a contractual obligation to idemntify or hold harmless the foreign state or its employees under a policy of automobile or other liability or casualty insurancecovering the claim which merged into the judgment.

(b)
In addition to subsection (a), any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activitv in the United States shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if-

(1)
the agency or instrumentality has waived its immunity from at- tachment in aid of execution or from execution either explicitly or irn-plicitly, notwithstanding any withdrawal of the waiver the agency or instrumentality may purport to effect except in accordance with the terms of the waiver, or

(2)
the judgment relates to a claim for which the agency or instru- mentality is not immune by virtue of section 1605 (a) (2), (3), or (5), or 1605(b) of this chapter, regardless of whether the property is or was used for the activity upon which the claim is based.

(c)
No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attach- ment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this chapter.

(d)
The property of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment prior to the entry of judgment in any action brought in a court of the United States or of a State, or prior to the elapse of the period of time provided in subsection (c) of this sec- tion, if-

(1)
the foreign state has explicitly waived its immunity from at- tachment prior to judgment, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, and

(2)
the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.

5 1611. Certain Types of Property Immune From Execution
(a) Notwithstanding the provisions of section 1610 of this chapter, the property of those organizations designated by the President as being entitled to eqjoy the privileges, exemptions, and immunities provided

:by the International Organizations Immunities Act shall not be subject to attachment or any other judicial process impeding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts of the United States or of the States.
(b)
Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and from execution, if-

(1)
the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution, or from execution notwith- standing any withdrawal of the waiver which the bank, authority, or government may purport to effect except in accordance with the

terms of the waiver; or (A) is of a military character, or
(2) the property is, or is intended to be, used in connection with a (B) is under the control of a military authority or defense agen- military activity and cy."
Section 11. IMMUNITIES OF STATE REPRESENTATIVES
5-7. Diplomatic Representatives and Theories of Dip- lomatic Immunity. a. In a letter of March 16, 1906, to the Secretary of Commerce and Labor, Secretary of State Elihu Root said:
There are many and various reasons why diplomatic agents, whether accredited or not to the United States, should be exempt from the operation of the municipal law at [sic] this country. The fmt and funda- mental reason is the fact that diplomatic agents are universally exempt by well recognized usage incorporated into the Cornman law of nations, and this nation, bound as it is to observe Intemational Law in its munici- pal as well as its foreign policy, cannot, if it would, vary a law common to all….
The reason of the immunity of diplomatic agents is clear, namely: that Governments may not be hampered in their foreign relations by the ar- rest or forcible prevention of the exercise of a.duty in the person of a governmental agent or representative. If such agent be offensive and his conduct is unacceptable to the accredited nation it is proper to request his recall; if the request be not honored he may be in extreme cases escorted to the boundary and thus removed from the country. And nghtly, because self-preservation is a matter peculiarly within the pro- vince of the injured state, without which its existence is insecure. Of this fact it must be the sole judge: it cannot delegate this discretion or right to any nation however friendly or competent. It likewise follows from the necessity of the case, that the diplomatic agent must have full access to the accrediting state, else he cannot enter upon the performance of his smc duty, and it is equally clear that he must be permitted to return to the home country in the fuIfient of offcial duty. As to the means best fitted to fuUii these duties the agent must necessarily judge: and of the time required in entering and departing, as well as in the delay necessary to wind up the duties of office after recall, he must likewise judge. 22
b. In its 1958 articles on diplomatic privileges and im- munities, which served as the basis for the Vienna Con- vention on Diplomatic Relations, the International Law Commission noted that diplomatic privileges and irn-munities had in the past been jusaed on the basis of the "extemtoriality" theory or on the basis of the "repre- sentative character" theory. According to the former, the premises of the mission represented a sort of extension of the territory of the sending state; according to the latter, privileges and immunities were based on the idea that the diplomatic mission personified the sending state. The commission then observed that a -third theory" ap-peared to be gaining ground in modem times; i.e., the "functional necessity" theory, "which justifies privileges and immunities as b*ng necessary the mission
to perform its functions." The stated that it had been guided bv this third theow ". . . in SO~V~IU!-prob-
" –

lems on which practice gave no clear pointers, while also bearingin the representative character the head the mission and of the mission itself." 23
22. 4 G. Hackworth, Digest of Intermtioml bw 513-14 (1942).
23. 2 Y. B. I.L.C. 95 (1958).

5-8. The Vienna Convention on Diplomatic Relations.
a. The Vienna Convention on Diplomatic Relations 24 was signed on April 18, 1964; as of January 1, 1975, 1 14 states were parties to the convention. The convention en- tered into force for the United States on December 13, 1972. The long delay between the signature of the con- vention and its ratiflation bv the United States was caused by efforts of the ~epartrnent of State to obtain, before ratiliation, the enactment of new legislation to resolve in-consistencies between the present legislation and the con- vention. As of January 1, 1977, the proposed legislation had not been enacted with the exception of measures supra codifjing the restrictive approach to foreign state immunity.
6. Prior to the drafting of the convention, the practice of states in the matter of diplomatic immunity was not uniform. There was a great degree of uniformity in some areas and in respect to those the convention sets up a uniform standard for states to follow. In some instances the convention introduces new rules. Some of the more important provisions follow: 2s
VIENNA CONVENTlON ON DIPLOMATIC RELATIONS Article 22

1.
The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.
The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3.
The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article 24

The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 25

The receiving State shall accord full facilities for the performance of the functionsof the mission.
Article 26

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement
24. 22 U.S.T. 3227; T.I.A.S. 7502; 500 U.N.T.S. 95.

25. Among the substantive articles omitted, supra, are those deal-ing with definitions (Art. 1); the functions of a diplomatic mission (art. 3); the establishment of diplomatic missions (arts. 2, 4-8, 10-13); the declaration by a receiving state that a representative is persona non grata (~rt. 9); protocol matters (arts. 14-18); the interim administration of missions temporarily without a "head of mission" (art. 19); the obliga- tion of the receiving state to assist in accommodating the mission and its staR (art. 21): and the exemotion from taxes on the remises of the
mission (art.'23). For a full akount and analysis of the proceedings in the Conference that led to the adoption of the Convention, see Kerley, Some Aspects of the Vienna Corlference on Diplomatic Intercourse and
Immunities, 56 Am. J. Int'l L. 5 8 (1962).
and travel in its territory.
Article 27
1.
The receiving State shall permit and protect free communication on the part of the mission for all officid purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropri- ate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.

2.
The official correspondence of the mission shall be inviolable. Offi- cial correspondence means all correspondence relating to the mission and its functions.

3.
The diplomatic bag shall not be opened or detained.

Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30
1.
The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

2.
Hispapers, correspondence and, except asprovided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolabity.

Article 31
1. A diplomatic agent shall enjoy immunity from the criminaljuris-diction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a)
a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b)     
an action relating to succession in which the diplomatic agent is in- volved as executor, administrator, heir or legatee as a private per- son and not on behalf of the sending State;

(c)
an action relating to any professional or commercial activity exer- cised by the diplomatic agent in the receiving State outside his offi- cial functions.

2.
A diplomatic agent is not obliged to give evidence as a witness.

3.
No measures of execution may be taken in respect of a diplomatic agent except in the cases comingunder sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

4.
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Article 32
1.
The immunity from jurisdiction of diplomatic agents and of per- sons enjoying immunity under Article 37 may be waived by the sending State.

2.
Waiver must always be express.

3.
The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

4.
Waiver of immunity from jurisdiction in respect of civil or admin- istrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
(a)     
indirect taxes of a kind which are normally incorporated in the prim of goods or services;

(b)
dues and taxes on private immovable property situated in the ter- ritory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(c)
estate, succession or inheritance duties levied by the receiving

State, subject to the provisions of paragraph 4 of Article 39;
(4    dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial under- takings in the receiving State;
(e) charges levied for specific services rendered;
@     registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Ar-ticle 23.
Article 36
1, The receiving State shall, in accordance with such laws and regula- tions as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a)
articles for the official use of the mission;

(b)
articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. .. .

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it con- tains articles. not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
Article 3 7
1.
The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, en- joy the privileges and immunities smed in Articles 29 to 36.

2.
Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities sWed in Ar-ticles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges smed in Article 36, paragraph 1, in respect of articles imported at the time of fmt installation.

3.
Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.

4.
Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and im- munities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

Article 38
1.
Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from juris-diction, and inviolability, in respect of official acts performed in the ex- ercise of his functions.

2.
Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdic- tion over those persons in such a manner asnot to interfere unduly with the performance of the functions of the mission.

Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the mo- ment when his appointment is notified to the Ministry for Foreign
Pam 27-161-1

Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and im- munities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mis- sion, immunity shall continue to subsist.
Article 41

1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
5-9. The International Law Commission's Convention on the Protection of Diplomats. Motivated by a substan- tial increase in violent crimes committed against diplo- matic personnel by various terrorist organizations, the In- ternational Law Commission drafted, in 1973, the Con- vention on The Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Dip- lomatic Agents. 26 The wide scope of protection afforded by this convention is evidenced by its first three articles.
Article 1

For the purpose of this Convention:
1. "Internationally protected person" means:

(a)
A Head of State, including any member of a collegial body per- forming the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Miter for Foreign Affairs, whenever any such person is in a foreign State, as well as mem- bers of his family who accompany him;

(b)
Any representative or official of a State.or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household;

2. "Alleged offender" means a person as to whom there is sufficient evidence to determine prima facie that he has committed or participated
An Act
in one or more of the crimes set forth in article 2.
Article 2
1. The intentional commission of:
(a)
A murder, kidnapping or other attack upon the person or liber- ty of an internationally protected person;

(b)
A violent attack upon the official premises, the private accom- modation or the means of transport of an internationally protected per- son likely to endanger his person or liberty;

(c)
A threat to commit any such attack;

(d)
An attempt to commit any such attack; and

(e)
An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.

2.
Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

3.
Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropri- ate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Article 3
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set forth in article 2 in the following cases:

When the alleged offender is a national of that State; When the crime is committed in the temtory of that State or on board a ship or aircraft registered in that State; (a)

(b)

(c)
When the crime is committed against an internationally pro- tected person as defmed in article 1 who enjoys his status as such by vir- tue of functions which he exercises on behalf of that State.

2.
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over these crimes in cases where the alleged offender is present in its temtory and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

3.
This Convention does not exclude any criminal jurisdiction exer- cised in accordance with internal law.

5-10. U.S.Legislation for the Protection of Diplomats. At the request of the Department of State, legislation was enacted in 1972 to supplement that already designed to safeguard protected persons. Applicable provisions of this
U.S. Protection of Diplomats Act 27 appear below.
To amend title 18, United States Code, to provide for expanded protection of foreign officials, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress as- AC~for the ~oleetion of Foreign Oflicialsand Offi-sembled,That this Act may be cited as the "Act for the Protection of Foreign mcials and Offical Guests of Guests ofthe United Slam, the United States".
STATEMENT OF FTNDINGS AND DECLARATION OF POLICY
SEC.2. The Congress recognizes that from the beginning of our history as a nation, the police power to investigate, prosecute, and punish common crimes such as murder, kidnaping, and assault has resided in the several States, and that such power should re- main with the States.
The Congress finds, however, that harassment, intimidation, obstruction, coercion, 86 STAT.1070 and acts of violence committed against foreign officials or their family members in the sa STAT.1071 United States or against official guests of the United States adversely affect the foreign relations of the United States.
Accordingly, this legislation is intended to afford the United States jurisdiction con- Jurisdiction. current with that of the several States to proceed against those who by such acts inter- fere with its conduct of foreign afFairs.
26. 13 Int'l Legal Mat. 41-49 (Jan 1974). 27. 86 Stat. 1070 (1972).
TITLE I-MURDER OR MANSLAUGHTER OF FOREIGN
OFFICIALS AND OFFICIAL GUESTS 62 Stat. 756. SEC.101. Chapter 51 of title 18, United States Code, is amended by adding at the 18 USC 1111. end thereof the following new sections:
"8 1116. Murder or Manslaughter of Foreign Officials or Official Guests
"(a) Whoever kills a foreign official or official guest shall be punished as provided under sections 1 1 1 1 and 1 1 12 of this title, except that any such person who is found guilty of murder in the fust degree shall be sentenced to imprisonment for life.
Defnitions. "(b) For the purpose of this section 'foreign official' means-
"(1) a Chief of State or the political equivalent, President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such capacity, and any member of his family, while in the United States; and
"(2) any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such of- ficer or employee.
"(c) For the purpose of this section: "(1) 'Foreign government' means the government of a foreign country, ir- respective of recognition by the United States. "(2) 'International organization' means a public international organization designated as such pursuant to section 1 of the International Organizations Im-59 Stat.669. munities Act (22 U.S.C. 288).
"(3) 'Family' includes (a) a spouse, parent, brother or sister, child, or person to whom the foreign official stands in loco parentis, or (b) any other person living in his household and related to the foreign official by blood or marriage.
"(4) 'Official guest' means a citizen or national of a foreign country present in the United States asan official guest of the government of the United States purl suant to designation as such by the Secretary of State.
"8 1117. Conspiracy to Murder
62 Stat. 756; "If two or more persons conspire to violate section 11 11, 11 14, or 1 116 of this title, 65 Stat.721; and one or more such persons do any overt act to effect the object of the conspiracy,
Ante, p. 1071.

each shall be punished by imprisonment for any term of years or for life." SEC.102. The analysis of chapter 5 1 of title 18, United States Code, is amended by adding at the end thereof the following new items:
"1 116. Murder or manslaughter of foreign officials or official guest." "1 11 7. Conspiracy to murder."
86 STAT. 1071

86 STAT. 1072 TITLE 11-KIDNAPING
62 Stat. 760; SEC.201. Section 1201 of title 18, United States Code, is amended to read as 70 Stat. 1043.
follows:
"8 1201. Kidnaping

"(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:
"(1) the person is willfully transported in interstate or foreign commerce; "(2) any such act against the person is done within the special maritime and ter- ritorial jurisdiction of the United States; "(3) any such act against the person is done within the special aircraftjurisdiction of the United States as defined in section 101 (32) of the Federal Aviation Act of 84 Stat. 921. 1958, as amended (49 U.S.C. 1301 (32)); or "(4) the person is a foreign official as defined in section 11 16 (b) or an official guest as defined in section 11 16 (c) (4) of this title, Penalty shall be punished by imprisonment for any term of years or for life. ,A
"(b) With respect to subsection (a) (1) ,above, the failure to release the victim with- in twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce.
"(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life."
SEC.202. The analysis of chapter 55 of title 18, United States Code, is amended by deleting
"1201. Transportation",
and substituting the following:
"1201. Kidnaping."
TITLEID-PROTECTION OF FOREIGN OFFICIALS
AND OFFICIAL GUESTS

SEC.301. Section 112 of title 18, United States Code, is amended to read as follows: 7s stat. 610. ''9 112. Protection of Foreign Officials and Official Guests
"(a) Whoever assaults, strikes, wounds, imprisons, or offers violence to a foreign me-md pnalhes official or official guest shall be fined not more than $5,000, or imprisoned not more than three years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon shall be fined not more than $10,000, or imprisoned not more than ten years, or both.
"(b) Whoever willfully intimidates, coerces, threatens, or harasses a foreign official or an official guest, or willfully obstructs a foreign official in the performance of his duties, shall be fined not more than $500, or imprisoned not more than six months, or both.
"(c) Whoever within the United States but outside the District of Columbia and Demonsb-ahoos. within one hundred feet of any building or premises belonging to or used or occupied by a foreign government or by a foreigi official for diplomitic or consular purposes, or sa SAT. 1072 as a mission to an international organization, or as a residence of a foreign official, or sa STAT. 1073 belonging to or used or occupied by an international organization for official business or residential purposes, publicly-
"(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters
any word, phrase, sound, or noise, for the purpose of intimidating, coercing,
threatening, or harassing any foreign official or obstructing him in the performance of
his duties, or

"(2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section, shall be fined not more than $500, or imprisoned not more than six months, or both.
"(d) For the purpose of this section 'foreign official', 'foreign government', 'inter- Dehitioos. national organization', and 'official guest' shall have the same meanings as those pro- vided in sections 1 116 (b) and (c) of this title. Anre, p. 1071.
"(e) Nothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States." usc p.
SEC.302. The analysis of chapter 7 of title 18, United States Code, is amended by hue 1. deleting
"112. Assaulting certain foreign diplomats and other official personnel."
and adding at the beginning thereof the following new item:
"1 12. Protection of foreign officials and official guests."
5-11. Applicability of Domestic Law. a. Applicability of already on the temtory of the receiving state. 28 In the case Domestic Law Before Obtaining Diplomatic Status. The of the head of a diplomatic mission, the sending state
appointment by a foreign state of a diplomatic agent does mwt inquire before nomination whether the proposed en- not automatically bring him diplomatic immunity. The receiving state must give its consent and, until it does, the voy is "persona grata," and the receiving state must also diplomatic agent may be sued or prosecuted if he is 28. In Re Vitianu,[I9491 Ann.Dig. 281.
express its "agreement," before the nomination. As to other members of the diplomatic staff, "agreement" is not required and the consent to their appointment may be either express or implied. However, they are entitled to immunity from the time they enter the territory of the receiving state if such consent has been given previously.
b.
Applicability of Domestic Law to Private Acts of Dip- lomatic Agent. Domestic law may be enforced against a diplomatic agent with respect to such of his acts as are pri- vate and not covered by immunity. Under Article 31 of the Vienna Convention, it may also be enforced when his act is private and entitled to immunity, but the immunity is waived. 29 Moreover, it may be enforced as well when the act is private and entitled to immunity, but the func- tion of the diplomatic agent has come to an end. In this later me, the immunity ceases from the moment he leaves the territory of the receiving state, or on expiration of a reasonable period of time to do so. 30

c.
Nonapplicability of Domestic Law to Official Acts of a Diplomatic Agent. Suppose a diplomatic agent performs an oficial act such as the preparation of a report on highly sensitive political matter in the receiving state, at the re- quest of his chief of mission. The report is made public in the sending state and is eventually reprinted in a newspa- per in the receiving state. The diplomatic agent then retires from the diplomatic service of the sendingstate and remains in the state where he formerly exercised his func- tion. Thereupon he is sued for libel in the rannrt he pre- pared as an oficial act. He is entitled to immunity. 31

d.
Waiving the Immunity of a Diplomatic Agent. Article 32 of the Vienna Convention provides that diplomatic im- munity may be waived by the sending state. If the diplo- matic agent is the head of the mission, the waiver must come from the ministry of foreign affairs of the sending state. If the individual involved in junior in rank, presumably the head of the mission, i.e., the person authorized to speak for the sending state in the receiving state, may waive the immunity. In either case, the waiver must be unambiguously expressed.

e. Waiver of Immunity by Initiation of Proceedings. This form of waiver is also provided for in Article 32 of the Vienna Convention. There is no requirement that a diplomatic agent obtain authorization from his state prior to initiating the proceeding.
J Applicable U.S.Law. Sections 252, 253 and 254 of Title 22 of the United States Code, Annotated, which have to do with the diplomatic immunity of ambassadors and public ministers, are as follows:
5 252. Suits against ministers and their domestics prohibited. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign prince or State, authorized and received as such by the President, or any
29.
See, with respect to waiver, Article 32 of the Vienna Conven- tion, at p.10, supra.

30.
See Article 39 of the Vienna Convention, at p. 10, supra.

31.
See Restatement (Second), supra note 2 at 5 73.

domestic or domestic servant of any such minister, is arrested or im-
prisoned, or his goods or chattels are distrained, seized, or attached,
such writ or process shall be deemed void.
5 253. Penalty for wrongful suit. Whenever any writ or process is sued out in violation of section 252 of this title, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every officer concerned in executing it shall be deemed a violator of the laws of nations and a disturber of the public repose, and shall be imprisoned for not more than three years, and fied at the dis- cretion of the court.
4 254. Exceptions as to such against servants, etc., of minister; listing servants. Sections 252 and 253 of this title shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, in the service of an ambassador or a public minister, and the process if founded upon a debt contracted before he entered upon such service; nor shall section 253 of this title apply to any case where the person against whom the process is issued is a domestic servant of the ambassador or a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the marshal of the District of Columbia, who shall upon receipt thereof, post the same in some public place in his office. AU persons shall have resort to the list of names so posted in the marshal's office, and may take copies without fee.
It is important to note that ambassadors and ministers are totally immune from suit in U.S. Courts, even though the cause of action might be based on purely personal trans- actions. 32 Thus, section 1251 of title 28 stipulates that:
(a) The Supreme Court shall have original and exclusive jurisdiction of:
***
(2)
All actions or proceedings against ambassadors or other public ministers of foreign states or their domestics or domestic servants, not inconsistent with the law of nations. (Emphasis added.)

(b)
The Supreme Court shall have original but not exclusive jurisdic- tion of:

(1)
All actions or proceedings brought by ambassadors or other public ministers of foreign states or to which consuls or vice consuls of foreign states are parties. …

5-12. Proving Diplomatic Status. a. Comment i to Sec- tion 73 of the Restatement as to proof of diplomatic status declares:
Diplomatic status is established by its recognition as such by the Department of State, on request of the foreign government, and com- munication of this recognition to the court. Mere inclusion in the Diplo- matic List maintained by the Department of State (the "Blue List") is not alone sufficient to foreclose judicial inqujr. Preparation of this list is only a ministerial act and not a determination by the executive branch of a right to diplomatic immunity. Where the Secretary or his designee cer- tifies an individual's name as a person accepted as a diplomatic agent, the certification is conclusive on the court.
Comment b to Section 74 of the Restatement states as to proof of status in United States practice for persons other than diplomatic agents.
The Department of State maintains a List of Employees of Diplomatic Missions (the "White List") which is comparable to the "Blue List" * * .The same procedural and legal questions arise with respect to proof of immunity of persons on the "White List" as apply in the case of persons on the "Blue List."
b. Decisions in matters of diplomatic immunity by the
32. See Arcaya v. Paez, 145 ESupp. 464, qffd per curium, 244. F.2d 958 (2d Ci. 1957).

national courts of other states often mention that the min-
istry of foreign affairs has certified the diplomatic status of the person involved in the case, thus suggesting that deci- sion-making by the executive with respect to diplomatic status is widespread. 5-13. The Reach of Diplomatic Immunity. a. The Vien- na Convention divides the personnel of a diplomatic mis- sion into four categories and assignes different privileges and immunities to each. In assessing the difference in treatment of each of these categories, it is useful to know who the persons are in each and what they do. The infor- mation below is a simplified table of organization of a dip- lomatic mission.
(1)
The first category is the diplomatic staff. Its members have diplomatic rank. They are the individuals engaged in the performance of the diplomatic function in the strict senbe of the term. These diplomatic agents, as they are called in the Vienna Convention, include the chief of mission (ambassador, or minister or charge d'affaires) ,counsellor or deputy chief of mission, the first, second and third secretaries (of embassy), the military at- taches (air, army, navy) and such other attaches (for com- merce, labor, treasury and other matters) as the receiving state may agree to recognize as diplomatic agents.

(2)
The next two categories-which may be looked upon as part of the "official" family of the diplomatic agent–are the administrative and technical staff on the one hand and the service staff on the other. The adminis- trative staff includes administrative officers, persons in charge of communications (code and mail), secretary- typists and file clerks. The service staff includes drivers of the mission cars, butlers, cooks, maids and gardeners. The last category-which may be looked upon as part of the "personal" family of the diplomatic agent-nsists of private servants.

b.
No immunity is required for private servants un-der the Vienna Convention. Before the Convention, the United Kingdom, like the United States, granted com- plete immunity to the private servants of diplomatic agents. Many other states did not. Under Article 37(4) of the Convention, private servants of members of the mis- sion are entitled to immunity only to the extent the receiv- ing state wishes to grant it. The statutes by which the United States gives complete immunity to private servants are derived from the Act of April 30, 1790, chap. 9, 55 25-27, 1 Stat. 117. Thus,as noted above, Section 252 of Title 22 of the U.S. Code expressly bars suits against any "domestic" or "domestic servant" of diplomtaic agents.

c.
Immunity of family members and dependents of diplomatic agents under the Vienna Convention. Under Article 37 (1) of the Vienna Convention, the members of the family of a diplomatic agent forming part of his house- hold are entitled to the immunity he personally has. Who the "members of the family" are, however, is left unclear and so is the notion of "household." There was a great diversity of views on the meaning of these terms at the

Pam 27-161-1

Vienna Conference on Diplomatic Relations. In a letter quoted in 7 Whiteman, Digest of International Law 260 (1970), an Assistant Legal Adviser in the Department of State of the United States maintained:
* * * The Governments represented at the Vienna Conference were unable to agree on a defmition of family, for purposes of privileges and immunities. All governrnents are in general agreement that the wife of a diplomatic agent, his minor children, and perhaps his children who are full-time college students or who are totally dependent on him, are en- titled to diplomatic immunity. All governments tend to agree that other relatives forming part of his household who are gainfully employed are not entitled to diplomatic immunity. Other cases, e.g. unmarried adult daughters, dependent parents, and sisters acting as official hostesses, are decided on the basis of the facts in the particular situation and the prac- tice in the receiving state. Under the Vienna Convention, members of the family of a diplomatic agent who are nationals of the receiving state are not entitled to diplomatic immunity.
d. U.S. practice with respect to the immunity of service hasbeen to grant service staff the same immunity as diplo- matic agents. In one incident, the driver of the Minister of Iran was arrested in Maryland for speeding and both he and the minister taken to the police station. A justice of the peace dismissed the driver's fine. Upon protest from Iran, the police officers were prosecuted, fined, and removed from duty. 33
(1)
While neither diplomatic representatives nor their drivers are subject to arrest or detention for parking violations, they are expected to pay the charges involved. If they fail to do so, the Department of State will not authorize the issuance to them of DPL plates. 34

(2)
Under Article 37 (3) of the Vienna Convention, the members of the service staff have no immunity from criminal jurisdiction and have immunity from civil juris- diction only for acts performed in the course of their duties. However, the article does not bar the United States from granting the broader immunity given them under its present law and practice.

e.
U.S. practice with respect to administrative and tech- nical staff. The practice of the United States has been to give members of the administrative and technical staff the same immunity as is given diplomatic agents. Under Arti- cle 37(2) of the Vienna Convention, the U.S. is not re- quired to give these individuals immunity from civil juris- diction for acts performed outside the course of their offi- cial duties. However, neither is it barred from granting them the broader immunity given them under present law and practice. Article 37 of the Vienna Convention does, however, grant to families of the members of the adrninis- trative and technical staff the same immunity as is granted the members of that staff themselves. Until the Vienna Convention came into force for the United States, it has been its practice not to grant any immunity to their families.

See Reeves, The Elkton Incident, 30 Am. J. Int'l L. 95 (1936). 33.

34.
Announcement of April 1, 1964, 58 Am. J. Int'l L. 1001 (1 964).

Pam 27-161-1
5-14. Protection of Diplomatic Personnel in Transit. The immunities of diplomats while in transit through the territory of a third state have long been the subject of con-siderable controversy. 35 However, much of the debate surrounding this topic has ceased as a result of Article 40 of the Vienna Convention.
Art. 40 (1) If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, whiie proceeding to take up or to return to his post, or when returning to hi? own country, the third State shall accord him in-violability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the dip- lomatic agent, or travelling separately to join him or to return to their country.
(2)
In circumstances similar to those s@~ed in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of mem- bers of their families, through their territories.

(3)
Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.

(4)
The obligations of third States under paragraphs 1, 2 and 3 of this Article shd also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the temtory of the third State is due to force

5-15. The Inviolability of Diplomatic Premises. a. The concept of jurisdictional immunity as it relates to diplo- matic premises is very often misunderstood and misap- plied. The case which follows serves the dual purpose of setting forth the law as it exists and dispelling many of the myths surrounding this particular principle.
FATEMI v. UNITED STATES
United States Court of Appeals, District of Columbia, 1963.
192 A.2d 525.

MYERS, ASSOCIATE
JUDGE.These are consolidated appeals of four- teen Iranian nationals from convictions for "unlawful entrv" under Ti- tle 22 D.C. Code 5 3102, 1961 Ed.
Appellants, Iranian students studying in this country, entered the Ira- nian Embassy to deliver a petition protesting an Iranian land reform referendum. After they had staged an overnight "sleep-in," embassy officiak requested the Metropolitan police to come to the embassy. Several police officers, headed by a captain, entered the embassy and talked with the Minister who gave the captain a formal, written request addressed to the Metropolitan Police Department asking the police to enter the embassy, eject the students from the premises and arrest them because, after a lawful entry on the previous day, they had refused to leave upon demand of the person lawfully in charge. The Minister then, in the presence of the police, again asked the students to leave within five minutes, addressing them in both Iranian and English. When they refused to depart they were placed under arrest and bodily carried from the embassy.
Following trial on January 22, 1963, the defendants, having refused a continuance and having chosen not to testify, but at all times fully repre- sented by counsel, were found guilty.
Appellants complain numerous errors were comrnited below. We are
3s. For a concise summary, see Harvard Research in Inrernational Law, Diplomatic Privileges and Immunities, 26 Am. J. Int'l L. Supp. IS, 85-88 (Art. 15) (1932).
of the opinion that only two alleged errors are worthy of consideration:
(1) that the District of Columbia police had no authority to enter the Ira-nian Embassy and arrest Iranian nationals for a crime committed within the confines of the Embassy; and (2) even if the inviolability of the Em- bassy could be waived, the Minister had no authority to waive it. Ap- pellants contend that a foreign embassy, protected by the doctrine of in-violability, which extends to diplomatic dwellings, is not subject to the jurisdiction of the local police and courts of the receiving state or to its body of criminal law. We fid scant authority to support this contention; indeed the weight of authority is to the contrary.
Since our decision must rest in part upon principles of intemational law, which is part of the law of the land, we have examined custom, case decisions and the works of the treatise writers to aid in ascertaining the nature of the particular questions here involved. Although case law is not controlling in determining issues of international law, recorded deci- sions help in analyzing the custom or trend of the law in a given area. We believe that the weight of international case law as reinforced by the treatise writers 5 establishes as a modem rule of international law that
(1) a foreign embassy is not to be considered the territory of the sending state; and (2) local police have the authority and responsibility to enter a foreign embassy if the privilege of diplomatic inviolability is not invoked when an offense is committed thereon in violation of local law.
Representatives of a foreign sovereign are given immunity from the operation of the laws of the receiving nation, and the premises and buildings occupied by the diplomatic mission usually are regarded as in- violable by the authorities of the receiving state. This is grounded upon the international law concept that all sovereigns are equal and that the representatives of a particular sovereign serve in the place of the one sending them. "No act of jurisdiction or administration of the receiving Government can take place within [the confines of an embassy] except by special permission of the envoys. "(Emphasis added.)
That the diplomatic premises are a part of the temtory of the sending state and therefore always exempt from local laws does not follow as a matter of course, however. "The modem tendency among writers is toward rejecting the fiction of extraterritoriality * * * ." Numerous case decisions bear out this trend. As early as 1867, the doctrine of extrater- ritoriality was abandoned by European nations. Recently, in the case of
R. v. Kent, the British courts held that "A crime committed in a foreign embassy is a crime committed in the United Kingdom and the offender, ifnot protected by diplomatic immuniw, is liable to prosecution in British courts." (Emphasis added.)
Appellants have failed to distinguish cases in which the privilege of diplomatic immunity is invoked from those in which it is not. If a mem- ber of the diplomatic community asserts his claim to immunity, then the local police are powerless to act. Only if the criminal act beiig committed by the diplomat is such as to endanger the public may the police dis-regard the inviolability of an embassy and enter to seize the offender. Even in this situation the police may only hold the accused to prevent injury to the public, and only until the Department of State can request his recall, but the law enforcement officers are powerless to prosecute the offender. Such is not the instant case, involving an embassy to which the police had been invited in order to arrest and remove Iranian students who have no claim to the privilege of immunity and were violating local law.
Appellants' next contention-that even if the inviolability of the dip- lomatic dwellings can be waived, the Mister of the embassy had no authority to do so-that the waiver must come only from the Am-bassadoris equally without merit.
We do not think it unreasonable to hold that a police captain can enter the Iranian embassy and make an arrest for a misdemeanor com- mitted in his presence when he has been called by one who purports to
5. A few sclections fmm the uealk disclose:
(a) ' ' Kacrime iscommitted insidethe house of nn envoy by nn individual who da not enjoy personsUy the privilege of extraterritoriality, the criminal must be surrendered to the I d Government. 1 Oppenbeim, International Law (8th Ed. Lauterpafht Edilor 1955) 8 390.
@) The inviolability ofdiplomatic premisesdoes not mean Ulat they are lo be consideredas altogether outside the application of the law of the receiving statbe foreign enclave within ie territory. Brierly. The Law of Nations (6th Ed. 1963). .>.
Pam 27-161-1

be the Minister of the embassy and is given a letter on official Iranian there Wig no error concerning the trial, the convictions are
stationery asking the local police to disregard, for this one instance, the Affied.
diplomatic rule of inviolability of the embassy and to lend aid in the ejec-

tion of violators. * * b. Title IV of the 1972 U.S. Protection of Diplomats
+ I Act 36 provides specific protection to the property of Accordingly, we rule that the arrest of the appellants was neither ar- foreign governments and in~~rnational
organizations in bitrary nor illegal but orderly and proper under the circumstances, and the United States.
TITLEIV-PROTECTION OF PROPERTY OF FOREIGN GOVERNMENTSAND INTERNATIONAL ORGANIZATIONS
SEC.401. Chapter 45of title 18, United States Code, is amended by adding at the 62 stat 743 end thereof the following new section: 18 USC 951 ''5 970. Protection of Property Occupied by Foreign Governments
"(a) Whoever willfully injures, damages, or destroys, or attempts to injure, OlTensesmd damage, or destroy, any property, real or personal, located within the United States and w*uw belonging to or utilized or occupied by any foreign government or international organization, by a foreign official or official guest, shall be fined not more than $10,000, or imprisoned not more than five years, or both. 86 STAT 1073
"(b) For the purpose of this section 'foreign official', 'foreign government', 'inter- Defiiu,, national organization', and 'official guest' shall have the same meanings as those pro- vided in sections 11 16 @) and (c) of this title." Ante, P. 1071.
SEC.402. The analysis of chapter 45 of title 18, United States Code, is amended by
addii at the end thereof the following new item:
"970. Protection of property occupied by foreign governments."

SEC.3.Nothing contained in this Act shall be construed to indicate an intent on the
part of Congress to occupy the field in which its provisions operate to the exclusion of
the laws of any State, Commonwealth, territory, possession, or the District of Colum-
bia on the same subject matter, nor to relieve any person of any obligation imposed by
any law of any State, Commonwealth, territory, possession, or the District of Colum-
bia.

5-16. Counsular Immunity. a. The consular function. munities. Despite the growing similarity of oficial func- The institution of the consul derives from the practice in tions, however, the distinction between these two catego- medieval Italy of electing a representative from among the ries of state representatives continues to exist. This fact iS foreign merchants resident in a city. Thus, until very re- demonstrated by the following case. cently, consular functions were principally commercial ANDERSON v. VILLELA and not diplomatic, though judicial jurisdiction over na-United States District Court, D. Massachusetts, 1962. tionals of the consul's state was sometimes vested in con- 210 F.Supp. 791. suls, especially in undeveloped countries. Today, FORD, DISTRICT JUDGE. This is an action for damages for personal
however, the distinction between commercial and diplo- injuries in which one of the two defendants moves for judgment dis-matic activity is difXcult to maintain. Much formal diplo- missing the action asto him on the ground that the court is without ju-
matic negotiation is in fact trade promotion, and much risdiction as to him.
The sole basis for jurisdiction set forth in the complaint is 28 U.S.C.A. trade promotion leads to diplomatic overtures. This fusion 5 1351, which provides: "The district courts shall have original jurisdic- of functions has led inevitably to a fusion of the diplomatic tion, exclusive of the courts of the States, of all actions and proceedings and consular services, so that a career officer may be against consuls or vice consuls of foreign states." The defendants here
are Vasco A. Villela, the owner of the motor vehicle alleged to have posted on one tour to an embassy secretariat, on the next caused plaintWs injuries, and his son Ruy Viela, who is alleged to to a trade mission, and on the next to a consulate proper. have been the driver of the vehicle. The complaint alleges that Vasco is Some embassies make no pretence of keeping the consul- a consul, and he does not appear to challenge the court's jurisdiction as ar service distinct and house it in the same building, and to to the action against him.The sole issue raised by Ruy Viela's motion
to dismiss is whether 5 1351 gives this court jurisdiction over the action some extent, with the same personnel. as against him, since no other basis of jurisdiction is alleged in the com-
b. In recent times, consuls have come to represent all plaint. manner of governmental activity, such as supervising Ruy Viela is not hiilf a consul or vice consul. However, plaintiff
contends that 5 1351 should be interpreted as applying to members of treaty and performing duties with the family of a consul as weU asto the consul personally. He atgues that to government-owned ITErchant ships. T~~ functions just as the diplomatic immunity from suit of ambassadors and other en-
are not very distinguishable from those of diplomats. 37 voys extends to members of their families, so the immunity of a consul
Accordingly, some consuls and diplomatic representatives 36. 86 Stat. 1070 (1972).
should be accorded the same degree of jurisdictional irn-37. 2 D. O'Comell, InternationaI Law, 914 (1965).

from suit in a state court should be extended to members of the consul's family. The analogy is not persuasive. The diplomatic immunity of am- bassadors and other envoys and the members of their suites rests on a principle of international law which has been recognized and applied by our courts. Under international law a consul does not enjoy any such im- munity, at least as to suits not based on his official acts within the scope of his duties as consul. Coppell v. Hall, 7 Wall (74 U.S.) 542, 553, 19 L.Ed. 244; The Anne, 3 Wheat. (16 US.) 435, 445, 446, 4 L.Ed.428; Arcaya v. Paez, D.C., 145 F. Supp. 464, flied 2 Ci.,244 F.2d 958. Such immunity as a consul enjoys from suit in a state court is not one based on international law but is conferred solely by statute, and in fact Congress has not always expressly provided for exclusive federal juris- diction over actions against consuls. Bors v. Preston, 111U.S. 252, 261, 4 S.Ct. 407, 41 1, 28 L.Ed.419. Hence there is no basis for concluding that the scope of any immunity conferred by 5 1351should be co-exten- sive with the scope of diplomatic immunity under international law.
* * *

Note that under international law, a consul does not enjoy
immunity as to suits not based on his official acts within
the scope of his duties.
5-17. The 1963 Vienna Convention on Consular Rela-
tions. 38 a. Personal functions and immunities. Article 5
of the agreement contains a list of consular functions.
These cover a wide spectrum and include, among others,
protecting in the receiving state the interests of the send- ing state and its nationals; furthering the development of commercial, economic, cultural and scientifc relations; ascertaining conditions and developments in the commer- cial, economic, cultural and scientific life of the receiving state; issuing passports, visas, and travel documents; helping and assisting nationals of the sending state; serv- ing as a notary or civil registrar; assisting nationals in con- nection with decedents' estates, guardianships for persons lacking legal capacity and representation and preservation of rights before local tribunals; transitting documents or executing letters rogatory or commissions to take evi- dence for courts of the sending state; exercising rights of supervision and inspection of vessels and aircraft of the sending state; and extending assistance to such vessels and aircraft and their crews, including conducting investiga- tions and settlii disputes. The provisions of the conven- tion most relevant to a discussion of jurisdictional irn-munities follow.
Art. 41. (1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a deci- sion by the competent judicial authority.
(2)     Except in the case sw~ed

in paragraph 1 of this Article,, consul- ar officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of ajudicial deci- sion of fmal effect.
(3) If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case smed in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1.of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.
Art. 43. (1) Consular officers and consular employees shall not be
38. 21 U.S.T. 325; U.N.T.S. 261.
amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of con- sular functions.
(2)
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:

(a)
arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b)     
by a thud party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Art. 44. (1) Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evi- dence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
(2)
The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. . . .

(3)
Members of a consular post are under no obligation to give evi- dence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State.

Art. 45. (1) The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in Articles 41,43 and 44.

(2)
The waiver shall in all cases be express, except as provided in paragraph 3 of this Article, and shall be communicated to the receiving State in writing.

(3)
The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking immunity from juris- diction in respect of any counter-claim directly connected with the prin- cipal claim.

(4)
The waiver of immunity from jurisdiction for the purposes of civil or administrative promedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver shall be neces-

sary. Art. 53. (1) Every member of the consular post shall enjoy the privi- leges and immunities provided in the present Convefition from the mo- ment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he en- ters on his duties with the consular post.

Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1of this Article or from the date of their entry into the territo- ry of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest. (2)

(3)
When the functions of a member of the consular post have come to an end, his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so, whichever is the sooner, but shall subsist until that time, even in case of armed conflict. In the case of the persons referred to in paragraph 2 of this Article, their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided, however, that if such persons in- tend leaving the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.

(4)
However, with respect to actsperformed by a consular officer or a consular employee in the exercise of his functions, immunity from juris-

diction shall continue to subsist without limitation of time. . . . Art. 54. (1) If a consular officer passes through or is in the territory of a third State, which has granted him a visa if a visa was necessary, while proceeding to take up or return to his post or when returning to the sending state, the thud State shall accord to him all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family forming part of his household enjoying such privi- leges and immunities who are accompanying the consular officer or trav- elling separately to join him or to return to the sending State.
(2)
In circumstances similar to those spedied in paragraph 1 of this Article, third States shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households.

(3)
Third States shall accord to official correspondence and to other official communications in transit, including messages in code or cipher, the same freedom and protection as the receiving State is bound to ac- cord under the present Convention. They shall accord to consular couriers who have been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability and protection as the receiving State is bound to accord under the present Convention.

(4)
The obligations of third States under paragraphs 1,2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and to consular bags, whose presence in the territory of the third State is due to force mqieure.

Art. 55. (1) Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.. . .
b.
Article 17 of the convention provides that a consular officer may be authorized to perform diplomatic acts with- out affecting his consular status. Articles 3 and 70 deal with the performance of consular functions by diplomatic personnel. Other omitted articles deal, inter alia, with the appointment and admission of consular officers, the exe-quatar (authorization from the receiving state admitting the head of a consular post to the exercise of his func- tions), miscellaneous facilities and privileges to be granted by the receiving state, protocol matters, and the termina- tion of consular functions.

c.
Inviolability of the consular premises is specifically spoken to in Article 31 of the Vienna Convention.

Article 31
Inviolability of the Consular Premises

The authorities of the receiving State shall not enter that part of 1.
Consular premises shall be inviolable to the extent provided in this Article.

2.

.the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fie or other disaster requiring prompt protective action.
3.
Subject to the provisions of paragraph 2 of this Article, the receiv- ing State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

4.
The consular premises, their furnishings, the property of the con- sular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If ex-propriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and

prompt, adequate and effective compensation shall be paid to the send- ing State.
It has been stated that the trend before 1948 was to grant absolute consular immunity from military requisition and expropriation, irrespective of considerations of military defense or public utility. However, since World War 11, there have been indications that expropriation or requisi- tion of consular property may be permissible under condi- tions similar to those stated in Article 31. 39
5-18. The Scope of Consular Immunities. The scope of consular immunities is defined in the great majority of cases by bilateral agreement between the sending and receiving states. The Restatement, moreover, notes that limited immunities ". . . appear to have been accepted in the customary practice that has developed in connection with the performance of consular functions and in the limited number of cases that have arisen." 40 Section 81(1) accordingly lays down the rule that . . . "[a] consul- ar officer or employee is immune from the exercise of ju- risdiction by the receiving state to prescribe and enforce any rule of conduct to the extent that it interferes with the performance of his official functions." In elaborating upon the concept of "official functions," the Restatement in-vokes the analogy of diplomatic immunities, noting that while such functions are "determined in part by the law of the receiving state,'' subject to the limitation that essential functions such as communication with the sending state must not be hampered, the "permissible scope of official functions tends [in the absence of international agree- ment] to be settled on a basis of reciprocity." 41 5-19. Applicable U.S. Law. As noted in Anderson v. Villela,42 all proceedings brought in the United States against consuls or vice consuls of foreign states must be
(brought in the Federal District Courts. 43 The Supreme Court has held, however, that divorce proceedings may be brought against consuls in the state courts. 44 AS a result of the fact that the federal courts cannot enforce state criminal law, consuls enjoy a de facto immunity from criminal prosecution for violations of state law. 45 5-20. Special Missions and Persons Assimilated to Diplomatic Status. a. With reference to personnel of spe- cial missions, Restatement, section 82, states:
An official representative of a foreign state, who has been received in a capacity that does not entitle him to the immunity of the state . . . or to diplomatic or consular immunity . . ., is immune from the exercise of jurisdiction by the receiving state to prescribe or enforce any rule of con- duct to the extent that it interferes with the performance of his official functions.
39.
L. Lee, Consular Law and Practice 283-84 (1961).

40.
Restatement (Second), supra note 2 at 5 81, Comment a.

41. Id. at 5 81, Comment b.
42. Page 5-17, supra.

See 4 G. Hackworth, supra note 78 at 746-53. 28 U.S.C.A., 5 1351. 43.

44.
Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154 (1930).

45.

b.
The International Law Commission has prepared a set of Draft Articles on Special Missions. 46 In doing so, the I.L.C. observed that the Convention on Diplomatic Relations dealt only with permanent diplomatic missions and that ". . . diplomatic relations between states also assumed other forms that might be placed under the heading of 'ad hoc diplomacy,' covering a state for limited purposes." 47 Article 29 of the Draft Articles provides for personal inviolability of the persons of the sending state's representatives in the special mission and of the members of its diplomatic staff (as in Article 29 of the Vienna Con- vention on Diplomatic Relations). Article 31 of the Draft Articles reproduces Article 31 of the Vienna Convention, with the exception that immunity is not granted to mem- bers of special missions with respect to "an action for damages arising out of an accident caused by a vehicle used outside the official functions of the person in ques- tion." 5-21. Representatives to International Organizations.

a.
In examining the jurisdictional immunities accorded representatives to international organizations, primary at- tention is focused on those individuals attached to the United Nations. An analysis of the protection afforded these representatives will, in turn, give the reader an over- all understanding of this particular aspect of jurisdictional immunity. The basic law governing the relationships be- tween the U.N. and its employees is, of course, the U.N. Charter. Articles of special signif~cance to the question of the status of the employees of the organization (interna- tional civil servants) are Articles 97 through 101, defining the powers and duties of the Secretary-General and his staff, and Articles 104 and 105, dealing with questions of capacity, privileges, and immunities.

b.
In addition to the Charter, there are basic interna- tional agreements detailing in more specifk form the broad provisions of the Charter. A major document is the Convention on the Privileges and Immunities of the United Nations, 48 which came into force early in the life of the organization but was not ratified by the United States until April 27, 1970. 49 The organization has also entered into conventions with states in which it has lo- cated its principal offices. The agreement governing the United Nations premises in New York City is the Head- quarters Agreement with the United Nations. 50

c.
Beyond agreements of general applicability are those the organization has entered into with states on whose ter- ritory it is carrying on a specific, temporary project. For example, the Secretary-General of the United Nations concluded an agreement with the Government of Egypt in 1957 on the status of the United Nations Emergency

46.
See the Report of the Commission in 62 Am. J. Int'l L. 244 (1968).

47.
Id. at 246.

48.
21 U.S.T. 1418; 1 U.N.T.S. 15.

49.
The U.S. resewed its acceptance with respect to the immunity of United States nationals from military service and taxation.

50.
61 Stat. 756; 11 U.N.T.S. 11.

Forces in that country, dealing with such matters as civil and criminaljurisdiction over members of the force, privi- leges and immunities. 51
d. It is important to note that in determining what law governs a particular situation arising in the United Stata; it is of course necessary to analyze the several possibly ap- plicable treaties and legislation, not only &terms of their substantive provisions but also, in caseiof conflict, in terms of the chronology of their enactment or coming into force. 52 The more relevant provisions of the two most important agreements in this area appear below.
(1) CONVENTION ON THE PRIVILEGES AND IM-MUNITIES OF THE UNITED NATIONS
Art. IV. 8 11. Representatives of Members to the principal and sub- sidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privi- leges and immunities:
(a)
Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind;

(b)
Inviolability for all papers and documents;

(c)
The right to use codes and to receive papers or correspondence by courier or in sealed bags;

(d)
Exemption in respect of themselves and their spouses from im-migration restrictions, aliens registration or national service obligations in the state they are visiting or through which they are passing in the ex- ercise of their functions;

(e)
The same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;

(f)
The same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys, and also;

(g)
Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods im-ported (otherwise than as part of their personal baggage) or from excise duties or sales taxes.

8 12. In order to secure, for the representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, complete freedom of speech and inde- pendence in the discharge of their duties, the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstand- ing that the persons concerned are no longer the representatives of Members.

8 14. Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in con- nection with the United Nations. Consequently a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.

8 15. The provisions of Sections 11, 12 … are not applicable as be- tween a representative and the authorities of the state of which he is a national or of which he is or has been the representative.

8 16. In this article the expression "representatives" shall be deemed

51, 11 U.N. GAOR, Annexes, Agenda Item No. 66, at 52-57,
U.N. Doc. A/3526 (1957); John, Recent Cases on United Nations Law 225 (1963).
52. See chap 2, supra.
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to include all delegates, deputy delegates, advisers, technical experts and secretaries of delegations. 53
(2)
Section 15 of Article V of the agreement be-tween the United Nations and the United States Regard- ing the Headquarters of the United Nations provides as follows:

(1)
Every person designated by a Member as the principal resident representative to the United Nations of such Member or as a resident representative with the rank of ambassador or minister plenipotentiary,

(2)
such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned,

(3)
every person designated by a Member of a specialized agency, as defmed in Article 57, paragraph 2, of the Charter, as its principal resi- dent representative, with the rank of ambassador or minister plenipo- tentiary, at the headquarters of such agency in the United States, and

(4)
such other principal resident representatives of Members to a specialized agency and such resident members of the staffs of repre- sentatives of a specialized agency as may be agreed upon between the principal executive officer of the specialized agency, the Government of

the United States and the Government of the Member concerned, shall, whether residing inside or outside the headquarters district, be en- titled inthe territory if the United States to the same privileges and im- munities, subject to corresponding conditions and obligations, as it ac- cords to diplomatic envoys accredited to it. In the case of Members whose governments are not recognized by the United States, such privi- leges and immunities need be extended to such representatives, or per- sons on the staffs of such representatives, only within the headquarters district, at their residences and offices outside the district, in transit be- tween the district and such residences and offices, and in transit on offi- cial business to or from foreign countries.
(3) Section 7(b) of the International Organizations Immunities Act, 54 accords representatives to interna- tional organizations, as well as oficers and employees of such organizations, immunity ". . . from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such repre- sentatives, officers, or employees." 55
Section 111. IMMUNITIES OF INTERNATIONAL ORGANIZATIONS, THEIR AGENTS,
OFFICIALS AND INVITEES

5-22. General. a. The modem law relating to the im- munities of international organizations has developed principally from the experience of the League of Nations and the International Labor Organization, although some aspects of its origin can be traced back to the nineteenth century. This body of law began as little more than "a general principle resting on the questionable analogy of diplomatic immunities; it has become a complex body of rules set forth in detail in conventions, agreements, statutes and regulations." 56 As the scope and importance of the activities of international organizations have in-creased in the postwar world, so have the extent and sig- nificance of their immunities and those of their officials. The bases for these immunities diier in important respects from those for the granting of jurisdictional im- munities to foreign states. Like states, international
organizations require jurisdictional immunities in order to carry on their functions without interference from munici-pal courts and administrators. Unlike states, however, in- ternational organizations do not enjoy a long history of respect for their authority or the means of taking recipro- cal reprisals against infringements of that authority.
b. The fact that no attempt will be made in this publica- tion to fully analyze this particular aspect of jurisdictional immunity is not to be viewed as an attempt to minimize its increasing importance in public international law. A detailed examination of this area of jurisprudence is, however, better suited to an advanced study of interna- tional organization. For purposes of the military attorney, several references provide a concise and informative over- view of this topic. 57
Section IY. THE GRANTING OF DIPLOMATIC ASYLUM, POLITICAL ASYLUM OR
TEMPORARY REFUGE

5-23. General. Military attorneys may very likely en- counter requests for diplomatic asyl~, politid asyl~ or temporary refuge, either overseas or within the ter- ritorial juri~ctio~
df the United States. Moreover, a mishandling of such requests may lead to serious diplo- matic and consequences. it is necessary to examine the legal norms and DOD regula- tions applicable to those jurisdictional concepts. 5-24. ~~~li~~bl~a. Initially, it is
~~t~~~~ti~~al
L~~.

nvto distinguish between politi* Or
and Or asylum is the term appropriately to be employed where a political refugees finds refuge within the borders of a
53. As of January 1, 1975, 110 states had acceded to this Conven- tion.
54. 59 Stat. 669; 22 U.S.C.A. g 288d(b).

55. On the immunities of representatives to international organiza- tions, see generally Resmtement (Second), supra note 2 at 8 86 and Gross, Immunities and Privileges of Delegations to the United Nations,
l6 483
56. C. Jenks, International Immunities XXXV (1961).

57.
See W. Friedman, 0.Lissitzyn & B. Pugh,International Law at 725-44 (1969), and N. Leech, C. Oliver & J. Sweeney, The Interna- tional Legal System (1973) 883-928.

58.
A classic example of the serious consequences that can occur arose of a U.S. refusal to grant asylum to a Lithunian seaman in U.S. ter- ritorial waters in November 1970.Thii refusal, now popularly known as The vi@ant Incident, resulted in a complete Of Depart-ment of State and Department of Defense guidelines on requests for immunity. These are examined in the following pages. For an excellent discussion of the practical and legal problem involved in this incident, see Mann, Asylum Denied: The Vigilant Incident, 23 Naval War Coll. Rev. 4 (May, 1971) and Goldie, LegalAspects of the Refusal of Asylum by U.S. Coast Guard on 23 Nowmber 197423 Naval War Coll. Rev. 32 (May, 1971).

foreign state. On the other hand, diplomatic asylum is the term used where an individual, to evade local jurisdiction for a political offense, or to esc& from imminent danger, finds protection in certain places that enjoy well-recog- nized immunities from the local jurisdiction. It is used particularly with reference to asylum in embassies and legations. 59
b. In the Asylum Case, 60 the International Court of Justice observed: ' A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively withi the competence of that State. Such a derogation
horn territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.
In keeping with this I.C.J. opinion, the United States has consistently refused to recognize the right to grant diplo- matic asylum. 61 Derogations from this practice have oc- curred only in instances of serious humanitarian concern. One such instance is described below.
c. In a letter to the American Consulate General in Toronto in 1961, Acting Secretary of State Bowles stated: The United States, whiie not recognizing the doctrine of political [diplomatic]62 asylum in United States Missions abroad, has in excep- tional cases granted refuges on humanitarian grounds to an individual in immediate and grave personal danger. With special reference to the case of Cardinal Midszenty, you will recall that he appealed to the American Legation in Budapest for refuge on November 4, 1956, when Soviet armed forces renewed their attack upon the Hungarian people. The decision to grant refuge to the cardinal was taken by the United States Govemment under highly exceptional and most unusual circumstances and on urgent humanitarian grounds at a time of foreign aggression against Hungary. It was clear in the circum- stances of the renewed Soviet attack that Cardinal Mindszenty . .. faced certain death or imprisonment should he fall into the hands of Soviet or Soviet-controlled Hungarian Communist Forces. The American Lega-
tion in Budapest was accordingly authorized in this situation of emergency to afford him the refuge which he had requested. 63
5-25. Controlling State Department Guidelines. Due to the general confusion surrounding the concepts of "politi- cal" and "diplomatic" asylum, the Department of State and the Department of the Army have recently developed guidelines and regulations setting forth definitions relating to asylum and the specific actions to be taken when re- quests for such are made. 64
59. See 6 M. Whiteman, Digest of International Law 428 (1968) and 8 M. Whiteman, Digest of International Law 660 (1967).
60. Colombian-Peruvian Asylum Case, [I9501 I.C.J. 266.
61. 2 G. Hackworth, Digest of International Law 622 (1941).

62.
The necessity of inserting the word "diplomatic" here is indica- tive of the confusion surrounding the concept of asylum. The terms "political" and "diplomatic" asylum are consistently used in-terchangeably, although, as indicated above, these principles are legally and politically different in nature.

63.
Letter from C. Bowles, Acting Secretary of State to the Ameri- can Consulate General in Toronto, April 28, 1961, Instruction No. A-22, Dept of State fde 211 0012/4-2861.

64. U.S. Department of State, New Guidance Reirlforces U.S. Policy on Right of Asylum, 66 State Dep't. Bull. 124-27 (January 31, 1972); Department of the Army, Procedures for Handling Requests for Political Asylum and Temporary Refuge, AR 550-1 (August, 1973).
a. In the preface to its 1972 guidelines on the granting of asylum and "temporary refuge," 65 the State Depart- ment makes the following policy statement.
Both within the United States and abroad, foreign nationals who te- quest asylum of the United States Govemment owing to persecution should be given full opportunity to have their requests considered on their merits. The request of a person for asylum or temporary refuge shall not be arbitrarily of summarily refused by U.S. personnel. Because of the wide variety of circumstances which may be involved, each re- quest must be dealt with on an individual basis, taking into account humanitarian principles, applicable laws and other factors.
In cases of such requests occurring within foreign jurisdiction, the ability of the United States Government to give assistance will vary with location and circumstances of the request. 66
These guidelines then proceed to set forth detailed procedures to follow and information to provide with regard to requests for asylum in the United States in other area outside any foreign jurisdiction.
b. In speaking to requests for asylum by individuals at
U.S. installations, vessels or aircraft in foreign jurisdic- tions, this State Department document declares that while it is policy of the U.S. not to grant asylum at these units or installations within the territorial jurisdiction of a foreign state, any requests for U.S. asylum should nevertheless be reported in accordance with these newly established procedura1,guidelines. Moreover, attention is called to the fact that U.S. installations overseas may grant "temporary refuges" 67 for humanitarian reasons, i.e., in exceptional circumstances where the life or safety of a person is put in danger, such as pursuit by a mob. 68
5-26. Controlling DA Regulation. In response to the State Department guidelines discussed above, the Depart- ment of the Army has formulated AR 550-1, Procedures For Handling Requests for Political Asylum an Tempo- rary Refuge. 69 This regulation provides specific guidelines to Army installations and units that receive requests for political asylum or temporary refuge both within and out- side of the territorial jurisdiction of the United States. 70
The end of this chapter marks the termination of an ex- amination of one of the most critical areas of public inter- national law–state jurisdiction. Due to its importance, it
65. Reference here and in AR-550-1 is made to political asylum and "temporary refuge," a term used to describe temporary grants of "diplomatic" asylum. The term is used in deference to the above noted
U.S. refusal to recognize the validity of the granting of diplomatic asylum.
66.
U.S. Department of State, supra note 64.

67.
"Temporary refuge" must not be confused with political or diplomatic asylum.

68.
U.S. Department of State, supra note 64. This section also con- tains the procedures to be followed in such situations and the degree of force that can be used in order to protect the individual(s) involved.

69.
Department of the Army, supra note 64. This AR implements DOD Directive 2000.11 of the same title.

70.
The analogous U.S. Navy Regulation is SECNAVTNST 5710.22 (7 October 1972); change 1 (IS August 1973).

Pam 27-161-1

is essential that the attorney be completely familiar with within their territorial boundaries. Essential to such an both the means by which jurisdiction might be exercised analysis is an understanding of the manner in which both and the immunities to the enforcement of such. Attention private and juristic persons acquire and lose a state's na- must now be directed toward the responsibilities which tionality and concomitant protection. The following states bear as a result of being endowed with the concur- chapter provides this insight. rent rights to exercise jurisdiction and to control activities
I
'4
4

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CHAPTER 6
NATIONALITY

6-1. Introduction. a. A basic feature of today's system of nation states is the relative helplessness of the individual. At birth he finds himself a member of some political in- stitution (typically a "state" in the international system) which, more or less, protects him from the violence of other individuals and groups of individuals. In the domestic legal system of that state, its police and courts may offer protection from harm inflicted within the state; while its army may protect him from harm caused by ag- gression from outside the state. If the individual steps out- side "his" state and is injured by someone in another state, he is largely on his own. He must look for redress, if any, in the courts of that other state. Doctrines of sovereign immunity may bar him from redress for injuries caused by that state. However, as a last resort, the in- dividual must appeal to his own state's government to help him. If it chooses, it may come to his aid by espous- ing a claim against the wrongdoing state through diplo- matic channels (or possibly through arbitration or through judicial means such as the International Court of Justice).
b.
For the protection it offers him at home and the pro- tection it may afford him against foreign injuries, the state demands obligations of the individual in return: to obey its laws, to pay its taxes, to help to defend it against aggres- sion. The physical fact of an individual's presence within a state has been the major basis from which the state exerts its power to protect the individual and to demand his allegiance. However, the processes of history have developed legal relationships between the state and the in-dividual that do not depend solely upon his physical pres- ence in the territory of the state. The state has a special relationship to those it designates as its "nationals." In broad and inexact terms, the state's nationals are entitled to greater rights than nonnationals (e.g., in states with voting systems, the national is permitted to vote, the non- national is not); the state is more ready to demand that the national perform obligations (e.g., the national may be subject to laws prescribed by his state even though he is not physically present in its territory). 1

c.
The practices of states in creating the class of people upon whom they confer nationality vary widely. Some states accord nationality to individuals born within the ter- ritory; this right of nationality is referred to as jus soli. Some states accord nationality at birth only to individuals born of parents who are already nationals; this right of na- tionality is referred to as jus sanguinis. An increasing number of states recognize both bases. In addition to ac- cording nationality based upon facts associated with birth, states afford "naturalization" processes by which in- dividuals may apply for and be granted nationality. As a result of such a variety of bases for nationality existing in

1. See the discussion on jurisdiction, chapter 4, supra.
the international system, it is possible for an individual to be designated a national and thus have "dual nationality" or even "multiple nationality." Indeed, there are circum- stances under which he may have no nationality at all and thus be "stateless."
d. From the perspective of the international legal system, several important questions arise:
(1)
Is a state free to set its own standards for confer- ring its nationality upon an individual, or does interna- tional law set some minimum standard?

(2)
What is the significance of nationality as a base for the state's requiring the performance of obligations by an individual? For example, can the state draft into its army someone who is not its national?

This chapter will explore these and other related ques- tions. 6-2. Nationality as a Concept of Municipal Law. a. The law of conflicts in nationality matters. Many municipal statutes and court decisions fall obviously into the catego- ry of "municipal law of nationality," for no consideration of any law other than that imposed by a sovereign in its unilateral dealings with individuals is involved. In other instances, the municipal character of the legal considera- tion is not so obvious, for the consideration may involve principles of nationality belonging to foreign states and contrary to the generally applicable law of the forum. This situation results not from municipal application of interna- tional law, but rather, from application of the rules of con- flicts of the law, whereby the law of the forum embraces a principle of foreign municipal law. There is a special branch of conflict of laws, dealing with nationality, con- cerned with determining whether certain rules of foreign law, on which the existence, acquisition or loss of na- tionality may depend, will be given effect. For instance, the acquisition or loss of the nationality of a particular country may be dependent on the absence or presence, loss or acquisition of a foreign nationality. 2 In this situa- tion the municipal law of the forum is not applied. Instead, a substantive principle of foreign law is applied by the forum. This process does not involve any concept of inter- national law. It is the result of ordinary conflicts of law rules, as the foreign law applied has become the law of the forum in the case at hand.
b. There is a second situation in which a casual ob- server might mistake the operation of municipal law of na- tionality for that of international law. This is when resort has been made to international law as a guide in formulat- ing municipal law. For example, the International Claims Settlement Act of 1949 3 provides:
64 Stat. 13, as amended, 22 U.S.C. 4 1621 (1958). 2.
Silving, Nationality in Comparative Low, 5 Am. J. Comp. L. 410, 416 (1956).

3.

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A claim . . . shall not be allowed unless the property upon which the claim is based was owned by a national of the United States on the date of. . . taking thereof and .. . continuously thereafter until the date of fd-ing. . . .4
With reference to this statutory provision, the House Committee which formulated it commented: This section gives statutory recopnition to the basic requirement of in- ternational law governing espousable international claims, which is that no claim can be so regaded unless the claim was continuously owned by a national of the claiming state .. .from the date of loss to the date the claim is filed. 5
Thus, the United States, in its municipal law, has given formal effect to "one of the best established principles of international law." 6 However, . . ."it is erroneous to at- tempt to establish rules of international law by methods of comparative law, or even to declare that rules of munici- pal law of different states which show a certain degree of uniformity are rules of international law." 7 Thus, these legal concepts which bear the label "nationality" and which concern the law of more than one nation fail on close inspection to involve considerations of international law. 6-3. Acquisition of Nationality. a. An individual may acquire nationality either originally, that is through the cir-cumstances of this birth, or derivatively, by some action after birth.
(1)
Original acquisition of nationality. Two princi- ples serve as the basis for the original acquisition of na- tionality: jus soli and jus sanguinis. 8 Just soli may be defined as the acquisition of a particular state's nationality by virtue of being born within the territory of that state. The principle of jus sanguinis may be defrned as the ac- quisition of a particular state's nationality by virtue of the possession of the nationality by one's parents. Nationality, under this principle, may be said to be acquired by de- scent.

(2)
Derivative acquisition of nationality. The deriva- tive acquisition of nationality has been referred to as naturalization ipso facto. As such, it deals with the process of naturalization in its broadest sense. Naturalization derivatively acquired generally flows from some action of the person naturalized after birth. Several methods of ac- quiring nationality fall within the broad category of naturalization: by marriage; by legitimation; by acquisition of domicile; by entry into the service of a foreign state; by resumption of a lost nationality; and by the familiar naturalization process of a formal act on the application of the individual concerned. 9 In all of these areas substantial

72 Stat. 528 (1958), 22 U.S.C. 5 1642d (1958). 4.

5.
H. R. Rep. No. 2227,85th Cong., 2d Sess.(1958), 2 U.S. Code Cong. & Admin. News, 3304 (1958).

P. Weis, Nationality and Statelessness in International Law 3 (1955). 6.
Preselj, The Rule of the Nationali@ of Claimant, Due Process of Law and the United Slotes Congress, 53 Am. J. Int'l L. 144-151 (1959).

7.

Id. at 660-63. 8.
1 L. Oppenheim, International Law 650-660 (8th ed. Lauter- pacht 1955).

9.

differences exist in the particular practices of individual states. These multifarious practices are consonant with the principles of international law in that it is well recognized that one of the aspects of territorial sovereignty is the power to determine who, by what method and according to which standards an alien may acquire nationality.
b. The most important and commonly encountered method of acquiring nationality is that process known as "naturalization." The extent to which a state may deliine- ate the requirements placed upon aliens seeking its na- tionality is illustrated by the comprehensive and complex provisions covering this subject in the United States Code. 10 This formal process of naturalization by means of a voluntary petition may be accomplished in proceedings that are either judicial in nature, as in the United States, or that are purely administrative. 6-4. Loss of Nationality. a. As nationality may be gained, so may it be lost. The two primary methods by which the loss of nationality occurs are expatriation and denationalization. Expatriation consists of a formal renun- ciation of the possessed nationality by an individual who has left the state whose nationality he possesses and has or is in a position to acquire another nationality. The renun- ciation is the explicit announcement by the individual by which he sheds his possessed nationality. The formal con- sent of the state, whose nationality is renounced, to the in- dividual's renunciation is known as a release.
Denationalization, on the other hand, may be defined as an act by a state by which it deprives one of its nationals of his nationality. Denationalization may occur either by operation of law-certain conduct resulting in @so facto loss-or after an administrative or judicial proceeding in- stituted by the state.

b. Expatriation. A difficult question arises from the act of renunciation by 'an individual, as it is not entirely clear whether expatriation is unilateral or bilateral in nature. May an individual legally terminate his allegiance to the state of his nationality by unilaterally renouncing his na- tionality, or must a release by the state follow the renun- ciation for the renunciation to be "good against the world?" At common law a subject's allegiance persisted. This theory was known as the "doctrine of indelible allegiance" and was a part of the English law until 1870. It was, of course, a source of friction and bitterness between Great Britain and the United States, particularly in the later 18th and 19th centuries. Between 1870 and 1948, the English reversed this doctrine. In 1948, pursuant to the British Nationality Act, a middle ground was taken: a British subject may now either retain or renounce his allegiance to the Crown, as he chooses, upon acquisition of a new nationality. The doctrine of indelible allegiance was also a part of the law of the United States in early times. Gradually, however, the doctrine was abandoned as it did not comport with the position of the United States
10. Immigration and Nationality Act, 66 Stat. 163 (1952), as amended 8 U.S.C. 45 1421-59 (1958).
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as a state receiving a heavy flow of immigration. 11
c. Denationalization. The practice of states with respect to the application of denationalization varies greatly. Some states have no provision in their domestic law for dena- tionalization, while others, like Great Britain and some of the Commonwealth countries, have provisions which relate only to naturalized nationals. Still others, like the United States, 12 have statutory provisions relating to the denationalization of both native born and naturalized na- tionals.
(1) In the U.S., Congress has provided that an American national shall lose his nationality for a variety of reasons. 13 The meaning of the statutory phrase "lose his nationality" has, however, generated a certain degree of controversy. In Kennedy v. Mendoza-Martinez,14 the court said:
We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship-particularly American citizenship, which is "one of the most valuable rights in the world to- day," Report of the Resident's Commission on Immigration and Naturalization (1953), 235-has grave practical consequences. An ex-patriate who, like Cort, had no other nationality becomes a stateless per- son-+ person who not only has no rights as an Americancitizen, but no membership in any national entity whatsoever. "Such individuals as do not pmess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty * * no restriction whatever to cause a State to abstain from maltreating to any extent such stateless
1     individuals." I Oppenheim, International Law (8th ed., Lauterpacht, 1955), 5 291, at 640. The calamity is "[nlot the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever *"
In holding that denationalization as a punishment is bar-red by the Eiith Amendment, the court, in Troy v. Dulles, 15 said:
There may be involved no physical mistreatment, no primitive tor- ture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than tor- ture for it destroys for the individual the political existence that was cen- turies in the development. The punishment strips the citizen of his status in the national and international political community. His very ex- istence is at the sufferance of the country in which he happens to fmd himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have nghts.
(2) It is not only in Troy v. Dulles that the dena- tionalization provisions have suffered badly at the hands of the U.S. Supreme Court. Although in Perez v.
11. See generally, Boudin, Involuntary Loss of American Na- tionality, 73 Harv. L. Rev. 1510, 1511-1516 (1960).
12. Immigration and Nationality Act, 68 Stat. 267 (1952), as amended 8 U.S.C. 55 1481-1489 (1958).
13.
8 U.S.C. 5 1481.

14.
372 U.S. 144, 160; 83 S.Ct. 554, 563 (1963).

15.
356 U.S. 86, 101; 78 S.Ct. 590, 598 (1958).

Brownell16 the court had held that it was within the foreign relations power of Congress to provide for loss of citizenship by one who votes in a foreign election, this par- ticular case was overruled in Afroyim v. Rusk. 17 Moreover, in the Mendoza-Martinez case, the court held that the provision for loss of nationality by remaining out- side the United States to avoid military service was puni- tive in nature and could not stand constitutionally in that it lacked due process safeguards guaranteed by the Constitu- tion. Finally, in Schneider v. Rusk, 18 the court struck down the provision for loss of nationality by a naturalized citizen who had continuously resided for 3 years in the country of his origin.
6-5. Statelessness. a. Although, as noted above, inter- national law does not generally prohibit the use by states of denationalization, the undesirable result, i.e., stateless- ness, is a matter of great concern. In Staniszewski v.
Watkins,19 a "stateless" seaman was released after being detained at Ellis Island for about 7 months at the expense of his employer. The court observed that the government was ". . .willing that he go back to the ship, but if he were sent back aboard ship and sailed to the port . . . from which he last sailed to the United States, he would prob- ably be denied permission to land. … There is no other country that would take him without proper documents." The court sustained the seaman's writ of habeas corpus and ordered his release: "He will be required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating where he is employed and where he can be reached by mail. If the government does suc- ceed in arranging for petitioner's deportation to a country that will be ready to receive him as a resident, it may then advise the petitioner to that effect and arrange for his deportation in the manner provided by law."
b. Similarly, in Public Prosecutor v. Zinger, 20 the court ordered the release of a stateless person who had been im- prisoned for failure to obey expulsion orders. The court weighed the alternatives of releasing the man or imprison- ing him "at the cost of the French taxpayer" for an offense which he could not help committing, since he was unable to leave French territory. The court concluded that "release is the best solution from the legal point of view." In the past, statelessness has resulted from a state's decree that members of a whole class of persons are no longer to be considered citizens of the state. During World War 11, Germany withdrew German nationality from Jews per- manently resident abroad. In France, this loss of na- tionality relieved an individual from the strictures applied by French law to enemy [German] subjects, even though the denationalization law was repealed by the Allies at the
16.
356 U.S. 44; 78 s.c~.

568 (1958).

17.
387 U.S. 253; 87 S.Ct. 1660 (1967).

18.
377 U.S. 163; 84 S.Ct. 1187 (1964).

19. 80 F.Supp. 132 (S.D.N.Y. 1948).
20. 11935-371Ann. Dig. 307 (No. 138).
end of the war. 21 6-6. Nationality as a Concept of International Law. a. General concepts. The preceding discussion has been directed toward an appreciation of the inherent semantic difficulties involved in the study of nationality and to not- ing those problems which appear to be, but are not, within the ambit of the international law of nationality. For the purposes of a study of substantive principles, the content of the international law of nationality may be said to be those rules of law which define the relative rights of states regarding the relationship between themselves and foreign persons, a relationship which is governed, at least in part, by rules of international law. 22 The international law of nationality is not concerned with all the rights and duties of states, but only those which concern the relationship between one or more states [the subjects of international law] and foreign persons [the objects of international law]. 23
It is through the medium of their nationality that individuals can nor-mally enjoy benefits from the existence of the Law of Nations. This is a fact which has consequence over the whole area of International Law. 24
It is obvious that while mental segregation of municipal and international law of nationality is essential to clarity of thought, physical segregation of the two in discussion is impossible. This results from the fact that it isnecessary to consider simultaneously the rules which the sovereigns have imposed upon their subjects and the effect these rules have upon the relative rights of various sovereigns; and conversely, the effect the rights of various sovereigns as to one another has had upon the rules which each en- forces on its own subjects. In the words of a United States Court of Appeals: "Each country determines for itself who are its nationals, subject to certain limitations on ex- pansive claims imposed by international law." 25
b. Determination of nationality under International Law.
(1) Limitations imposed by International Law.
NATIONALITY DECREES IN TUNIS AND MOROCCO
(GREAT BRITAIN v. FRANCE)
Permanent Court of International Justice, 1923
P.C.I.J., Ser. B, No. 4; 1 Hudson, World Ct.Rep. 143

[Decrees promulgated in Tunis and Morocco on November 8, 1921, declared every person born in Tunis or the French zone of Morocco of parents at least one of whom was a foreigner who had also been born there to be, subject to certain conditions of proof, a French national. The British government objected to the enforcement of the demes (par-ticularly with respect to forcible induction into military service) against persons who were the descendants of British subjects and therefore, under British law, themselves British subjects. France having refused to
United States ex re/.Schwarzkopf v. Uhl, 137 F.2d 898 (1943). 1 L. hpenheim, supra, note 8 at 640. 21.
Terhoch v. Daudin et Assistance Publique France, [I9471 Ann.Dig. 121 (No. 64).

22.
See P. Weis, supra, note 7, at 34-35 for the complexities that may arise in attempting to outline clearly the scope of such a law.

23.
As noted in chapter 1 and throughout this publication, the above subject-object distinction is still generally observed in nationality matters. See generally, H. Briggs, TheLaw of Nations, 64, 93-98 (2d ed. 1952).

24.

25.

submit the dispute to arbitration, the British government placed the
matter before the Council of the League of Nations. France there
argued that the dispute arose out of a matter solely within its domestic
jurisdiction, and the Council requested an advisory opinion of the Per-
manent Court of International Justice on the preliminary question
whether the dispute between France and Great Britain was "by interna-
tional law solely a matter of domestic jurisdiction (article 15, paragraph 8
of the Covenant). . . ."I
The question whether a certain matter is or is not solely within the ju-
risdiction of a State is an essentially relative question; it depends upon
the development of international relations. Thus, in the present state of
international law, questions of nationality are, in the opinion of the
Court, in principle within this reserved domain.
For the purpose of the present opinion, it is enough to observe that it
may well happen that, in a matter which, like that of nationality, is not,
in principle, regulated by international law, the right of a State to use its
discretion is nevertheless restricted by obligations which it may have un-
dertaken towards other States. In such a case,jurisdiction which, in prin-
ciple, belongs solely to the State, is limited by rules of international law.

[The Court held that the nationality decrees had to be considered in the light of a number of international agreements invoked by France and Great Britain; for that reason, the dispute did not arise out of a mat- ter solely within France's domestic jurisdiction.]
*
CONVENTION ON CERTAIN QUESTIONS RELATING TO
THE CONFLICT OF NATIONALITY LAWS
%gned at The Hague, April 12, 1930
179 L.N.T.S. 89, 5 Hudson, Int'l Legislation 359
Art. 1. It is for each State to determine under its own law who are its
nationals. This law shall be recognized by other States in so far as it is
consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality.
Art. 2. Any question as to whether a person possesses the nationality
of a particular State shall be determined in accordance with the law of
that State.
Art. 3. Subject to the provisions of the present Convention, a person
having two or more nationalities may be regarded as its national by each
of the States whose nationality he possesses.
(2)
What limits does international law, particularly "international custom" and "the principles of law generally recognized with regard to nationality," impose on the power of states to legislate on matters of na- tionality? Harvard Research in hternational Law sug- gested in 1929 that the power of a state to confer its na- tionality was "not unlimited," observing that although it may be dficult to specifjr the limitation imposed by inter- , national law on the power of a state to confer its na- tionality, "it is obvious that some limitations do exist." 26

(3)
The Hague Codification Conference of 1930 was unable to agree upon a more precise formulation than that adopted in Article 1of the Convention on Conflict of Na- tionality Laws quoted above. However, a number of par- ticipating governments asserted that states were not obli- gated under international law to recognize nationality con- ferred upon a person in the absence of some generally recognized relationships or co~ection between the per- son and the state claiming him as its national. The Ger- man Government, for example, stated:

26. Harvard Research in International Law, The Law of Na- tionaliry, Art. 2, 23 Am. J. Int7Spec. Supp. 11, 24-27 (1929).
Pam 27-161-1

The general principle that all questions relating to the acquisition or loss of a sWc nationality shall be governed by the laws of the State whose nationality is claimed or contested should be admitted. The ap- plication of this principle, however, should not go beyond the limits at which the legislation of one State encroaches on the sovereignty of another. For example, a State has no power, by means of a law or ad- ministrative act, to confer its nationality on all the inhabitants of another State or on all foreigners entering its territory. Further, if the State con- fers its nationality on the subjects of other States without their request, when the persons in question are not attached to it by any particular bond, as, for instance, origin, domicile or birth, the States concerned will not be bound to recognize such naturalization. 27
(4) The United States was of the opinion that there were: . . . certain grounds generally recognized by civilized States upon which a
State may properly clothe individuals with its nationality at or after bi, but . . . no State is free to extend the application of its laws of nationality in such a way as to reach out and claim the allegiance of whomever it pleases. The scope of municipal laws governing nationality must be regarded as limited by consideration of the rights and obligations of in- dividuals and of the States. 28
Although certain governments participating in the con- ference questioned the existence of rules of international law, other than those laid down in treaties, that limit a state's freedom in matters of nationality, the text of Arti- cle 1 of the Convention on Contlict of Nationality Law was adopted by a vast majority. 29
c. Consent to the Conference of Nationality. May a state confer its nationality upon another state's national without the latter's consent? Provisions of Peru's 1839 constitution, purporting to confer effective Peruvian na- tionality upon foreigners who had either resided in Peru for four years and married a Peruvian, or who had ac- quired real property, drew strong British protests in which it was asserted that "an incontrovertible principle of the law of nations" stipulated that . . . "the consent of a foreigner is necessary to legalize his naturalization in another State whatever may be the provisions of the civil law of the State on the subject." 30
(1) In 1886 the United States protested Mexican legislation under which foreigners who had acquired real estate or had children born to them in Mexico were to be considered Mexican citizens unless they officially declared
27. 1 League of Nations Docs. 13 (1929).
28. Id. at 145-46.

29. 37 states signed the Convention. However, as of 1 January 1976, only 14 states had ratifled or acceeded to this agreement. The U.S. has not ratified the Convention. A study published in 1929 revealed that while a significant number of states conferred nationality at birth ex- clusively on the basis of descent from nationals (jure sanguinis) and a smaller number on the basis of birth within the territory of the state cure soli), the great majority had enacted legislation that combined ele- ments of both systems, with one or the other serving as a principal standard. See R. Floumoy & M. Hudson, A Collection of Nationality Laws (1929); Harvard Research in Intemational Law, supra, note 26 at 11, 80-82. See also, U.N. Secretariat, Laws Concerning Nationality,
U.N. Doc. ST/LEG/SER.B/4 (1954), supplemented by ST/LEG/SER.B/9 (1 959).
30. P. Weis, supra, note 7 at 105. For a U.S. protest and conse- quent Peruvian concessions, see 3 J. Moore, Digesr of International Law 302-03 (1906).
their intention to retain their own nationality. Secretary of State Bayard observed that it was "the generally recog- nized rule of international law" that "the transfer of allegiance must be by a distinctly voluntary act." 31 The United States acquiesced in 1895 in Mexico's refusal to extradite a United States national on the ground he had become a Mexican national by purchase of real estate. 32 The British Government found the Mexican legislation to be "within the competence of the Mexican Govern- ment." 33
(2)
A Brazilian decree of 1889 declared that all foreigners residing in Brazil would be considered Brazilian citizens unless they should, within six months from the publication of the decree, make an express declaration of contrary intention. A number of European states entered joint protests against the decree, which was characterized by Italy as "contrary to generally accepted principles of in- ternational law." 34 The British Foreign Ofice requested an opinion of the Law Officers of the Crown, who main- tained that a person having notice of the Brazilian decree and an opportunity to make the declaration therein men- tioned should be considered as having voluntarily become a Brazilian national if he failed to act. 35 On receiving state- ments from the Brazilian government relating to the in- terpretation and enforcement of the 1889 decree, the United States declined to protest and advised its nationals in Brazil to make appropriate declarations of their inten- tion to retain United States nationality. 36 A French court, however, held that the Brazilian legislation was incompati- ble with international law. 37

d.
Some publicists contend that it is "contrary to law" for a state to impose compulsory nationality on aliens by reason either of their acquisition of real property 6r of their residence of the country. 38 The Harvard Research considered it to be "generally recognized" that a state might not acquire the allegiance of natural persons without their consent, except under certain special circum-stances. 39 In a memorandum to the Hague Codification Conference of 1930, the United States observed that it had taken the position that ". . . as a general rule, no per- son should have the nationality of a foreign country upon

31. Id. at 304-06.
32. 3 J. Moore, supra, note 30 at 307.
33. 5 Brit. Dig. Int'l L. 28 (1965).

3 J. Moore, supra, note 30 at 307-10. 5 Brit. Dig. Int'l L. 250 (1965). P. Weis, supra, note 7 at 105-07. 34.
,

35.

36.

37.
Ulmann v. Mi. Pub., 11-12 Rev. de Droit International Prive 67, 77 (Trib. Civ. de la Seiie, July 13, 1915). For a discussion of the Argentine legislation of 1954, under which foreigners must state their intention to seek or to refuse Argentine nationality after five years' con- tinuous residence, see P. Weis, supra, note 7 at 11 1-13.

38. De Viher, Theory and Reality in Public International Law 185 (Rev. ed. Corbett trans.1968).
39. Harvard Research in International Law, supra, note 26 at Art.

5, 11, 53-55.
Pam 27-161-1
or after birth without his consent, express or implied." 40
e. As noted above, one of the most controversial topics in the areas of nationality is the manner in which a state may legitimately confer its citizenship. The most impor- tant decision pertaining to this matter appears below. It is generally regarded as the definitive statement of the effect of nationalization decrees on an international level.
NOTTEBOHM CASE (LIECHTENSTEIN v. GUATEMALA)
International Court of Justice, 1955 [I9551 I.C.J. 4
[Nottebohm had been a German national from his birth in Germany in 1881 until his naturalization in Liechtenstein in 1939, shortly after the outbreak of war in Europe. In 1905 he had taken up residence in Guatemala and engaged in substantial business dealings in that country. Thereafter he sometimes went to Germany on business, to other coun- tries on holidays, and to Liechtenstein in order to visit a brother who lived there after 1931. In early 1939, Nottebohm went to Europe and eventually applied for naturalization in Liechtenstein on October 9, 1939. Nottebohm sought and received dispensation from residence re- quirements, paid his fees and gave security for the payment of taxes, and completed the naturaliition process by taking an oath of allegiance on October 20, 1939. He obtained a Liechtenstein passport, had it visaed by the Guatemalan consul in Zurich, and returned to Guatemala to resume his business activities. At his request, Guatemalan authorities made appropriate changes regarding Nottebohm's nationality in the Register of Aliens and in his identity document.
[On July 17, 1941 the United States blacklisted Nottebohm and froze his assets in the United States. War broke out between the United States and Germany, and between Guatemala and Germany, on December 11, 1941. Nottebohm was arrested by Guatemalan authorities in 1943 and deported to the United States, where he was interned until 1946 as an enemy alien. He applied upon his release for readmission to Guatemala, but his application was refused. Nottebohm then took up residence in Liechtenstein, but Guatemala had in the meantime taken measures against his properties in that country, culminating in wn- fiscatory legislation of 1949.
[Liechtenstein instituted proceedings against Guatemala in the Inter- national Court of Justice, alleging the foregoing facts and asking the Court to declare that Guatemala had violated international law "in ar-resting, detaining, expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his property" and consequently was bound to pay compensation. Guatemala's principal argument in reply was that the Liechtenstein claim was inadmissible on grounds of the claimant's

nationality.
[The Court stated the facts and rejected Liechtenstein's argument that Guatemala was precluded from contesting Nottebohm's nationality because it had on several occasions acknowledged Nottebohm's claim of Liechtenstein nationality. It then continued:]
Since no proof has been adduced that Guatemala has recognized the title to the exercise of protection relied upon by Liechtenstein as being derived from the naturalization which it granted to Nottebohm, the Court must consider whether such an act of granting nationality by Liechtenstein directly entails an obligation on the part of Guatemala to recognize its effect, namely, Liechtenstein's right to exercise its protec- tion. In other words, it must be determined whether that unilateral act by Liechtenstein is one which can be relied upon against Gua.temala in regard to the exercise of protection. The Court will deal with this ques- tion without considering that of the validity of Nottebohm's naturaliza- tion according to the law of Liechtenstein.
40. League of Notions Docs., supra, note 27 at 146. But see J. Jones, British Nationality Law 15, 27,31 (1956), in whose opinion state practice shows that ". . .in the present state of international law the sole limitation appears to be the existence of a genuine connection with the state .. .," whether or not there is consent.
It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any litations on its freedom of decision in this domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or im- poses on its nationals. This is implied in the wider concept that na- tionality is within the domestic jurisdiction of the State.
But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein. It does not depend on the law or on the decision of Liechtenstein whether that State is entitled to exercise its protection, in the case under consideration. To exercise protection, to apply to the Court, is to place oneself on the plane of international law. It is international law which determines whether a State is entitled to exer- cise protection and to seise the Court.
The naturaliition of Nottebohm was an act performed by Liechten-
stein in the exercise of its domestic jurisdiction. The question to be
decided is whether that act has the international effect here under con-
sideration. .. .
When one State has conferred its nationality upon an individual and another State has conferred its own nationality on the same person, it may occur that each of these States, considering itself to have acted in the exercise of its domestic jurisdiction, adheres to its own view and bases itself thereon in so far as its own actions are concerned. In so doing, each State remains within the limits of its domestic jurisdiction.
This situation may arise on the international plane and fall to be con- sidered by international arbitrators or by the courts of a thud State. If the arbitrators or the courts of such a State should confine themselves to the view that nationality is exclusively within the domestic jurisdiction of the State, it would be necessary for them to find that they were con- fronted by two contradictory assertions made by two sovereign States, assertions which they would consequently have to regard as of equal weight, which would oblige them to allow the contradiction to subsist and thus fail to resolve the conflict submitted to them.
In most cases arbitrators have not strictly speaking had to decide a conflict of nationality as between States, but rather to determine whether the nationality invoked by the applicant State was one which could be relied upon as against the respondent State, that is to say, whether it entitled the applicant State to exercise protection. Interna- tional arbitrators, having before them allegations of nationality by the applicant State which were contested by the respondent State, have sought to ascertain whether nationality had been conferred by the appli- cant State in circumstances such as to give rise to an obligation on the part of the respondent State to recognize the effect of that nationality. In order to decide this question arbitrators have evolved certain principles for determining whether full international effect was to be attributed to the nationality invoked. The same issue is now before the Court: it must be resolved by applying the same principles.
The courts of thud States, when confronted by a similar situation, have dealt with it in the same way. They have done so not in connection with the exercise of protection, which did not arise before them, but where two different nationalities have been invoked before them they have had, not indeed to decide such a dispute as between the two States wncerned, but to determine whether a given foreign nationality which had been invoked before them was one which they ought to recognize.
International arbitrators have decided in the same way numerous cases of dual nationality, where the question arose with regard to the ex- ercise of protection. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person wncerned and one of the States whose nationality is involved. Different factors are taken into considera- tion, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor,
Pam 27-161-1

but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.
Similarly, the courts of third States, when they have before them an individual whom two other States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality.
The same tendency prevails in the writings of publicists and in prac- tice. This notion is inherent in the provisions of Article 3, paragraph 2, of the Statute of the Court. National laws reflect this tendency when, in-ter alia, they make naturalization dependent on conditions indicating the existence of a link, which may vary in their purpose or in their nature but which are essentially concerned with this idea. The Liechtenstein Law of January 4th, 1934, is a good example.
The practice of certain States which refrain from exercising protection in favour of a naturalized person when the latter has in fact, by his prolonged absence, severed his links with what is no longer for him any- thing but his nominal country, manifests the view of these States that, in order to be capable of being invoked against another State, nationality must correspond with the factual situation. A similar view is manifested in the relevant provisions of the bilateral nationality treaties concluded between the United States of America and other States since 1868, such as those sometimes referred to as the Bancroft Treaties, and in the Pan- American Convention, signed at Rio de Janeiro on August 13th, 1906, on the status of naturalized citizens who resume residence in their coun- try of origin.
The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fucing of such rules to the competence of each State. On the other hand, a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity kith this general aim of making the legal bond of nationality accord with the individual's genuine con- nection with the State which assumes the defence of its citizens by means of protection as against other States.
The requirement that such a concordance must $xist is to be found in the studies canied on in the course of the last thirty years upon the in- itiative and under the auspices of the League of Nations and the United Nations. It explains the provision which the Conference for the Codification of International Law, held at The Hague in 1930, inserted in Article 1 of the Convention relating to the Conflict of Nationality Laws. . . . In the same spirit, Article 5 of the Convention refers to cri-teria of the individual's genuine connections for the purpose of resolv- ing questions of dual nationality which arise in third States.
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, in- terests and sentiments, together with the existence of reciprocal nghts and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-2-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national.
Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the State. As the Permanent Court of International Justice has said and has repeated, "by taking up the case of one of its subjects and by resort- ing to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights-its right to ensure, in
the person of its subjects, respect for the rules of international law"
(P.C.I.J., Series A, No. 2, p. 12, and Series MB, Nos. 20-21, p. 17).
Since this is the character which nationality must present when it is in-

voked to furnish the State which has granted it with a title to the exer-
cise of protection and to the institution of international judicial proceed-
ings, the Court must ascertain whether the nationality granted to Not-
tebohm by means of naturalization is of this character or, in other
words, whether the factual connection between Nottebohm and
Liechtenstein in the period preceding, contemporaneous with and
following his naturalization appears to be sufficiently close, so prepon-
derant in relation to any connection which may have existed between
him and any other State, that it is possible to regard the nationality con-
ferred upon him as real and effective, as the exact juridical expression of
a social fact of a connection which existed previously or came into exist-
ence thereafter.
Naturalization is not a matter to be taken lightly. To seek and to ob-

tain it is not something that happens frequently in the life of a human
being. It involves his breaking of a bond of allegiance and his establish-
ment of a new bond of allegiance. It may have far-reaching conse-
quences and involve profound changes in the destiny of the individual
who obtains it. It concerns him personally, and to consider it only from
the point of view of its repercussions with regard to his property would
be to misunderstand its profound ~i~cance.
In order to appraise its in-

ternational effect, it is impossible to disregard the circumstances in
which it was conferred, the serious character which attaches to it, the
real and effective, and not merely the verbal preference of the individual
seeking it for the country which grants it to him.
At the time of his naturalization does Nottebohm appear to have been

more closely attached by his tradition, his kstablishment, his interests,
his activities, his family ties, his intentions for the near future to
Liechtenstein than to any other State? . . .
At the date when he applied for naturalization Nottebohm had been a German national from the time of his birth. He had always retained his connections with members of his family who had remained in Germany and he had always had business connections with that country. His country had been at war for more than a month, and there is nothing to indicate that the application for naturalition then made by ~otte~h was motivated by any desire to dissociate himself from the Government of his country.
He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the centre of his in- terests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he now complains of Guatemala's refusal to admit him. There, too, were several members of his family who sought to safeguard his interests.
In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization: the application indicates that he was paying a visit there and confis the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or y-n the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there., If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting the waiver of the condition of residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation of any economic interests or of any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of hi interests and his business activities to Liechtenstein. It is unnecessary in this connection to attribute much im- portance to the promise to pay the taxes levied at the time of his naturalization. The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to and the pres- ence in Vaduz of one of his brothers: but his brother's presence is refer- .red to in his application for naturalization only as a reference to his good conduct. Furthermore other members of his family have asserted Not- tebohm's desire to spend his old age in Guatemala.
These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection be- tween hi and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connec- tion with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the gen- uineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international rela- tions.
Naturalization was asked for not so much for the purpose of obtainii a legal recognition of Nottebohrn's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a beligerent State that of a national of a neutral State, with the sole aim of thus corning within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations-other than fiscal obligations-and exercising the rights pertaining to the status thus acquired.
Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein cons,equently is not entitled to ex- tend its protection to Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held to be inadmissible. . . .
For these reasons, the court, by eleven votes to three, holds that the claim submitted by the Government of the Principality of Liechtenstein is inadmissible.
[Dissenting opinions of Judges Klaestad and Read, and of Judge ad hoc Guggenheim, are omitted.] 6-7. Dual Nationality. a. As noted throughout this chapter, the determination of who are nationals of a par- ticular state and who are not is generally the prerogative of the state concerned. Within certain limits international law does not attempt to impose criteria which htes must follow in determining who its nationals are. With this power left to the various states, it is not unusual that two states may claim the same individual, since he has fulfied the requirements of each. 41 This dual nationality has been encountered quite frequently among nationals of the United States. It arose primarily from the fact that many immigrants assumed U.S. nationality and also remained nationals of their homelands after coming to the United States. Their children, under the principle of jus sanguinis, were considered as nationals of their father's native coun- try and nationals of the local state under jus soli.
b. Conflicts arising from dual nationality have occurred when the dual national returned to the country of origin. On occasion he has either been unable to leave or has been liable to military service. In order to protect its citizens who are also nationals of other states. the United States, beginning in 1868, entered into bilateral agree- ments with many European and Latin American states which permitted the immigrant to voluntarily renounce his nationality upon becoming an American citizen. 42 Such treaties solve the problem of dual nationality by
41. See generally, Rode, Dual Nationals and the Doctrine of Domi- nate Nationali& 53 Am. J. Int'l L. 139 (1959).
eliminating one nationality. When, however, both na-
tionalities remain, other solutions have been reached. The
first is that of "dominant nationality," initially invoked in
the claim of James Louis Drurnrnond. During the
Napoleonic wars, France seized the property of British
subjects located in France. The Treaty of Paris of 1814
clearly provided for the settlement of British claims arising
out of such seizure. Though Drumrnond was both a
French and a British national, he resided in France. He
put forward a claim, however, on the basis of his British
nationality. It was refused by the British Council in the
following language:
Drummond was technically a British subject but in substance, a French subject, domiciled in France, with all the attributes of French character. . . . The act of violence that was done toward him was done by the French Government in the exercise of its municipal authority over its own subjects. 43
c.
Still another solution is to deny the right of one state to espouse a claim of its dual national against a state which also claims the claimant as its citizen. This rule is termed the "doctrine of nonresponsibility of states for claims of dual nationals." It was first invoked by the Arnerican- British Claims Commission in 1871 in the Claim of the Executors of R.S.C.A. Alexander 44 and repeated as a rule of international law by the British-Mexican Claims Commission in 193 1.

d.
It is an accepted rule of international law that such a person (a dual-national) cannot make one of the countries to which he owes allegiance a defendant before an interna- tional tribunal. 45 On June 10, 1955, the Italian-United States Conciliation Commission, established by article 83 of the Peace Treaty with Italy, decided the claim of U.S.ex re1 Florence Strungsky Merge v. Italian Republic. 46 The claimant was a national of both the U.S.A. and Italy. In this decision, the Commission based its ruling on what are considered to be the two most important international principles associated with the concept of dual nationality.

UNITED STATES EX REL. MERGE v. ITALIAN REPUBLIC
Italian-United States Conciliation Commission, 1955
3 Collection of Decisions No. 55
14 U.N. Rep. Int'l Arbitral Awards 236

me claimant had acquired United States nationality upon her birth in New York in 1909. At the age of 24, she mked an Italian national in Rome and thereby acquired, according to Italian law, Italian nationality as well. She lived in Italy with her husband until 1937, at which time she accompanied her husband to Japan, where the latter had been sent as a translator and interpreter for the Italian Embassy in Tokyo. The United States Consulate General there registered the claimant, at her request, as a United States national. The claimant remained with her husband in Japan until 1946, at which time she returned to the United States for a period of nine months on a passport issued to her by the United States consulate in Yokohama. She then returned to Italy to rejoin her hus-
42. III G. Hackworth, Digest of International Law 377 (1942).

3 J, Moore, International Arbitration 2529 (1898). 2 Knapp, P.C. Rep. 295, 12 Eng. Rep. 492. 43.

44.

45.
Oldenbourg and Honey cases before the British-Mexican Claims Commission under the convention of 1926 cited in Rode, supra, note 41 at 141.

46. Reported in 50 Am. J. Int'l L. 150-57 (1956).
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band. Immediately upon her arrival, she registered as a United States
national at the American Embassy in Rome. In 1948, the United States
) submitted to Italy a claim based on Article 78 of the Italian Peace Treaty (February 10, 1947, T.I.A.S. 1648) for compensation for the loss, as a * result of the war, of a grand piano and other personal property located in Italy and owned by the claimant. Italy rejected the claim on the ground that the claimant was an Italian national, and the dispute relating to the claimant's double nationality was submitted to the Conciliation Com- mission. (The fmt sub-paragraph of Article 78,s 9(a), of the peace treaty pro- vided that the term "United Nations nationals" was to mean "in-dividuals who are nationals of any of the United Nations." The Com- mission fmt considered whether this def~tion had been intended to avoid the double nationality problem, by allowing claims by all United Nations nationals whether or not they were also Italian nationals. After concluding that the treaty did not resolve the issue, the Commission considered the applicable general principles of international law:] In this connection two solutions are possible: a) the principle mrd- ing to which a State may not afford diplomatic protection to one of its nationals against the State whose nationality such person also possesses; b) the principle of effective or dominant nationality. The two principles just mentioned are defmed in (The Hague Con- vention of 19301: the fmt (Art. 4) within the system of public interna- tional law; the second (Art. 5) within the system of private international law. Art. 4 … is as follows: "A State may not afford diplomatic protection to one of its na- tionals against a State whose nationality such person also possesses."
The same Convention, in Art. 5, indicates effective nationality as the criterion to be applied by a third State in order to resolve the conflicts of laws raised by dual nationality cases. Such State
"shall, of the nationalities which any such person possesses, recog-nize exdusively in its territory either the nationality of the counby in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be most closely connected."

This rule, although referring to the domestic jurisdiction of a State, nevertheless constitutes a guiding principle also in the international system. . . .
The Hague Convention, although not ratified by all the Nations, ex- presses a communis opinio juris, by reason of the near-unanimity with which the principles referring to dual nationality were accepted. . . .
It is not a question of adopting one nationality to the exclusion of the other. Even less when it is recognized by both Parties that the claimant possesses the two nationalities. The problem to be explained is, simply, that of determining whether diplomatic protection can be exercised in such cases.
A prior question requires a solution: are the two principles which have just been set forth incompatible with each other, so that the acceptance of one of them necessarily implies the exclusion of the other? If the reply is in the affiative, the problem presented is that of a choice; if it is in the negative, one must determine the sphere of application of each one of the two principles.
The Commission is of the opinion that no irreconcilable opposition between the two principles exists; in fact, to the contrary, it believes that they complement each other reciprocally. The principle according to which a State cannot protect one of its nationals against a State which alsoconsiders hiits national and the principle of effective, in the sense of dominant, nationality, have both been accepted by the Hague Con- vention (Articles 4 and 5) and by the International Courtof Justice (Ad- visory Opiion of April 11, 1949 and the Nottebohm Decision of April 6, 1955). If these two principles were irreconcilable, the acceptance of both by the Hague Convention and by the International Court of Justice would be incomprehensible. . . .
The principle, based on the sovereign equality of States, which ex- cludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is
that of the claiming State. But it must not yield when such predomi-
nance is not proved, because the fmt of these two principles is generally
recognized and may constitute a criterion of practical application for the
elimination of any possible uncertainty.
.. . In view of the principles accepted, it is considered that the

Government ofthe United States of America shall be entitled to protect
its nationals before this Commission in cases of dual nationality, UnitedA
States and Italian, whenever the United States nationality is the effective
nationality.
In order to establish the prevalence of the United States nationality in

individual cases, habitual residence can be one of the criteria of evalua-
tion, but not the only one. The conduct of the individual in his econom-
ic, social, political, civic and family life, as well as the closer and more
effective bond with one of the two States must also be considered.
It is considered that in this connection the following principles may

serve as guides:
a) The United States nationality shall be prevalent in cases of

children born in the United States of an Italian father and who have
habitually lived there.
b) The United States nationality shall also be prevalent in cases in- volving Italians who, after having acquired United States nationality by naturalization and having thus lost Italian nationality, have reacquired their nationality of origin as a matter of law as a result of having so- journed in Italy for more than two years, without the intention of retransferring their residence permanently to Italy.
C) With respect to cases of dual nationality involving American

women married to Italian nationals, the United States nationality shall
be prevalent in casesin which the family has had habitual residence in
the United States and the interests and the permanent professional lie
of the head of the family were established in the United States.
d) In case of dissolution of marriage, if the family was established in Italy and the widow transfers her residence to the United States of America, whether or not the new residence is of an habitual nature must be evaluated, case by case, bearing in mind also the widow's con- duct, especially with regard to the raising of her children, for the purpose of deciding which is the prevalent nationality.
United States nationals who did not possess Italian nationality but the nationality of a third State can be considered "United Nations na- tionals" under the Treaty, even if their prevalent nationality was the na- tionality of the third State.
In all other cases of dual nationality, Italian and United States, when, that is, the United States nationality is not prevalent in accordance with the above, the principle of internationallaw, according to which a claim is not admissible against a State, Italy in our case, when this State also considers the claimant as its national and such bestowal of nationality is, as in the case of Italian law, in harmony . . . with international custom and generally recognized principles of law in the matter of nationality, will reacquire its force.
Ex-the facts of the case in bar, . . . the Commission holds that Mrs. Merge can in no way be considered to be dominantly a United States national within the meaning of Article 78 of the Treaty of Peace, because the family did not have its habitual residence in the United States and the interests and the permanent professional life of,the head of the family were not established there. In fact, Mrs. Merge has not lived in the United States since her rnaniage, she used an Italian passport in traveling to Japan from Italy in 1937, she stayed in Japan from 1937 until 1946 with her husband, an official of the Italian Em- bassy in Tokyo, and it does not appear that she was ever interned as a national of a country enemy to Japan.
Inasmuch as Mrs. erg;, for the foregoing reasons, cannot be con- sidered to be dominantly a United States national within the meaning of Article 78 of the Treaty of Peace, the Commission is of the opinion that the Government of the United States of America is not entitled to pre- sent a claim against the Italian Government in her behalf. . . .
[Petition of the United States rejected.]
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6-8. Obligations of Nationality or Allegiance. It is not uncommon for a state to apply its laws to acts performed by its nationals beyond the territorial limits of the state. As stated by Mr. Chief Justice Hughes in Blackmer v. United States. 47
While it appears that the petitioner removed his residence to France in the year 1924, it is undisputed that he was, and continued to be, a citizen of the United States. He continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country. Thus although resident abroad, the petitioner remained subject to the taxing power of the United States. For disobedience to its laws through conduct abroad he was subject to punishment in the courts of the United States. With respect to such an exercise of authority, there is no question of interna- tional law, but solely of the purport of the municipal law which estab- lishes the duties of the citizen in relation to his own government. *

6-9. Taxation. a. Should the reach of a state's laws based upon the relationship of the individual with the state be confied to those who have the state's nationality? The question is posed below in comection with laws relating to taxation and compulsory military service.
(1)
International law has recognized a number of bases for the imposition of taxes. Here as elsewhere it is essential to distinguish between a state's jurisdiction to prescribe a rule imposing a tax and its jurisdiction to en- force such a rule. The practical dficulties of enforcing taxes upon persons not physically within its territory and not owning property within its territory realistically limit the tax collecting state. International controversy as to ju- risdiction to tax has been relatively infrequent. Conse- quently, the only evidence of the international law on the subject is state practice.

(2)
The territorial base supports state taxation measured by property located and income produced with- in the state. States impose such taxes on the individuals owning such property, or producing or claiming such in- come, even though the individuals do not have a personal relationship with the taxing state such as that of na- tionality. At the other extreme, states impose taxes upon their own nationals, even though the nationals are physically located outside the state and their property is lo- cated and income produced outside the state. Will interna- tional law permit taxation measured by property located outside the state or income produced outside the state when the individual to be taxed is not its national? The United States, for example, imposes income tax upon aliens who are resident within the United States. "Resi- dent aliens are, in general, taxable the same as citizens of the United States; that is, a resident alien is taxable on in- come derived from all sources, including sources without the United States," 48 Residence is defined in the regula- tions as follows:

An alien actually present in the United States who is not a mere tran- sient or sojourner is a resident of the United States for purposes of the
47. 284 U.S. 421, 436; 52 S.Ct. 252, 254 (1932).
4s. 26 C.F.R. Part I, 5 1,871-1.

income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating inten- tion, indefmite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no defdte intention as to his stay, he is a resident. One who comes to the United States for a defmite purpose which in its nature may be promptly accomplishedis a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes hihome temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consum- mated or abandoned. An alien whose stay in the United States is limited to a defdte period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of ex- ceptional circumstances. 49
b. Consider the following more general definition of "residence": It appears that most governments consider that an alien who remains
in its territory for a certain period of time, six months or more, is resi-dent in such territory for purposes of income taxation. so
If, then, nationality is not a necessary prerequisite to tax-ability, is there some minimum personal comection that must exist before a state can lawfully prescribe a tax based on events that occur outside the state? "On the one hand it is agreed that a state cannot tax a transient on the whole of his year's income as if he were a resident, but on the other it is equally agreed that his presence may render him subject to poll tax, and sojourn tax, which, indeed, could be of an equivalent amount." 51 Thus, it can only be said that no specific international norms control taxation. The liability of individuals to taxes in both their states of na- tionality and others depends largely upon the tax laws of the countries concerned. 6-10. Compulsory Military Service. a. U.S. legislation on the draft'i of aliens. During World War I, citizens and "male persons not alien enemies who have declared their intention to become citizens" were subject to the draft. 52 The Selective Training and Service Act of 194053 con-tained simiiar provisions until amended in 1941. 54 This World War I1 amendment made liable for training and service every male citizen and every other male person "residing in the United States," with the proviso that a citizen or subject of a neutral country could apply for and be granted relief, "but any person who makes such ap- plication shall thereafter be debarred from becoming a citizen of the United States." The Selective Service Act of 1948 55 broadened the category of resident aliens able to apply for relief to include "any citizen of a foreign coun- try," retaining the provision for debarring such an appli- cant from citizenship. The dramatic change in policy in the

62 Stat. 604, chapter 625, 5 4(a). 55 Stat. 844, chapter 602, 8 2. 54 Stat. 885, chapter 720, 5 3(a). Act of May 18, 1917, chapter 15, 5 2, 40 Stat. 76. 2 D. O'ConneU, International Law 717 (2d ed 1970). 26 C.F.R. Part I, $ 1.871-2(b). 49.

50.
Letter from Assistant Secretary of State Macomber to U.S. Senator Carl Hayden, quoted in 8 M. Whiteman, Digest of International Law 536 (1967).

51.

52.

53.

54.

55.

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1951 Universal Military Training and Service Act 56 was to apply the draft even-handedly to United States citizens and aliens admitted for permanent residence, with no pro- visions for relief. Nonresident aliens were also subject to the draft, but only if they had remained in the United States for a period exceeding one year. The provisions for application for relief (and debarring from citizenship) were retained as to those nonresident aliens. 57 Thus, nonresident aliens might remain in the United States for up to one year without being subject to the draft; while selected groups of nonresident aliens might remain for longer periods under exemptions provided by law and regulations. 58

b.
By amendments in 197 1, which changed the title of the draft statute to "Military Selective Service Act," a wider exclusion of aliens from the draft was provided. The draft now applies to every male citizen and "every other male person residing in the United States" but not to any alien lawfully admitted as a "nonimmigrant" as defined in a long list of categories in the Immigration and Nationality Act. 59 In addition, induction of an alien who is draftable is not to take place until "such alien shall have resided in the United States for one year." Thus,the statute applies to aliens admitted for permanent residence, who can be drafted only after a year's residence. There is no authorization for drafting any other class of aliens and no provision for application for relief or debarring from citizenship. 60 Notwithstanding these changes in the draft statute, the Immigration and Nationality Act continues to provide: "[Alny alien who applies or has applied for ex- emption or discharge from training or service in the Armed Forces * * * on the ground that he is an alien, and is or was relieved or discharged from such training * * * on such ground, shall be permanently ineligible to become a citizen of the United States." 61 There is some question as to whether this provision is still viable. In McGrath v. Kristensen, 62 in which the court was in- terpreting the provisions of the Selective Training and Ser- vice Act of 1940 debarring aliens from citizenship, the court stated: "As there was no 'liability' for service, his act in applying for relief from a non-existent duty could not create the bar against naturalization. By the terms of the statute, that bar only comes into existence when an alien resident liable for service asks to be relieved."

c.
International law on the draftii of aliens. "[Aln alien does not fall under the personal supremacy of the local State; therefore he cannot, unless his own state con-

340 U.S. 162, 71 S.Ct. 224 (1950). Title 18, U.S.C. 8 1426(a). 85 Stat. 348. 8 U.S.C. 8 1101(a)(15). 65 Stat. 75, chapter 144, § l(d). 56.

57.
In addition, the act provided for exemption of certain nonirn- migrant aliens holding diplomatic positions and of other nonimmigrant aliens as determined by the President.

58.
For the test of the relevant statutes referred to above, see 8 M. Whiteman, Digest of International Law 549 (1967).

59.

60.

61.

62.

sents, be made to serve in its Army or Navy, and cannot, like a citizen, be treated according to discretion." 63 Doubt exists as to whether this statement represents cur- rently existing law. However, in 1967, Rousseau, a noted French publicist, commented upon certainAustralian leg- islation which subjected immigrant aliens to compulsory military service and thus to duty in South Vietnam. In referring to Greek and Italian protests of this legislation, Rousseau states: "The most surprising aspect of the situa- tion is that only two governments seem to have protested an act which constitutes a clear violation of the traditional status of aliens." 64 Thus, as in the case of taxation, no specific international norms dictate the degree to which aliens may be required to serve in the military forces of states other than their own. The United States is a party to a Protocol Relating to Military Obligations in Certain Cases of Double Nationality which was concluded at the Hague April 12, 1930 and entered into force for the United States May 25, 1937.65 Only 25 states were par- ties to this international agreement as of January 1, 1977. Article 1 provides: "A person possessing two or more na- tionalities who habitually resides in one of the countries whose nationality he possesses, and who is in fact most closely connected with that country, shall be exempt from all military obligations in the other country or countries. This exemption may involve the loss of the nationality of the other country or countries." 66 6-11. Multilateral Agreements on Nationality. a. Status of Naturalized Citizens Who Again Take Up Their Resi- dence in the Country of Their Origin. 67 Parties to this convention are Argentina, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Honduras, Nicaragua, Panama, and the United States. The convention provides as follows:
Art. I. If a citizen, a native of any of the countries signing the present convention, and naturalized in another, shall again take up his residence in his native country without the intention of returning to the country in which he has been naturalized he will be considered as having reassumed his original citizenship, and as having renounced the citizen- ship acquired by the said naturalization.
Art. 11.The intention not to return will be presumed to exist when the naturalized person shall have resided in his native country for more than two years. But this presumption may be destroyed by evidence to the contrary.
6. Convention on Conflict of Nationality Laws. 68 This
63. 1-~~ppenheim,
supra, note 8 at 681.

50 Stat. 1317; T.S. 913; 178 L.N.T.S. 227. 64.
Rousseau, Chronique des Faits Internationaux, 71 Revue de Droit International bblic 143, 174 (1967). ,

65.

66.
For bilateral agreements to which the United States is a party, dealing not only with the drafting of dual nationals but also with the drafting of aliens, see 8 M. Whiteman, supra, note 58 at 561-73.

67.
Convention between the United States and other powers estab- lishing status of returning naturalized citizens. Sied at Rio De Janeiro Aug. 13, 1906; ratification advised by the Senate, Jan. 13, 1908, ratified Jan. 16, 1909; ratification deposited with draft Jan. 25, 1908; proclaimed, Jan. 28, 1913. 37 Stat. 1653 (1911-1913).

68.
Sied at the Hague Conference for Codif~cation of Intema- tional Law. 5 M. Hudson, International Legislation 359 (1936).

Pam 27-161-1

convention entered into force on 1July 1937. It has been ratified or acceeded to by thirteen states: Belgium,Brazil, Great Britain, Canada, Australia, India, China, Monaco, the Netherlands, Norway, Poland, Sweden, and Pakistan. The principle articles of the convention are as follows:
Art. 1.It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generaiiy recognized with regard to nationality.
Art. 2. Any question as to whether a person possessesthe nationality of a particular State shall be determined in accordance with the law of that State.
Art. 3. Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.
Art. 4. A State may not afford diplomatic protection to one of its na- tionals against a State whose nationality such person also possesses.
Art. 5. Within a thud State, a person having more than one na- tionality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the na- tionality of the country with which in the circumstanceshe appears to be in fact most closely connected.
Art. 6. Without prejudice to the liberty of a State to accord wider rights to renounce its nationality, a person possessing two nationalities acquired without any voluntary act on his part may renounce one af them with the authorization of the State whose nationality he desires to surrender.
This authorization may not be refused in the caseof a person who has his habitual and principal residence abroad, if the conditions laid down in the law of the State whose nationality he desires to surrender are satisfied.
c. Convention on the Nationality of Women. 69 States which are parties are Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Honduras, Mex- ico, Nicaragua, Panama, Uruguay, and the United States. The Convention provides as follows:
Art. 1. There shall be no distinction based on sex as regards na- tionality, in their legislation or in their practice.
U.S.Reservation. The agreement on the part of the United States is,
69. Signed at Montevideo, Dec. 26, 1933; ratified by U.S., June. 30, 1921; proclaimed, Oct. 11, 1934. 49 Stat. 2957 (1935-1936).
of course, and of necessity, subject to congressional action.
d. Convention on the Nationality of Married Women. 70 Among the States who have either signed, ratified, or acceded to this convention are Canada, Chile, Ceylon, China, Colombia, Cuba, Czechoslovakia, Den- mark, Dominican Republic, Ireland, Israel, Norway, Pakistan, Portugal, Sweden, U.S.S.R., and Yugoslavia. The treaty, in part, is as follows:
Art. 1. Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall au- tomatically affect the nationality of the wife.
Art. 2. Each Contracting State agrees that neither the voluntary ac- quisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its na- tionality by the wife of such national.
Article 3
1.
Each Contracting State agrees that the alien wife of one of its na- tionals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.

2.
Each Contracting State agrees that the present Convention shall not be construed as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband's nationality as a matter of right.

6-12.Role of Nationality in State Responsibility. Hav- ing examined the various aspects of nationality of special relevance to the military attorney, attention must now be focused on one of the most controversial and topical areas of intemational law–state responsibility. In doing so, note should be taken of the important role the various concepts of nationality play in the determination of state respon- sibility and the espousal of claims on an international level.
70. Resolution 1040 (XI) adopted by the General Assembly of the United Nations on 29 January 1957. Twenty-five states are parties to this Convention. For the historical background and commentary on the Convention, see U.N. Department of Economic and Social Affairs publication No. E/CN. 6/389 (1962), entitled Convention on the Na- tionality of Married Women.
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CHAPTER 7
STATE RESPONSIBILITY

Section I. GENERAL CONCEPTS OF STATE RESPONSIBILITY
7-1.Introduction. a. As emphasized throughout the pre- ceding chapters of this publication, states are considered the primary, if not exclusive, subjects of international jurisprudence. Consequently, it is the state that is ac- corded international rights and privileges, and, concomi- tantly, it is the state that must bear international respon- sibility for those violations of international law attributable to it. The purpose of this chapter is to examine the ways in which states incur such international responsibilities. No area of international law has generated greater controversy during the last few decades than the law of state respon- sibility. Even the most basic principles upon which this concept is founded have not been immune from attack.
b.
It is essential to begin any discussion of state respon- sibility with an answer to a basic question: How and in what ways may a state incur responsibiity on an interna- tional level? The answer, in which every word has irnpor- tance, is: A state may be held internationally responsible for any act or omission attributable to the state which results in a violation of substantive international law and which iMures another state. Conjunctively, if an act or omission attributable to a state violates any of the substan- tive international norms discussed throughout this and other DA publications and the consequence of such act is injury to another state, the delinquent state is responsible for making reparation or giving satisfaction to the injured state. Moreover, a delinquency may also give rise to puni- tive individual or collective sanctions being taken by the affected state or states. 1 7-2.What Constitutes a Violation. The reparation aspect of state responsibility will be dealt with in the latter portion of this chapter. Initially, however, attention must be focused on the question, "How may a state be in- jured?"

a.
Direct Iw'ury to the State. The most easily explained and understood form of injury to a state is that which is called direct injury. Since any violation of a substantive principle of international law by a state resulting in injury to another gives rise to state responsibility, the substantive bases for direct responsibility are almost infinitely varied. For example, violation of a treaty, failure to respect the immunity of another state's ambassador, assertion of en- forcement jurisdiction within the temtory of another state without its consent, and use of force in violation of the

U.N. Charter would all give rise to state responsibility. 2 One of the best known examples of responsibility for a
direct injury arisiig out of an omission, not an act, was the
Trail Smelter Case 3 decided in 1941 by a Special Arbitral tribunal. The Convention establishing this Tribunal called for the application of the ". . .law and practice followed in dealing with cognate questions in the United States of America as well as international law and practice." 4 The arbitration grew out of air pollution from sulphur dioxide fumes emitted by a smelter plant at Trail, British Colum- bia, owned by a Canadian corporation. In a previous deci- sion, the Special Arbitral tribunal had found that the fumes caused damage in the State of Washington during the period from 1925 to 1937. In holding Canada respon- sible and directing injunctive relief and payment of an in- demnity, the Tribunal stated:

A State owes at all times a duty to protect other States against in- jurious acts by individuals from within its jurisdiction. A great number of such general pronouncements by leading authorities concerning the duty of a State to respect other States and their temtory have been pre- sented to the Tribunal. These and many others have been carefully ex- amined. International decisions, in various matters, from the Alabama case onward, and also earlier ones, are based on the same general princi- ple, and, indeed, this principle, as such, has not been questioned by Canada. 5
b. Indirect Iqjuries to the State. As noted the ways by which one state may directly injure another, through an act or a failure to act, are fairly easily defined. The great dficulty in discussing state responsibility lies in the area of determining what constitutes an indirect injury to a state. The materials which follow do not relate to responsibility flowing from a directly inflicted injury by one state on another state, but rather deal with the circumstances under which one state may be responsible to another because of an act or omission which results in injury to a private or juristic (corporate) national of the latter. Stated succinctly, because only a state may bring a claim for reparation under existing international law, the state itself must suffer an injury. Injuries to private citizens or cor- porations must be litigated by the state. Thus,the state is said to suffer indirect injury as a result of internationally il- legal actions taken against its nationals. It is only by the use of such a fiction that aptate is able to comport with the still predominant theory that only states may participate in the public international law system. Accordingly, a careful examination of state responsibility for injuries to aliens is the key to a thorough understanding of the total concept of "state responsibility."
1.
These sanctions must, of course, be canied out in accordance 3. Trail Smelter Case (United States v. Canada) 3 U.N.R.I.A.A. with the U.N. Charter and other applicable norms of international law. 1905, 1908 (1941).

2.
See generally KeIsen, General Theogv of Low and State, 328-41, 4. Id. at 1963-64. 357-58 (Wedberg transl. 1945). 5. Id.

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Section 11. STATE RESPONSIBII JTY FOR INJURIES TO ALIENS
7-3. Injury to Aliens. What acts or omissions committed by a state or its citizens against private or corporate aliens located within its territory constitute a violation of interna- tional law resulting in an indirect injury to the aliens' state of nationality? As a result of the several different ap- proaches toward international law discussed in chapter 1, there exists a diversity of opinion regarding the proper response to this question. Before focusing on these differ- ing views, it is necessary to examine briefly the status of aliens under current international norms. 7-4. The Status of Aliens Under International Law. a.
General. Under ordinary circumstances and in the ab- sence of an international agreement to the contrary, a state is under no duty to admit nationals of another state into its territory and incurs no international responsibility if it deports them. 6 If aliens are admitted, they may be subjected to restrictions on the duration of their stay, where they may travel, and in what activities they may engage. Moreover, a national of one state who comes within the territorial jurisdiction of another, whether as a transient or as a permanent resident, becomes subject generally to the legal regime applicable to nationals of that state. For example, aliens can be excluded from engag- ing in various commercial or other gainful activity, from owning real property, from such civil and political rights as the right to vote or to hold public office, and from such duties as fulfiing military service obligation. The admis- sion of aliens into a state likewise gives rise to certain cor- relative rights and duties. The alien has a right to the pro- tection of the local law. He owes a duty to observe that law and assumes a relationship toward the state of his resi- dence sometimes referred to as "temporary allegiance." While the state has the right to expect the alien to observe its laws, it also has an obligation to give him the degree of protection for his person and property which he and his state have the right to expect under local law, under inter- national law, and under treaties and conventions between his state and the state of residence. 7
b. It is precisely the question of exactly what rights and protections are afforded aliens under international law that is the most controversial aspect of state responsibility. As noted above, conflicting views exist with regard to the legally imposed degree of responsibility which a state must bear as a member of the international community. To what extent must it guarantee the rights of aliens? To what degree must it "protect" resident aliens? 7-5. Degree of State Responsibility to Aliens: Conflict- ing Views. Inherent in the controversy surrounding the subject of state responsibility is the disparity of views regarding the rights and protections that must be accorded private and corporate aliens. These views are generally
6.
A recent example of this was the deportation of Asians from Uganda in 1972.

7.
5 G. Hackworth, Digest of International Law, 471-72 (1943) [hereinafter cited as 5 Hackworth].

discussed in terms of both an international standard of justice and the principle of equality of treatment. 7-6. The International Standard of Justice. a. The arguments set forth by those who insist upon the existence of an international standard of justice applicable to aliens are best represented in a statement by former Secretary of State, Elihu Root: . . .Each country is bound to give to the nationals of another country in
its tenitory the benefit of the same laws, the same administration, the
same protection, and the same redress for injury which it gives to its
own citizens, and neither more nor less: provided the protection which
the country gives to its own citizens conforms to the established stand-
ard of civilization.
There is a standard of justice, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall con- form to this general standard. If any country's system of law and admin- istration does not conform to that standard, although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens. .. .
. . .The foreigner is entitled to have the protection and redress which the citizen is entitled to have, and the fact that the citizen may not have insisted upon his rights, and may be content with lax administration which fails to secure them to him, furnishes no reason why the foreigner should not insist upon them and no excuse for denying them to him. 8
Mr. Root's statement, though issued in 1910, still reflects the U.S. and Western European view toward the interna- tionally imposed standard of treatment for aliens. These proponents of an international standard argue that some form of uniform protection must exist if private and cor+ porate citizens are to be safe in their travel and business activities.
b. The Harry Roberts Claim. One of the decisions most widely cited by advocates of the international standard of justice is The Harry Roberts Claim. 9 This particular ar- bitrational award involved a claim presented by the United States on behalf of an American citizen who was arbitrarily and illegally arrested by Mexican authorities and held prisoner for an excessively long period in viola- tion of the Mexican Constitution. The evidence showed that the jail in which Roberts was kept was a room 35 feet long and 20 feet wide with stone walls, earthen floor, straw roof, a single window, a single door, and no sanitary accommodations. Thirty to forty men were placed in this single room and were not provided with facilities to clean themselves. The prisoners were afforded no opportunity to take physical exercise and the food given them was scarce, unclean, and coarse. On behalf of Mexico it was argued that Roberts was accorded the same treatment as
8. Proceedings of the American Sociew of International Law 20-22 (1910).
9. The Hany Roberts Claim (United States v. Mexico), United States and Mexico General Claims Commission 1926, 4 U.N.R.I.A.A. 77 (1927).
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that given to all other incarcerated individuals. 10 The Tri-
bunal, however, held that
. . .such equality is not the ultimate test of the propriety of the acts of
authorities in the light of international law. That test, is broadly speak-
ing, whether aliens are treated in accordance with ordinary standards of
civilization. We do not hesitate to say that the treatment of Roberts was
such as to warrant an indemnity on the ground of cruel and inhuman
imprisonment. 11

c. In sharp contrast to the view espoused by Western European and North American states and in keeping with their basic approach toward international jurisprudence discussed in chapter 1, the third world and lesser- developed states deny the existence of any international standard of justice. These countries submit that private and corporate aliens are entitled only to treatment equal to that afforded citizens of the state through which these aliens may be traveling or in which they may be resident. From the point of view of those states advocating equality of treatment, an "international standard of justice" is subject to five swc objections:
First, a national of one state, going out to another in search of wealth or for any other purpose entirely at his risk, may well be left to the con- sequences of his own ventures, even in countries known to be danger- ous. For international law to concern itself with his protection in a state without that state's consent amounts to an infringement of that state's sovereignty. Secondly, a standard open only to aliens but denied to a state's own citizens inevitably widens the gulf between citizens qnd aliens and thus hampers, rather than helps, free intercourse among peo- ples of different states. Thirdly, the standard is rather vague and in- definite. Fourthly, the very introduction of an external yardstick for the internal machinery ofjustice is apt to be looked upon as an affront to the national system, whether or not it is below the international standard. Fifthly, a different standard of justice for aliens results in a two-fold differentiation in a state where the internal standard is below the inter- national standard. Its citizens as aliens in other states are entitled to a higher standard than their fellow citizens at home. Again the citizens of other states as aliens in it are also entitled to a better standard than its own citizens. 12
d. Controversy continues to surround the issue of state responsibility to aliens, and the issue becomes increasingly important as third world and lesser developed countries increase in number and importance. Viewed realistically, the standard of treatment to be afforded aliens most prob- ably lies somewhere between the two positions spoken to above. This fact can best be demonstrated by an analysis of what acts have generally been viewed as violations of basic concepts constituting an international standard of justice, substantive violations enabling a state to espouse the claim of one of its private or corporate citizens. Before initiating such an analysis, however, it is essential to closely examine the manner in which a state may espouse
10. -Mexicoas a developing state advocated an "equal treatment" standard for aliens.
11.
The HarryRoberts Claim, supra, note 9 at 8 1. See also Restate-ment (Second); Foreign Relations Law of the United States § 165 (hereinafter cited as Restatemenfl.

12.
Roy, Is the Law of Responsibility of States for IMuries to Aliens a Part of Universal International Law? 55 Am. J. Int'l L. 888, 890 (1961).

a claim on the international level.

7-7. Procedural Aspects of the Assertion of a Claim Based on Injury to a National. a. Espousal of Claims by States; General Considerations. International law imposes no duty on a state to press a claim based on injury caused by a foreign state to one of the former's nationals. Under the law of the United States, as well as most other states, the injured national has no legally enforceable right to compel his government to espouse his claim. 13 Moreover, if the claim is espoused, the Government en- joys exclusive control over the handling and disposition of the claim. In Administrative Decision V (United States v. Germany), Umpire Parker stated:
In exercising such control [the nation] is governed not only by the in- terest of the particular claimant but by the larger interests of the whole people of the nation and must exercise an untrammelled discretion in determining when and how the claim will be presented and pressed, or withdrawn or compromised, and the private owner will be bound by the action taken. Even if made to the espousing nation in pursuance of an award, it has complete control over the fund so paid to and held by it and may, to prevent fraud, correct a mistake, or protect the national honor, as its election return the fund to the nation paying it or otherwise dis- pose of it. 14
Thus, it is most clear that the President may waive or set- tle a claim against a foreign state based on its responsibility for an injury to a United States citizen, despite the latter's objection. 15 Claim settlements by the United States have often involved lump sum settlements of claims based on injuries to a number of claimants. Most have been in the form of executive agreement 16 and have called for the determination of awards to claimants either by mixed claims commissions or by agencies in the executive branch. The Foreign Claims Settlement Commission has been engaged in such determination. 17
b. Exhaustion of Local Remedies. Prior to requesting his government to espouse a claim, an alien must exhaust local judicial remedies in the state where the alleged wrong occurred. The requirement to do so is mandatory, however, only if these remedies are both "available" and "effective." Although the determination as to whether local remedies are available is a fairly easy one, it is often more difficult to determine whether the available remedies are effective judicial measures. Thus, it is helpful . to examine several decisions dealing with this determina- tive issue.
(1) In Claim of Finnish Shipowners, 18 13 privately
13. Restatement, supra, note 11 at 212.

14. Administrative Decision V (United' States v. Germany), 11923-251 Administrative Decisions and Opinions 145, 190, 7
U.N.R.I.A.A. 119, 152.
15. Resutement, supra, note 11 at 213, 214.

16. See United States v. Pi, 315 U.S. 203 (1942) for a discussion of the Executive Branch's right to enter into claims settlements on behalf of the United States and its private citizens.
17. See R. Lillich, International Claims: The Aajudication by Na- tional Commissions (1 962).
18. Claim of Fish Shipowners (Finland v. Great Britain) 3 IJ.N.R.1.A.A. 1479 (1934).
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owned Finnish ships were used by the British government in wartime service during 1916 and 1917. Following the war, the Finnish government, on behalf of its citizens, sought compensation from Great Britain for the use of these vessels. This claim was rejected by the British government, and the shipowners brought proceedings against the Crown before the Admiralty Transport Ar- bitration Board. The Board also denied compensation. Although an appeal was available to the shipowners at this point, they chose not to pursue the appellate process. In- stead, Finland again took up the claims of its citizens and brought the matter to the attention of the Council of the League of Nations. On the Council's recommendation, the two states agreed to submit to arbitration the question of whether the Finnish shipowners had exhausted "the means of recourse placed at their disposal by British law." In arguments before a sole arbitrator, Great Britain con- tended that the Finnish shipowners had not exhausted the local judicial remedies available to them and, as a result, the Finnish government had no standing to espouse the claim of its citizens at an international level. Finland asserted that further appellate action by its citizens in the British courts would be pointless. As there could be no de novo appeal, any appellate decision would be controlled by the Admiralty Board's original adverse fmding of facts. The arbitrator agreed that, due to the lack of de novo ap-peal, further appellate procedure was useless and would provide no effective remedy for relief. Accordiiy, Fin- land was justified in asserting the claim on behalf of its citizens.
(2) In the Interhandel Case, 19 Interhandel, a Swiss corporation, brought an action in the U.S. District Court to recover shares of an American corporation that the

U.S. had vested in 1942 as German assets. The District Court dismissed the complaint, and Court of Appeals affirmed. While Interhandel's petition for certiorari was pending before the Supreme Court, the Swiss govern- ment commenced proceedings against the U.S. in the In- ternational Court of Justice on behalf of Interhandel. The Supreme Court subsequently reversed the Court of Ap- peals and remanded the case to the District Court. 20 The International Court found that local remedies in the U.S. had not been exhausted.
(3) If an alien claimant loses on a point of law before a court of first instance, is he obliged to appeal even if the appellate courts regard the applicable point of law as well settled? In the Panevezys-Saldutiskis Ry. Case21 the Court stated that if it could be substantiated that the high- est Lithuanian court had already given a decision in a pre- vious case adverse to the Estonian company's claim, there would be no need to appeal in order to satisfy the local remedies rule.
19.
Interhandel Case [I9591 I.C.J.6.

20.
interhandel-1959.

21.
Panevzys-Saldutiskis Ry. Case 119391 P.C.I.J., ser. A/B, No.

76. 9
(4) With regard to yet another aspect of the exist- ence of "effective" local remedies, it is generally ac- cepted that a state may waive the requirement of exhaus- tion of local remedies, thus allowing claims against it to be brought by another state directly to an international tri- bunal. 22 Moreover, an additional exception to the local remedies rule may be applicable if ". .. the state of the alien's nationality, which has espoused his claim, is assert- ing on its own behalf a separate and preponderant claim for direct injury to it arising o~t
of the same wrongful con-
duct." 23
7-8. Nationality of the Individual Claimant. a. General. As previously noted, a state is imbued with the authority to espouse the claim of a private or corporate claimant on an international level on the basis that the state itself has suffered an "indirect injury." That is, because its citizen has been the victim of a substantive breach of internation law, the state itself has suffered injury. Accordingly, it is essential to the validity of the legal fiction upon which state representation is based that the nationality of the pri- vate claimant be clearly established.
b. Individuals. The nationality of private individuals has been dealt with in chapter 6 of this publication. Thus, the factors bearing on the determination of the nationality of these individuals will not be discussed. Several related issues do, however, merit brief analysis. Restatement, Second, 5 17 1, defines an alien as follows:
A person is an alien for purposes of the responsibility of a state for in- jury to an alien, if (a) he is not a national of the respondent state, (b) he is a national of the respondent state and of another state, and the re- spondent state, for purposes of the conduct causing injury, treats him as a national of the other state, or (c) he is a national of the respondent state and of another state, provided (i) his dominant nationality, by reason of residence or other association subject to his control (or the control of a member of his family whose nationality determines his na- tionality) is that of the other state and (i) he (or such member of his family) has manifested an intention to be a national of the other state and has taken all reasonably practicable steps to avoid or terminate his status as a national of the respondent state. 24
In those cases where a claimant changes his nationality after the injury on which his claim is based has occurred, or assigns his claim to a person of another nationality, or dies and leaves heirs of a different nationality, the in- dividual's claim may or may not be espoused by the state of which he is a citizen. The position of the U.S. Depart- ment of State on this matter was formulated as follows by an Assistant Legal Adviser in 1960:
Under generally accepted principles of international law and practice, a claim may properly be espoused by one government against another government only on behalf of a national of the government espousing the claim, who had that status at the time the claim arose and con- tinuously thereafter to the date of presentation of the claim. It has been the long-standing practice of the Department to decline to espouse claims which have not been continuously owned by United States na-
22.
H. Freeman, The International Responsibili& of Srates for Denial of Justice 435-36 (1938) [hereinafter cited as H. FreemanC

23.
Resratement, supra, note 11 at 5 208(c).

24. Id. at 8 171.
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tionals. 25
A position similar to this has been taken by the U.S.

Foreign Claims Settlement Commission. 26 This rule
may, of course, be by agreement between the governments of the claimant and the respondent states. The British position on this issue is generally similar, sub- ject to a significant qualification:
[Modem] British practice still insists that the claimant should be a British national both at the time when the injury was sdered and at the time when the claim is presented. In practice, the adoption of the rule that claims may be taken up in concert with the state whose nationality the claimant has acquired subsequent to the date of injury mitigates the hardship of the general rule. . . .27
c. Juristic Persons (Corporation).The increase in inter- national trade and investment during the past several decades has seen an increase in the importance of deter- mining the nationality of various corporate enterprises. The law regarding this subject, after a period of some un- certainty, is now fairly clearly defined. It has long been es- tablished that a state might espouse the claim of a corpora- tion incorporated within the state, even though its stock is, in fact, totally owned by foreign nationals. 28 Moreover, until 1970 it was generally accepted that a state might espouse an international claim of its citizen stockholders in a foreign corporation if their stock in- terests amounted to a substantial portion of the total shareholdii. In 1970, the International Court of Justice spoke to this issue and, in so doing, clarif~ed a question of corporate representation on an international level that had long been a subject of uncertainty.
BARCELONA TRACTION, LIGHT AND POWER CO., LTD. (BELGIUM V. SPAIN)
International Court of Justice, 1970
I19701 1.C.J.Rep. 3.

[In this case,the parent company in the corporate complex involved was incorporated in 1911 in Canada; but after the First World War ap proximately 85% of its shares came to be held by Belgian nationals, largely through complicated arrangements involving some very large Belgian holding companies. Belgium wished to be allowed to show that its nationals as shareholders had been seriously hmed by actions of the Spanish state after the Spanish Civil War. These included, according to the Belgian memorials in an earlier ICI case dropped in 1961 in expecta-tion of a diplomatic settlement: denial from 1940 on of foreign exchange licenses to the Traction Company and some of its Spanish subsidiaries to permit service on bonds payable in pounds sterling; a 1948 bankruptcy proceeding in Spain brought by Spanish purchmrs of "defaulted" ster- ling bonds of which the Traction Company itself had not received fair notice; an unfair time limit on appeal in the bankruptcy case; and the eventual passage of very substantial influence over the corporate struc- ture in Spain to one Juan March.
Although the memorials do not mention the matter in just this way, March, known widely as the "Match King" of Spain, was often reported to have been a significant fmancial supporter of Franco's insurgency against the Spanish Republic and known as a highly skilled and secretive
Agency of Canadian Car and Foundry Co. Case (United States Id. at 1245-47. 8 M. Whiteman, Digest of International Law, 1243 (1967). 25.

26.

27.
Sinclair, Nationali@ of Chim: Britirh Practice [1950] Brit. Y.B. Int'l L. 125, 144.

28.

v. Germany) 5 G. Hackworth, supra, note 7 at 833-37.
fmancial operator. The essence of the Belgian claim on the merits in the casethat follows would have been that Belgians had been the victims of foreign exchange, bankruptcy, and related official actions that squeezed out the Belgian equity investment in the Barcelona Traction corporate complex. In the jargon of international claims practice the case as seen by Belgium involved "creeping expropriation" and "denial of justice."
A portion of the opimion of the court appears below.]

For the sake of clarity, the Court willbriefly recapitulate the claim and identify the entities concerned in it. The claim is presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in the Barcelona Traction, Light and Power Company, Limited. The submissions of the Belgian Government make it clear that the object of its Application is reparation for damage allegedly caused to these persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company and various other companies in the same group. 28.

29.
In the fmt of its submissions, more specikally in the Counter- Memorial, the Spanish Government contends that the Belgian Applica- tion of 1962 seeks, though disguisedly, the same object as the Applica- tion of 1958, i.e., the protection of the Barcelona Traction company as such, as a separate corporate entity, and that the claim should in conse- quence be dismissed. However, in making its new Application, as it was chosen to frame it, the Belgian Government was only exercising the freedom of action of any State to formulate its claims in its own way. The Court is therefore bound to examine the claim in accordance with the explicit content imparted to it by the Belgian Government.

30.
The States which the present case principally concerns are Belgium, the national State of the alleged shareholders, Spain, the State whose organs are alleged to have committed the unlawful acts corn- plained of, and Canada, the State under whose laws Barcelona Traction was incorporated and in whose temtory it has its registered office ("head office" in the terms of the by-laws of Barcelona Traction).

31.
Thus. the Court has to deal with a series of problems arising out of a triangJlar relationship. involving the State whose nationals are shareholders in a company incorporated under the laws of another State, in whose tenitory it has its registered office; the State whose organs are alleged to have committed against the company unlawful acts prejudicial to both it and its shareholders; and the State under whose laws the corn- pany is incorporated, and in whose temtory it has its registered ofice.

32.
In these circumstances it is logical that the Court should fust ad- dress itself to what was originally presented as the subject matter of the third preliminary objection: namely the question of the right of Belgium to exercise diplomatic protection of Belgian shareholders in a company which is a juristic entity incorporated in Canada, the measures corn- plained of having been taken in relation not to any Belgian national but to the company itself.

***

35. * In order to bring a claim in respect of the breach of such an obligation, a State must fmt establish its right to do so, for the rules on the subject rest on two suppositions:
The fmt is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Re-ports 1949, pp. 181-182.)

In the present case it is therefore essential to establish whether the losses allegedly suffered by Belgian shareholders in Barcelona Traction were the consequence of the violation of obligations of which they were the beneficiaries. In other words: has a right of Belgium been violated on account of its nationals' having suffered infringement of their rights as shareholders in a company not of Belgian nationality?
36. Thus it is the existence of absence of a right, belonging to Belgium and recognized as such as international law, which is decisive for the problem of Belgium's capacity.
This right is necessarily limited to intervention [by a State] on behalf of its own nationals because, in the absence of a special agree-
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ment, it is the bond of nationality between the State and the in- dividual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. (Paneyezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16.)
It follows that the same question is determinant in respect of Spain's responsibility towards Belgium. Responsibility is the necessary corollary of a right. In the absence of any treaty on the subject between the Par- ties, this essential issue has to be decided in the light of the general rules of diplomatic protection.
* * *
39. Seen in historical perspective, the corporate personality repre- sents a development brought about by new and expanding requirements in the economic field, an entity which in particular allows of operation in circumstances which exceed the normal capacity of individuals. As such it has become a powerful factor in the economic life of nations. Of this, municipal law has had to take due account, whence the increasing volume of mles governing the creation and operation of corporate en- tities, endowed with a specific status. These entities have rights and obligations peculiar to themselves.
**
46. It has also been contended that the measures complained of, although taken with respect to Barcelona Traction and causing it direct damage, constituted an unlawful act vis-a-vis Belgium, because they also, though indirectly, caused damage to the Belgian shareholders in Barcelona Traction. This again is merely a different way of presenting the distinction between injury in respect of a right and injury to a simple interest. But, as the Court has indicated, evidence that damage was suffered does not ispo facto justify a diplomatic claim. Persons sufFer damage or harm in most varied circumstances. This in itself does not in- volve the obligation to make reparation. Not a mere interest affected, but solely a right infringed involves responsibility, so that an act directed against and infringing only the company's rights does not involve responsibility towards the shareholders, even if their interests are affected.
*
50.
In turning now to the international legal aspects of the case, the Court must. as already indicated. start from the fact that the vresent case essentially involves factors derived from municipal law–the distinction and the community between the company and the shareholder-which the Parties, however widely their interpretations may differ, each take as the point of departure of their reasoning. If the Court were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose touch with reality, for there are no corresponding institutions of international law to which the Court could resort. Thus the Court has, as indicated, not only to take cognizance of municipal law but also to refer to it. It is to rules generally accepted by municipal legal systems which recognize the limited company whose capital is represented by share, and not to the municipal law of a particular State, that international law refers. In refer- ring to such mles, the Court cannot modify, still less deform them.

51.
On the international plane, the Belgian Government has ad- vanced the proposition that it is inadmissible to deny the shareholders' national State a right of diplomatic protection merely on the ground that another State possesses a corresponding right in respect of the company itself. In strict logic and law this formulation of the Belgian claim to jus standi assumes the existence of the very right that requires demon- stration. In fact the Belgian Government has repeatedly stressed that there exists no rule of international law which would deny the national State of the shareholders the right of diplomatic protection for the pur- pose of seeking redress pursuant to unlawful acts committed by another State against the company in which they hold shares. Thi, by emphasiz- ing the absence of any express denial of the right, conversely implies the admission that there is no rule of international law which expressly con- fers such a right on the shareholders' national State.

* * ** mhe process of lifting the veil, being an exceptional one admit-
ted by municipal law in respect of an institution of its own making, is equally admissible to play a similar role in international law. It follows that on the international plane also there may in principle be special cir- cumstances which justify the lifting of the veil in the interest of shareholders.
85. The Court will now examine the Belgian claim from a different point of view, disregarding municipal law and relying on the rule that in inter-State relations, whether claims are made on behalf of a State's na- tional or on behalf of the State itself, they are always the claims of the State. As the Permanent Court said,
"The question, therefore, whether the …dispute originates in an in- jury to a private interest, which in point of fact is the case in many in- ternational disputes, is irrelevant from this standpoint." (Mawommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12. See also Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p. 24.)
86. Hence the Belgian Government would be entitled to bring a claim if it could show that one of its rights had been infringed and that the acts complained of involved the breach of an international obligation arising out of a treaty or a general rule of law. The opinion has been ex- pressed that a claim can accordingly be made when investments by a State's nationals abroad are thus prejudicially affected, and that since such investments are part of a State's national economic resources, any prejudice to them directly involves the economic interest of the State.
***
89.
Considering the important developments of the last halfcentury, the growth of foreign investments and the expansion of the intema- tional activities of corporations, in particular of holding companies, which are often multinational, and considering the way in which the economic interests of States have proliferated, it may at fit sight appear surprising that the evolution of law has not gone further and that no generally accepted rules in the matter have crystallized on the intema- tional plane. Nevertheless, a more thorough examination of the facts shows that the law on the subject has been formed in a period charac- terized by an intense conflict of systems and interests. It is essentially bilateral relations which have been concerned, relations in which the rights of both the State exercising diplomatic protection and the State in respect of which protection is sought have had to be safeguarded. Here as elsewhere, a body of rules could only have developed with the con- sent of those concerned. The diff~culties encountered have been reflected in the evolution of the law on the subject.

90.
Thus, in the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or spe- cial agreements directly concluded between the private investor and the State in which the investment is placed. States ever more frequently pro- vide for such protection, in both bilateral and multilateral relations, either by means of special instruments or within the framework of wider economic arrangements. Indeed, whether in the form of multilateral or biateral treaties between States, or in that of agreements between States and companies, there has since the Second World War been wnsidera- ble development in the protection of foreign investments. The instru- ments in question contain provisions as to jurisdiction and procedure in case of disputes concerning the treatment of investing companies by the States in which they invest capital. Sometimes companies are them- selves vested with a direct right to defend their interests against States through prescribed procedures. No such instrument is in force between the Parties to the present case.

***
92. Since the general rule on the subject does not entitle the Belgian Government to put forward a claim in this case,the question remains to be considered whether nonetheless, as the Belgian Government has contended during the proceedings, considerations of equity do not re- quire that it be held to possess a right of protection. It is quite true that it has been maintained that, for reasons of equity, a State should be able, in certain cases, to take up the protection of its nationals, shareholders in a company which has been the victim of a violation of international law. Thus a theory has been developed to the effect that the State of the shareholders has a right of diplomatic protection when the State whose
Pam 27-161-1

responsibility is invoked is the national State of the company. Whatever the validity of this theory may be, it is certainly not applicable to the pres-ent case, since Spain is not the national State of Barcelona Traction.

On the other hand, the Court considers that, in the field of diplo- matic protection as in all other fields of international law, it is necewuy that the law be applied reasonably. It has been suggested that if in a given case it is not possible to apply the general rule that the right of dip- lomatic protection of a company belongs to its national State, considera- tions of equity might call for the possibility of protection of the shareholders in question by their own national State. This hypothesis does not correspond to the circumstances of the present case. 93.

94.
In view, however, of the discretionary nature of diplomatic pro- tection, considerations of equity cannot require more than the possibility for some protector State to intervene, whether it be the national State of the company, by virtue of the general rule mentioned above, or, in a secondary capacity, the national State of the shareholders who claim pro- tection. In this connection, account should also be taken of the practical effects of deducing from considerations of equity any broader right of protection for the national State of the shareholders. It must fmt of all be observed that it would be difficult on an equitable basis to make dis-tinctions according to any quantitative test: it would seem that the owner of 1 per cent, and the owner of 90 per cent. of the share-capital should have the same possibility of enjoying the benefit of diplomatic protec- tion. The protector State may, of course, be disinclined to take up the case of the single small shareholder, but it could scarcely be denied the right to do so in the name of equitable considerations. In that field, pro- tection by the national State of the shareholders canhardly be graduated according to the absolute or relative size of the shareholding involved.

95.
The Belgian Government, it is true, has also contended that as high a proportion as 88 per cent. of the shares in Barcelona Traction belonged to natural or juristic persons of Belgian nationality, and it has used this as an argument for the purpose not only of determining the amount of the damages which it claims, but also of establishing its right of action on behalf of the Belgian shareholders. Nevertheless, this does not alter the Belgian Government's position, as expounded in the course of the proceedings, which implies, in the last analysis, that it might be sufficient for one single share to belong to a national of a given State for the latter to be entitled to exercise its diplomatic protection.

96.
The Court considers that the adoption of the theory of diplomatic protection of shareholders as such, by opening the door to competing diplomatic claims, could create an atmosphere of confusion and in- security in international economic relations. The danger would be all the greater inasmuch as the shares of companies whose activity is interna- tional are widely scattered and frequently change hands. It might perhaps be claimed that, if the right of protection belonging to the na- tional States of the shareholders were considered as only secondary to that of the national State of the company, there would be less danger of difficulties of the kind contemplated. However, the Court must state that the essence-oh secondary right is that it only comes into existence at the time when the original right ceases to exist. As the right of protec- tion vested in the national State of the company cannot be regarded as extinguished because it is not exercised, it is not possible to accept the proposition that in case of its non-exercise the national States of the shareholders have a right of protection secondary to that of the national State of the company. Furthermore, study of factual situations in which this theory might possibly be applied gives rise to the following 0bSe~a- tions.

100. In the present case,it is clear from what has been said above that Barceiona Traction was never reduced to a position of impotence such that it could not have approached its national State, Canada, to ask for its diplomatic protection, and that, as far as appeared to the Court, there was nothing to prevent Canada from continuing to grant its diplo- matic protection to Barcelona Traction if it had considered that it should do so.
1'01. For the above reasons, the Court is not of the opinion that, in the particular circumstances of the present case, jus standi is conferred on the Belgian Government by considerations of equity.
103. Accordingly, THE COURT rejects the Belgian Government's claim by ffiteen votes to one, twelve votes of the majority being based on the reasons set out in the present Judgment.
8
[Declarations, separate opinions and dissenting opinion omitted.]
On the basis of this opinion, it now appears certain that
only the state of incorporation may represent a corporate
entity on the international level.
7-9.Substantive Bases for International Claims. a. At-
tribution of Conduct to the State. Having examined the
manner in which a state may espouse a claim of one of its
citizens, attention must now be focused on those acts
which have generally been viewed as substantive bases for
international claims. Stated concisely, what acts attributa-
ble to a state are wrongful under international law when
they result in injuries to aliens?
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 8 165. When Conduct Causing Injury to Men is Wrongful under In- ternational Law
(1)
Conduct attributable to a state and causing iqjury to an alien is wrongful under intemational law if it

(a)
departs from the international standard of justice, or

(b)
constitutes a violation of an international agreement.

(2)
The international standard ofjustice spedled in Subsection (1) is the standard required for the treatment of aliens by

(a)
the applicable principles of international law as established by international custom, judicial and arbitral decisions, and other recog- nized sources or, in the absence of such applicable principles,

(b)
analagous principles of justice generally recognized by states that have reasonably developed legal systems. …

In order to identify the substantive bases for international claims, it is necessary to analyze-c violations of the international standard of justice. 29
b. Wrongful Conduct by State Agents Attributed to the State. In the William T. Way Claim (United States v. Mexico), 30 a U.S.citizen, while beii arrested, was shot and killed by Mexican arresting officers. The warrant for Way's arrest, void on its face under Mexican law for failure to state a charge, had been issued by a local Alcalde who had been motivated by personal grievances. Moreover, the arresting officers had been supplied with arms, and the warrant had directed them "to use such means as may be suitable" to seize the accused. In ren-dering its decision on behalf of the claim for monetary damages brought by the U.S. on behalf of relatives of Way, the Claims Commission stated:
29.
Treaties often refer to the obligation of either party to accord such treatment to the other's nationals as is required by international law. See, e.g., Treaty of Friendship, Commerce and Navigation between the United States and Italy, Feb. 2, 1948, Art.V. 63 Stat. 2225; Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany, Oct. 29, 1954, Art. 111, T.I.A.S. No. 3593, 273 U.N.T.S.; Treaty of Friendship, Commerce and Navigation with Pakistan, Nov. 12,1959, ~rt.rn, 12 U.S.T. 110,404 U.N.T.S. 259.

30.
Wiam T. Way Claim (United States v. Mexico), United States and Mexico General Claims Commission, [1928-291 Opinion of Com- missioners 94,4 U.N.R.I.A.A. 391 [hereinafter cited as William T. Way Claim].

It is believed to be a sound principle that, when misconduct on the
part of persons concerned with the discharge of government functions,
whatever their precise status may be under domestic law, results in a
failure of a nation to live up to its obligations under intemational law,
the delinquency on the part of such persons is a misfortune for which
the nation must bear the responsibility.
. . .Under intemational law a nation has responsibility for the conduct of judicial oficers. However, there are certain other broad principles with respect to personal rights which appear applicable to the instant case. These principles a? recognized by the laws of Mexico, the laws of the United States and under the laws of civilized countries generally, and also under international law. . . . Gross mistreatment in connection with arrest and imprisonment is not tolerated, and it has been con- demned by international tribunals. . . . For this tragic violation of per- sonal rights secured by Mexican law and by international law, it is proper to award an indemnity in favor of the claimants. 31
The Way claim clearly demonstrates wrongful conduct by states agents. Just as importantly, however, this decision also reflects conduct that was attributable to the state it- self, a factor imperative to the espousal of a claim by a state on behalf of one of its citizens. Attention is called to this fact as a preface to the consideration of the various ac- tions that may be attributed to a state under international law.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 5 169. General Rule as to Attribution
Conduct of any organ or other agency of a state, or of any official,
employee, or other individual agent of the state or of such agency,
that causes injury to an alien, is attributable to the state . . . if it is
within the actual or apparent authority, or within the scope of the
function, of such agency or individual agent.
Comment:
a.
Staleagency, in general. The term "agency" as used in this Section includes the head of a state and any legislative, executive, administra- tive or judicial organ, or other authority of the state.

b.
Commercial enterprise. The term "agency" as used in this Section includes any commercial enterprise owned by a state unless, under the law of the state, such enterprise is a scparate legal entity to which the state does not accord sovereign immunity in its own courts and for which it does not claim the immunity of a foreign state in the courts of other states. . . .

c.
Individual agent. The term "individual agent" as used in this Sec-tion includes any official, employee, member of the armed forces, or other individual employed by or authorized to act on behalf of the state or any agency of the state. . . .

8 170. Conduct of LoePl Authorities If conduct of an agency or agent of a political unit that is included in a state causes injury to an alien, such conduct is attributable to the state to the same extent as conduct of an agency or agent of the state. . . .
Comment:
a. Federal State. Conduct of local authorities is attributable to the central govenunent of a state without regard to the nature of the state's constitution. Although component units of a federal state have certain attributes of sovereignty for domestic purposes, and may, as in the case of the United States, be known as "states," they are not treated assepa-rate states under international law. . . .
7-10. Responsibility of a State for Acts of Its Military Forces. a. General. Military operations offer the largest single factual phenomenon productive of injury to persons or property. Yet, customary international law and the
31. Id. at 97.
fund of general principles relied on by states in pressing in- ternational claims arising from such operations are of little value where posthostilities agreements form the basis of decisions or where the question of liability is likely to be avoided by reciprocal waivers of claims by the states con- cerned. 32 A line does appear to be drawn between claims arising from military operations incident to combat and those not involving contact with an opposing militae force. In the former category are included what may be described as war losses.
6. War Losses. A nation is responsible for the acts of the oflicers and men of its armed forces. Liability exten& to personal injuries, deaths, thefts, wanton destruction of property, and requisitions. There is no liability for losses that, within the meaning of intemational law, are wai losses, in the sense that they are incident to the proper conduct of military operations. I
(1) Hague Convention No. IV Resmting the Laws and Customs of Land 33 provides in Articl~(3 as follows: A belligerent party which violates the provisions o'F'[he said Regula- tions shall, if the case demands, be liable to pay comfknsation. It shall
be responsible for all acts committed by persons forming part of its armed forces.
(2) Max Huber, appointed pursuant to an agree? ment of May 29, 1923, between Great Britain and Spain to examine and report on certain claims out of disturb- ances in the Spanish Zone of Morocco, said in his report (Oct. 23, 1924) :34
It seems that a rule generally well recognized exists: the state is not responsible for damages caused by the military operations of its own troops. However, it is not possible to include in this rule every measure having a certain connection with military operations; neither is it possi- ble to include every act committed by soldiers. According to the thesis of the representative of His Catholic Mr\jesty, the evaluation of every act not justified by military necessity would always and exclusively rest with military chiefs, and in every case, national authorities.
The Reporter cannot agree that the acts committed by troops or by isolated soldiers could in no case involve the international responsibility of the state. Article 3of the Convention of October 18,1907,relating to the laws of war on land established the principle of such responsibility precisely in the most important contingency. Doubtless this Convention is not directly applicable to any of the facts with which this report must be concerned, but the principle which it establishes merits beiig re- tained equally in the event of military action outside of war, properly speaking. This beiig admitted, it must be remembered, on the other hand, that the rule to which the above-mentioned clause relates gives a large place to military necessity. The determination of this necessity must be left in large measure to the persons themselves who are called upon to act in mcult situations, as well as to their military chief. A nonmilitary jurisdiction, and above all, an intemational jurisdiction could only intervene in this field in case of manifest abuse of this freedom of judgment. This having been said, it must equally be recog- nized that the state must be considered as obliged to exercise vigilance of a superior order in order to prevent crimes committed in violation of military discipline and law by persons belonging to the army. The de-
32.
W.Bishop, International Law: Cases and Materials 696 (1962 4.). On the general subject of state responsibility for the acts of their forces see Freeman, Responsibili@ of States for Unlawful Acts of Their Armed Forces, [I9551Receuil Des Cours 267-401.

33.
36 Stat. 2277,T.S. No. 539.

34.
5 G.Hackworth, supra, note 7at 699.

Pam 27-161-1

mand for this qualified vigilance is the only complement of the powers of the commander and of the discipline of the military hierarchy. 35
(3) The British Government presented a claim to the Anglo-American Tribunal established under the agreement of 1 9 10 for reimbursement for losses of per- sonal property by a British subject in Cuba when Ameri- can Forces, during the Spanish American War, burned certain houses as a health measure. The British Govern- ment admitted that losses resulting from necessary war measures do not give rise to a legal right to compensation. However, they contended that this was not a war loss, as it was not a necessity of war but was rather a measure for better securing the health and comfort of troops. The tri- bunal dismissed the claim, stating:
In law, an act of war is an act of defense or attack against the enemy,

and a necessity of war is an act which is made necessary by the defense
or attack and assumes the character of vis mqior.
In the present case, the necessity of war was the occupation of Siboney, and th&kaupation, which is not criticized in any way by the British Gove-snt, involved the necessity, according to the medical authorities above referred to, of taking the said sanitary measures. i.e., the destruction of the houses and their contents.
In the opinion of this Tribunal, therefore, the destruction of Hard- man's personal property was a necessity of war, and according to the ptinciple accepted by the two Governments, it does not give rise to a legal right of compensation. 36
(4)
Before the Hague Convention of 1907 concern-ing the laws and customs of war on land, the great ma- jority of cases held that the state was not responsible for the wrongful acts of unofficered soldiers, whether incident to a belligerent operation or merely wanton and unauthorized acts of robbery and pillage. Proof generally has been required that the soldiers had acted under the command of officers. 37

(5)
By Article 3 of the Hague Convention of 1907, the state is made liable "for all acts committed by persons forming part of its armed forces." This abolished the restriction of the former rule requiring that officers shall be in command of such wrong doing soldiers. 38

(6)
Article 29 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) 39 provides:

The Party of the conflict in whose lands protected persons may be is responsible for the treatment accorded to them by its agents, irrespec- tive of any individual responsibility which may be incurred.
(7) The International Committee of the Red Cross,

3s; The reader's attention is directed toward the interrelationship of state responsibility and the Law of War aspects of "military necessity and command responsibility" discussed in FM 27-10,The Law of Land Warfare,chap. 1 5 I (1956).
36. Wiiam Hardman Claim (Great Britain v. United States) re- ported in 5 G. Hackworth, supra, note 7 at 700.See also Juragua Iron Company, Ltd. v. United States, 212 U.S. 297 (1909).
5 Hackworth, supra, note 7 at 709. 37.

38.
Harvard Research, The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, 23 Am. J. Int'l L. Spec. Supp. 167 (1929).

39.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War [I9551 6 U.S.T. 3516,T.I.A.S. No. 3365.

in their Commentary to the Geneva Civilian Convention made the following observation: The principle of the responsibility of States implies an obligation on the Parties to the conflict to instruct their agents in their duties and their rights. They must take the greatest pains to ensure that the State ser- vices in contact with the protected persons are in actual fact capable of applying the provisions of the Convention. In that respect, Article 29 is similar to Article 1, which, as has been seen, bids the Contracting Par- ties to respect and "ensure respect for" the Convention in all circum- stances, and to Article 144,which stipulates that the text of the Con- vention is to be disseminated as widely as possible both in time of peace and in time of war. The principle of State responsibility further demands that a State whose agent has been guilty of an act in violation of the Convention should be required to make reparation. This already followed from Arti- cle 3 of the Fourth Hague Convention of 1907respecting the Laws and Customs of War on Land, which states that "a belligerent Party which violates the provisions of the said Regulations (The Hague Regulations) shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."
….
The term "agent" must be understood as embracing everyone who is in the service of a Contracting Party, no matter in what way or in what capacity. It includes civil servants, judges, members of the armed forces, members of para-military police organizations, etc., and so covers a wider circle than the defdtion in the Fourth Hague Convention, ac- cording to which the responsibility of the State could only be involved by "persons forming part of its armed forces."
. . ..

The nationality dthe agents does not affect the issue. This is of par- ticular importance in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally recruited agents of the nationality of the occupied country. The position is the same, regardless of whether an agent has disregarded the Convention's provisions on the orders or with the approval of his superiors, or has, on the contrary, exceeded his powers and made use of his official standing in order to carry out an unlawful act. In both instances, the State bears responsibility internationally in accordance with the general principles of law. 40
c. United States practice.

(1) General. The United States has long followed the policy of making prompt settlement of meritorious claims for damages caused by United States military per- sonnel. Three statutes implement this policy: the Federal Tort Claims Act, 41 The Military Claims Act, 42 and the Foreign Claims Act. 43 Of these, the Foreign Claims Act is of primary relevancy to this problem. Claimants under this statute must be inhabitants of a foreign country 44 who are friendly to the United States. 45 The claim must be in tort rather than in contract, 46 but the act complained
40. Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 210 (Pictet ed. 1958). Reproduced with the permission of the International Committee of the Red Cross.
41.
28 U.S.C. 1346(b).

42.
10 U.S.C. 2733.

43.
10 U.S.C. 2734.

44.
A foreign state or its political subdivision may be a claimant. See 10 U.S.C. 2734(a).

45.
An enemy alien, if found to be "friendly to the United States," can be a claimant. 10 U.S.C. 2734(b). DA Pam 27-162,Claims, 282 (1961).

46. Id. at 284.
Pam 27-161-1
of need not be within the scope of employment of the in- dividual soldier or civilian employee. 47 Claims for damages caused by employees of the United States who are not citizens thereof must be within the scope of their employment. Finally, claims incident to combat opera- tions are not payable under the Foreign Claims Act. 48
(2)
It should be noted that these statutory provisions are quite independent of any diplomatic overtures that may be made by a foreign government as a result of viola- tions of international law by the United States. The United States is willing to accept responsibility for the conduct of members of its military services and United States citizens employed by the military departments while they are in foreign countries. 49

(3)
The Foreign Claims Act does not apply where there is an agreement establishing a specific procedure for claims adjudication and settlement. However, such agree- ments may contemplate recourse to this statute in certain classes of claims, such as claims for injuries caused by acts not done within the scope of employment of the in- dividual wrongdoer. 50

(4)
Applicable treaties and agreements may include those with the country where the incident occurred or with the country of which the claimant is an inhabitant or national. If a claim against the United States is waived or assumed by a foreign government or if the foreign government has agreed to hold the UrLA 2:zs harm-less from such a claim, the foreign claims commission should not consider and settle the claim but should refer the claimant to the foreign government.

(5)
During and after World War II, the United States entered into treaties and agreement with the governments of some foreign nations providing for the mutual waiver of certain classes of claims arising out of ac- tivities of the forces of the two countries.

(6)
In return for a lump sumpayment by the United States, the government of Korea discharged and agreed to hold harmless the United States, its officials, employees, agencies or instrumentalities, nationals, and organizations from claims arising as a result of occupation of Korea by the unit& States Army during the period prior to 1 July 1948. 51 In return for economic and military assistance provided by the United States during and after World War II, France agreed to process and pay unpaid claims of French residents arising out of acts or omissions in France and French overseas territories prior to 1 July 1946 of members of United States' armed forces and civilian

Id. at 286. Id. at 289. Id. at 287. 47.

48.

49.

50.
Id. at 289. For a complete discussion of claims of this nature, see DA Pam 27-162, Claims (1974).

51.
62 Stat. 3242 (1948), T.I.A.S. No. 1851. The release here ex- tended beyond claims of a tort nature.

employees attached to such forces. 52 Many of the peace treaties concluded after World War I1 contained provi- sions for the release of the United States and other allied nations from responsibility for settlement of spedied classes of claims. 53
(7)
Some treaties and agreements provide that the United States willpay just and reasonable compensation in settlement of civil claims arising out of acts or omissions of members of the United States forces, with claims to be processed and settled in accordance with applicable provi- sions of United States law. 54 Under such agreements, claims would be settled under the "Foreign Claims Act" or, if the claimant was not an inhabitant of a foreign coun- try, the "Military Claims Act."

d.
Claims Under NATO SOFA. 55 Article Vm of the Status of Forces Agreement of the North Atlantic Treaty Organization covers the claims formula. The formula es- tablished may be divided into three parts: :

(1)
Damages to foreign government;pkoperty in the performance of official duty. Claims waived entirely in- clude damage caused to military property of one state by the armed forces of the other state in comection with the operation of the North Atlantic Treaty; injury or death suffered by any member of the armed service while engaged in the performance of official duties. Claims are waived, if under $1,400, for damage caused to government property, other than military, of one state by the armed forces of the other in comection with the operation of the North Atlantic Treaty.

(2)
Damage or idury to third parties in the perform- ance of official duties. In such cases, the "official duty" determination is usually made by the sending State and the claim forwarded to the receiving State for the ad- judication of liability. If the claim is allowed, payment is made by the receiving State, and thereafter the receiving State is reimbursed in the amount of 75 percent of its costs by the sending State.

(3)
Damages or iqjuries not caused in the perform- ance of official duties. The authorities of the receiving State assess the damages in such a case and forward their report to the sending State. The sending State then decides if it will offer an ex gratia payment to the claimant in full satisfaction of the claim. This procedure does not prevent the claimant from suing the member of the force in a civil proceeding or in a combination civil-criminal proceeding.

Agreement with Federation of the West Indies, Feb. 10, 1961, 12 U.S.T. 408 (1961), T.I.A.S. No. 4734. 61 Stat. 1245 (1947), T.I.A.S. No. 1648. See also 61 Stat. 4168 (1947), T.I.A.S. No. 1920and 61 Stat. 4171 (1947), T.I.A.S. No. 1921. 52.
61 Stat. 417 5 (1947), T.I.A.S. No. 1928. The accepting of responsibility for unpaid tort type claims was only a small consideration involved in this agreement. See JAGD/D-5419638 (Nov. 24, 1954) wherein it was held that a claim of an inhabitant of Tunisia for the death of his daughter during World War I1 may be presented by claimant to the French Government.

53.

54.

55.
For a comprehensive discussion of NATO SOFA claims, see chapter 10.

Pam 27-161-1

Such suit need only be terminated by the claimant if he ac-
cepts the ex gratia payment in full satisfaction of his claim.
Investigation of incidents and claims is conducted by
authorities of the receiving State, with the sending State
cooperating by furnishing evidence from sending State
sources.
7-11. Failure to Protect Aliens and to Apprehend and
Prosecute Those Who Wrongfully Inflict Injury on
Aliens. a. Failure to protect. In the William E. Chapman
Claim, 56 a claim was made by the United States on behalf
of William Chapman, who was shot and seriously
wounded at Puerto Mexico, Mexico. At the time of the
shooting, Chapman was serving in Puerto Mexico as Con-
sul of the United States. The Claim was predicated on
allegations that the Mexican authorities failed to provide
proper protection to the claimant, even though he had ap-
prised them of a threat made on his life, and subsequently
failed to take the proper steps to apprehend and punish the
person who did the shooting. In awarding compensation
to Mr. Chapman, the Commission issued these com-
ments:
This Commission and other international tribunals have often given application to the general principles invoked in the instant case that a government is required to take appropriate steps to prevent injuries to aliens and to employ prompt and effective measures to apprehend and punish offenders who have committed such injuries. The Commission has also considered the subject of the special protection due to a consul- ar officer. . . . Citation is made by the American Agency to statements found in numerous works on international law and in diplomatic corre- spondence to the effect that consular officials are entitled to special pro- tection. . . . Of course a request for protection k a aof threatened danger may be appropriate in any case involving the safety of an alien having no official status, and compliance with such a request will be prompted by the desire of authorities of a government to take notice with a view to avoiding any just grounds for complaint by the govern- ment to which the alien belongs. . . .
Writers on international law have repeatedly [however] stated that consular officers are entitled, to use the language of Phillimore, to a "more special protection of international law than uncommissioned in- dividuals." 57
6. Failure to apprehend and prosecute. In the Laura B. Janes Claim 58 it was alleged that claimant's husband was shot and killed in view of many witnesses. It was further alleged that the Mexican authorities did not take the proper steps to apprehend and punish the assailant. In finding that, based on all available evidence, the efforts of the Mexican authorities were inefficient and dilatory, the Commission asserted:
. . . At times intemational awards have held that, if a State shows serious lack of diligence in apprehending and punishing culprits, its liability is a derivative liability, assuming the character of some kind of complicity with the perpetrator himself and rendering the State responsi- ble for the very consequences of the individual's misdemeanor. . . . The
Id. at 127. 56.
William E. Chapman Claim (United States v. Mexico), United States and Mexico General Claims Commission, [1930-311 Opinions of Commissioners 121, 4 U.N.R.I.A.A. 632.

57.

58.
Laura B. Janes Claim (United States v. Mexico), United S@es and Mexico General Claims Commission, 1926, [I9271 Opinions of Commissioners 108, 4 U.N.R.I.A.A. 82.

reason is that the nonpunishment must be deemed to disclose some
kind of approval of what has occurred, especially so if the Government
has permitted the guilty parties to escape or has remitted the punish-
ment by granting either pardon or amnesty.
A reasoning based on presumed complicity may have some sound

foundation in cases of nonprevention where a Government knows of an
intended injurious crime, might have averted it, but for some reason
constituting its liability did not do so. The present case is different; it is
one of nomepression. Nobody contends either that the Mexican
Government might have prevented the murder of Janes, or that it acted
in any other form of connivance with the murderer. The international
delinquency in this case is one of its own specific type, separate from the
private delinquency of the culprit. The culprit is liable for having killed
or murdered an American national; the Government is liable for not
having measured up to its duty of diligently prosecuting and properly
punishing the offender.
c. An often cited example of a governmental failure to protect or apprehend and punish is an incident that oc-curred in 1918. In that year, the U.S.S. Monocacy, while lawfully navigating the Yangtze River, was fired upon. One seaman was killed, and two others were wounded. I. an instruction addressed to the Legation at Peking, the
U.S. Department of State maintained: Official reports that this deplorable incident was the result of a state of lawlessness which the Chinese Government, though well aware of its existence, took no action to abate; that these casualties were attributable to the inactivity and apparent indifference of the responsible authorities of the Chinese Government; and that no adequate or effective steps have been taken to punish the perpetrators of the outrage. In view of the obligation of the Chinese government to accord protection to American citizens engaged in lawful pursuits in China and of the failure of the Chinese authorities to adopt measures calculated to avert incidents such as the attack on the U.S.S. Monocacy and to adequately punish the guilty parties, and considering that the victims of the attack were Ameri- can citizens employed in the naval service of the United States, and that
O'Brien was the support of a dependent wife and two children, the Department deems it appropriate to ask an indemnity. . . .59
In a note of March 1 4, 1 9 1 9, the Chinese Vice Minister of Foreign Affairs accepted the proposed settlement "as just and acceptable in every particular." 60 In speaking to this specific substantive basis for an intemational claim, Restatement, Second, 4 183 provides:
A state is responsible under international law for injury to the person or property of an alien caused by conduct that is not itself attributable to the state, if
(a)
the conduct is either (i) criminal under the law of the state, (i) generally recognized as criminal under the laws of states that have resonably developed legal systems, or (i) an offense against public order, and

(b)
either (i) the injury results from the failure of the state to take reasonable measures to prevent the conduct causing the injury, or (ii) the state fails to take reasonable steps to detect, prosecute, and impose an appropriate penalty on the person or persons'responsible for the con- duct if it falls within clause (a) (i).

7-12. Denial of Procedural Justice. a. DeBnition. As in other areas of state responsibility, considerable controver- sy has been generated by the shifting meaning of the con-cept, "denial ofjustice." It is frequently said that a state is responsible under international law for a "denial of
59. 5 G. Hackworth, supra, note 7 at 655-66.
60. Id.
justice" to an alien. However, the term has been employed in a variety of meanings. These include: (1) any treatment of an alien that violates international law, (2) treatment of an alien that departs from generally accepted standards of substantive law, (3) treatment of an alien that departs from generally accepted standards for the conduct of legal proceedings, (4) failure to afford an alien an ade- quate remedy or protection in the administration of justice, (5) failure to prosecute the perpetrator of a crime causing injury to an alien, or (6) failure to provide an ade- quate domestic remedy for an injury to an alien for which the state has international responsibility. The rules in Restatement, Second, on this subject deal with these different types of injury to an alien but use the term "denial of justice" only in the modified form, "denial of procedural justice," which is confied to the third and fourth meanings indicated above. 61 The sixth meaning referred to is related to the procedural requirement that an injured alien must exhaust his domestic remedies in the foreign state before the state of which he is a national may assert a claim on the international plane. 62
6. Arrest and Detention. Restatement, Second, 8 179 deals with arrest and detention in the following manner:
(1)
The mest of an alien is a denial of procedural justice if

(a)
he is not informed of the cause of the arrest, or

(b)
the arrest is for a cause not recognized as justifying arrest under the international standard of justice.

(2)
The detention of an alien constitutes a denial of procedural- justice if he is not, without unreasonable delay,

(a)
informed of the charges against him,

(b)
afforded access to a tribunal or other authority having juris- diction to determine the lawfulness of his detention and to order his release if such detention is unlawful,

(c)
permitted during detention to communicate with a repre- sentative of his government,

(d)
afforded aaxssto counsel, or

(e)
granted a trial.

(3)
Mistreatment of an alien in the course dmest or during de- tention is a denial of procedural justice.

hest and detention are also covered in the U.N. Cove- nant of Civil and Political Rights. 63 Additionally, certain rights of an accused are specifically guaranteed in U.S. Treaties of Friendship, Commerce and Negotiation. 64
c. Denial of Trial. Denial of a trial for the determina- tion of an alien's right is an obvious form of denial of procedural justice. Indeed, this is viewed by the great ma- jority of those states which deny the existence of an inter- national standard of justice as the only possible denial of procedural justice. Accordingly, intemational agreements commonly guarantee reasonable access to a court or other
61. Resutement, supra, note 11 at 4 165, comment c.
62. Id.
63.
21 U.N. GAOR Supp. 16, at 52-58, U.N. Doc. A/6316 (1966).

64.
See, e.g., Treaty with Greece, August 3, 1951, art. IV(2). [I9521 5 U.S.T. 1829, T.I.A.S. No. 3057.

tribunal on the same basis as nationals. 65
d.
Erroneous Decisions. It appears to be well settled that mere error in a decision does not constitute a denial of procedural justice. The injustice in question must be egregious. Indeed, the decision must be "so obviously wrong that it cannot have been made in good faith and with reasonable care," or "a serious miscarriage of justice." 66 7-13. Injury to Economic Interests of Aliens. a. Scope. The subject matter of this secion deals primarily with the "nationalization problems;" that is, state action affecting aliens' property or economic interests. Prior to the First World War, expropriations involving foreign property holders were infrequent. In 1917 the Russian revolution ushered in the problem of nationalization of all private property by Communist states. The Mexican land and oil expropriations ushered in the problem of underdeveloped nations seeking to change the status quo in regard to foreign control of important segments of the economy. The patterns of diplomatic action in theevent of ex- propriation were also set during this period. Diplomatic protests and representations were fust made. If local remedies proved insufficient, claims were referred to ar- bitrators or special commissions or held for further negotiation. Since the end of the Second World War, ex- propriations have increased, with the most widespread ex- propriations occurring in countries which adopted com- munism. Agreements on lump sums to settle claims aris- ing from expropriations have been reached with Yugoslavia, Poland, Bulgaria, and Rumania. Some of the claims against Czechoslovakia and Hungary have been, paid out of funds established from assets of those coun- tries in the United States. The problem of obtaining com- pensation from Cuba and the Peoples' Republic of China is being held in abeyance.

b.
Current Practice. The existing international jurispru- dencial system is under great stress in this particular area. As can be seen, the nationalization problem is an old one. However, it has become more acute as states, particularly new and developing ones, embark upon various types of social experimentation. 7-14. Expropriation and Nationalization of Alien- Owned Property. a. General Principles. As Mr. Justice Harlan observed in Bance Nacional De Cuba v. Sab-batino:67

65.
The concept of procedural due process would seem to require the grant of a trial to determine what rights an alien has. Aliens are usually guaranteed access to a court or other tribunal on the same basis as nationals by international agreements. See, e.g., Friendship, Com- merce and Navigation Treaty with the Netherlands, March 27, 1956, Art. V(1), 8 U.S.T. 2043, T.I.A.S. No. 3942; American Declaration of the Rights and Duties of Man; Art. XVIII (1948), 43 Am. J. Int'l L. Supp. 133, 136 (1949).

66.
Resutemenr, supra, note 11 at 4 182, comment a. See also Her-rera v. Canevaro and Co. [1927-281 Ann.Dig. 219 (Sup. Ct. Peru).

67.
Banco Nacional de Cuba v. Sabbantino, 376 U.S 398, 428-29 (1 964).

Pam 27-161-1
There are few if any issues in international law today on which opin-

ion seems to be so divided as the limitations on a State's power to ex-
propriate the property of aliens. There is, of course, authority, in inter-
national judicial and arbitral decisions, in the expressions of national
governments, and among commentators for the view that a taking is im-
proper under international law if it is not for a public purpose, is dis-
criminatory, or is without provision for prompt, adequate, and effective
compensation. However, Communist countries, although they have in
fact provided a degree of compensation after diplomatic efforts, com-
monly recognize no obligation on the part of the taking country. Certain
representatives of the newly independent and underdeveloped countries
Have questioned whether rules of state responsibility toward aliens can
bind nations that have not consented to them, and it is argued that the
traditionally articulated standards governing expropriation of property
reflect "imperialist" interests and are inappropriate to the circum-
stances of emergent states.
?he disagreement as to relevant international law standards reflects

an even more basic divergence between the national interests of capital
importing and capital exporting nations and between the social
!deologies of those countries that favor state control of a considerable
portion of the meLans of production and those that adhere to a free en-
ierprise system. r 'P
The disparitiesof views on the basic principles of state responsibility, examined previously in this chapter, are tgflected in, and to a considerable extent are focused on, differing views of the international law principles applica- b.k,to the taking of alien-owned property. Together with many other capital exporting countries, the United States has consistently maintained that a taking of property for public purposes is contrary to international law unless it is accompanied by prompt, adequate, and effective compen- sation. In sharp contrast, the traditional Latin American view, now espoused by many developing countries in Africa and Asia as well, is that the international legal obligation of the state to pay compensation to an alien whpse property has been taken involves no more than a duty to compensate the alien to the extent that its own na-tionals are compensated. 68 Others would deny any inter- national legal responsibility on the part of a state to pay compensation to an alien whose property has been taken.
b. Limitations. At this point, it should be noted that, .under certain circumstances, the taking of property is wrongful mder international law, with the result that a duty to make reparation will arise quite independently of whether compensation has been paid. The specific case about which there appears to exist no room for dispute is when the taking is in violation of a treaty. In the Case Concerning the Factory at Chonow, 69 the Permanent Court held the taking to be in violation of the German- Polish Convention Concerning Upper Silesia and that, ac- cordingly, compensation equivalent to restitution of the property in kind was called for. It has also been urged that a,taking not for a public purpose would violate interna- tional law. 70 Finally, there is broad support for the view
68.
This is a logical extension of the "equal treatment" theory pre- viously discussed.

69.
Case Concerning the Factory at Chonow (Claim for Indem- nity) [I9281 P.C.I.J., ser. A, No. 17 [hereinafter cited as Chorzow Fac- tory Case].

70. Restatement, supra, note 11 at 8 185.

that a taking involving discrimination against aliens is wrongful under international jurispurdence. 71 The heart of the problem, however, is to what extent does interna- tional law impose a duty to pay compensation in the event of a taking of alien property by a state when the taking is for a public purpose, is nondiscriminatory, and is not violative of a treaty. To what extent must compensation be paid of a takingislawful under internation law? In can-nection with this question, attention is called to the Resolution on Permanent Sovereignty over National Resources. 72
RESOLUION ON PERMANENT SOVEREIGNTY OVER
NATURAL RESOURCES

The General Assembly

Consideringthat nothing in paragraph 4 below in any way prejudices the position of any Member State on any aspect of the question of the rights and obligations of successor States and Governments in respect of property acquired before the accession to complete sovereignty of coun- tries formerly under colonial rule, …
Declares that:

1.
The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

2.
The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.

3.
In cases where authorization is granted, the capital imported and the earnings on that capital shall be governed by the terms thereof, by the national legislation in force, and by international law. The profits derived must be shared in the proportions freely agreed upon, in each case, between the investors and the recipient State, due care beiig taken to ensure that there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources.

4.
Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid ap- propriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in ac- cordance with international law. In any case where the question of com- pensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agree- ment by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudica- tion.

5.
The free and beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered bv the mutual respect of States based on their sovereign equality.

6.
International co-operation for the economic development of developing countries, whether in the form of public or private captial in- vestments, exchange of goods and services, technical assistance, or ex- change of scientific information, shall be such as to further their inde- pendent national development and shall be based upon respect for their sovereignty over their natural wealth and resources.

7.
Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles

71.
Id. at 8 166. See also Fatouros, Government Guarantees to Foreign Investors 249-51 (1962) [hereinafter cited as Fatouros]; S. Friedmann, &propriation in International Law 189-93 (1953).

72.
This resolution wasadopted by the U.N. General Assembly by 87-2 with 12 abstentions.

Pam 27-161-1
of the Charter of the United Nations and hinders the development of in- ternational co-operation and the maintenance of peace.
8. Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith; States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in ac-cordance with the Charter and the principles set forth in the present resolution.. .. 73
c. New Developments. Many publicists continue to in- sist that adequate, prompt, and effective compensation be made for expropriated property. 74 However, considera- ble opinion seeks to modify the orthodox compensation "rule" in the modem foreign wealth deprivation context. A large number of Eastern European publicists suggest that compensation for claims be fmed by "new criteria," and many Western writers are similarly persuaded. 75 Sir Hersch Lauterpacht has made the following observation:
The rule is clearly established that a State is bound to respect the property of aliens. This rule is qualified, but not abolished . . . [A] modification must be recognized in cases in which fundamental changes in the political system and economic structure of the State or far-reach- ing reforms entail interference, on a large scale, with private property. In such cases, neither the principle of absolute respect for alien private property nor rigid equality with the dispowssed nationals offer a satisfactory solution of the difficulty. It is probable that, consistent with legal principle, such solution must be sought in the granting of partial compensation.76
7-15. Adequacy of Compensation. In essence, the pri- mary focus of the controversy with respect to the duty to pay compensation has not been whether there exists a duty under international law to pay some compensation-a proposition for which there is broad support-but rather the amount and form of the compensation. The key in-quiry is what is "just" or "appropriate" or "adequate" compensation under the circumstances. Even accepting the proposition that compensation must be adequate, prompt, and effective, there exists substantial room for disagreement concerning the precise meaning of these terms. Moreover, it is clear that "adequate," "prompt," and "effective" are interrelated. For example, undue delay in payment or payment that cannot be translated into a usable economic benefit to the dispossessed alien can have an impact on the "adequacy" of the compensa- tion arrangements. Finally, it has been urged that the re- quirement for adequate, prompt, and effective compensa- tion should be mitigated when the taking is pursuant to a broad program of economic and social reform as opposed to an individual expropriation. Failure to do so would deny to poorer states, which could not afford to make full
73. G.A. Res. 1803, 17 U.N. GAOR, Supp. 17, Doc. No. A15217 at 15-16 (1962).
74.
See, e.g., Cheng, Expropriation in International Law, 21 Solici- tor 98 (1954), and Brandon, Legal Aspects of Private Foreign Invest- ment, 18 Fed. B.J. 298 (1958).

75.
See, for example, Katzarov, The Validiv of the Act of Na- tionalization in International Law, 22 Mod. L. Rev. 639, 647 (1959).

76. 1 L. Oppenheim, International Low 318 (H.Lauterpacht ed. 1948) [hereinafter cited as 1 Oppenheim].
and immediate payment, the right to effect the programs of reform they desire. 77
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965)
5 187. Just Compensation Defined
Just compensation as required by 8 186 must be

(a)
adequate in amount, as indicated in 5 188,

(b)
paid with reasonable promptness, as indicated in 5 189, and

(c)
paid in a form that is effectively realizable by the alien, to the fullest extent that the circumstances permit, as indicated in 5 190.

5 188. Adequacy of Compensation
(1)
Compensation, to be adequate in amount within the meaning of 5 187, must be in an amount that is reasonable under the circum- stances, as measured by the international standard ofjustice indicated in 5 165. Under ordinary conditions, including the following, the amount must be equivalent to the full value of the property taken, together with interest to the date of payment

(a)
if the property was acquired or brought into the jurisdiction of the state by the alien for use in a business enterprise that the alien was speci!ically authorized to establish or acquire by a concession, con- tract, license, or other authorization of the state, or that the alien es-tablished or acquired in reasonable reliance on conduct of the state designed to encourage investment by aliens in the economy of the state,

(b)
if the property is an operating enterprise that is taken for opera- tion by the state as a going concern,

(c)
if the taking is pursuant to a program under which property held under similar circumstances by nationals of the state is not taken, or

(d)
if the taking is mongful under international law as stated in 5

185.
(2) In the absence of the conditions specified in Subsection (I), com- pensation must nevertheless be equivalent to full value unless special circumstances make such requirement unreasonable.
Comment .. .
b. Meaning of full value. The full value swed in this Section means fair market value if ascertainable. Iffair market value is not ascer- tainable, it means the fair value as reasonably determined in the light of the international standard ofjustice sWed in 5 165. So far as practica-ble, full value must be determined as of the time of taking, unaffected by the taking, by other related takings, or by conduct attributable to the taking state and having the effect of depressing the value of the property in anticipation of the taking. This does not require, however, disregard of the effect on market values of the state's general power to regulate the use of property or the conduct of business operations.
5 189. Promptness of Compensation Payment with reasonable promptness, within the meaning of 5 187, means payment as soon as is reasonable under the circumstances in the light of the international standard of justice smed in 5 165.
5 190. Effectiveness of Compensation
(1)
Compensation, to be in'effectively realizable form, within the meaning of 5 187, must be in the form of cash or property readily convertible into cash. If not in the currency of the state of which the alien was a national at the time of the taking, the cash paid must be convertible into such currency and withdrawable, either before or after conversion, to the temtory of the state of the alien's nationality, except as indicated in Subsection (2).

(2)
Such conversion and withdrawal may be delayed to the minimum extent necessary to assure the availability of foreign exchange for goods and services essential to the health and welfare of the people of the taking state.

77. See Garcia-Amador, International Respomibiliry: Fourth Re- port, [I9591 2 Y.B. Int7 L. Comm. 1, 7, 23-24, U.N. Doc. No. A/CN 4/119 (1959).
Pam 27-161-1

7-16. Presidential Statement on Expropriation.
STATEMENT OF POLICY BY THE PRESIDENT OF THE UNITED STATES CONCERNING THE INTERNA-

TIONAL MINIMUM STANDARD
5 Weekly Compilation of Presidential Documents, 64 (1972)

We live in an age that rightly attaches very high importance to eco- nomic development. The people of the developing societies in particular see in their own economic development the path to fulfillment of a whole range of national and human aspiration. The United States con- tinues to support wholeheartedly, as we have done for decades, the efforts of those societies to grow economically–out of our deep convic- tion that, as I said in my Inaugural Address, "To go forward at all is to go forward together"; that the well-being of mankind is in the fmal analysis indivisible; and that a better-fed, better-clothed, healthier, and more literate world will be a more peaceful world as well.
0.0

I also wish to make clear the approach of this administration to the role of private investment in developing countries, and in particular to one of the major problems affecting such private investment: upholding accepted principles of international law in the face of expropriations without adequate compensation.
The wisdom of any expropriation is questionable, even when ade- quate compensation is paid. The resources diverted to compensate invest-ments that are already producing employment and taxes often could be used more productively to finance new investment in the domestic economy, particularly in areas of high social priority to which foreign capital does not always flow. Consequently, countries that expropriate often postpone the attainment of their own development goals. Still more unfairly, expropriations in one developing country can and do im- pair the investment climate in other developing countries.
In light of all this, it seems to be imperative to state-to our citizens and to other nations-the policy of this Government in future situations involving expropriatory acts.
1. Under international law, the United States has a right to expect: -That any taking of American private property will be non-discriminatory; -that it wiU be for a public purpose; and -that its citizen will receive prompt, adequate, and effective con- pensation from the expropriating country.

Thus, when a country expropriates a significant U. S. interest without making reasonable provision for such compensation to U. S. citizens, we will presume that the U. S. will not extend new bilateral economic benefits to the expropriating country unless and until it is determined that the country is taking reasonable steps to provide adequate compen- sation or that there are dor factors affecting U. S. interests which re- quire continuance of all or part of these benefits.
2.
In the face of the expropriatory circumstancesjust described we will presume that the United States Government will withhold its sup- port from loans under consideration in multilateral development banks.

3.
Humanitarian assistance will, of course, continue to receive special consideration under such circumstances.

4.
In order to carry out this policy effectively, I have directed that each potential expropriation case be followed closely. A special inter- agency group will be established under the Council on International Economic Policy to review such cases and to recommend courses of ac- tion for the U. S. Government.

Thisexplicit Presidential statement concerning an interna- tional minimum standard of compensation clearly details the U.S.view toward expropriation.
7-17. State Breach of Its Undertaking to an Alien. a. General. Contractual arrangements between states and 'aliens are a common phenomenon in today's world and cover a variety of matters. A private supplier may sell goods or services to a foreign government or grant it rights to patents or technology under a licensing arrange- ment. A private company may enter into a concession agreement with a foreign government calling for the ex- ploitation, development and marketing of mineral resources. A private investor may enter into a contractual arrangement with a foreign government pursuant to an in- vestment incentive program under which an investment in productive facilities is made in exchange for various guarantees and incentives afforded by the foreign govern- ment. The undertakings made by the state under such varied arrangements differ widely, and these differences may be relevant to the question of whether state respon- sibility under international law attaches as a result of a breach of a particular undertaking.
b. Breach. When does a breach of an undertaking by a state to an alien constitute a violation of international law? At one extreme, there exists the position that, as only states have rights and obligations under international law, a state canlimit its exercise of sovereignty only by interna- tional agreement with another state or international organization and not by an agreement with an alien. At the other extreme, it has been argued that the doctrine of pacta sunt servanda as a rule of international law applies in the case of any agreement between a state and an alien. 78 Consider both of these views as the following material is examined. 7-18. Choice and Effect of Governing Law. a. Unless the repudiation of a contractual obligation is manifest, a necessary step in determining whether a breach has oc-curred will be to ascertain, in accordance with the princi- ples of the conflict of laws (private international law), what body of law (or bodies of law) govern questions in interpretation, validity, and performance of the contract. As pointed out in the Saudi Arabia v. Arabian American OilCompany (Aramco) Arbitration Award: 79
It is obvious that no contract can exist in vacuo, i.e., without bei based on a legal system. The conclusion of a contract is not left to the unfettered discretion of the Parties. It is necessarily related to some posi- tive law which gives legal effect to the reciprocal and concordant manifestations of intent made by the parties. The contract cannot even be conceived without a system of law under which it is created. Human will can only create a contractual relationship if the applicable system of law has just recognized its power to do so.
6.It should be noted that the choice of governing law problem canbe quite complex in relation to an agreement between a state and an alien. If the parties make an explicit choice as to governing law, this will usually be controlling. However, if the agreement is silent, the choice of law prob- lems are complicated by questions such as whether there should be a presumption in favor of the municipal law of the contracting state or whether referral of disputes to an
I
78. See Domke, Foreign Nationalirations, 55 Am. J. Int'l L. 585, 597 (1961); Kissam and Leach, Sovereign Expropriation of Property and Abrogation of Concession Contracts,28 Fordham L.Rev. 177, 194-214 (1 959).
79. 27 Int'l L. Rep. 117, 165 (1958).

international court or arbitral tribunal implies a choice as to governing law, or, at least, a rejection of municipal law of the contracting state as controlling. In speaking to the body of law which regulates the performance of state con- tracts, a noted publicits has observed:
It is today becoming increasingly accepted that a new body of law,

differing from both international and municipal law, is in the process of
developing.. . . This body of law, variously named "extranational" or
.. . "transnational," governs those situations where neither municipal
law nor the traditional public international law would be wholly appropri-
ate. .. .
It is not yet quite clear under what conditions transnational law is ap- plicable to particular state contracts. There is little doubt as to its ap- plicability when the parties include in the contract itself a provision to the effect that the "proper law of the contmct" is transnational law or the general principles of law recognized by civilized nations. Apart from such express statements, a similar intent of the parties may be inferred when the parties provide that any dispute is to be adjudged by an inter- national court. Provision for arbitration may also be an indication of the existence of such intent, though probably not in all cases. Fially, transnational law may sometimes be applied when no other system of law may be said to govern the contract, or in order to supplement other applicable rules of law. 80
7-19. State Breach as a Violation of International Law.
a. Choice of law. As indicated by the foregoing, under the applicable principles of conflict of laws, the law governing the interpretation, validity, and performance of the con- tract may be determined to be the municipal law of the contracting state, principles of law applied in common by two or more municipal law systems, public international law, general principles of law applied in common by two or more municipal law systems, public international law, general principles of law, some other body of law, custom, or some combination of all of these. Indeed, various aspects of the contractual relationship may be governed by different bodies of law. Once having determined the governing law, the problem shifts to seekingthe content of that law as applied to the particular contractual under- taking involved. To what extent under the governing prin- ciples are contracting parties held absolutely to their under- takings under an inflexible application of pacta sunt ser-vanda? To what extent, if at all, is either party afforded some leeway in meeting its obligations? What is the rele- vance of traditional principles of private and public law when applied to various agreements between states and aliens? Then, assuming that a breach of contractual obligation is established under the law governing the agreement, when, in the absence of a treaty violation or a denial of procedural justice, will a breach by the contract- ing state constitute a violation of international law provid- ing the substantive basis for a claim of state responsibility? Restatement, Second, 4 193 offers this answer:
(1)
The breach by a state of a contract with an alien, except as indicated in Subsection (2) and (3), is w~ongful under international law if either

(a)
the breach is effected in an arbitrary manner without bona fide claim of excuse,

(b)
the law and practice of the state in effect at the time of the breach do not make reasonable provision for reparation for the breach,

80. Fatouros, supra, note 71 at 283-94.
(c)
the state entered into the contract with the alien (or an alien assignor of the contract) in his capacity as an alien, or

(d)
the circumstances indicate that, when the alien became a party to the contract, the parties contemplated that performance of the contract would involve to a substantial degree foreign commerce, use of foreign resources, or activity outside the territory of the state.

(2)
Subsection (1) (a) and (1) (b) are not applicable to a contract for the repayment of money borrowed on the domestic market of the state.

(3)
Breach by a political subdivision of a state, whether or not it is a federal state, of a contract to which the central government or an agency of that government isnot a party, does not, as such, give rise to respon- sibility on the part of the state under international law. 81

b.
There exist differing opinions whether one govern- ment of a state may restrict the state's future legislative freedom. The following appears to reflect the generally held view.

While it may be said that a State is unable to restrict its future legis-
lative freedom for an indeffite period, there is neither principle nor
authority to prevent it from so doing for a limited number of years. If a
State violates such a promise made to a foreign concessionaire, its action
may be valid on a municipal level within its own territory, but on the in-
ternational level it is sufficient ground for interposition by the alien's na-
tional State. The nationalismg state in these circumstances has infringed
a limitation of its sovereignty voluntarily assumed by it. 82

c. The Department of State has often maintained that it would not espouse cases of breach of contract except when the breach is of a "tortious nature" or when there has been a denial of justice. However, both of these ex- pressions have been rather flexibly interpreted, and the only typesof claims that seem to be generally deemed un- qualified for espousal are those wherein the breach does not constitute a violation of international law or the action is for default in payment of public debt. The general un- wihgness of the Department to serve as "a collection agency" also appears to be a factor in minor commercial , transactions. Contract claims are often included in lump-sum settlements negotiated by the United States.
7-20.Waiver by Individual Claimant (Calvo Clause) .,,
a. Background. It is generally agreed that if an alien in- jured by a state in such a way as to constitute a violation of [a typewrongful under] international law, waives or settles" the claim prior to diplomatic intervention by the state of which he is a national, then the waiver of settlement ". . , is effective as a defense on behalf of the respondent state, provided the waiver or settlement is not under duress." 83 More troublesome problems have been raised, however, , by the efforts of Latin American states to avoid foreign, diplomatic intervention through various devices, includ- ing waivers required of aliens in advance, which limit their ; rights to those available under domestic law and secured ' by domestic legal remedies. These ~tates,~,by
means qf their constitutions, statutes, and executive gction, make it, a condition precedent to the entry of a foreign contractor or direct investor that the alien undertakes at the time of.: entry and in consideration therefor not to invoke the dip:"
I
81.
Restatement, supra, note 11 at 8 193. –

82.
H. White, Nationalization of Foreign Property. 178 (1961).

83.
Restatement, supra, note 11 at 8 203. \

Pam 27-161-1

lomatic protection of the state of his nationality and to ac- cept nondiscriminatory national treatment as his sole basis
'     of right. Contractually, this is an anticipatory waiver of claims. The former foreign minister of Argentina who gave his name in the latter part of the nineteenth century to the "Calvo Doctrine," which these waiver clauses seek to implement, grounded the doctrine fvmly on a negation of any right of diplomatic protection inhering in states of nationality and on a denial of the existence of an interna- tional minimum standard of justice. Inevitably, "Calvo Clauses" raise these questions:
(1)
May the private party bind or bar the state of his nationality?

(2)
If the promisor, again the private party, breaches his promise and seeks the representation of his govern- ment, what happens as to:

(a)
The investor vis-a-vis the state to which he gave his promise, and

(b)
Any independent right of actions that the state of nationality otherwise might have had? The questions posed do not have clear and satisfactory answers in either doctrinal writings or in international arbitrations. There have been no International Court of Justice decisions on these matters. Analytically, these questions raise the issue whether a nationalization claim is an injury to the state of espousal, (that is, an expression of a fundamental concept of customary international law), or whether it is merely a doctrine of logical convenience (i.e., a means by which to circumvent the lack of individuals' rights in this particular area of the international legal system).

b.
Current practice. Capital exporting states other than the U.S. seem to have been only rarely troubled by Calvo clauses. To date, this device for subjecting the foreign in-

,vestor to greater host state control has not spread throughout the developing nations of the world. In diplo- matic correspondence, the U.S. has rejected the notion that its international cause of action can be compromised by an agreement between a foreign state and a U.S. citizen. Often cited in support of this view is the leading decision in this area, North American Dredging. 84 In ren- dering its opinion in this case, the Commission hearing the dispute stated:
Reading this article [Article 18 contained a Calvo clause] as a whole, it is evident that its purpose was to bid the claimant to be governed by the laws of Mexico and to use the remedies existing under such laws. . . .But this provision did not, and could not, deprive the claimant of his American citizenship and all that that implies. It did not take from him his undoubted right to apply to his own Govemment for protection if his resort to the Mexican tribunals or other authorities available to him resulted in a denial or delay of justice as that term is used in interna- tional law. In such:&case the claimant's complaint would be not that his contract was violatkd but that he had been denied justice. The basis of his appeal would be not a construction of his contract, save perchance in an incidental way, but rather an internationally illegal act.
What, therefore, are the rights which claimant waived and those which he did not waive in subscribing to article 18 of the contract? (a)
u.North American Dredging Co. Case (United States v. Mexico), United States and Mexico General Claims Arbitration 21 (1926).
He waived his right to conduct himself as if no competent authorities existed in Mexico; as if he were engaged in fulfulling a contract in an in- ferior country subject to a system of capitulations; and as if the only real remedies available to him in the fulfillment, construction, and enforce- ment of this contract were international remedies. All these he waived and had a right to waive. (b) He did not waive any right which he possessed as an American citizen as to any matter not connected with the fuIfdlment, execution, or enforcement of this contract as such. (c) He did not waive his undoubted right as an American citizen to apply to his Govemment for protection against the violation of international law (internationally illegal acts) whether growing out of this contract or out of other situations. (d) He did not and could not affect the right of his Govemment to extend to him its protection in general or to extend to him its protection against breaches of international law. 8s
c. Restatement, Second, though somewhat restrictive in its approach, does appear to grant a greater degree of validity to the Calvo clause. Section 202 provides:
(1) Ifan alien, as a condition of engaging in economic activity in the territory of a state, agrees with the state that he is to be treated as if he were a national in respect to such activity, and that his only remedy for injury in this respect is that available under the law of the state, such agreement, commonly called a "Calvo Clause," relieves the state of responsibility for injury to the economic interests of the alien in respect to such activity, if (a) the alien is in fact treated as favorably as if he were a national, (b) the violation of an international agreement under the rule stated in 8 165 (1) (b), and (c) the law of the state affords the alien a bona fide remedy for such injury that satisfies the requirements of
.procedural justice stated in 88 180-182.
(2)
A Calvo Clause does not relieve a state of responsibility for injury to an alien except as stated in Subsection (1).

d.
Thus, though the Calvo clause has not been as widely accepted as its proponents would like, both arbitral decision and state practice seem to negate the view that the clause is a complete nullity in international claims law and practice. Moreover, there is some evidence that, in

U.S. diplomatic practice, the presence of a Calvo clause is a factor in determining either espousal itself, or the degree and intensity with which the normal diplomatic protection hction of the Department of State is discharged. 86 7-21. Justification for Otherwise Unlawful Conduct. a. The Restatement position.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965)

Circumstances may justify conduct causing damage to an alien that would otherwise be wrongful under international law. The rules stated in this Chapter, 58 197-201, are not exceptions to the general rule of responsibility of a state for conduct departing from the international standard of justice as indicated in Q 165, but specify situations in which certain types of conduct do not depart from the standard. . . . mhe rules in this Chapter do not constitute justification for conduct that discrimi- nates against an alien or constitutes a violation of an international agree- ment. . . .
8 197. Police Power and Law Enforcement
(1)
Conduct attributable to a state and causing damage to an alien does not depart from the international standard of justice indicated in 8 165 if it is reasonably necessary for

(a)
the maintenance of public order, safety, or health, or

(b)
the enforcement of any law of the state (including any revenue

85. Id. at 26.

86. For a thorough and well-reasoned analysis of the Calvo clause, see Graham, The Calvo Clause: Its Current Status as a Contractual Re-nunciation of Diplomatic Protection, 6 Tex.Int7 L. Forum 289 (1974).
law) that does not itself depart from the international standard.
(2) The rule in Subsection (1) does not justify failure to comply with the requirements of procedural justice stated in 55 179-182 except as stated in 5 199 with respect to emergencies.
Comment:

a. General.The essential criterion in determining whether exercise of police power, or enforcement of a law of a state, that causes damage to an alien is consistent with the international standard, is whether the con- duct, in each me, is reasonably necessary to achieve the indicated ob- jective, and whether that objective is consistent with the international standard.
Illustrations:
1. State A enacts a law requiring periodical inspection of livestock and destruction of animals that are found to have certain communicable dis-eases. The law provides for compensation only in cases where more than five percent of a herd is destroyed. Pursuant to such inspection, the state destroys two percent of a herd belonging to X, an alien. The destruction does not violate the rule stated in 5 185 regarding the taking of an alien's property without just compensation.
3. State A makes an agreement with X, an alien corporation, granting it the right to extract minerals in designated areas of A's territory for a period of five years and providing for payment by X of a spec5ed royalty. Thereafter, A enacts a law imposing a reasonable income tax on all corporations operating in its temtory with respect to income earned there. Collection of the tax from X, in addition to collection of the royalty, does not violate the rule stated in 5 185.
5 198. Currency Control
Conduct attributable to a state and causing damage to an alien does not depart from the international standard ofjustice indicated in 5 165 if it is reasonably necessary in order to control the value of the curren- cy or to protect the foreign exchange resources of the state.
Comment:

a.
Control of value of currency. It is generally recognized that devalua- tion of currency does not give rise to state responsibility by reason of its effect on an alien.

b.
Foreign exchange. Likewise, the application to an alien of a re- quirement that foreign funds held within the temtory of the state be surrendered against payment in local currency at the official rate of ex- change is not wrongful under international law, even though the local currency is less valuable on the free market than the foreign funds sur- rendered.

Illustration:
2. State A grants a concession to X, a national of state B, for mining operations in the territory of A. To meet local expenses of the project, X opens an account in a bank in A with a deposit in currency of B. A needs currency of B to pay for food and fuel imports from B. It adopts a
. .

foreign &change control system requiring all &edits in the currency of B to be surrendered in exchange for local currency at the official rate of ex- change, which is the same rate at which X could have withdrawn local currency from his account, but substantially less favorable to him than the free market rate. Enforcement of the requirement against X, that converts his account into local currency, is not a violation of the rule stated in 5 188 with respect to the payment of full value for the taking of an alien's property. 5 199. Emergencies
Conduct attributable to a state and causing damage to an alien does not depart from the international standard ofjustice indicated in 8 165 if it is reasonably necessary to conserve life or property in the case of disaster or other serious emergency.

b. There is authority for the principle that if an alien's property within the territory of a belligerent is requisi- tioned or destroyed under pressure of urgent necessity, compensation must be paid. Article 21 of the Harvard Research Draft Convention on the Rights and Duties of
Neutral States in Naval and Aerial War 87 states: A belligerent may, within its territory or within territory held in mili-tary occupation, in case of urgent necessity, requisition a neutral vessel privately owned and operated, or cargo owned by nationals of a neutral State, if the vessel or the cargo was brought into such temtory volun- tarily and not as the result of compulsion or pressure exercised by the belligerent or by an allied belligerent; provided that this privilege may be exercised by a belligerent only if it pays the fair market value, under pre- vailing conditions, of the vessel or cargo requisitioned.
The authorities dealing with cases of destruction are dis-
cussed in an accompanying comment. Article 22 provides that: A belligerent has no duty to pay compensation for damage to a neutral vessel or other neutral property or persons, when such damage is inci- dental to a belligerent's act of war against the armed forces of its enemy and not in violation of the provisions of this Convention or of the law of war. 88

7-22. Reparation. a. General. The violation of interna- tional law creates an obligation on the part of the delin- quent to give satisfaction or reparation for the wrong to the state injured by the violation. The violation may result in either a material injury or what might be called a "moral" injury. 89 The former is an injury to property or to an individual, while the latter is an injury to the dignity or sovereignty of a state. Since an international delict in- volving a material injury, whether to state property or the property or person of a private individual, is an injury to the state itself, a moral injury will always accompany a material injury. However, a moral injury need not neces- sarily result in a material injury. For instance, the violation. of a treaty may cause no actual damage, but would still constitute a moral injury, obligating the violating state to make appropriate reparation to the injured state.
6.
Reparation or satisfaction for a moral injury may consist of a formal apology or a monetary payment, or both. 90 Moreover, the mere fact that a state is adjudged to have violated international law may be sufficient, reparation to the injured state. 91 If the reparation for a- moral injury consists of a monetary payment, the amount will depend on the nature and magnitude of the injury to the dignity or sovereignty of the wronged state. When the moral injury is accompanied by or results from a material injury, the reparation often takes the form of a monetary payment measured by the damages of the individual claimant, even though, in theory, the injury has been suffered by the claimant state. I

c.
As the Permanent Court of International Justice ob- served in the Case Concerning the Factory at Chonow: 92

I

Chorzow Factory Case, supra, note 69 at 28. The Corfu Channel Case [I9491 I.C.J. 4, 35. 1 Oppenheim, supra, note 71 at 352. 33 Am. J. Intl L. Supp. 167, 359 (1939). 87.
hk

88.
For a more detailed discussion of the conqpt of "military necessity," see DA Pam 27-10.

89.

90.
The "I'm Alone" Case (Canada v. United States) Department ofstate Arbitration, Ser. No. 2, at 4, 3 U.N.R.I.A.A. 1609, 1618 (1935) [hereinafter cited as the "I'm Alone" Case].

91.

92.

.. . Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identid in kind with that which will be suffered by a State; it canonly afford a convenient scale for the calculation of the reparation due to the State.
In appropriate circumstances, reparation might also in- clude additional monetary damages for the moral injury to the claimant state. 93 The entire reparation is paid to the claimant state and disbursed to its national claimants at its discretion. 94 In the Chonow Factory case, the Permanent Court of International Justice also indicated that:
The essential principle contained in the actual notion of an illegal act-a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals-is that reparatibn must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitu- tion in kind would bear; the award, if need be, of damages for loss sus- tained which would not be covered by restitution in kind or payment in place of it–such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. 95
d.
In the majority of cases, restitution is impossible because of changed circumstances, and the reparation must consist of monetary compensation. The Permanent Court also distinguished between the case in which the payment of "fair compensation" can render lawful under international law an expropriation or other taking of prop- erty and the case in which the taking is wrongful under in- ternational law, even if such compensation if paid. 96 In the former case, the Court indicated that the measure of compensation was the value of the property at the time of the taking, plus interest to the date of payment. The Chonow Factory case itself involved the latter, since the taking there was in violation of a specific treaty prohibition against expropriation (even if compensation were paid). The Court stated that in this situation the measure of damages was the value that the undertaking would have had at the time of indedtcation had the expropriation not taken place, plus any losses sustained as a result of the expropriation. 97 Thus, the court allowed damages for loss of profits realized between the seizure and the indem- nification.

e.
Personal injuries. In claims for personal injuries the measure of reparation for the injury to the individual is the loss to the individual claimant. Damages have included

Id. at 48. Id. at 46. Chorzow Factory Case, supra, note 69 at 47. 93.
For a discussion of determining the measure of reparations, see the opinions in the Laura M.B. Janes Claim (United States v. Mexico), [I9271 Opinions of Commissioners 108, 4 U.N.R.I.A.A. 82.

94.
On the legal status of reparation received by the United States, see Wiam v. Hksd, 140 U.S. 529 (1891); Opinion of J. Reuben Clark, Solicitor for the Department of State, 7 Am. J. Int'l L. 382 (1913). See generally 1 M. Whiteman, Damages in International Law 2035-59 (1943) [hereinafter cited as 1 M. Whiteman, Damages]; 5 G. Hack- worth, supra, note 7 at 763-901.

95.

96.

97.

medical expenses, loss of earnings, 98 pain and suffer-
ing, 99 and mental anguish. 100 Damages may be reduced
where the claimant has contributed to the injury. 101 Prob-
lems sometimes arise in attributing responsibility to the
delinquent state for the damages suffered by an individual
claimant. A state is ordinarily responsible only for the

damages caused by its delinquency. There the delinquency
if a failure to apprehend and punish a private person who

has injured an alien or his property, the offending state has
not damaged the claimant except is so far as the state's
delinquency prevents the claimant from bringing a
damage action against the responsible person. If, as is
often the case, an action against the private wrongdoer
would be fruitless, the delinquent state has not caused any
damage to the claimant. International tribunals have
generally avoided such a result by finding that the delin-
quent state's lack of diligence in apprehending or punish-
ing the private wrongdoer amounted to condoning the in- jury and imposed derivative liability on the state, 102 or by finding that the claimant suffered "grief," "mistrust and lack of safety" resulting from the state's failure to ap- prehend or punish the wrongdoer. Under either theory, damages have usually been measured by the loss suffered by the individual claimant rather than by the gravity of the state's delinquency. 103
7-23. Succession to Obligations and International Responsibility. a. Although the problem of state succes- sion arises in other contexts, especially in connection with determining whether a successor state succeeds to rights and duties embodied in international agreements, it also arises with some frequency in the context of state respon- sibility. Particularly significant is the problem of the extent to which a successor state is bound by public debts and by other contractual obligations of the predecessor regime and responsible for international wrongs of that regime. With respect generally to the question of succession to the internal legal system of a territory, a distinction has tradi- tionally been drawn between public law and private law. Public law, broadly, is that body of laws promulgated by
98. George Henry Clapham Claim (Great Britain v. Mexico) 5

U.N.R.I.A.A. 201, 203-04 (1931).
1 M. Whiteman, Damages, supra, note 94 at 588, 89 (1943). 99.

100.
Opinion in the Lusitania Case (United States v. Germany), [1923-251 Administrative Decisions and Opinions 17, 21-22, 7

U.N.R.I.A.A. 32, 36-37 (1923).
101. Lillie S. Kling Claim (United States v. Mexico), General Claims Commission, [1930-31) Opinions of Comqisioners 36, 49-50, 4 U.N.R.I.A.A. 575, 585 (1930).
'02. Paggioli Case (Italy v. Venezuela), 10 U.N.R.I.A.A. 669, 689 (1903); Laura B. Janes Claim (United States v. Mexico), General Claims Commission, 119271 Opinions of Commissioners 108, 120, 4
U.N.R.I.A.A. 82, 90 (separate opinion of Commissioner Nielsen).
'03. 1 M. Whiteman, Damages, supra. note 94 at 39; Brierly, The Theoty of Implied State Complicity in International Claims, [I9281 Brit.
Y.B.
Int'l L. 42; M. Freeman, supra, note 22 at 367-69. But see Wiam

T.
Way Claim (United States v. Mexico), supra, note 30; the "I'm Alone" Case (Canada v. United States), supra, note 90; 1 M. White- man, Damages, note 94 at 721-44, 788.

the government for the effective administration of the country; it is political in character, concerns the relation of the population to the state, and pertains to the preroga- tives of sovereignty. Private law, on the other hand, governs the relations between individual citizens and only indirectly concerns the administration of the country. 104
b. The traditional view held that private law survives change in sovereignty, legal control, or international status, but that public law does not. 10s This view, however, does not accord with state practice. An alterna- tive approach, which seems closer to actual practice, is that if the laws of the new state and the predecessor state are consistent, succession takes place, but that if the laws are inconsistent, no succession occurs. In this view, suc- cession is a presumption, which can be rebutted by posi- tive legislation of the new state. 106 Recent practice indi- cates that new states generally make legislative provision for continuity of the internal legal order, with the qualification that continuity must be consistent with the change in sovereignty. 107 Sometimes, both the pre- decessor state and the new state make legislative provision for succession to the legal system. For instance, in the case of India, Britain provided for continuity of the legal system in the India Independence Act, 108 while India provided for continuity in the Indian Constitution. 109
Section 111. THE ACT OF STATE DOCTRINE
7-24. The Conceptual Framework. a. Definition. In the Anglo-American legal world, a legal consequence deriv- ing from high-level state action> legal result outside the ordinary field of private law-is labeled an "Act of State." As are many of the aspects of state responsibility, this par-ticular concept is currently in a state of fluxand is some- what controversial in nature. This doctrine must not be confused with the concept of jurisdictional immunity. Although interrelated in many ways, it is essential to differentiate between these two principles if both are to be understood and correctly applied. As noted earlier, juris- dictional immunity stands for the proposition that an agent or agency of a state government, when acting on behalf of that government, may not be subjected to the ju- risdiction of another state's courts, regardless of where the alleged cause of action occurred. In short, jurisdictional immunity has no territorial limitation. 110 On the other hand, the act of state doctrine stands for the proposition that the courts of one state will not judicially review the acts of another state, when these acts are taken within the territorial boundaries of the latter.
b. An unresolved question exists as to whether the widely-shared disinclination to declare invalid the act of governance of another state is merely a recognized princi- ple of international relations or a rule of international law. In the U.S., the earlier cases on the act of state doctrine usuallv involved cases where the plaintiff and the defen- dant were both private parties and the plaintiff mounted the attack. The major cases in recent years, however, have involved a foreign state as plaints, and the defendant has attacked the legitimacy of the foreign law on which the plaintiff relies. In the older cases, the immunity of a state was never involved; in later cases, with the foreign state as plaintiff, interrelationships between immunity to counter claims and act of state may be involved. In the most recent development, a private party is generally suing a state engaged in trade for an alleged invalid act of nationaliza- tion/and before the act of state is reached, and issue of irn-
104. 1 O'Connell, State Succession in Municipal Law and Interna- tional Law 101-41 (1967).
105. Id. at 104.

munity from suit has to be resolved. 7-25. The Court-Made Doctrine in the U.S. Analysis of the act of state doctrine as applied in the United States must begin with the decision most often cited in comec- tion with the concept, Banco Nacional De Cuba v. Sab-batino, Receiver.
BANCO NACIONAL DE CUBA V. SABBATINO,
RECEIVER

United States Supreme Court, 1964.
376 U.S. 398, 84 S.Ct. 923.
MR.JUSTICE HARLAN

delivered the opinion of the Court.

The question which brought this case here, and is now found to be the dispositive issue, is whether the so-called act of state doctrine serves to sustain petitioner's claims in this litigation. Such claims are ultimately founded on a decree of the Government of Cuba expropriating certain property, the right to the proceeds of which is here in controversy. The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recog- nized foreign sovereign power committed within its own territory.
In February and July of 1960, respondent Fan, Whitlock & Co., an American commodity broker, contracted to purchase Cuban sugar, free alongside the steamer, from a wholly owned subsidiary of Compania Azucarera Vertientes-Camaguey de Cuba (C.A.V.), a corporation organized under Cuban law whose capital stock wasowned principally by United States residents. Farr, Whitlock agreed to pay for the sugar in New York upon presentation of the shipping documents and a sight ' draft.
On July 6, 1960, the Congress of the United States amended the Sugar Act of 1948 to permit a presidentially directed reduction of the. sugar quota for Cuba. On the same day President Eisenhower exercised the granted power. The day of the congressional enactment, the Cuban Council of Ministers adopted "Law No. 851," which characterized this reduction in the Cuban sugar quota as an act of "aggression, for political' purposes" on the part of the United States, justifying the taking of countermeasures by Cuba. The law gave the Cuban President and' Rirne Minkter btionary pow to nationalize by forced expropriation property or enterprises in which American nationals had an interest. Although a system of compensation was formally provided, the possibility of payment under it may well be deemed illssory. Our State Department has described the Cuban law as "manifestly in violation of
106.
Id. at 107.

107.
Id. at 118.

See para. 5-2, chap. 5. Constitution of India, art. 372(2). 108.
India Independence Act, 10 and 11 Geo. 6, chap. 30, 8 118 (1 947).

109.

110.

Pam 27-161-1

those principles of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbi-
) trary and contiit~ry.~ Between August 6 and August 9,1960, the sugar covered by the con- tract between Farr, Whitlock and C. A. V. was loaded, destined for Morocco, onto the S. S. Homfels, which was standing offshore at the Cuban port of Jucaro (Santa Maria). On the day loading commenced, the Cuban President and Prime Minister, acting pursuant to Law No. 851, issued Executive Power Resolution No. 1. It provided for the com- pulsory expropriation of all property and enterprises, and of rights and interests arising therefrom, of certain listed companies, including C. A. V., wholly or principally owned by American nationals. The preamble reiterated the alleged injustice of the American reduction of the Cuban sugar quota and emphasized the importance of Cuba's serving as an ex- ample for other countries to follow "in their struggle to free themselves from the brutal claws of Imperialism." In consequence of the resolu- tion, the consent of the Cuban Government was necessary before a ship canying sugar of a named company could leave Cuban waters. In order to obtain this consent, Farr, Whitlock, on August 11, entered into con- tracts, identical to those it had made with C. A. V., with the Banco Para el Comercio Exterior de Cuba, an instrumentality of the Cuban Government. The S. S. Homfels sailed for Morocco on August 12. Banco Exterior assigned the bills of lading to petitioner, also an instru-mentality of the Cuban Government which instructed its agent in New York, Societe Generale, to deliver the bills and a sight draft in the sum of $175,250.69 to Farr, Whitlock in return for payment. Societe Generale's initial tender of the documents was refused by Farr, Whitlock, which on the same day was notified of C. A. V.'s claim that as rightful owner of the sugar it was entitled to the proceeds. In return for a promise not to turn the funds over to petitioner or its agent, C. A. V. agreed to indemnify Farr, Whitlock for any loss. Farr, Whitlock subse- quently accepted the shipping documents, negotiated the bi of lading to its customer, and received payment for the sugar. It refused, however, to hand over the proceeds to Societe Generale. Shortly thereafter, Farr, Whitlock was sewed with an order of the New York Supreme Court, which had appointed Sabbatino as Temporary Receiver of C. A. V.'s New York assets, enjoining it from taking any action in regard to the money claimed by C. A. V. that might result in its removal from the State. Following this, Farr, Whitlock, pursuant to court order, transferred the funds to Sabbatino, to abide the event of a judicial deter- mination as to their ownership.
IV.

The classic American statement of the act of state doctrine, which ap- pears to have taken root in England as early as 1674, Blad v. Bamf~eld, 3 Swans. 604,36 Eng.Rep. 992, and began to emerge in the jurisprudence of this country in the late eighteenth and early nineteenth centuries, see, e.g., Ware v. Hylton, f~all. 199, 230; Hudson v. Guestier, 4 Cranch 293,294; The Schooner Exchange v. M'Faddon, 7 Cranch 116, 135, 136; L'Invincible, 1 Wheat. 238, 253; The Santissiia Trinidad, 7 Wheat. 283,336, is found in Underhill v. Hernandez, 168 U.S. 250, p. 252, 18 S.Ct. 83, at p. 84, where Chief Justice Fuller said for 2 unanimous Court:
Every sovereign State is bound to respect the independence of ev- ery other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign .powers as betypien themselves.

Following this pr&pt the Court in that case refused to inquire into acts of Hernandez, a revolutionary Venezuelan military commander whose government had been later recognized by the United States, which were made the basis of a damage action in this country by Underhill, an American citizen, who claimed that he had been unlawfully assaulted, coerced, and detained in Venezuela by Hernandez.
None of this Court's subsequent cases in which the act of state doctrine was directly or peripherally involved manifest any retreat from
Underhill.See American Banana&. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 51 1; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309; Ricaud v. American Metal Co., 246 U.S. 304; Shapleigh v. Mier, 299 U.S. 468, 57 S.Ct. 261; United States v. Belmont, 301 U.S. 324,57 S.Ct. 758; United States v. Pink,315 U.S. 203, 62 S.Ct 552. On the contrary in two of these cases, Oe&ien and Ricaud, the doctrine as an- nounced in Underhill was reaffmed in unequivocal terms.
1
Petitioner then instituted this action in the Federal District Court for

the Southern District of New York. Alleging conversion of the bids of
lading, it sought to recover the proceeds thereof from Farr, Whitlock
and to enjoin the receiver from exercising any dominion over such
proceeds. Upon motions to dismiss and for summary judgment, the
District Court, 193 F.Supp. 375, sustained federal in personal jurisdic-
tion despite state control of the funds. It found that the sugar was lo-
cated within Cuban territory at the time of expropriation and determined
that under merchant law common to civilized countries Farr, Whitlock
could not have asserted ownership of the sugar against C. A. V. before
making payment. It concluded that C. A. V. had a property interest in
the sugar subject to the territorial jurisdiction of Cuba. The court then
dealt with the question of Cuba's title to the sugar, on which rested peti-
tioner's claim of conversion. While acknowledging the continuing
vitality of the act of state doctrine, the court believed it inapplicable
when the questioned foreign act is in violation of international law.
Proceeding on the basis that a taking invalid under international law
does not convey good title, the District Court found the Cuban ex-
propriation decree to violate such law in three separate respects: it was
motivated by a retaliatory and not a public purpose; it discriminated
against American nationals; and it failed to provide adequate compensa-
tion. Summary judgment againt petitioner was accordingly granted.
The Court of Appeals, 307 F.2d 846, affig the decision on similar

grounds, relied on two letters (not before the District Court) written by
State Department officers which it took as evidence that the Executive
Branch had no objection to a judicial testing of the Cuban decree's
validity. The court was unwilling to declare that any use of the infir-
mities found by the District Court rendered the taking invalid under in-
ternational law, but was satisfied that in combination they had that
effect. We granted certiorari because the issues involved bear impor-
tantly on the conduct of the country's foreign relations and more partic-
ularly on the proper role of the Judicial Branch in this sensitive area. 372
U.S. 905, 83 S.Ct. 717. For reasons to follow we decide that the judg- ment below must be reversed.
In deciding the present case the Court of Appeals relied in part upon an exception to the unqualif~ed teachings of Underhill, Oe&ien, and Ricaud which that court had earlier indicated. In Bernstein v. Van Heyghen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, suit was brought to recover from an assignee property allegedly taken, in effect, by the Nazi Government because plaintiff was Jewish. Recognizing the odious nature of this act of state, the court, through Judge Learned Hand, nonetheless refused to consider it invalid on that ground. Rather, it looked to see if the Executive had acted in any manner that would in- dicate that United States Courts should refuse to give effect to such a foreign decree. Finding no such evidence, the court sustained dismissal of the complaint. In a later case involving similar-facts the she court again assumed examination of the German acts improper. Bernstein v.
N. V. Nederlandsche-AmerikaanscheStoomvaart-Maatschappij,2 Cir., 173 F.2d 71, but, quite evidently following the implications of Judge Hand's opinion in the earlier case, amended its mandate to permit evi- dence of alleged invalidity, 210 F.2d 375, subsequent to receipt by plain- tiffs attorney of a letter from the Acting Legal Adviser to the State Department written for the purpose of relieving the court from any con- straint upon the exercise of its jurisdiction to pass on that question. 18
This Court has never had occasion to pass upon the so-called Bern-skin exception, nor need it do so now. For whatever ambiguity may be thought to exist in the two letters from State Department officials on which the Court of Appeals relied, 19 307 F.2d, at 858, is now removed by the position which the Executive has taken in this Court on the act of state claim; respondents do not indeed contest the view that these .let- ters were intended to reflect no more than the Department's then wish not to make any statement bearing on this litigation.
The outcome of this he, therefore, turns upon whether any of the contentions urged by respondents against the application of the act of state doctrine in the premises is acceptable: (1) that the doctrine does not apply to acts of state which violate international law, as is claimed to be the case here; (2) that the doctrine is inapplicable unless the Execu- tive spenf~cally interposes it in a particular case; and (3) that, in any event, the doctrine may not be invoked by a foreign govemment plain- tiff in our courts.
Preliminarily, we discuss the foundations on which we deem the act of state doctrine to rest, and more particularly the question of whether state or federal law governs its application in a federal diversity case. 20
We do not believe that -thisdoctrine is compelled either by the in- herent nature of sovereign authority, as some of the earlier decisions seem to imply, see Underhill, supra; American Banana, supra; Oebien, supra, 246 U.S. at 303,38 S.Ct. at 311, or by some principle of interna- tional law. If a transaction takes place in one jurisdiction and the forum is in another, the forum does not by dismissingan action or by applying its own law purport to divest the fmt jurisdiction of its territorial sovereignty; it merely declines to adjudicate or makes applicable its own law to parties or property before it. The refusal of one country to enforce the penal laws of another (supra, pp. 932-933) is a typical example of an instance when a court will not entertain a cause of action arising in another jurisdiction. While historic notions of sovereign authority do bear upon the wisdom of employing the act of state doctrine, they do not dictate its existence.
That international law does not require application of the doctrine is evidenced by the practice of nations. Most of the countries rendering decisions on the subject fail to follow the rule rigidly. No international arbitral or judicial decision discovered suggests that international law prescribes recognition of sovereign acts of foreign govements, see 1 Oppenheim's International Low, 8 115aa (Lauterpacht, 8th ed. 1955), and apparently no claim has ever been raised before an international tri- bunal that failure to apply the act of state doctrine constitutes a breach of
la. The letter stated:

I. 'Ibis government has consistently o m the forcible am of dispass&on of a dk-criminatory and confiscatory nature praniced by the Gennans on the countries or peoples subject to their controls.

3. The policy of the Executive, with respect to claims asserted in the United Slates for the restitution of identiliable property (or compensation in lien themi) lost Ulrough force, coercion. or duress as a result of Nazi pexcution in Germany, is to relieve American courts from any remain1 upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi oRi-nals. Slate Department ResRelease, April 27, 1949,20 Dept. Slate Bull. 592.
19. Abram Chayea. the LegalAdvisor to theStaIe Department. wrote onOctober 18.1961. in answer to an inquiry regarding the position of the Department by Mr. John Laylin, attorney for amici:
The Department of Slate Wnot, in the Bahia de Nipe case or eke where, done anything in- consistent with the position laken on the Cubannationalizations by Secretary Herter. Whether or no1 these nationalitions will in the fufure be given eITm in the United Stam is, of course, for the couns to determine. Sicethe Sabbatino case and other similarc49esare at present before the courts, any comments on this question by the Department of SIatewould be out of place at this time. As you yourself point out, statements by the executive branch are h@hly suxeptible of misconslruction.
A letter &led November 14,1961,from George Ball, Under Ssretary for Emnomic AfTirs, responded to a similar inquiry by the same attorney:
I have carefully considered your letter and have discusd it with the Legal Adviser. Ourcon-clusion. in which the Secretary concurs, is that the Department should not comment on matters pendin# before the courts.
10. Although the complaint in this~89~ both diversity and fcdd question jwisdiri
all&

tion. the Court of Appeels reachedjurisdidion only on Ibe former ground, 307 F.2d at 852. We need not dedde. for reasons apparine hereafter, whether fedsral pueation jutididion also ex-isted.
international obligation. If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law. The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-to-nation character the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. See United States v. Diekelman, 92 U.S. 520, 524. Although it is, of course, true that United States courts apply international law as part of our own in ap- propriate circumstances, Ware v. Hylton, 3 Dall. 199, 281; The Nereide, 9 Cranch 388, 423; The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, the public law of nations can hardly dictate to a country which is in theory wronged how to treat that wrong within its domestic borders.
Despite the broad statement in Oegen that "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative * * Departments," 246 U.S., at 302, 38 S.Ct. at 311, it cannot of course be thought that "every case or wn- troversy which touches foreign relations lies beyond judicial cog-nizance." Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691. The text of the Constitution does not require the act of state doctrine; it does not ir- revocably remove from the judiciary the capacity to review the validity of foreign acts of state.
The act of state doctrine does, however, have "constitutional" un-derpinnings. It arises out of the basic relationships between branches of govemment in a system of separation of powers. It concerns the wmpe- tency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as for- mulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pur- suit of goals both for itself and for the community of nations as a whole in the international sphere. Many commentators disagree with this view; they have striven by means of distinguishing and limiting past decisions and by advancing various considerations of policy to stimulate a narrow- ing of the apparent scope of the rule. Whatever considerations are thought to predominate, it is plain that the problems involved are u- niquely federal in nature. If federal authority, in this instance this Court, orders the field of judicial competence in this area for the federal courts, and the state courts are left free to formulate their own rules, the pur- poses behind the doctrine could be as effectively underminded as if there had been no federal pronouncement on the subject.
. . . [Wle are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with the other members of the international community must be treated exclusively as an aspect of federal law. 23
If the act of state doctrine is a principle of decision biding on federal and state courts alike but compelled by neither international law nor the Constitution, its continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs. It should be apparent that the greater the degree of dcation or consen- sus concerning a particular area of international law, the more appropri- ate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not in- consistent with the national interest or with international justice. It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the im-
23. At least this is me when the Courl Limits the smpe ofjudicial inquiry. Wenezd not now consider whether a state cow mmt, in certaincircumstances,adhere to a more restrictive view concerning the smpe of examination of foreign ans Ulan that required by thisCourt.
Pam 27-161-1

plications of an issue are for our foreign relations, the weaker the justif~cationfor exclusivity in the political branches. The balance of rele-
, vant considerations may also be shifted if the government which per- petrated the challenged act of state is no longer in existence, as in the Bemstein case, for the political interest of this country may, as a result, be measurably altered. Therefore, rather than laying down or reaffi- ing an inflexible and all-encompassing rule in this case,we decide only that the Judicial Branch will not examine the validity of a taking of prop- erty within its own territory by a foreign sovereign government, extant and remgnized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal prin- ciples, even if the complaint alleges that the taking violates customary international law. There are few if any issues in international law today on which opin- ion seemsto be so divided as the limitations on a state's power to ex- propriate the property of aliens. 26 There is, of course, authority, in in- ternational judicial 27 and arbitral28 decisions, in the expressions of na- tional governments, 29 and among commentators 30 for the view that a taking is improper under international law if it is not for a public pur- pose, is discriminatory, or is without provision for prompt, adequate, and effective compensation. However, Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. 31 Certain representatives of the newly independent and under- developed countries have questioned whether rules of state respon- sibility toward aliens can bind nations that have not consented to them 32 and it is argued that the traditionally articulated standards governing expropriation of property reflect "imperialist" interests and are inappropriate to the circumstances of emergent states. 33 The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free en- terprise system. It is difficult to imagine the courts of this country em- barking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations. 34 When we consider the prospect of the courts characterizing foreign expropriations, however justifiably, as invalid under international law
26.
Coqre, e.g.. Frkdman, &mprhHon In Inrernatlo~lLuw 206 21 l (1953); Damn and Weston, "Pmmpr. Adequate and &EecHw'? A Unlwml Stanclclrd afCompen?uHon ? 30 Fordham L.Rev. 727 (1%2), with Note from Se~etmyof State Hull to Mexican Ambassador, Auuusl22, 1938, V Fomign Relations of the United States 685 (1938); Doman, Postwar Na- tionallrotion afforeign Proper(v In Europe, 48 Col.L.Rev. 1125, 1127 (1948). We do not, of mwse, meanto say that there is no international standard in this area;we mnclude only that the matler is not met for adjudication by domestic tribuhals.

27.
SeeOscarChinn Case, P.C.I.J., ser. A/B, No. 63, at 87 (1934); Chorrow Factory Case, P.C.I.J., str. A,, No.17, at 46, 47 (1928).

28.
See, e.g.. Norwegian Shipowners' Case (NomyNnited States) (Perm. Ct.Arb.) (1922), 1 U.N.Rep.Int'l Arb. Awards 307, 334, 339 (1948). Hague Court Reports, 2d Series,

39.69.74 (1932); Marguerite de Ioly de SaMa, Ameh and PanSmanianGenersl Claims Ar- bitration 379, 447, 6 U.N.Rep.ht'1 Arb. Awards 358, 336 (1955).
29.
See. e.g., Dispatch from Lord Palmerston to British Envoy at Athens, Aug. 7, 1846.39 Britishand Foreign State Papers 1849-1850.431-432. NotefmmSccrcrary ofstate Hull to Mex-ican Amhsador, July 21, 1938, V Foreign Relations of the Unical States 674 (1938); Note to the CubanGovernment, July 16, 1960.43 Dept. State Bull. 171 (1960).

30.
Sec. e.8.. McNsir, The Sekure afProper(v and EnlerprLres In Indonesh, 6 Netherlands ht'l L.Rev. 218, 243-253 (1959); Restatement, Foreign Rebnons Luw afthe Unlted Smtes (ROW Offi Draft 1962), 55 190-195.

31.
See Doman, supra, note 26, at 1143-1158: Fleming,States,Contracts and R-, 62-63 (1960); Bystridry. Notes on Certain Inter~do~I Na-

LegalProbIemRehnng to Sochll~t ti~~kaH~n,
In InlernationaIAssn. afDemocraflc Lawyers, Roawhgs of the CommiPsion on Rivstc laternational Law, Sixth Co-(1956). IS.
32.
See Anand, Role qf the "New" Ashn-Nrlcan Countries ln the Pwnt 1nlernaHo~l &I Order, 56 Am.J.ht'l L. 383 (1962); Roy, Is the hw qfResponslblH@ afStateafor I&-rks to Akm a Part qf Un~wncrl Inler~HonalL.aw7 55 Am.J.lnt'1 L. 863 (1961).

33.
See 1957 Yb.U.N.lnt'l L. Comm'n (Vol.1) 155,158 (statements of Mr. PsdillaNmo (Mexico) and Mr. Pal (India)).

w. Then arc, of mum, areas of international law in which mmm as to s~~~dards

is €aw~terand which do not represent a battleground for wnIlic@ ideologies Tbis de&on in no 'my intimatesthat the mum of Ulismunw arc broadly foredosed from considering queslions of intemationsl law.
and ineffective to pass title, the wisdom of the precedents is confied.
While each of the leading cases in this Court may be argued to be dis-
tinguishable on its facts from thisone-Underhillbecause sovereign im-
munity provided an independent ground and Oetien, Ricaud, and
Shapleigh bemuse there was actually no violation of international law-
the plain implication of all these opinions, and the import of express
statements in Oegien, 246 U.S., at 304, 38 S.Ct. at 311, and Shapleigh,
299 U.S., at 471, 57 S.Ct. at 262, is that the act of state doctrine is ap-
plicable even if international law has been violated. In Ricaud, the one
case of the three most plausibly involving all international law violation,
the possibility of an exception to the act of state doctrine was not dis-
cussed. Some commentators have concluded that it wasnot brought to
the Court's attention, 35 but Justice Clarke delivered both the OeQen

and Ricaudopinions, on the same day, so we can assume that principles
stated in the former were applicable to the latter case.
The possible adverse consequences of a conclusion to the contrary of

that implicit in these cases is highli&ted by contrasting the practices of
the political branch with the limitations of the judicial process in matters
of this kind. Following an expropriation of any sigd~cance, the Execu-
tive engages in diplomacy aimed to assure that United States citizens
who are harmed are compensated fairly. Representing all claimants of
thiscountry, it will often be able, either by bilateral or mulitlateral talks,
by submission to the United Nations, or by the employment of econom-
ic and political sanctions, to achieve some degree of general redress.
Judicial determinations of invalidity of title can, on the other hand, have
only an occasional impact, since they depend on the fortuitous circum-
stance of the property in question being brought into this country. 36
Such decisions would, if the acts involved were declared invalid, often
be likely to give offense to the expropriating country; since the concept
of temtorial sovereignty is so deep seated, any state may resent the
refusal of the courts of another sovereign to accord validity to acts within
its territorial borders. Piecemeal dispositions of this sort involving the
probability of affront to another state could seriously interfere with
negotiations being canied on by the Executive Branch and might pre-
vent or render less favorable the terms of an agreement that could
othenvise be reached. Relations with third countries which have
engaged in similar expropriations would not be immune from effect.
The dangers of such adjudication are present regardless of whether the State Department has, as it did in this case,asserted that the rele- vant act violated international law. If the Executive Branch has under-taken negotiations with an expropriating country, but has refrained from claims of violation of the law of nations, a determination to that effect by a court might be regarded as a serious insult, while a finding of com- pliance with international law, would greatly strengthen the bargaining hand of the other state with consequent detriment to American in- terests.
Even if the State Department has proclaimed the impropriety of the expropriation, the stamp of approval of its view by a judicial tribunal, however impartial, might increase any affront and the judicial decision might occur at a time, almost always well after the taking, when such an impact would be contrary to our national interest. Considerably more serious and farreaching consequences would flow from a judicial finding that international law standards had been met if that determination flew in the face of a State Department proclamation to the contrary. When articulating principles of international law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of na- tions and protective of national concerns. In short, whatever way the matter is cut, the possibility of conflict between the Judicial and Execu- tive Branches could hardly be avoided.
Respondents contend that, even if there is not agreement regarding

I
35. See Restac~menr. Foreign RebHons Luw Jthe United States, Reporters' Notes (Pro-pcscd OflicislDraft 1962). § 43, note 3.
M. It in, of mwse, true that such detenninations mi@ innumcc others not to bring ex- proprialed property into the munw, * * * so their indirut impad might exlend beyond the ac-lud invalidations of title.
Pam 27-161-1
general standards for determining the validity of expropriations, the
alleged combination of retaliation, discrimination, and inadequate com-
pensation makes it patently clear that thisparticular expropriation was in
violation of international law. Ifthis view is accurate, it would still be un-
wise for the courts so to determine. Such a decision now would require
the drawing of more difficult lines in subsequent cases and these would
involve the possibility of conflict with the Executive view. Even if the
courts avoided this course, either by presuming the validity of an act of
state whenever the international law standard was thought unclear or by
following the State Department declaration in such a situation, the very
expression of judicial uncertainty might provide embarrassment to the
Executive Branch.
Another serious consequence of the exception pressed by respond-
ents would be to render uncertain titles in foreign commerce, with the
possible consequence of altering the flow of international trade. If the at-
titude of the United States courts were unclear, one buying expropriated
goods would not know if he could safely import them into this country.
Even were takings known to be invalid, one would have difficulty deter-
mining after goods had changed hands several times whether the partic-
ular articles in question were the product of an ineffective state act.
Against the force of such considerations, we find respondents' wun- tervailing arguments quite unpersuasive. Their basic contention is that United States wurts could make a sigdkmt contribution to the growth of international law, a contribution whose importance, it is said, would be magnitied by the relative paucity of decisional law by international bodies. But given the fluidity of present world conditions, the effective- ness of such a patchwork approach toward the formulation of an accepta- ble body of law concerning state responsibility for expropriations is, to say the least, highly conjectural. Moreover, it rests upon the sanguine presupposition that the decisions of the courts of the world's m;(ior capital exporting country and principal exponent of the free enterprise system would be accepted as disinterested expressions of sound legal principle by those adhering to widely different ideologies.
It is contended that regardless of the fortuitous circunrstances neces-sary for United States jurisdiction over a case involving a foreign act of state and the resultant isolated application to any expropriation program taken as a whole, it is the function of the courts to justly decide in- dividual disputes before them. Perhaps the most typical act of state case involves the original owner or his assignee suing one not in association with the expropriating state who has had "title" transferred to him. But it is diicult to regard the claim of the original owner, who otherwise may be recompensed through diplomatic channels, as more demanding of judicial cognizance than the claim of title by the innocent thud party purchaser, who, if the property is taken from him, is without any remedy.
Respondents claim that the economic pressure resulting from the proposed exception to the act of state doctrine will materially add to the protection of United States investors. We are not convinced, even assuming the relevance of this contention. Expropriations take place for a variety of reasons, political and ideological as well as economic. When one considers the variety of means possessed by this country to make secure foreign investment, the persuasive or coercive effect of judicial invalidation of acts of expropriation dwindles in comparison. The newly independent states are in need of continuing foreign investment; the creation of a climate unfavorable to such investment by wholesale con- fmtions may well work to their long-run economic disadvantage. Foreign aid given to many of these countries provides a powerful lever in the hands of the oolitical branches to ensure fair treatmentof United States nationals. ul&tely the sanctions of economic embargo and the freezing of assets in this country may be employed. Any country willing to brave any or all of these consequences is unlikely to be deterred by sporadic judicial decisions directly affectingonly property brought to our shores. If the political branches are unwilling to exercise their ample powers to effect compensation, this reflects a judgment of the national interest which the judiciary would be ill-advised to undermine indirectly.
It is suggested that if the actof state doctrine is applicable to violations of international law, it should only be so when the Executive Branch ex-
pressly stipulates that it does not wish the wurts to pass on the question of validity. SeeAssociation of the Bar of the City of New York, Commit- tee on International Law, A Reconsideration of the Act of State Doctrine in United States Courts (1959). We should be slow to reject the representations of the Government that such a reversal of the Bernstein principle would work serious inroads on the maximum effec- tiveness of United States diplomacy. Often the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the developing of private litigation but might be inopportune diplomatically. Adverse domestic consequences might flow from an official stand which could be assuaged, if at all, only by revealing matters best kept secret. Of course, a relevant consideration for the State Department would be the position contemplated in the court to hear the case. It ishighly questionable whether the examination of validity by the judiciary should depend on an educated guess by the Executive as to probable result and, at any rate, should a prediction be wrong, the Executive might be embarrassed in its dealings with other countries. We do not now pass on the Bermgin exception, but even if it were deemed valid, its suggested extension is unwarranted.
However offensive to the public policy of this country and its consti-tuent States an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application.
***
The judgment of the Court of Appeals is reversed and the case is re-
manded to the District Court for proceedings consistent with this opin-
ion. It is so ordered. MR. JUSTICE WHITE, dissenting. I am dismayed that the Court has, with one broad stroke, declared the
ascertainment and application of international law beyond the compe- tence of the courts of the United States in a large and important category of cases. I am also disappointed in the Court's declaration that the acts of a sovereign state with regard to the property of aliens within its borders are beyond the reach of international law in the courts of this country. However clearly established that law may be, a sovereign may violate it with impunity, except insofar as the political branches of the govern- ment may provide a remedy. This backward-looking doctrine, never before declared in this Court, is canied a diswnceming step further: not only are the courts powerless to question acts of state proscribed by in- ternational law but they are likewise powerless to refuse to adjudicate the claim founded upon a foreign law; they must render judgment and thereby validate the lawless act.Si the Court expressly extends its ruling to all acts of state expropriating property, however clearly inwn- sistent with the international community, all discriminatory expropria- tions of the property of aliens, as for example the taking of properties of persons belonging to certain races, religions or nationalities, are entitled to automatic validation in the courts of the United States. No other civilized country has found such a rigid rule necessary for the survival of the executive branch of its government; the executive of no other government seems to require such insulation from international law ad-
judications in its wurts; and no other judiciary is apparently so incompe-
Pam 27-161-1

tent to ascertain and apply international law. I
I do not believe that the act of state doctrine as judicially fashioned in this Court, and the reasons underlying it, require American courts to decide cases in disregard of international law and of the rights of litigants to a full determination on the merits.
[The remaining text of MR. JUSTICE WHITE'S extensive dissenting opinion is omitted.]
7-26. Legislative Reaction to Banco National v. Stab-
batino -The Hickenlooper Amendments. In reaction to
the 1964 Sabbatino decision to close the door of U.S.
courts to American claimants affected by expropriations
abroad, the Congress quickly passed "remedial" legis-
lation, the Hickenlooper Amendments to the Foreign
Assistance Act.
UNITED STATES: THE "H1CKENU)OPER AMENDMENTS" TO THE FOREIGN ASSISTANCE ACT
22 U.S.C. 5 2370.
Prohibitions against furnishing assistance

***

(e)(1) The President shall suspend assistance to the government of any country to which assistance is provided under this chapter or any other Act when the govemment of such country or any government agency or subdivision within such country on or after January 1,1962-
(A) has nationalized or expropriated or seized ownership or con- trol of property owned by any United States citizen or by any corpora- tion, partnership, or association not less than 50 per centum beneficially owned by United States citizens, or
(B)has taken steps to repudiate or nullify existing contracts or agreements with any United States citizen or any corporation, partnership, or association not less than 50 per centum beneficially owned by United States citizens, or
(C)has imposed or enforced discriminatory taxes or other exac- tions, or restrictive maintenance or operational conditions, or has taken other actions, which have the effect of nationalizing, ex-

1. The cow of the following counkies, among others, and their territories have examined a fully "exmted" foreign act of state expropriating property: England:Anglo-Iranian Oil Co. v. IefTrate, 119531 Int'l L.Rep. 316 (Adensup. Ct.); N. V. de
Baldshe Petroleum Maamhappij v:The War Damnge Comm'n, I19561 Int'l L.Rep. 810 Winsapore ~APP.).

Netherlands: Senembsh Mastxhappij N. V. v. Republiek Indonesie Bmk Indonesia, NederlandseJursipmdentie 1959, No. 73, p. 218 (AmsterdamCt.App.), excerpts reprioted in Domke, Indonesian Nationahtion Mess= Before Foreign Courts, 54 Am.l.Int'l L. 305, 307-315 (1960).
Germany:     N. V. Verenigde Deli-Maatschapijen v. Deutsch-lndonesische Tabak-Han- dekgesekhntl m. b. H. (Bremen Ct.App.), excerpts reprinted in Domke, supra, at 313-314 (1960); Confiscationof Property of Sudeten GermansCase.1119483AM.D~
24.25 (No. 12) (Ammerkht of Diiolfii). lawn: Anglo-Iranian Oil Co. v. ldemitsu Kosan Kabushiki Kaisha, I19531 Int'l L.Rep. 305 Vist.Ct. of Tokyo), ad, 119531 Int'l L.Rep. 312 (HighCt. of Tokyo). Italy: Anglo-Iranian Oil Co. v. S.U.P.O.R. Co.. I19551 Int'l L.Rep. 19 (Ct. of Venice); Anglo- lranianOil Co. v. S.U.P.O.R. Co., [I9551 Int'l L.Rep. 23 (Civ.Ct. of Rome). Franffi: Volatron v. Moulin, 11938-19403 h.Dii.24 (Ct. of App. of Aix); Polam Iberieao v. Nathan Bloeh, I1938-19401 h.Dig.150 (Ct. of Cassation).
The Court does not refer to any country which has applied the aet of state doctrine in a ease where a subsmtinl international law he is sought to be raisedby an alien whose propeny has been expropriated. Thismuntry and thisCourt stand alone among the civilizednations of the world in rulingthat such an kue is not cognizable in a court of law.
The Cowt noles that the courts of both New York and Great Britain have articulated the aet of state doctrine in broad laneuage similar to that mdby this Court in Underhill v. Hernandez, 168 US. 250.18 S.Ct. 83, and from thisit infers that these courts reoognizeno international law exceptionto theanof state dwthe. The cawrelied on by the Cowl involved no intern- tional law issue. For in these ~arasthe party objecting to the validity of the foreign sct was a ahn of the foreign state. It is sigoihnt that courts of both New York and Gat Britain, in apparently the fvstcawin which an international law issue was squarely posed, ruled that the act of state doctrine was no bPT to examination of the validity of the foreign act. Anglo-lranian Oil Co. v. Infhate, 119531 Int'l L.Rep. 316 (Aden Sup.Ct.): "mhe lranian Laws of 1951 were invalid by international law, for, by them, the property of the company wasexpropriatedwith-out any compensation." Sulyok v. Penzintweti Kozpont Budapest, 279 App.Div. 528, 11 1 N.Y.S.2d 75, ad, 304 N.Y. 704, 107 N.E.2d 604 (foreign expropriation of inlangible prop em denied effect as contrary to New York public poky.)
propriating, or otherwise seizing ownership or control of property so
owned,

and such country, government agency, or govemment su~vision fails
within a reasonable time (not more than six months after such action.
or, in the event of a referrh to the Foreign ClaimsSettlement Commis-
sion of the United States within such period as provided herein, not
more than twenty days after the report of the Commission is received)
to take appropriate steps, which may include arbitration, to discharge its
obligations under international law toward such citizen or entity, includ-
ing speedy compensation for such property in convertible foreign ex-
change, equivalent to the full value thereof, as required by international
law, or fails to take steps designed to provide relief from such taxes, ex-
actions, or conditions, as the case may be; and such suspension shall
continue until the President is satisfied that appropriate steps are beiig
taken, and no other provision of this chapter shall be construed to
authorize the Resident to waive the provisions of this subsection.
Upon request of the President (within seventy days after such action

referred to in subparagraphs (A), (B), or (C) of this paragraph), the
Foreign Claims Settlement Commission of the United States (estab-
lished pursuant to Reorganization Plan No. 1 of 1954,68 Stat. 1279) is
hereby authorized to evaluate expropriated property, determining the
full value of any property nationalized, expropriated, or seized, or sub-
jected to discriminatory or other actions as aforesaid, for purposes of this
subsection and to render an advisory report to the President within
ninety days after such request. Unless authorized by the President, the
Commission shallnot publish its advisory report except to the citizen or
entity owning such property. There is hereby authorized to be appropri-
ated such amount, to remain available until expended, as may be neces-
sary from time to time to enable the Commission to carry out ex-
peditiously its functions under this subsection.
(2) Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the prin- ciples of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state (or a party claiming through such state) based upon (or traced through) a confii- tion or other takingafter January 1, 1959, by an act of state in violation of the principles of international law, including the principles of compen- sation and the other srnndards set out in this subsection: Provided, That this subparagraph shall not be applicable (1) in any me in which an act of a foreign state is not contrary to international law or with respect to a claim of title or other right to property acquired pursuant to an irrevoca- ble letter of credit of not more than 180 days duration issued in good faith prior to the time of the confition or other taking, or (2) in any casewith respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States and a suggestion to this effect is filed on his behalf in that care with the court. [Emphasis supplied.]
***

7-27. Judicial Reaction to the Hickenlooper Amend- ments. a.Following passage of the Hickenlooper Amend- ments, the courts were called upon to rule on a number of issues resulting from the passage of this legislation. In Banco Nacional De Cuba v. Farr, 111 the U.S.Second Circuit Court of Appeals &ied the constitutionality of the Hickenlooper Amendments. The 1968case of French
v. Banco Nacional De Cuba 112 involved a Cuban law controlling currency in that state. The New York Court of Appeals ruled that the Hickenlooper Amendments not- withstanding, the Act of State doctrine applied to this par-ticular factual situation. The Amendments were said to ap
Pam 27-161-1

ply only in those cases where the claim of the right of title or some other right in specifrc property expropriated abroad were involved.
b. The most recent Supreme Court decision concern- ing the Act of State doctrine is that of First National City Bank v. Banco Nacional de Cuba. 113 It has done little toward resolving the confusion surrounding the doctrine and the applicability of the Hickenlooper Amendments. The issue involved was whether the Act of State doctrine should be applied to prevent a set-off to recover damages for the expropriation of First National City Bank's proper- ty in Cuba. Banco Nacional's predecessor had borrowed $15 million from First National City Bank in 1958. The loan was secured by a pledge of U.S. Government bonds. In 1960, $5 million was repaid, the $10 million balance renewed and collateral equal to the value of the repaid portion was released. On September 16,1960, the Castro government in Cuba seized all of First National City Bank's branches in Cuba. In retaliation, the bank sold the collateral that secured the $10 million loan and applied the proceeds to the principal and unpaid interest. This sale resulted in an excess of at least $1.8 million. Banco Na- cional then sued in the Federal district court to recover the excess, the First National City by way of set-off and coun- terclaim asserted the right to recover damages for the ex- propriation of its branches in Cuba. The district court dis-missed Banco Nacional's suit. The court recognized that the Sabbatino case, holding that courts of one state would generally not sit in judgment on the acts of another state taken within the latter's territory, barred the assertion of First National City's counterclaim. It held, however, that Sabbatino has been overruled, for all practical purposes, by Congress. The U.S. Second Circuit Court of Appeals reversed, holding that the acts of Congress relied upon (the Hickenlooper Amendments) by the district court did not govern and that Sabbatino barred the assertion of the counterclaim. 114 The Supreme Court's judgment, reversing and remanding the Circuit Court's decision, 115 took the position that the Act of State doctrine was based primarily on the premise that judicial review of acts of a foreign power might embarrass the conduct of foreign relations by the political branches of the Government. In this case, however, the Legal Adviser of the Department of State had advised the Court that the doctrine need not be applied. Noting this, the court asserted
We conclude that where the Executive Branch, charged as it is with pri- mary responsibility for the conduct of foreign affairs, expressly repre- sents to the Court that the Act of State doctrine would not advance the interests of American foreign policy, that doctrine should not be applied by the courts. In so doing, we of course adopt and approve the so-called Bernstein exception to the Act of State doctrine. 116
113.
406-U.S. 759 (1972).

114.
442 F.2d 530 (1971).

115.
406 U.S. 759, 764 (1972).

1 16. Berstein v. Nederlandsche-Amerikoansche, 210 F.2d 375 (1 954).
Concurrences in the final result of this casewere based on two theories differing from each other and from that above quoted. The dissent-argued that this case was governed by Sabbatino, stating that the holding in Sab-batino was that the validity of a foreign act of state in cer- tain circumstancesis a political question, not cognizable in
U.S. courts, and that the executive branch cannot by "simple stipulation change a political question into a cog- nizable claim." In light of these most recent decisions, and the State Department's latest pronouncement on this matter, it is extremely dficult to speak of the Act of State doctrine, as interpreted by U.S. courts, in defintive terms. Its current status as an element of particular inter- national law is uncertain.
7-28.The Executive Branch View of the Act of State Doctrine. The full text of the latest executive branch viewpoint on the act of state doctrine, referred to by the Supreme Court in the First National City Bank case, is carried as an appendix to the second consideration of this case by the Court of Appeals for the Second Circuit. 117 The Legal Adviser of the Department of State referred to the fust decision by the court of appeals in the First Na-
tional City Bank Case (i.e., Section 2370 (e) (2) of ~itle 22 of the United States Code did not apply to the claim and hence the act of state doctrine as laid down by the Supreme Court in the Sabbatino case did apply) and stated that the decision involved matters of importance to the foreign policy of the United States, called attention to the Bernstein exception, disagreed with the nonapplication of it in the first opinion by the court of appeals, and con- tinued as follows:
While the Department of State in the past has generally supported the applicability of the act of state doctrine, it has never argued or implied that there should be no exceptions to the doctrine. In its Sabbatino brief, for example, it did not argue for or against the Bernstein principle; rather it assumed that judicial consideration of an act of state would be permissible when the Executive so indicated, and argued simply that the exchange of letters relied on by the lower courts in Sabbatino con-stituted "no such expression in this case." Brief of the United States, page 1 1.
Recent events, in our view, make appropriate a determination by the Department of State that the act of state doctrine need not be applied when it is raised to bar adjudication of a counterclaim or setoff when (a) the foreign state's claim arises from a relationship between the parties existing when the act of state occurred; (b) the amount of relief to be granted is limited to the amount of the foreign state's claim; and (c) the foreign policy interests of the United States do not require application of the doctrine.
The 1960's have seen a great increase in expropriations by foreign governments of property belonging to United States citizens. Many cor- porations whose properties are expropriated, fmancial institutions for example, are vulnerable to suits in our courts by foreign governments as plaintiff, for the purpose of recovering deposits or sums owed them in the United States without taking into account the institutions' coun- terclaims for their assets expropriated in the foreign country.
The basic considerations of fairness and equity suggesting that the act of state doctrine not be applied in this class of cases, unless the foreign policy interests of the United States so require in a particular case,were reflected in National City Bank [of New York] v. Republic of China, 348
Pam 27-161-1

U.S. 356 [75 S.Ct. 423, 99 L.U. 3891 (1956), in which the Supreme Court held that the protection of sovereign immunity is waived when a foreign sovereign enters a U.S. court as plaintiff. While the Court did
' not deal with the act of state doctrine, the basic premise of that case-that a sovereign entering court as plaintiff opens itself to counterclaims, up to the amount of the original claim, which could be brought against it by that defendant were the sovereign an ordinary plaintiff–is applicable by analogy to the situation presented in the present case. In this case, the Cuban government's claim arose from a banking relationship with the defendant existing at the time the act of state-ex- propriation of defendant's Cuban property-occurred, and defendant's counterclaim is limited to the amount of the Cuban government's claim. We fmd, moreover, that the foreign policy interests of the United States do not require the application of the act of state doctrine to bar adjudica- tion of the validity of a defendant's counterclaim or set-off against the Government of Cuba in these circumstances.
The Department of State believes that the act of state doctrine should not be applied to bar consideration of a defendant's counterclaim or set- off against the Government of Cuba in this or like cases.
7-29. Practical Effects of the Hickenlooper Amend-ment. a. Legislative constraints. The Hickenlooper Amendment's requirement that the President be satisfied within 6 months of an assured solution to a nationalization problem has created foreign affairs problems under sub- section (e) (1), which requires the President to cut off foreign assistance to the developing country concerned. Under some other provisions of Section 2370, which lists a number of instances in which foreign assistance shall be suspended, the President has authority to waive suspen- sion when he frnds that it is in the foreign policy interests of the United States to do so. However, such is not the case with regard to subsection (e) (1).
b. Examples. In 1968, a military regime in Peru na- tionalized the properties of the International Petroleum Company, entitled in its own right or through its parent, the Standard Oil Company of New Jersey, to United States diplomatic protection. Peru set off against any com- pensation that otherwise might have been payable a much larger claim for "unjust enrichment," based upon a con- tention that the company and its predecessors never had the legal right to take out oil. All legal remedies in Peru were exhausted, and the offset was not acceptable to the claimant or to the United States, on ground that seem, at the very least, reasonably arguable. However, subsection
(e)
(1) was not formally applied. Within the first 6 months after the taking, while efforts at diplomatic settlement were still in progress, the executive branch consulted with key congressional figures and obtained their tacit agree- ment for nonapplication. A major reason for this informal amendment in the law is that subsection (e) (1), if used, would have serious adverse effects on United States foreign policy and possibly on private interests of other Americans in Peru and elsewhere. Subsection (e) (1) has, as a matter of fact, been used only once, with indifferent results as to its investment-protection objective. 118

c.
Although the amendment has not been invoked, both Peru and Chile have complained that the United States has not in fact entered into new bilateral aid ar- rangements with them and has opposed international lending agency development assistance to them. The con- duct was labeled as "illicit intervention."

7-30. Conclusion. As noted in the introductory para- graphs of this chapter, the concept of state responsibility is currently undergoing substantial rnocl%cation in response to vary pressures emanating from a number of different sources. New approaches toward old problems have resulted in the realization that some degree of com- promise must be reached among those states advocating widely divergent views in this area. As solutions to cur- rently existing differences are found, however, the rules of law associated with this aspect of international jurispru- dence will become even more important to the judicial and economic development of the world community.
118.. Thiiwas invoked against Ceylon.
Pam 27-161-1

CHAPTER 8
INTERNATIONAL AGREEMENTS

Section I.

8-1. Introduction. As noted in chapter 1, formal agree- ments between states, or between states and international orgainzations such as the United Nations, have become the major source of international jurisprudence. Custom- ary law has tended to be too slow and uncertain a process, often falling behind the needs and expectations of the in- ternational community. Technological developments have become so rapid that frequently only express agree- ments between states are capable of introducing change into international law. Moreover, the ~ig~cance
of customary international law has also been weakened by the Soviet belief that an international agreement is the principal means of expressing assent to an international obligation. 1 8-2. International Agreements Defined. a. General. In-ternational agreements are undertakings between states, or between states and international organizations, which give rise to legal rights and duties. Although the law ap- plicable to such agreements has a number of similarities to contract law, the purpose and effect of international agree- ments are somewhat different than those of commercial contracts between private parties. Thus, if a state con- cludes an agreement, not with another state or interna- tional organization but with a foreign commercial en- terprise, the agreement is not looked upon as an interna- tional agreement and is not subject to "treaty law." 2 Not-withstanding this fact, such an agreement may indirectly produce legal consequences on the international plane if, for example, the state of which the private foreign com- mercial enterprise is a national intercedes on the latter's behalf. 3 As noted in chapter 1, international agreements affect international law in a variety of ways. They may cod@ existing customary law, mm or abridge existing customary law, or create new international law norms. Agreements cover a wide range of subjects. Some, such as the conventions on the laws of war or use of the seas, are "law-making treaties" and create standards of substantive law binding on states (perhaps including even nonsignato- ries).Others are basically contractual agreements between states-such as military alliances and trade pact-with many of the elements of a private contract. Some are es- sentially conveyances of real property–such as boundary agreements and leases or cessions of territory. Finally, some, such as the United Nations Charter, are constitu- tive agreements creating new international legal entities
1. Waldwk, General Course on Public International Luw, [I9621 2 Renreil des Cours 1, 50. See chap. 1, supra.
2.
Customary and cdikd rules of public international law which apply specifically to the formulations, interpretation, modif~cation, and termination of international agreements.

3.
For a discussion of these legal consequences, see chap. 7,State Responsibility, supra.

GENERAL
which may themselves acquire legal personality so as to be able to enter into treaties. The 1957 Treaty of Rome, which created the European Economic Community,is a special kind of constitutive agreement establishing a confederation binding European states to abide by common rules and re- quirements in order to further the objectives of the Treaty. 4 Similarly, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms requires its signatoriesto accept the decisions of the European Court on Human Rights in cases over which it has jurisdiction. 5
b.
Agreements are generally classified as either bilateral or multilateral, depending on the nurnber of parties to the agreement. Multilateral agreements are usually kept open for adherence for a protracted period. It is, therefore, possible for a state that was not in existence at the time the agreement was negotiated to announce its assent several years later.

c.
International agreements, be they bilateral or multilateral, are generally given different titles depending on the subject matter or the formality with which they were executed. These titles, however, are not used iden- tically in all cases. Thus, it is the substance of each agree- ment which is important and not its descriptive title. 6

(1) The term treaty, perhaps the most common word in international contractual parlance, is used in a broad sense to mean any international agreement, or in a restricted sense to mean a particularly formal type of inter- national agreement. 7
ments. (2)* The term protocol refers to supplementary agree-
(3)
A concordat is an agreement by a State with the Holy See; 9 however, agreements between the Vatican and other states need not be called concordats.

(4)
A process verbal is an official record of a meeting or conference. 10

(5)
A memoire or aide memoire is a diplomatic note summarizing the diplomat's understanding of a conven-

4. 298 U.N.T.S. 11.

See I. Brownlie, Basic Documents on Human Rights 339 (1971). 5.

6.
Kelsen, Principles of International Law 318 (1952). Myers, Names and Scope of Treaties, 51 Am. J. lnr'l L. 574 (1957).

7. "Treaty" has a special meaning under United States municipal law. Article II, section 2, of the U.S. Constitution delegates the power to the President ". . . by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur," and Article VI, paragraph 2, provides that ". .. all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land."
8. I. Oppenhkim, International Luw 878 (8th ed., Lauterpacht

1955).

9. 1. Hyde, I~nter~tio~l
Law 25-26 (1 945).
lo. I. Oppenheim, supra, note 8 at 878.

Pam 27-161-1
tion. fl A note verbal is hardly distinguishable from a memoire except that it is unsigned and summarizes diplo- matic discussions.
(6) Sometimes especially formal agreements are de- scribed as Acts, General Acts, Statutes, or Declarations. 12 On the other hand, the term Congressor Co&rence may be substituted for these terms. This practice is, however, a loose use of the terms in question. 13
A modus vivendi is usually a temporary or provi- sional arrangement. 14 (7)

(8)
A compromise may signify an agreement generally of a conciliatory nature. It is also used to describe the agreed terms under which an arbitrator is empowered to decide a dispute between two states. 15

Section 11. THE FORM AND STRUCTURE OF INTERNATIONAL AGREEMENTS
8-3. 'Treaty Law" -The Law of International Agree- ments. After years of effort, the International Law Com- mission 16 finalized the most extensive agreement ever formulated dealing with treaty law. The Vienna Conven- tion on the Law of Treaties 17 (The Treaty on Treaties) es-tablishes definite rules, procedures, and standards governing the formation, interpretation, and application of international agreements. Large portions of this Con- vention are considered to be declaratory of existing inter- national law and custom. 18 Thus, even though its prearn- ble provides that ". . .the rules of customary international law will continue to govern questions not regulated by the provision of the present Convention," and Article 4 limits its application to ". . . treaties which are concluded by the States, after the entry into force of the present Convention with regard to such States . . .," this chapter's examina- tion of international agreements will occur largely within the framework of the Convention's basic provisions. 8-4. Defdng the International Agreement. Article 2(1) (a) of the Vienna Convention defines a treaty as
. . . an international agreement concluded between two states in wit- ten form and governed by international law, whether embodied in a single instrument or in two or more related instnunents, and whatever its particular designation.
Similar language used in the earlier Harvard Draft Con- vention on the Law of Treaties 19 was said to exclude from the scope of the Convention instruments which are not governed by the rules or principles of public international law. 20 Accordingly, some writers have maintained that agreements relating to commercial transactions of states, such asfor the purchase of goods, are acts jure gestionis, 21 i.e., nongovernmental acts, not falling within a state's sovereign powers and thus governed by the municipal law of contracts. 22 Other writers have rejected this distinction, however, arguing that all agreements between states are governed by the rules of public international law. 23 The comment by the Harvard Draft Convention took no posi- tion on this dispute, stating instead that the critical point is whether an agreement creates an obligation intendedto be governed by public international norms. 24 For example, certain agreements states, such as a bill of lading issued to a state by a vessel owned and operated by another state, may by their own terms be controlled by the municipal law of one or both of the states. In the ab- sence of an express statement in a treaty as to whether in- ternational or municipal law is intended to govern, the in- tention of the parties has to be determined from the totality of the language and the drafting history.
Very clear evidence will have to be required before it can be assumed that sovereign states have contracted on the basis of private law. . . . On the other hand, it would probably not be justified to speak of a presump- tion that public international law applies. 2s

8-5. The Capacity of Parties. a. International organiza- tions. The Vienna Convention limits its application to treaties "between states" 26 and provides that "every state has the capacity to conclude treaties." 27 This is hardly surprising for, as noted in chapter 1, states have traditionally been considered to be the sole subjects of in-
11. Id.

12.
E.g., The General Act of Berlin of 1885; the Statute of the Per- manent Court of International Justice; the Declaration of Paris of 1856, and the Declaration of St. Petersburg of 1868.

13.
Thus the phrase, "Congress of Vienna" is loosely used to refer to the Fial Act or the actual agreement recorded by the principal powers in 1815 after the downfall of Napoleon. For the text of the Fial Act, see N.R.Martens, Recueil de Traitks 2, 379.

14. For example, see 5 G. Hackworth, Digest of International Low

392, 414 (1943).
1s. W. Bishop, International Law 61 (2d ed., 1962).

16. The International Law Commission is a creation of the United Nations. See, W. Bishop, International Law. 61 (3rd ed. 1971) (hereinafter cited as Bishop).
1'. See, The Vienna Convention on the Law of Treaties, 63 Am. J. Int7 L. 875 (1969). The Vienna Convention was the culmination of many years of effort to codify international standards governing treaties. It was drafted by the International Law Commission and a United Na- tions conference on the Law of Treaties held in Vienna in 1969 [hereafter cited as Vienna Convention].
1s. On the question of the extent to which the Vienna Convention is declaratory of existing international law, see Roseme, The Temporal Application of the Vienna Convention on the Law of Treaties, 4 Cornell Int'l L.J. 1 (1970).
Harvard Research, supra, note 19, at 693-95. F. Liszt, Le Droit International I69 (Gidel trans]. 1928). Id. at Article 1. 19.
Harvard Research in International Law, Drqft Convention of the Law of Treaties, 29 Am. J. Int'l L. Supp. 686 (1935) [hereinafter cited as Harvard Research].

20.

21.
The distinction between acts jure imperii and jure gestionis has long been signiftcant with regard to the issue of sovereign immunity, but, like a number of other rigid either/or categories, it has gradually fallen into disfavor. See J. Brierly, The Law of Nations, 245-51 (6th ed. 1963). See also chap. 5, supra.

22.

23.
Delouter, Droit International Public Positif 468 (1 920). 1 D. Anzilotti, Cours de Droit International 341 (Gidel trans]. 1926). See generally W. Friedmann, 0.Lissitzyn & R. Pugh,Cases and Materials On International Law 301-04 (1969) [hereinafter referred to as Fried- mannl.

24.

2s. Mann, The Low Governing State Contracts, 1944 BRlT. Y.B. mL L. 28.
26.
Vienna Convention, kt. 1.

27.
Id. at ~rt.6.

Pam 27-161-1

ternational law. The creation of international organiza-
tions and agencies and the growth of the idea that in-
dividuals can be subjects of international law raises the
possibility, however, that international organizations, and
perhaps even individuals, can be parties to international
agreements. International organizations, particularly
agencies of the U.N., have entered into treaties with
states. 28 The 1949 decision of the International Court of
Justice in the Reparations for Iqjuries Syffered in the Ser-
vice of the United Nations 29 case established the fact that the U.N. possesses legal capacity to bring a claim against a state for failing adequately to protect a U.N. employee. In this opinion, the Court stated that ". . . the Organization must be deemed to have those powers which, though not expressly provided for in the Charter, are conferred upon it by necessary implication as being essential to the per- formance of its duties." 30 The question as to the ability of international organizations to enter into treaties is still not fully settled, and the Vienna Convention makes no at- tempt to resolve this issue. However, Article 5 of the Con- vention provides that it applies to ". . . any treaty which is the constituent instrument of an international organi- zation and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization." Moreover, Article 3 states that the fact that the Convention does not apply to international agree- ments between states and other subjects of international law will not affect the legal force of such agreements and will not prevent the application to these agreements of the rules of the Convention to which they would be subjected in the Convention's absence; i.e., customary treaty law. 31
b. States. The Vienna Convention also does not deal expressly with the issue of the capacity of states within a federal system to enter into treaties, leaving this question to existing law. Essentially, such capacity depends initially upon the constitutional law of the state in question. Some constituent states, such as those of the Federal Republic of Germany and Switzerland, may conclude treaties among themselves without the consent of the government. 32 Some, like those of the Soviet Union, are recognized as subjects of international law by the Constitution and are permitted to become members of the U.N. and parties to multilateral international agreements. 33 Others, like the
28. Some 20percent of the multilateral treaties new in force include international organizations as parties. See S. Rosenne, The Law of Treaties:A Guide to the Legislative Hhtory ofthe Vienna Convention 105
(1 970).

29.
119491 I.C.J. 174.

30.
Id. at 179.

I. Oppenheim, supra, note 8 at 176-77. 31.
The U.N. General Assembly, by resolution on November 12, 1969,recommended that the International Law Commission continue its study on relations between states and international organizations, in conjunction with the related issues of state succession and respon- sibility, and prepare a draft of suitable articles to supplement the Vie~a Convention.

32.

33. See V. Aspaturian, The Union Republics in Soviet Diplomacy 40, 173-77 (1960); M. Whiternan, Digest of IntermtionalLuw 406-13 (1963).
United States, are forbidden to enter into "any agreement or compact" without the approval of Congress. 34 If a state in a federal union concludes a treaty in violation of its municipal law, its legitimacy under international jurispru- dence is uncertain. If another state reasonably relies on the state's representations, an estoppel might arise, as when a head of state falsely represents that he has constitutional authority to bind his state. 35
c. Other entities. Protectorate or dependent states nor- mally lack the capacity to enter into international agree- ments. However, the terms of the protectorate may admit an international capacity to make treaties, as did that of France over Algeria and Tunisia after World War 11. 36 Where territories have not yet achieved statehood, as with colonial states engaged in the process of decolonization or in wars of "national liberation," international capacity is sometimes recognized by other states. 37 Self-goveming ter- ritories are generally considered to have less treaty-making capacity than protected states, although realistically,
. . . blerhaps the only limitation on the possession and exercise of treaty-making capacity by a political subdivision is lack of consent to the exercise of such capacity by the dominant (or 'sovereign') entity to which the subdivision is subordinate. 3s
d.
Private entities. There is an increasing trend for cor- porations, both public and private, to enter into interna- tional agreements. The Island of Palmas Arbitration case of 1928 involved a challenge to the validity of political contracts between the Dutch East India Company and na- tive rulers. The arbitrator held that the company's acts should be "assimilated to acts of the Netherlands," and thus it was "entitled to create situations recognized by in- ternational law." 39 However, the fact that the company was entitled, as agent for a state, to enter into such agree- ments, did not necessarily determine its capacity to make treaties on its own.

e.
The capacity of individuals to make international agreements is doubtful, although the peculiar interests of individuals in agreements involving, for example, human rights or individual property rights, might properly lead to recognition of their capacity to enter such agreements.

See Friedmann, supra, note 23 at 310. 5G.Hackworth, supra, note 34 at 153. 34.
U.S. Const., Art. I, 5 10;Art.11,s 3.U.S. states do sometimes enter into agreement with foreign states, such as agreements with the bordering states of Canada or Mexico concerning joint construction or maintenance of international highways or bridges. See Friedmann, supra, note 23 at 309.Although Congress has generally approved these agreements, there have been cases in which sanction was withheld on the ground that the proposed agreements would infringe federal treaty making powers. See e.g., 5 G. Hackworth, Digest of International Law 24-5 (1940) (hereinafter cited as G. Hackworth).

35.
See Legal Status of Eastern Greenland Case Denmark v. Nor- way), [I9331P.C.I.J., ser. Am, No. 53.

36.

37.

3s. Lissitzyn, @forts to Codify or Restate the Law of Treaties, 62 Colum. L. Rev. 1166, 1183 (1962).
39. Island of Palmas Case (United States v. The Netherlands), 2

U.N.R.I.A.A. 829 (1928).
Pam 27-161-1

Section 111. THE CONCLUSION OF INTERNATIONAL AGREEMENTS
8-6. Formal Requirements. a. Traditional methods. The
traditional procedure for the conclusion of an international
agreement was for the parties to record their common in-
tention, arrived at after negotiation through diplomatic or
other channels or at a conference of interested states, in a
single formal instrument. This is still the normal
procedure for those agreements, especially multilateral ar-
rangements, that regulate matters of political or economic
importance. One of the conspicuous modern develop-
ments in treaty-making procedure, however, has been the
rapid increase in the number and frequency of agreements
recorded in simplified form. Probably a majority of the
agreements currently concluded are effected by the simple
exchange of diplomatic notes recording the terms of the
proposed agreement and the consent of each state con-
cerned to be bound thereby. The chief advantages of
agreements effected by an exchange of notes are the speed
with which they may be concluded, as we1 as the
possibility that under the law of some states, legislative ap-
proval may be unnecesary. 40 A treaty relationship may
also be created by indirect manifestations of consent, as
when states consent to the compulsory jurisdiction of the
International Court of Justice by means of unilateral
declarations deposited with common reference to Article
36(2) of the Court's statute. The exchange or deposit of
notes verbales may also give rise to a treaty relationship.

b.
Oral agreements. The validity of oral agreements is widely admitted, whether they are later reduced to writing or not. Although Article 2 of the Convention requires that treaties be "in written form," Article 3 provides that the fact that a treaty is not in written form shall not affect the legal force of the agreement. Thus,under existing interna- tional law, there is nothing to prevent an international agreement from beii made orally, although difticulties of proof make it a less desirable method. In the Eastern Greenland Case, the Norwegian Miter for Foreign Affairs orally informed a Danish minister that the Nor- wegian government ". . . would not make any mculties in settlement of this question. . .." in reply to Sweden's request for recognition of Denmark's claim of sovereignty over Greenland. The Permanent Court of International Justice found the oral statement to be unconditional and definitive, therefore bindii upon Norway. 41

c.
The generally favored view is that the written instru-ment alone should be regarded as "the treaty." Thus, akin to the "parole evidence" rule in municipal law, working papers and other evidence of the drafters' intent may not be used to modifl the clear words of the written document. 42 However, when there are ambiguities in a

40. Weinstein, Exchange of Noes, Brit. Y.B. In17 L. 205 (1952).

Eastern Greenland Case, supra note 35. 41.

42.
See Haward Research, supra, note 19; Jurisdiction of the Com-mission of the Oder 119291 P.C.I.J., ser. A, No. 23, at 42. But see H. Lauterpacht, The Development of Inter~tional Law by the ~nternatio~l Court 136-37 (1958).

treaty, working papers and other guides to interpretation may be consulted. 43 8-7. Authority to Negotiate and Sign. a. Historical. At a time when travel and communications were slower and less dependable than they are today, states often found it convenient to furnish their plenipotentiaries with docu- ments known as "full powers" for the purpose of ac- crediting them as competent to negotiate and express the state's final consent to be bound by a treaty. As years passed and communications improved, such an instru-ment came to signify only authority to negotiate and to authenticate the test of a treaty-not authority to bind the state. Today, there are important exceptions to the re- quirement of full powers. Certain classes of international agreements, e.g., those effected by an informal exchange of notes or in some other manner not requiring ratifica- tion, are usually concluded in practice without a demand for the production by each plenipotentiary of an instru-ment of full powers. 44
b. Modem practice. Article 7 of the Vienna Conven- tion governs the authority of a representative to adopt a treaty on behalf of his state. A person is considered as rep-resenting a state if:
(a) he produces appropriate full powers; or (b) it appears from the prac- tice of the states concerned or from other circumstances that their inten- tion was to consider that person as representing the state for such pur- poses and to dispense with full powers."
Certain officials need not produce evidence of their full powers: Heads of State and of Government and Ministers for Foreign Affairs for acts concluding a treaty; heads of diplomatic missions for adopting the text of a treaty with the state to which they are accredited; and representatives accredited by states to an international conference or organization for adopting the text of a treaty in that. con- ference or organization. 45
8-8. Consent to Be Bound by an International Agree-ment. a. Generally. The text of a treaty is considered to be adopted upon the consent of all states participating in its drafting or, at an international conference, by the vote of two-thirds of the states present and voting, unless, by the same mqjority, they shall decide to apply a different rule. 46
Consent may be expressed by signature, exchange of in-struments constituting a treaty, ratification, acceptance, approval or accession, or any other means if the treaty so provides or it is agreed upon by the states involved. 47 In-itialing of a test is a sufficient signature if so agreed, and the signature ad referendum of a treaty by a representa- tive, if confied by his state, constitutes a full sig-
43.
See H. Briggs, The Law of Nations 838 (1952).

44.
See Blk, Treaw-Making Power 49-50 (1960).

45.
Vienna Convention, Art. 7(2).

46.
Id. at Art. 9.

47.
Id. at Arts. 11-15.

Pam 27-161-1

nature. 48 Once a state has signed or exchanged instru- ments subject to ratiiication, acceptance, or approval, or has expressed its consent to be bound pending entry into force of the treaty, it must refiain from acts which would defeat the object and purpose of the agreement. 49
b. Increasing numbers of treaties provide for "accep- tance" or "approval" as a substitute for one or more of the other procedures-signature, ratification, acces- sion,-by which a state consents to be bound by a multilateral treaty. The significance of a provision requir- ing "acceptance" or "approval" is that the latter terms imply less formality than "ratification." Additionally, they may allow a government
. . . a further opportunity to examine the treaty when it is not necessarily obliged to submit it to the State's constitutional procedure for obtaining ratification.50
c.
"Ratifcation" is the process by which the Head of State asserts that this is the agreement to which the State assents. As previously noted, prior to the modem period of rapid communication and travel, representatives of the Head of State, "plenipotentiaries," frequently signed treaties without the final concurrence of their Heads of State, thereafter going home and obtaining ratification. Today, this is generally not necessary. However, further steps at home may be required when the treaty-making power is not possessed solely by the executive oficer. In the U.S., for example, the Senate's "advice and consent" must be obtained before the President can ratify a treaty.

d.
Deposit of instruments of consent. The initial step after ratification is usually the deposit of the ratifcation at a predesignated depositary. Prior to the Convention, a state was not considered bound by an agreement until deposit was made. 51 After the creation of the League of Nations, registration of treaties in the archives of desig- nated agencies or organizations assumed special legal im-portance. Under League practice, a treaty was not regarded as binding unless so registered. 52 The United Nations Charter adopted a less drastic formula, however, forbidding a party to an unregistered treaty from invoking it before any organ of the U.N. 53 The Vienna Convention provides that, unless otherwise stated in a treaty, instru- ments of ramcation, acceptance, approval, or accession establish the consent of a state to be bound upon their ex- change between the contracting states, their deposit with the depositary, or their notification to the contracting

2 Y.B.Int'l L.C.198 (1966). Id. at Art. 18. Id. at .Art. 12. 48.

49.

50.

51.
An example of this fact can be seen in a U.S. Department of State decision that a treaty approved by the Senate, but never deposited as required in the American Embassy in Parisdue to the intervention of World War I, was not completed and thus could be revoked by the President without action by the Senate. 5 G. Hackworth, supra, note 14 at 54.

U.N. charter, Art. 102. 52.
See Hudson, Legal meet of Unregistered Treaties in Practice under am'cle 18 of the Covenant, 28 Am J. In17 L. 564 (1934).

53.

states or depositary. 54
8-9. Entry into Force of an International Agreement. a.
Modern international agreements, especially general multilateral conventions, commonly provide, in some detail, for the time and manner in which the agreement shall enter into force for those states which have con- sented to be bound. Such an agreement typically becomes effective when a specified number or proportion of states has deposited ratification or transmitted acts of approval or acceptance. 55 In the absence of this form of arrange- ment, the Convention provides that a treaty becomes effective as soon as consent to be bound has been estab- lished for a1 of the negotiating states. 56 If a state's con- sent to be bound is established on a date after the treaty has come into force, it becomes effective for that state on that date. 57
b.
The provisions of a treaty regulating matters neces- sarily arising before the entry into force of the treaty, such as authentication of text and the functions of the deposi- tary, apply from the time of the adoption of its text. As previously stated, 58 signature or initialing of the text can be the agreed-upon method of adoption, and thus these kindsof provisions would apply fiom the time of signature if this were the agreed-upon method of adoption.

c.
A treaty may be applied provisionally, pending its entry into force, if this is provided for in the treaty or agreed upon by the negotiating states, but provisional ap- plication is terminated if a state notifies the other states of its intention not to become a party. 59 8-10. Depositaries. In keeping with Articles 76 and 77 of the Convention, multilateral treaties often provide that the government of a state or an organ of an international organization shall act as the depositary of the treaty. Such depositaries are charged with a number of tasksrelating to the -tion of the treaty, many of which must be per-formed before the treaty has entered into force. Ratifica- tions and other instruments of acceptance or approval, for example, are typically communicated to the depositary, which then informs the contracting states of the deposit of such instruments and their effect on the treaty's status. 60

8-11. Reservations to International Agreements. a.
General. A reservation is
. . . a unilateral statement, however phrased or named, made by a State, when signing, ratifying, acceding to, accepting or approving a treaty, whereby it purports to exclude or to vary the legal effect of certain provi-sions of the treaty in their application to that State. 61
In the context of bilateral agreements, a reservation is closely analogous to a counteroffer by the reserving state,
S4. Vienna Convention, Art. 16.

Id. at Art. 24(3).
$8. See para 8-9a, supra.
Vienna Convention, Art. 24(1) and (2). 55.
See, e.g., the Provisions collected in Office of Legal Affairs, Handbook of Eial Clauses 21-38, U.N. Doc.ST/LEG/6 (1957).

56.

57.

59.
Vienna Convention, Art. 25.

60.
Vienna Convention, Arts. 76-78.

61.
Id. at Art. 2(d).

Pam 27-161-1
and the legal situation is clear as to whether the reserva- tion is accepted or rejected by the other state. 62The most dficult problems concerning reservations, however, have arisen when one or more of the parties to a multilateral treaty objects to another state's attempt to become a party subject to one or more reservations. With the increased use of multilateral treaties in the 20th cen- tury, states have sometimes found themselves in essential agreement on a treaty, but in disagreement on particular provisions. This results from the fact that multilateral treaties are often the product of a complex negotiation process in which the views of all parties may not be ac- commodated. The ratification process can also encourage the imposition of reservations, particularly when, as in the U.S., the legislative branch has a role in ratification. A leg- islature may take a "second look" at a treaty entered into by the executive and refuse to give its consent to certain provisions.
b. The traditional rule in international law was that a reservation was possible only if all parties to a treaty ac- cepted it. 63 However, in 1932 the Pan American Union adopted a modified rule as to reservations. The Dominican Republic had entered reservations to a nurn- ber of provisions in a Pan American Treaty on Consuls. Some parties claimed that this amounted to a rejection of the treaty. Others found no objection to it, contending that the power to make reservations was inherent in sovereignty. The governing board of the Union adopted a resolution providing that a treaty was to be considered in force in the form in which it was signed as between the states which ratified it without reservations; in force as modified by the reservations between states which made reservations and those which accepted them; and not in force between a state which made reservations and those which did not accept them. 64 In 1951, the International Court of Justice issued an Advisory Opinion concerning reservations made by states to the 1948 Genocide Con- vention. After some 43 states had signed the Convention, a dispute arose among the parties regarding certain reser- vations made by some of the states. The Secretary- General asked the General Assembly for guidance, and this body referred the matter to the I.C.J. The Court declared that ". . . a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded asbeiia party to the Convention if the reserva- tion is compatible with the object and purpose of the Con- vention. "(Emphasis added.) It further stated that ". . . ifa party to the Convention objects to a reservation which is considered to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserv-
I. Brownlie, Principles of Public Inrer~tional Law (1966). 62.
Restatement, Second, Foreign Relations Law of the United States, 5 126 (1965) [hereinafter cited as Restatement, Second.

63.

64. Reservations to Multilateral Conventions, Report of the Secre- tary-General, U.N. Doc. -4,11372, p. 11 (1950).
ing State is not a party to the Convention." 65 Finally, it advised that an objection to a reservation made by a sig- natory state which has not yet ratified the Convention can prevent the reserving state from being regarded as a party if the reservation is not compatible with the object and purpose of the Convention, but that until ratification by the reserving state, the objection merely serves as notice of its attitude.
c. The Vienna Convention follows essentially the Inter- national Court's advisory opinion. Articles 19 and 20 es- tablish the following rules:
(1)
A state may make a reservation unless the tieaty either prohibits it or provides that only spe~%ed reserva- tions, which do not include this reservation, may be made. If a reservation is expressly authorized by a treaty, subsequent acceptance by the other contracting states is not required unless the treaty so provides.

(2)
If the treaty neither prohibits reservations nor provides for smed reservations which do not include this reservation, a state may make a reservation unless it is incompatible with the object and purpose of the treaty.

(3)
When the treaty is a constituent instrument of an international organization, a reservation must be accepted by the competent organ of that organization unless the treaty provides otherwise.

(4)
In cases not falling under the prdi para- graphs, and unless the treaty otherwise provides:

(a)
Acceptance by another contracting state of a reservation constitutes the reserving state a party to the treaty in relation to that other state. Acceptance is assumed if no objection is raised by the end of twelve months after a state was notified of the reservation, or the date on which it expressed its consent to be bound by the treaty, whichever is later.

(b)
Objection by another contracting state to a reservation does not preclude the entry into force of the treaty unless a contrary intention is definitely expressed by the objecting state.

(c)
An act expressing a state's consent to be bound by the treaty and containing a reservation is effec- tive as soon as at least one other contracting state has ac- cepted the reservation.

d.
Article 21 provides that a reservation established in accordance with Articles 19 and 20 modifies the provi- sions of the treaty to which the reservation relates as be- tween the reserving state and other parties. It does not modifL the provisions of the treaty for the other parties to the treaty between themselves. When an objecting state does not oppose the entry into force of a treaty between it- self and the reserving state, the provisions to which the reservation relates do not apply to the extent of the reser- vation as between the two states. It is not expressly stated in the Convention whether an objecting state may declare

6s. Advisory Opinion on Reservations to the Convention on Genocide, (19511 I.C.J. 15.
Pam 27-161-1

that its objection precludes treaty relations only as to a part of the treaty. One authority believes this is possible, however, on the ground that ". . . there would appear to be no reason why an objection to a reservation may not produce this effect, provided the treaty is of such a nature that separability of its provisions is a practical proposi- tion." 66
e. Articles 22 and 23 provide procedures for making and withdrawing reservations, acceptances, and objec- tions. A reservation or objection may be withdrawn at any time and must be in writing. Withdrawal does not require consent of a state which has accepted it, and becomes operative when notice of it is received by the other con- tracting state. However, withdrawal of an objection to a reservation becomes operative only when notice of it is
Section IV. THE VALIDITY AND EFFECT 8-12. The Binding Force of International Agreements. An international agreement is basically a contract between states, and elements of obligation akin to those found in municipal contract law are present. However, as discussed in Part I, a treaty is nota contract in the common law sense of an agreement requiring consideration. It is the as-sent to be bound and not reciprocity or quid pro quo that obligates the parties. As one writer has observed, ". . . it is merely a question of fact whether, in a concrete in- stance, a subject of international law has made a declara- tion of intention, which in the circumstances, canbe con- sidered by other international persons or by international organs as meant to produce legal consequences in interna- tional law." 69 8-13. Pacta Sunt Servanda. a. Legal ordering could noi be achieved in international law if states were free to dis-regard their treaty agreements. However, due to the ab- sence deffective enforcement mechanisms within the in- ternational community, there has been some doubt as to the scope and effectiveness of the doctrine of pacta sunt servanda (treaties are to be observed). It has been said by some to require that agreements be performed "in good faith," while others, in reliance upon a differing in- terpretation of the Latin, maintain that the doctrine re- quires that performance must be "with utmost fidelity." 70 Article 26 of the Vienna Convention adopted the former interpretation, stating: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." Some delegates had wanted this arti- cle to state that only "valid treaties in force" should be biding, while others wanted to confiie it to "treaties in force in conformity with the Convention." This latter ap- proach, while perhaps desirable, would have raised a problem of retroactivity. 71 The Convention thus took a middle position, neither requiring a stricter standard of performance than good faith nor limiting the doctrine to absolute requirements of "in force" and "in conformity with the Convention." It also provides smcally that ". . . a party may not invoke the provisions of it~intemal
received by the reserving state. If a reservation was made
when signing the treaty subject to ratification, acceptance,
or approval, it must be formally confied by the reserv-
ing state when expressing its consent to be bound and
shall be considered as having been made on the date of its
confiiation.
Soviet doctrine has favored a liberal reservations rule,

holding that ". . .a signatory to a multilateral treaty has an
undeniable right to make such reservations to the treaty as
it deems necessary, and that this right, which stems from
the sovereignty of a state, can be limited only by the state
itself." 67 Notwithstanding this fact, Soviet writers have
expressed their approval of the I.C.J.'s advisory opinion
concerning the Genocide Convention. 68
OF INTERNATIONAL AGREEMENTS
law as justification for its failure to perform a treaty." 72
b. One of the most troubling aspects of the pacta sunt servanda doctrine concerns the period of time a treaty is to remain in force. A countervailing doctrine, Rebus sic stantibus (basically, change of circumstances), permits noncompliance with a treaty when a change of circum- stances has been so extreme as to violate the intentions of the parties. This will be discussed in the section of the chapter dealing with termination and modification of agreements. 73
8-14. Validity and Invalidity of International Agree-
ments. a. Agreements Concluded in Violation of Munici-
pal Law. Disagreement has existed in the past as to
whether a state could invalidate its consent to a treaty on
the grounds that it was given in violation of the state's
own municipal law. 74 Article 46 of the Vienna Conven-
tion states that
. . . a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
A violation is said to be "manifest" if it would be objec- tively evident to a negotiating state acting in accordance with normal practice and in good faith. Article 47 of the Convention further stipulates that if the authority of a rep- resentative to express the consent of his state is subject to
66. I. Sinclair, The Vienna Convention on the Law of ~reaties 49

(1973) [hereinafter cited as Siclair].
67. J. Triska and R. Slusser, The Theory, Law, and Policy of Soviet Treaties 84 (1962).
68. Id. at 87-88.

69.
G. Schwanenberger, A Manual of International Law 224 (1960).

70.
N. Leech, C. Oliver & J. Sweenty, The International Legal System: Cases and Materials 93 1-32 (1973).

71. Id. at 932.
72. Vienna Convention, art. 27.
73. Iqfra, para.
74. Sinclair, supra, note 66 at 22-23; 30-31; 64; 89-91.

a specific restriction, his failure to observe that restriction may not be invoked to invalidate consent unless it was notified to the other negotiating states prior to his express- ing consent.
b. Mistake, Fraud, and Illegality. Nearly all the recorded instances of treaties concluded with reference to an assumed state of facts later discovered to be materially different or nonexistent have concerned geographical er- rors, especially errors in maps. 75 In instances of error, Article 48 of the Convention provides that a state may only invoke error in a treaty to invalidate its consent if the error relates to a fact or situation which was assumed by it to exist at the time the treaty was concluded and which formed an essential basis of its consent to be bound. Error will not invalidate consent, however, if the state con- tributed to it by its own conduct or if the circumstances were such as to put it on notice of a possible error. Errors relating only to the wording of the text of the treaty do not affect its validity and are dealt with by Article 79 which provides procedures for notifying other states of errors in text and for their correction.
(1)
No instances of the actual use of fraud in the conclusion of treaties are known, nor are there any known cases in which one of the parties to a treaty alleged fraud on the part of the others as a basis for termination of the agreement. 76 Article 49 of the Convention permits a state to invoke fraud as invalidating its consent if it was induced to conclude the treaty by the fraudulent conduct of another negotiating state.

(2)
Although examples of corruption of state repre- sentatives are said also to be nonexistent, 77 Article SO provides that this cause may be invoked to invalidate con- sent. An objection by several states regarding the vague- ness of this standard did not prevent its adoption. 78 8-15. Jus Cogens. Treaties normally supersede, as be- tween the parties, conflicting rules of international law. However, just as the municipal law of many states declares that certain contracts are void as contrary to public policy, the question has often been raised as to whether there exists in international law rules having the character of jus cogens, i.e., norms with which all treaties must be consistent. In dealing with this issue, Article 53 of the Convention declares a treaty to be void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law Gus cogens). This article was the subject of considerable debate at the conference, earlier drafts of the article being criticized as lacking norms by whichjus cogens could be identifed. 79 Eastern European

Sinclair, supra note 66 at 126-27. [I9661 I.L.C. Reports 19, 94. 2 Y.B.Int'l L.C. 245 (1966). (19661 I.L.C. Reports 73. 75.
Reports of the International Law Commission on the Second Part of its Seventeenth Session and on its Eighteenth Session (1966), 21 U.N. GAOR Supp. 9 at 43-44, U.N. Doc; A/6309/Iiev. 1 (1966) [hereinafter cited as [I9661 I.L.C. Reports]; cf. Cukwurah, The Setrle-ment of Boundary Disputes in International Low 181 (1967).

76.

77.

78.

79.

delegations characterized it in such diverse and political terms as
. . . principles of non-aggression and non-interference in the internal affairs of States, sovereign equality, national self-determination, the maintenance of peace among peoples, the struggle against colonid domination and the sovereignty of States. 80
A limiting definition was finally adopted, defining a
peremptory norm as ". .. a norm accepted and recog-
nized by the international community of states as a whole
as a norm from which no derogation is permitted and
which can be m&ed only by a subsequent norm of
general international law having the same character." 81

8-16. Coercion and Duress. Under traditional interna- tional law doctrine, consent to a treaty could not be invali-dated on the basis of coercion of a state or its representa- tive. 82 However, the prohibition against the threat or use of force in intemational relations contained in the Cove- nant of the League of Nations, the Pact of Paris, and Arti- cle 2(4) of the U.N. Charter and the post-World War 11 war crimes trials for conduct of aggressive war have made coercion an improper method by which to acquire consent to a treaty under international law. Article 51 of the Con- vention provides that coercion of a representative through acts or threats against him which procured a state's con- sent to a treaty voids such consent. Article 52 has a much broader application, providing that
. . . a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
An amendment proposed by nineteen Afro-Asian and Latin American states which defined "force" as including "economic or political pressure" was withdrawn after in- tense opposition by many Western delegations. 83 The reference to "the principles of international law embodied in" the U.N. Charter was said by its drafters ". . . to specify the time element for the effect of the prohibition of resort to the threat or use of force," that is, at least from the date of the U.N. Charter. 84 Thus,although Article 4 provides that the Convention applies only to treaties con- cluded after entry into force of the Convention, the con- tention has been made that it would be possible to invoke the rule stated in Article 52 with respect to a treaty con- cluded since the establishment of the modem law prohibiting the threat or use of force. 85
8-17. Registration and Effect of Nonregistra-tion. Article 102 of the U.N. Charter requires that every treaty and international agreement entered into by any
U.N. member following the entry into force of the Charter must be registered as soon as possible with the
80.
Id. at 90.

81.
Id. at 91.

82.
[I9661 I.L.C. Reports 96.

83.
Id. at 75.

84.
Sinchir, supra, note 66 at-98.
8s. Id. at 100.

U.N.
Secretariat. 86 If an agreement is not so registered, no party to the agreement may invoke it before any organ of the U.N. Article 80 of the Convention simply reaffi the obligation on the part of states party to a treaty to transmit it to the U.N. Secretariat for registration and publication. 8-18. International Agreements in Internal Law. a. Approaches toward the status of treaties under internal law. Although the Vienna Convention provides that ". . . a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states," a treaty may not necessarily possess legal effect under a state's own municipal law. States take different approaches regarding the status of treaties under internal law. The two principal positions are incorporation (or adoption), an approach holding that treaties automat- ically become part of internal law without a s@~c act of acceptance, and "transformation," a theory maintaining that treaties are only part of internal law insofar as they are accepted by specific acts of the legislature and/or courts. 87 The approach taken may have an impact upon the likeli- hood of compliance with and implementation of a treaty. Moreover, it may also affect a state's interpretation of treaties, as states adhering to the transformation theory tend to maintain that once a treaty has been transformed into municipal law, its interpretation and application rest with municipal courts. 88

b.
The "transformation" approach followed in the United Kingdom makes a functional distinction between treaties and customary international jurisprudence. It has long been held in Great Britain that customary interna- tional law is part of its internal law, as stated in the 1905 case of West Rand Mining Co. v. The King: whatever has received the common consent of civilized nations must

have received that assent of our country, and that to which we have assented along with other nations in general may properly be called in- ternational law, and as such will be acknowledged and applied by our municipal tribunals to decide questions to which doctrines of interna- tional law may be relevant. 89
However, the making of treaties is a prerogative power of the Executive in England, to be exercised without the concurrence of Parliament (in contrast to the U.S. where the President must obtain the advice and consent of the Senate). In order to prevent executive tyranny, treaties are not self-executing and do not become part of munici- pal law until enabling legislation is passed by Parlia- ment. 90
c. Incorporation. By contrast, the French Constitution calls for the direct "incorporation" of treaties into French municipal law and provides that they can only be modified
See J.Brieriy, supra, note 21 at 91-93. See I. Brownlie, supra, note 63 at 106. 86.
See Brandon, Ana&sis of the Terms 'Treaw' and 'International Agreemenu'for Purposes of Registration Under Article I02 of the United Nations Charter, 47 Am J. Int'l L. 49 (1953).

87.

88.

69. [I9051 2 K.B. 391.
90. J. Brier&, supra, note 21 at 89-90.

or abrogated by an act of equal authority, i.e., an interna- tional act. The Constitution also recognizes the superior authority of treaties over conflicting legislation, prior or subsequent. 91 Another section makes the superiority of a treaty dependent on its application by the other party, however, thus importing an element of reciprocity into the incorporation process. 8-19. Agreement-Making Power in the United States. a. Generally.
UNITED STATES CONSTITUTION
Article I. Section 10

No State shall enter into any Treaty, Alliance or Confederations. . . . No State shall, without the Consent of the Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power.
Article II, Section 2

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur. . . .
Article VI

ThisConstitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary not- withstanding.
"Ratification" of treaties is not mentioned in the Con- stitution. In practice, treaties are ratified by the President after the Senate has given its advice and consent. It is in-correct, therefore, to refer to the action of the Senate as "ratification." The President is under no duty to proceed with the ratification, or exchange of ratifications, of a treaty after the Senate has given its advice and consent, since the latter is not a binding directive. As noted above, Article VI, paragraph 2 of the Constitution provides that treaties made under the authority of the U.S., together with the Constitution and laws of the U.S. made in pur- suance thereof, ". . . shall be the supreme Law of the Land." Thus, treaties are automatically a part of Ameri- can municipal law. No acts of "transformation" by the courts or Congress are necessary. Notwithstanding this fact, however, there exist several basic questions regard- ing the agreement-making power in the United States.
b. What is the status of a treaty that conflicts with a pro- vision of the Constitution? In the leading case in which this issue was raised, the Supreme Court gave recognition to a very broad treaty making power.
MISSOURI v. HOLLAND
Supreme Court of the United States, 1920
252 U.S. 416,40S.Ct. 382, 64 L.Ed.641

On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed many parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specXed closed seasons and protection in other forms, and agreed
91. K.Hollonuy, Modern Trends in Treaw Law 255 (1967).
that the two powers would take or propose to their lawmaking bodies
that necessary measures for carrying the treaty out. 39 Stat. 1702. The
above mentioned act of July 3,1918, entitled an act to give effect to the
convention, prohibited the killing, capturing or selling any of the migrat-
ing birds included in the terms of the treaty except as permitted by
regulations compatible with those terms, to be made by the Secretary of
Agriculture. Regulations were proclaimed on July 31, and October 25,
1918. 40 Stat. 1812, 1863 . . . mhe question raised is the general one
whether the treaty and statute are void as an interference with the rights
resewed to the States.
To answer this question it is not enough to refer to the Tenth
Amendment, reserving the powers not delegated to the United States,
because by Article 2, Section 2, the power to make treaties is delegated
expressly, and by Article 6 treaties made under the authority of the
United States, along with the Constitution and laws of the United States
made in pursuance thereof, are declared the supreme law of the land. If
the treaty is valid there can be no dispute about the validity of the statute
under Article 1, Section 8, as a necessary and proper means to execute
the power of the Government. The language of the Constitution as to
the supremacy of treaties beii general, the question before us is nar-
rowed to an inquiry into the ground upon which the present supposed
exception is placed.
It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a tfeaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 F.
154. United States v. McCullagh, 221 F. 288. Those decisions were sup- ported by arguments that migratory buds were owned by the States in their sovereign capacity for the benefit of their people, and that under cases like Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, this control wasone that Congress had no power to displace. The same argument is supposed to apply now with equal force.
Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitu- tion, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualif~cations to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not likely to be assumed that, in matters requiring national act, "a power which must belong to and somewhere reside in every civilized government" is not to be found. . . .
The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbid- den by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in decid- ingwhat the amendment has resewed.
The State as we have intimated founds its claim of exclusive authority upon an assertion of title to migratory buds, an assertion that is em- bodied in statute. .. .If we are to be accurate we cannot put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself.
As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate, such general grounds are not enough to support Missouri's claim. . . . No doubt the great body of private rela- tions usually fall within the control of the State, but a treaty may over- ride its power.
Here a national interest of very nearly the fmt magnitude is involved; It can be protected only by national action in concert with that of ariother power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by whiie a food supply is cut off and the protectors of our forests and our crops are destroyed; It is not sufficient to rely upon the States. The reliance is vain, and were it othenvise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. .. .
No treaty has ever. been held unconstitutional by the Supreme Court. 92 The Court has, however, in compan-ion cases greatly affecting certain aspects of military justice, emphatically declared that both treaties and laws enacted pursuant to them mustcomply with the provision- ing of the Constitution.
REID v. COVERT
KINSELLA v. KRUEGER
Supreme Court of the United States, 1957
354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148

[Two wives of American servicemen stationed in the United
Kingdom and Japan respectively had been convicted by United States'
military courts of the murder of their husbands. The Supreme Court
held that civilian dependents accompanying members of the armed
forces overseas in time of peace could not be constitutionally tried by
military courts.]
BLACK,J. .. . At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Bri- tain by American servicemen or their dependents. For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith killed her husband. Even though a court-martial does not give an accused trial by jury and other Bii of Rights protections, the Government contends that article 2(11) of UCMJ, insofar as it pro- vides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to cany out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Con- stitution.
Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the land; .. . There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accom- panied the drafting and ratification of the Constitution which even sug- gests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the
92. But c$, Byrd, Treaties and Executive Agreements in The United States (1960).

Constitution, as well as those who were responsible for the Bii of Rights-let alone alien to ow entire constitutional history and tradi-
) tion-to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitu- tional prohibitions. In effect, such construction would permit arnend- ment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be rimed by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitu- tion over a treaty. .. . This Court has also repeatedly taken the position that an Act of Con- gress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsis-tent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be ovenid-den by a statute that must conform to that instrument. There is nothing in State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed.641,which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not incon- sistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier. In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Covert. .. .
c. One further aspect of the incorporation of treaties into American municipal law is the inherent limitation upon the subject matter of these agreements. Former Chief Justice Charles Evans Hughes stated in 1929 that the treaty-making power ". . . is to deal with Foreign na- tions with regard to matters of international concern . . ." and is not to be exercised ". . . with respect to matters that have no relation to international concerns." 93 The U.S. Department of State has recognized this limitation, stating in 195 5, "[Tlreaties are not to be used as a device for the purpose of effecting internal social changes or to try to cir- cumvent the constitutional procedures established in rela-tion to what are essentially matters of domestic con- cern." 94 Whether the Executive branch, acting through the State Department, has, in practice, recognized the constitutional limitations placed on the agreement-making power has been and continues to be a much debated issue. The following material will hopefully provide the reader with greater insight into the Executive agreement-making power.
8-20. The Executive Agreement-Making Power. a. Historical. Although Article 11, section 2, of the Constitu- tion limits the Presidential treaty-making power by requir- ing "the Advice and Consent of the Senate … provided two thirds of the Senators present concur," it does not
93.
Remarks of Charles Evans Hughes Before the American Society of International Law, [I9291Am. Soc. Int% Proc. 194.

94.
U.S. Dept. of State Circular No. 175 (1955), reprinted in 50 Am. J. Int? L. 784 (1956). For a discussion of thiscircular and its mean- ing, see Bidder, The Offie of the Legal Adviror, Department of S~te, 56 Am. J. Int'l L. 633, 651-653 (1962).

state that no other form of international agreement is per- missible. Thus, from the earliest days of the American Republic, Presidents have entered into agreements (which fall short of treaties) with foreign governments either on their own authority or upon the authority of an act of Congress passed by majority vote in each House of Congress. Materials of particular importance to the issue of executive agreements follow.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW OF THE UNITED STATES (1965) 5 117. Scope of International Agreements
(1)
The United States has the power under the Constitution to make an international agreement if

(a)
the matter is of international concern, and

(b)
the agreement does not contravene any of the limitations of the Constitution applicable to all powers of the United States. ,

8119. Scope of Executive Agreement Pursuant to Treaty
An international agreement made as an executive agreement pur- suant to a treaty to which the United States is a party may deal with any matter that satisfies the requirements indicated in 5117 and will carry out the purposes of the treaty.

5 120. Scope of Executive Agreement Authorized by Act of Congress An international agreement made by the United States as an execu- tive agreement authorized by an act of Congress may, subject to the limitations indicated in 5117deal with any matter that falls within any of the powers of the Congress arid the Resident under the Constitu- tion, even if the matter also falls within the treaty power.
Comment:
a. Scope of agreement. An executive agreement of the kind described in this Section must be within the powers that are delegated to the Con- gress and the Resident under the Constitution. When the President makes an executive agreement pursuant to congressional authorization, the scope of the agreement is limited by the scope of the collective powers of the Congress and of the President. The occasion for the use of executive agreements of thistype arisesfrom the Resident's position as the officer of the United States who is constitutionally authorized to con- duct foreign relations. The Congress may enact legislation which for its implementation requires an agreement with a foreign state. To carryout the legislation, the agreement with the foreign state must be concluded under the authority of the President.
Reporters' Nore:
. . . Since the treaty power is an independent power under the Con- stitution and is not limited by other delegated powers, it might be argued that it is more extensive than the expressly delegated powers of Congress. See 5118of the Restatement of this Subject. However, dele- gated powers of the Congress under the Constitution are so extensive and so broadly interpreted by the courts as to suggest that Congress, act- ing under such powers (including the "necessary and proper" clause of Article I, Section 8) can authorize the President to make an executive agreement relating to any matter of international concern.
5 121. Scope of Executive Agreement Pursuant to President's Con- stitutional Authority
An international agreement made by the United States as an execu- tive agreement without reference to a treaty or act of Congress may, subject to the limitations indicated in 5117,deal with any matter that under the Constitution falls within the independent powers of the President.

Comment:
a. General.The authority of the Resident to make executive agree- ments in the field of foreign relations is based on the following provi- sions of the Constitution:
"The executive Power shall be vested in a President of the United States of America." U.S. Const. art. 11, 51;
"The President shall be Commander in Chief of the Amy and
Navy. …" U.S. Const. art. 11, 52;
"He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties . . .;and he shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls. . . ." U.S. Const. art. 11, 52;
"[we shall take Care that the Laws be faithfully executed. …"
U.S. Const. art. 11, 53. These expressed powers afford the President a broad area in which to make international agreements. Under the "executive power," the Resident has authority to conduct the foreign relations of the United States; that power provides a broad constitutional basiifor the making of executive agreements.
UNITED STATES DEPARTMENT OF STATE
CIRCULAR NUMBER 175

Procedures
On July 24, 1974, the Department of State approved a
revised Circular 175 Procedure (Foreign Affairs Manual,
Volume 1 1, Chapter 700). Circular 175 provides internal
guidelines and information to be followed to facilitate the
application of orderly procedures in the negotiation, sig-
nature, publication, and registration of treaties and other
international agreements of the United States.
The revision was initially undertaken (1) to meet re- quests by members of the Senate Committee on Foreign Relations to clarify the guidelines to be considered in determining whether a particular intemational agreement should be concluded as a treaty to be brought into force with the advice and consent of the Senate or asan interna- tional agreement to be brought into force on some other basis; (2) to clarify and strengthen provisions on consulta- tion with the Congress; and (3) to call attention to the re- quirements of the Case Act, P.L. 92-403; 86 Stat. 619; 1
U.S.C. 112b (see the 1973 Digest, Ch. 5, 5, pp. 185-188) regarding the transmission of international agreements other than treatiee to the Congress. These changes are reflected in Sections 720.2c, 720.2h, 721, 722.3, and 724.

Another change, permitting public comment on the treaty or agreement being negotiated, signed or acceded to, is reflected in Sections 720.2d, 722.3c, and 723.1g.
The only other substantive change, which in effect is in- tended to clarify more precisely the intended effect of the Circular 175 Procedure, is the disclaimer included in Sec-tion 7 11. The revisions in Section 710, at the beginning of Section 720.2, at the beginning of Section 721.3 and Sec- tion 723.1, in Section 723.10 and i, in Section 723.4, and in Section 723.5 are in conformity with this change.
The other revisions, including all those in the Sections beginning with 723.6, are of a purely editorial character, involving some rearrangement of Sections to place them in a more logical order and restructuring of language for purposes of clarity.
The new Circular 175 follow, with one asterisk indicating a revision, and two asterisks indicating new material: *710 Purpose
a. The purpose of this chapter is to facilitate the application of orderly and uniform measures and procedures in the negotiation, signature, publication, and registration of treaties and other international agree- ments of the United States. It is also designed to facilitate the mainte- nance of complete and accurate records on treaties and agreements and the publication of authoritative information regarding them.
b. The chapter is not a catalog of all the essential guidelines or infor- mation pertaining to the making and application of international agree-ments. It is limited to guidelines or information necessary for general guidance.
*7 1 1 Disclaimer
This chapter is intended solely as a general outline of measures and procedures ordinarily followed which, it is recognized, cannot anticipate all circumstances or situations that may arise. Deviation or derogation from the provisions of this chapter will not invalidate actions taken by oficers nor affect the validity of negotiations engaged in or of treaties or other agreements concluded. 720 Negotiation and Signature
720.1 Circular 175Procedure
This subchapter is a d~cation of the substance of Department Cir- cular No. 175, December 13,1955, as amended, on the negotiation and signature of treaties and other international agreements. It may be re-ferred to for convenience and qntinuity as the "Circular 175 Procedure."
720.2 General Obectiws The objectives are:
a.
That the making of Treaties and other international agreements for the United States iscarried out within constitutional and other appropri- ate limits;

b.
That the objectives to be sought in the negotiation of particular -treaties and othe; international agreements are approved by the Secre- tary or an officer specifkally authorized by him for that purpose;

**c. That timely and appropriate consultation is had with congres- sional leaders and committees on treaties and other international agree- ments;
d. That where, in the opinion of the Secretary of State or his designee, the circumstances permit, the public be given an opportunity to comment on treaties and other international agreements; *
*e. That fm positions departing from authorized positions are not undertaken without the approval of the Legal Adviser and interested assistant secretaries or their deputies;
f. That the fmal texts developed are approved by the Legal Adviser and the interested assistant secretaries or their deputies and, when re- quired, brought a reasonable time before signature to the attention of the Secretary or an officer specifically designated by him for that pur-
pose;
g. That authorization to sign the fmal text is obtair\ad and appropriate arrangements for signature are made; ij :
**h. That there is compliance with the require-@ of Public Law 92-403 on the transmission of the texts of international agreements other than treaties to the Congress (see section 724); the law on the publication of treaties and other international agreements (see section 725); and treaty provisions on registration (see section 750.3-3). **
**721 Exercise of the International Agreement Power
721.1 Determination of ope of Agreement
The following considerations will be taken into account alongf dth other relevant factors in determining whether an international a- ment shall be dealt with by the United States as a treaty to be brought into force with the advice and consent of the Senate, or as an agreement to be brought into force on some other constitutional basii.
721.2 Constitutional Requirements $1
There are two procedures under the Constitution through which he United States becomes a party to international agreements. Those procedures and the constitutional parameters of each are:
a. Treaties \

International agreements (regardless of their title, designation, or form) whose entry into force with respect to the United States takes place only after the Senate has given its advice and consent are "treaties." The Resident, with the advice and consent of two-thirds of
Pam 27-161-1

the Senators present, may enter into an international agreement on any subject genuinely of concern in foreign relations, so long as the agree- ment does not contravene the United States Constitution; and
b. International Agreements Other Than Treaties

International agreements brought into force with respect to the United States on a constitutional basiis other than with the advice and consent of the Senate are "international agreements other than treaties." (The term "executive agreement" is appropriately reserved for agreements made solely on the basiis of the constitutional authority of the President.) There are three constitutional bases for international agreements other than treaties as set forth below. An international agreement may be concluded pursuant to one or more of these constitu- tional bases:
(1) Agreements Pursuant to Treaw
The Resident may conclude an international agreement pursuant to a treaty brought into force with the advice and consent of the Senate, whose provisions constitute authorization for the agreement by the Executive without subsequent action by the Congress;
(2) Agreements Pursuant to Legislation
The Resident may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress; and
(3)     Agreements Pursuant to the Constitutional Authoriw of the President
The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exer- cise of its constitutional authority. The constitutional sources of authority for the President to conclude international agreements in- clude:
(a)
The Resident's authority as Chief Executive to represent the nation in foreign affairs;

(b)
The President's authority to receive ambassadors and other public ministers;

(c)
The President's authority as "Commander-in-Chief ';and

(d)
The Resident's authority to "take care that the laws be faithfully executed."

721.3     Considerations for Selecting Among Constitutionally Authorized Procedures
In determining a question as to the procedure which should be followed for any particular international agreement, due consideration is given to the following factors along with those in section 721.2:
a. The extent to which the agreement involves commitments or risks
affecting the nation as a whole; ** **b. Whether the agreement is intended to affect State laws;
c.
Whether tK@agreement can be given effect without the enactment of subsequent legislation by the Congress;

d.
Past United States practice with respect to similar agreements;

e.
The preference of the Congresswith respect to a particular type of agreement;

f.
The degree of formality desired for an agreement;

g.
The proposed duration of the agreement, the need for prompt con- clusion of an agreement, and the desirabity of concluding a routine or short-term agreement; and

h.
The general international practice with respect to similar agree- ments.

In determining whether any international agreement should be brought into force as a treaty or asan international agreement other than a treaty, the utmost care is to be exercised to avoid any invasion or com- promise of the constitutional powers of the Senate, the Congress as a whole, or the Resident.
721.4     Questions as to 5pe of Agreement To Be Used; Consultation With Congress
a.
AU legal memorandums accompanying Circular 175 requests (see section 722.3e) will discuss thoroughly the bases for the type of agree-ment recommended.

b.
When there is any question whether an international agreement

should be concluded as a treaty or as an international agreement other than a treaty, the matter is brought to the attention of the Legal Adviser of the Department. If the Legal Adviser considers the question to be a serious one that may warrant congressional consultation, a memoran- dum will be transmitted to the Assistant Secretary for Congressional Relations and other officers concerned. Upon receiving their views on the subject, the Legal Adviser shall, if the matter has not been resolved, transmit a memorandum thereon to the Secretary for his decision. Ev- ery practicable effort will be made to identify such questions at the earliest possible date so that consultations may be completed in suffi- cient time to avoid last-minute consideration.
c. Consultations on such questions will be held with congressional leaders and committees as may be appropriate. Arrangements for such consultations shall be made by the Assistant Secretary for Congressional Relations and shall be held with the assistance of the Office of the Legal Adviser and such other offices as may be determined. Nothing in this section shall be taken as derogating from the requirement of appropriate consultations with the Congress in accordance with section 723.1e in connection with the initiation of, and developments during, negotia- tions for international agreements, particularly where the agreements are of special interest to the Congress. ** '722 Action Required in Negotiation andfor Signature of Treaties and
Agreements

722.1 Authorization Required to Underlake Negotiations
Negotiations of treaties, or other international agreements on matters of substance, or for their extensions or revision are not to be under-taken, nor any exploratory discussions undertaken with representatives of another government, until authorized in writing by the Secretary or an officer smcally authorized by him for that purpose. Notiflation of termination of any treaty or other international agreement on matters of
substance requires similar authorization
722.2 Scow of /;uihorization
Approval of a request for authorization to negotiate a treaty or other intemational agreement does not constitute advance approval of the text nor authorization to agree upon a date for signature or to sign the treaty or agreement. Authorization to agree upon a given date for, and to ,proceed with, signature must be specif~cally requested in writing as pro-vided in section 722.3. This applies to treaties and other agreements to be signed abroad as well as those to be signed at Washington. Special in- structions may be required, because of the special circumstances in- volved, with the respect to multilateral conventions or agreements to be
signed at international conferences.
.*722.3 Request for Authorization to Negotiate andlor Sign; Action Memorandum
a.
A request for authorization to negotiate and/or sign a treaty or other international agreement takes the form of an action memorandum addressed to the Secretary and cleared with the Office of the Legal Ad- viser, the Office of the Assistant Secretary for Congressional Relations, other appropriate bureaus, and any other agency (such as Defense, Commerce, etc.) which has primary responsibility or a substantial in-terest in the subject matter. It is submitted through the Executive Secre- tariat.

b.
The action memorandum may request one of the following: (1) authority to negotiate,(2) authority to sign, or (3) authority to negotiate and sign. The request in each instance states that any substantive changes in the draR text will be cleared with the Office of the Legal Ad- viser and other specifled regional andlor functional bureaus before defhtive agreement is reached. Drafting ofices consult closely with the Office of the Legal Adviser to insure that all legal requirements are met.

c.
The action memorandum indicates what arrangements are planned with respect to (1) congressional consultation, and (2) opportunity for public comment on the treaty or agreement beinegotiated, signed, or accedd to.

d.
Where it appears that there may be obstacles to the immediate public disclosure of the text upon its entry into force, the action memorandum shall include an explanation thereof (see sections 723.2 and 723.3).

Pam 27-161-1
e. The action memorandum is accompanied by (1) the draft, ifavaila- ble, of any agreement or other instrument intended to be negotiated,
(2) the text of any agreement and related exchange of notes, agreed minutes or other document to be signed, and (3) a memorandum of law prepared in the Office of the Legal Adviser. *
722.4 Separate Authorizations
*When authorization is sought with respect to a particular treaty or other agreement, either multilateral or bilateral, the action memoran- dum for this purpose outlines briefly and clearly the principal features of the proposed treaty or other agreement, indicates any special problems which may be encountered, and, if possible, the contemplated solutions of those problems. *
722.5 Bhnket Authorizations
'In general, blanket authorizations are appropriate only in those in- stances where, in carrying out or giving effect to provisions of law or policy decisions, a series of agreements of the same general type is con- templated; that is, a number of agreements to be negotiated according to a more or less standard formula (for example, Public Law 480 Agricultural Commodities Agreements; Educational Exchanges Agree- ments; Investment Guaranty Agreements; Weather Station Agree- ments, etc.) or a number of treaties to be negotiated according to a more or less standard formula (for example, consular conventions, extradition treaties, etc.). Each request for blanket authorization shall speclfy the office or officers to whom the authority is to be delegated. The basic pre- cepts under section 722.3 and 722.4 apply equally to requests for blanket authorizations.
722.6 Certificate on Foreign-Language Tat

In exceptional circumstances the Department can authorize the certification to be made at a post. a.
Before any treaty or other agreement containing a foreign-language text is laid before the Secretary (or any person authorized by the Secre- tary) for signature, either in the Department or at a post, a signed memorandum must be obtained from a responsible language officer.of the Department certifying that the foreign-language text and the English-language text are in conformity with each other and that both texts have the same meaning in all substantive respects. A similar cer- tification must be obtained for exchanges of notes that set forth the term of an agreement in two languages.

b.

722.7 Transmission of Texts to the Secrefary

The texts of treaties and other international agreements must be corn- pleted and approved in writing by all responsible officers concerned sufficiently in advance to give the Secretary, or the person to whom authority to approve the text had been delegated, adequate time before the date of signing to examine the text and dispose of any questions that
,arise. Posts must transmit the texts to the Department as expeditiously as feasible to assure adequate time for such consideration. Except as otherwise specifically authorized by the Secretary, a complete text of a treaty or other international agreement must be delivered to the Secre- tary, or other person authorized to approve the text, before any such text is agreed upon as fmal or any date is agreed upon for its signature. **723 Responsibility of Office or Officer Conducting Negotiations*'
723.1     Conduct of Negotiations *The office or officer responsible for any negotiations keeps in mind:

a.
That during the negotiations no position is communicated to a foreign government or to an international organization as a U.S. position that goes beyond any existing authorization or instructions;

b.
That no proposal is made or position is agreed to beyond the origi- nal authorization without appropriate clearance (see section 722.3a);

c.
That all significant policy-determining memorandums and instruc- tions to the field on the subject of the negotiations have appropriate clearance (see section 722.3a);

d.
That the Secretary is kept informed in writing of important policy decisions and developments, including any particularly significant depar-tures from substantially standard drafts that have been evolved;

e.
That with the advice and assistance of the Assistant Secretary for Congressional Relations, the appropriate congressional leaders and com- mittees are advised of the intention to negotiate signif~cant new interna-

tional agreements, consulted concerning such agreements, and kept in- formed of developments affecting them, inciuding especially whether any legislation is considered necessary or desirable for the implementa- tion of the new treaty or agreement. Where the proposal for any especially important treaty or other international agreement is contem- plated, the of the Assistant Secretary for Congressional Relations will be informed as early as possible by the office responsible for the sub- ject;*
*If. That the interest of the public be taken into account and, where
in the opinion of the Secretary of State or his designee the circumstances
permit, the public be given an opportunity to comment;**
**g. That in no case, after accord has been reached on the substance
and wording of the texts to be signed, do the negotiators sign an agree-
ment or exchange notes constituting an agreement until a request under
section 722.3 for authorization to sign has been approved and, if at a
post abroad, until fmally instructed by the Depamnent to do so as stated
in section 730.3. If an agreement is to be signed in two languages, each
language text must be cleared in full with the Language Services Divi-
sion or, if at a post abroad, with the Department before signature, as
stated in section 722.6;
h. That due consideration is given also to the provisions of sections
723.2 through 723.9, 730.3, and 731 of this chapter; and **
*i. That, in any case where any other department or agency is to play a primary or significant role or has a major interest in negotiation of an international agreement, the appropriate official or officials in such department or agency are informed of the provisions of this sub- chapter. *
723.2 Avoiding Obstacles to Publication and Registration
The necessity of avoiding any commitment incompatible with the law requiring publication (1 U.S.C. 112a) and with the treaty provisions re- quiring registration (see section 750.3-3) should be borne in mind by
U.S. negotiators. Although negotiations may be conducted on a confi- dential basii, every practicable effort must be made to assure that * any definitive agreement or commitment entered into will be devoid of any aspect which would prevent the publication and registration of the agreement.
723.3 Questions on Immediate Public Disclosure
In any instam &re it appears to the * officer or office in the Deprtmnt responsible for the negotiations or to the U.S. representatives that the immediate public disclosure upon its entry into force of an agreement under negotiation would be prejudicial to the national security of the United States, the pertinent circumstances shall be re- ported to the Secretary of State and his decision awaited before any further action is taken. Where such circumstancesc,~e known before authorization to negotiate or to sign is requested, thq,~hall be included in the request for authorization. All such reports andvqquests are to be cleared with the Office of the Legal Adviser.
723.4 Public Statements

*No public statement is to be made indicating that agreement on a text has been reached, or that negotiations have been successfully com- pleted, before authorization is granted to sign the treaty or other agree- ment. If such authorization has been granted subject to a condition that no substantive change in the proposed text is made without appropriate clearance (see section 722.3a). No such public statement is to be made until definitive agreement on the text has been reached and such clearance has been received. Normally, such a public statement is made only at the time a treaty or other agreement is actually signed, inasmuch as it remains possible that last-minute changes will be made in the text. Any such statement prior to that time must have the appropriate cle&ance, and the approval of the Secretary or the ~epartm~ip&cipal who originally approved the action memorandum request under "Circu- lar 175 Procedure."
723.5 English-Language Text

Negotiators will assure that every bilateral treaty or other international agreement to be signed for the United States contains an English- language text. If the language of the other country concerned is one other than English the text is done in English and, if desired by the other country, in the language of that wuntry. A U.S. note that con-
Pam 27-161-1
stitutes part of an international agreement effected by exchange of notes is always in the English language. * If it quotes in full a foreign office note, the quotation is to be rendered in English translation. A U.S. note is not in any language in addition to English, unless spedkally authorized. * The note of the other government concerned may be in whatever language that government desires.

723.6     Transmission of Signed Texts to Assistant Legal Adviser for TreawAffairs
a. The officer responsible for the negotiation of a treaty or other agreement at any post is responsible for insuring the most expeditious transmission of the signed original text, together with all accompanying papers such as agreed minutes, exchanges of notes, plans, etc., to the Department for the attention of the Assistant Legal Adviser for Treaty Affairs: Provided, That where originals are not available accurate cer- tified copies are obtained and transmitted as in the case of the original.
*
(See sections 723.7, 723.8, and 723.9.) The transmittal is by airgram, not by transmittal slip or operations memorandum. *

b.
Any officer in the Department having possession of or receiving from any source a signed original or certif~ed copy of a treaty or agree- ment or of a note or other document constituting a part of a treaty or agreement must forward such documents immediately to the Assistant Legal Adviser for Treaty Affairs.

723.7     Transmission of Certified Copies to the Department
When an exchange of diplomatic notes between the mission and a

foreign government constitutes an agreement or has the effect of ex-
tending, modifying, or terminating an agreement to which the United
States is a party, a properly certif~ed copy of the note from the mission to
the foreign government, and the signed original of the note from the
foreign government,are sent, as soon as practiable, to the Department
for the attention of the Assistant Legal Adviser for Treaty Affairs. *The
transmittal is by airgram, not by transmittal slip or operations memoran-
dum. *
Likewise, if, in addition to the treaty or other agreement signed,

notes     related thereto are exchanged (either at the same time,
beforehand, or thereafter), a properly certif~ed copy (copies) of the
note(s) from the mission to the foreign government are transmitted
with the signed original(s) of the note(s) from the foreign government.
In each instance, the mission retains for its fdes certified copies of the note exchanged. The U.S. note is prepared in accordance with the rules prescribed in the Correspondence Handbook. The note of the foreign government is prepared in accordance with the style of the foreign office and usually in the language of that country. Whenever practicable, ar- rangements are made for the notes to bear the same date.
723.8 certficah8n' of Copies
If a copy of a ndte is a part of an international agreement, such copy is certified by a dayrcommissioned and qualifled Foreign Service officer either (a) by a certification on the document itself, or (b) by a separate certification attached to the document. A certif~cation on the document itself is placed at the end of the document. It indicates, either typed or rubber stamped, that the document is a true copy of the origimal signed
,(or initialed) by (insert full name of signing offier), and it is signed by the certifying officer. If a certif~cation is typed on a separate sheet of paper, it briefly describes the document certified and states that it is a true copy of the original signed (or initialed) by (full name) and it is signed by the certifying officer. The certif~cation may be stapled to the copy of the note.
723.9 Preparation of Copies for Certification
'For purposes of accuracy of the Department's records and publication ahregistration, a certif~ed copy must be an exact copy of the signed original. It must be made either by typewriter (ribbon or carbon copy) or by facsimile reproduction on white durable paper (not by the duplimat method) and must be clearly legible. In the case of notes, the copy shows the letterhead, the date and, if signed, an indication of the sig- nature or, if merely initialed, the initials which appear on the original. It is suggested that, in the case of a note from the mission to the foreign government, the copy for certification and transmission to the Depart- ment be made at the same time the original is prepared. If the copy is made at the same time, the certificate prescribed in section 723.8 may
state that the document is a true and correct copy of the signed original.
If it is not possible to make a copy at the same time the original is pre-
pared, the certificate indicates that the document is a true and correct
copy of the copy on fde in the mission. The word "(Copy)" is not
placed on the document which is being certified; the word "(Signed) "is
not placed before the indication of signatures. Moreover, a reference to
the transmitting airgram, such as "Enclosure 1 to Airgram No. 18
(etc.)," is not placed on the certified document. The identification of
such a document as an enclosure to an *am may be typed on a sepa-
rate slip of paper and attached to the document, but in such a manner
that it may be easily removed without defacing the document.
**724 Transmission of International Agreements Other Than Treaties
to Congress; Compliance With Public Law 92-403
AU officers will be especially diligent in cooperating to assure com-

pliance with Public Law 92-403 "An Act To require that international
agreements other than treaties, hereafter entered into by the United
States, be transmitted to the Congress within sixty days after the execu-
tion thereof." That Act, approved August 22, 1972 (86 Stat. 619; 1
U.S.C. 112b), provides as follows:
"The Secretary of State shall transmit to the Congress the text of any intemational agreement other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, ahy such agreement the immediate public disclosure of which would, in the opinion of the Resident, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President." ** "725 Publication of Treaties and Other International Agreements of
the United States

The attention of all officers is directed to the requirements of the Act of September 23, 1950 (64 Stat. 979; 1 U.S.C. 112a), which provides as follows:
"The Secretary of State shall cause to be compiled, edited, index- ed, and published, beginning as of January 1, 1950, a compilation entitled 'United States Treaties and Other International Agreements,' which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other fmal formality has been executed, during each calendar year. The said United States Treaties and Other International Agreements shall be legal evi- dence of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and agreements, therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States." **
b. Initially, it must be emphasized that the continuous debate regarding the legitimacy of certain executive agree- ments does not center around the issue of the interna- tional authority of executive agreements, as opposed to treaties. Under international law, treaties and executive agreements are viewed as interchangeable and are generally considered to be equally binding. The debatable issue concerns itself with the constitutional authority of the President, the President and Senate, and the President and Congress to enter into international agreements other than treaties in a manner not spediically spoken to in the Constitution. 8-21. Constitutional Authority. a. General. Article 11, Section 2, of the Constitution provides the President with the authority to enter into treaties by and with the advice
Pam 27-161-1
and consent of two-thirds of the Senate. Thus,this specific Executive-Senate procedure can be affected to conclude any international agreement concerning subject matter within the treaty-making power, which is admittedly a power difrcult to define in precise terms. The records of the Constitutional Convention clearly demonstrate that this "treaty power" is jointly entrusted to the President and the Senate. There& -however, nothing in this record that stipulates what is meant by a "treaty" or that forecloses alt-xnative Constitutional procedure for con- cluding international agreements. The Supreme Court has, in fact, consistently upheld the validity of intema- tional agreements other than treaties. 95 Thus, the key question is not whether the President, or the President and Congress, may constitutionally enter into Executive agreements with other states, but what the scope of this executive agreement-making power is.
b. The scope of this power is generally defined by means of a "subject matter test." Under this particular approach, the extent of both Presidential and Congres- sional authority to conclude an Executive agreement is dependent upon the constitutional authority of the Presi- dent and Congress to deal with the subject matter of the specific agreement in question. For example, an executive agreement concluded solely on Presidential authority, i.e., a Presidential agreement, 96 must be based on the Presi- dent's power as Chief Executive of the Nation; Com- mander-in-Chief of the Army, Navy, and Air Force; the diplomatic representatives of the state; or some other general Presidential power.
As a result of determining the scope of the Presidential or the Presidential-Congressional authority to enter into Executive agreements by means of the "subject matter test," three distinct categories of Executive agreements may be identified:
It is at once apparent that some Executive agree- (1)
Executive Agreement Pursuant to a TreapAn Executive agreement expressly or impliedly authorized by a valid treaty.

(2)
Congressional-Executive Agreemen+An Ex-ecutive agreement expressly or impliedly authorized by prior legislation or subsequently approved on any subject within Congressional legislative competence and gen- uinely a concern of foreign relations.

(3)
Presidential AgreemeneAn Executive agree- ment concluded solely on the basis of Presidential authority, on any subject within his independent authority and genuinely a concern of foreign relations.

c.

95. See U.S.v. Belmont, 301 U.S.324 (1937), and U.S.v. Pink,

3.15U.S.203 (1942). These cases also stand for the proposition that even Presidential agreements (which are one of three forms of Execu- tive agreements) are controlling law when concluded within an area of Residential authority. The various forms of Executive agreements are discussed at p. 8-1 1, supra.
96. AS noted above, the "Presidential agreement" is one of three forms of Executive agreements.
ments may be entered into by several of the methods mentioned above and that such agreements can be con-stitutionally supported as valid and binding. The President thus has a choice with regard to the method by which he concludes an Executive agreement. Several of the factors influencing the President's choice of methodology would of course be the political considerations involved, the necessity for Congressional participation in the form of implementing legislation, appropriations, and the degree of formality desired. It is important to note that there are, in fact, various constitutional modes for concluding Ex- ecutive agreements and that the Presidential Agreement is only one example. The vast majority of Executive agree- ments are concluded either pursuant to a treaty or are authorized by prior or subsequent legislation. 97
d.
Executive agreements concerning military matters are based at least in part on the President's power as Com-mander-in-Chief of the Armed Forces. 98 This includes not only purely military agreements, such as practical ar- rangements for cooperation with other nations in defense matters, but also, for example, agreements on condition of armistice, including the administration of occupied ter- ritory pending conclusion of a peace treaty. 99

e.
The President's authority to conclude Executive agreements may also derive from his treaty powers. Although treaties can be made only by and with the advice and consent of the Senate, it is the President alone who negotiates, 100 and the process of negotiation may include the conclusion of protocols which represent stages in those negotiations, or a modus vivendiin limited terms designed to serve as a temporary measure pending the conclusion of a treaty. 101 The power to "receive Ambassadors and other public Ministers" has also served as a partial basis for Executive agreements incident to the recognition of foreign governments, including such matters as the settle- ment of foreign claims. 102 Moreover, the,provision em- powering the President to "take Care thakthe Laws be faithfully executed" provides a basis for agreements designed to implement certain provisions of the Constitu- tion, statutes, and treaties, as well as other international

97. See Bishop, supra, note 16 at 110-120.

98. See Opinion of the Attorney General regarding the Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 30 Op. Any. Gen. 484, 486 (1940); Borchard, Treaties and Ekecutive Agree- ments–A Rep&, 54 YALE L. J. 616, 649 (1945).
99. McDougal and Lans, Treaties and CongressionaCEkecutiw or Presidential agree men^: Interchangeable Instruments- of National Policy, 54 Yale L. J. 246-47 (1945).
100. U.S.v. Curtis-Wright Export Corp., 299 U.S.304, 319 (1936).
101. Corwin, The Constitution of the United States of America, Anabsis and Interpretation, S. Doc. 170, 82d Cong., 1st sess., 433 (1952), repeated in 1964 ed., S. Doc. 39, 88th Cong., 1st sess., 485 (1 964) (hereinafter cited as Convln).
102. U.S.v. Belmont, 301 U.S.324 (1937); U.S.v. Pink,315 U.S. 203 (1942); McDougal and Lam, supra, note 99 at 247-48.
obligations of the United States. 103
$ More generally, and under the authority of the Ex-
ecutive power clause, the President acts as "the sole organ
of the nation in its external relations and its sole repre-
sentative with foreign nations." 104 This role is not insig-

nificant in nature, as the normal conduct of foreign rela-
tions continually requires the conclusion of agreements of
various sorts to settle differences with other governments
or regulate matters of mutual concern, thus insuring the
satisfactory continuation of diplomatic relations. 105
g. With respect to agreements concerning militarymat-ters, such as those under which rights are acquired to use defense-related facilities abroad, the agreement-making authority of the President flows at least in part from his powers as Commander-in-Chief. 106 At the same time, however, Congress also has extensive powers in the defense area. In particular, under Article I, Section 8, of the Constitution, the Congress is given the explicit powers:
To declare War, grant Letters of Marque and Reprisal, and make

Rules concerning Capture on Land and Water;
To raise and support Armies, but no Appropriation of Money to that

Use shall be for a longer Term than two years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and

naval Forces;
In addition, of course, Congress has the general power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Depart- ment or offices thereof.
Agreements relating to military and defense matters thus involve a broad area of responsibility in which certaincon-stitutional powers are shared between the Chief Executive &d Congress. This results in a rather complex legal situa- tion in which the lines of constitutional authority are somewhat unclear. Congress undoubtedly has the con- stitutional autaority to legislate on any subject which is a genuine condm of foreign affairs and which is not smcally granted to the President. Thus, this means Congress can terminate a prior delegation of Congres- sional authority to the President to conclude Executive agreements and can also terminate either treaties or Ex- ecutive agreements by enacting subsequent inconsistent legislation. 107 Finally, Congress is always in a position to substantially effect executive agreements through the ap- propriation process. As has been noted, however, the
,, ,103. 1 Op. Am. Gen. 566, 570-71 (1822); McDougal and Lans, supra, note 99 at 248; Convin, supra, note 101, 1952 ed. at 441-45, 1964 ed. at 492-97.
See 39 Op. Am. Gen. 484, 486 (1940). U.S. V. Curtiss-Wright Export Corp., supra, note 100 at 319. 104.

105.
McDougal and Lans, supra, note 99 at 247-252; CORWIN, supra, note 101, 1952 ed. at 433, 1964 ed. at 484-85.

106.

107.
This action might well run afoul of international law, of course, especially in the areas of treaty obligations and state respon- sibility.

"separation of power" doctrine prevents Congressional encroachment upon any powers exclusively reserved to the President. 8-22. Modern Developments. a. In 1972, as a result of the heightened controversy surrounding the precise con- stitutional authority of the President and Congress con- cerning Executive agreements, Congress passed the Case Act. 108 Under this Act, the Secretary of State is required to transmit to the Congress the text of any international agreement other than a treaty, to which the United States has become a party, no later than 60 days after its entry into force. As of May, 1975, the Department of State had transmitted the texts of 657 Executive agreements to the Congress. Although not required by law to do so, the Department of State had also transmitted with each agree- ment a background statement setting forth in some detail the context of the agreement, its purpose, negotiating history, and effect. 109

b.
The Case Act makes special provision for the transmittal of agreements ". . . the immediate public dis- closure of which would, in the opinion of the President, be prejudicial to the national security of the United States. . .." These agreements are transmitted to the Senate Committee on Foreign Relations and the House Cornrnit- tee on International Relations under ". . .an appropriate injunction of secrecy to be removed only upon due notice from the President." As of May, 1975, the Executive branch had entered into and the Department of State had transmitted to the Congress 29 agreements under this category. 1 10

c.
A second recent development of major importance in the area of executive agreements has been the revision of the Department of State's circular 175 procedure. 111 This revised procedure has two objectives: (1) to meet re- quests by members of the Senate Committee on Foreign Relations for clarification of the guidelines to be con- sidered in determining whether a particular international agreement should be concluded as a treaty or as another form of an international agreement; and (2) to strengthen provisions on consultation with the Congress. With respect to the consultation provisions, Section 723.1(a) of the Circular 175 procedure now requires those responsi- ble for negotiating significant new international agree- ments to advise appropriate congressional leaders and committees of the President's intention to negotiate such agreements, to consult during the course of any negotia- tions, and to keep Congress informed of developments affecting them, including whether any legislation is con- sidered necessary or desirable for the implementation of

1.U.S.C.A. 1126. 108.

109.
Testimony of Momoe Lei, Legal Adviser of the Depart- ment of State before the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary, 13 May 1975, reprinted in 69 Am. I. Int? L. 865 (1975).

110. Id.
111. This procedure is outlined on p. 8-12, supra.
the new treaty or agreement. The procedure also requires
consultation with the Congress when there is a question
whether an agreement should be concluded as a treaty or
in some other form. Efforts at further clarification of ex-
ecutive and congressional powers regarding Executive
agreements continue. The Department of Defense estab-
lished procedures to implement the Case Act as it applies
to organizations within and personnel of that Department
in a directive dated 3 November 1976.112

8-23. "Self-Executing" Agreements. a. General. Whether a given treaty is "self-executing" or requires special implementing legislation in order to give force and effect to its provisions, through the aid of the courts, pre- sents primarily a domestic question of construction for the courts. It is diflicult, however, to extract any clear princi- ple for judicial guidance from the cases discussing this sub- ject. A careful study of the decisions dealing with this problem indicates certain recurring factors which have
been considered by the courts to be controlling.

(1)
Where 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 per- formed through a legislative act, such a treaty is for ob- vious reasons not self-executing, and subsequent legis- lation must be enacted before such a treaty is enforceable by the courts. Inasmuch as treatiescalling for expenditure of funds are ineffective without an accompanying ap- propriation, they are uniformly considered to not be self-executing. On the other hand, where a treaty is full and complete, it is generally considered to be self-executing by the courts, especially when the treaty is concerned with granting equal treatment to aliens in the field of commerce and trade between the signatory powers to such treaties. 113

(2)
Restatement, Second, in reference to self-ex- ecuting agreements, provides:

(1)
Whether an international agreement of the United States is or is not self-executing is fially determined as a matter of interpretation by courts in the United States if the issue arises in litigation.

(2)
When an international agreement to which the United States is a party manifests an intention that its provisions shall be effective under the domestic law of the parties at the time it comes into effect, the agreement is normally interpreted by the courts as self-executing under the law of the United States subject to the constitutional limitations indi- cated in 4 141(3). 114

b.
If mculties are expected in the process of imple- menting the provisions of an international agreement, the executive of a state may take certain precautions in order to avoid international responsibity for defaulting on the obligations imposed by the agreement. For example, Sec- tion 34 of the Convention of the Privileges and Im-

112. DOD Directive 5530.3, International Agreements (3 Nov 1976).
113. Aerovias Interamericanas de Panama, S.A. v. Board of County Commissioners of Dade County, Florida, 197 F. Supp. 230 (1961).
114. Resmtement, Second, 5 154.
munities of the United Nations 11s provides: "It is under-stood that, when an instnunent of accession is deposited on behalf of any Member, the Member will be in a posi- tion under its own law to give effect to the terms of this convention." Even more proiective in nature, section 15 of the Tracking Stations Agreement between the United States and Spain 116 states: "It is understood that, to the extent the implementation of this agreement will depend on funds appropriated by the Congress of the United States, it is subject to the availability of such funds."
8-24. Conflict of Agreement with Internal Law.
WHITNEY v. ROBERTSON
Supreme Court of the United States, 1888
124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386

[Plaintiff sued to recover amounts paid under protest to the Collector of Customs at New York in satisfaction of duties assessed upon plain- tiffs shipments of sugar from the Dominican Republic. Plaintiff alleged that sugar from the Hawaiian Islands was admitted free of duty into the United States, and claimed that a clause of the treaty between the United States and the Dominican Republic guaranteed that no higher duty would be assessed upon goods imported into the United States from the Dominican Republic than wasassessed upon goods imported from any other foreign country. Judgment wasentered for the Collector of Customs upon the latter's demurrer, and plaintiff appealed. The Supreme Court, in an opinion by Mr. Justice Field, just held that the treaty could not be interpreted to foreclose the extension by the United States of special privileges to countries such as the Hawaiian Islands which were willing in return to extend special privileges to the United States.]

But, independently of considerations of this nature, there is another and complete answer to the pretensions of the plaintiffs. The act of Con- gress under which the duties were collected, authorized their extraction. It is of general application, making no exception in favor of goods of any country. It was passed after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by miters on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to cany them into effect, and such legis- lation is as much subject to mdihtion and repeal by congress as legis-lation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them opera- tive, to that extent they have the force and effect of a legislative enact- ment. Congress may modify such provision, so far as they bid the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts wiU al-ways endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are in-consistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing. If the coun- try with which the treaty is made is dissatisfied with the action of the leg- islative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essen- tial for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our
115.
1 U.N.T.S. 15 (1946).

116.
15 U.S.T. 153, 511 U.N.T.S. 61 (1964).

Pam 27-161-1
country wasjustified in its legislation, are not matters for judicial cog-nizance. . . . Judgment flied.

In a Memorandum prepared for President Harding, Sec- retary of State Charles Evan Hughes stated, "Congress [by passing inconsistent legislation] has the power to vio- late treaties, but if they are violated, the nation will be none the less exposed to all the international conse- quences of such a violation because the action is taken by the legislative branch of the Government." 117 Where a treaty and an act of Congress are wholly inconsistent with each other and the two cannot be reconciled, the courts have held that the one later in point of time must prevail. While this is necessarily true as a matter of municipal law, it does not follow that a treaty is repealed or abrogated by a later inconsistent statute. The treaty continues to subsist as an international obligation, even though it may not be en- forceable by the courts or administrative authorities. 118 However, a treaty will not be deemed to have been abro- gated or modified by a later statute unless such a purpose on the part of Congress has been clearly expressed. 119 8-25. Effect of International Agreements for States Not Parties. a. The customary rule of international law ex- pressed in the maxim pacta treatiis nee nocent necprosunl has been codified by Article 34 of the Vienna Convention, which provides that "a treaty does not create either obligations or rights for a third party." This rule must ad- mit of exceptions, however, as there are situations in which states not parties to an agreement consent to be bound by it, or are intended by the parties to derive benefits from the agreement. Articles 34 and 35 of the Convention apply to these two situations. Article 35 pro- vides that an obligation arises for a third state if the parties to a treaty intend for its provisions to establish an obliga- tion for a third state and this state expressly accepts such obligation in writing. Thus,the juridical basis of the third state's obligation is not the treaty but the collateral agree- ment by which it has accepted the obligation. Article 36 deals with the converse situation of rights in a third party derived from a treaty. It provides that a right arisesif par-ties to an agreement to accord certain rights to a third state and the third state assents thereto. The third state's assent is presumed unless the contrary is indicated or the treaty provides otherwise. However, a third state exercising such a derived right must comply with the conditions provided in the treaty for its exercise.
b. Article 37 of the Convention concerns revocation or modification of obligations or rights of third states. An obligation may be revoked or modified only with the con- sent of the parties to the treaty and the third state, unless otherwise agreed. Moreover, a right may not be revoked
117. 5 G. Hockworth, supra note 14 at 324-25.

118.
Id. at 185-86. See also, The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 20 L.Ed.227 (1871).

119.
Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 311, 77 L.Ed.641 (1933).

or modified by the parties if it was intended not to be revoked or modified without the consent of the third state. Also, Article 38 provides that ". . . [nlothing in Ar- ticle 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third state asa customary rule of international law, recognized as such." This article was adopted despite differences of opinion as to the source of the biding force of rules in a treaty on third parties. 120
c. An example of rights conferred on third parties recognized by custom is the right of free passage through interoceanic canals. One writer has noted that: "[Tlhe priv- ilege of free passage through the three major interoceanic canalsSuez, Panama, and Kiel-has been created in each case by a treaty to which the territorial sovereign, act- ing freely or under the pressure of other powers, has been a party." 121 The right of third parties in such situation has been analogized to the doctrine of "international ser-vitudes" and "third-party beneficiary" concepts drawn from municipal law. 122 Baxter argues that "the preferable theory concerning the rights of nonsignatories is that a state may, in whole or in part, dedicate a waterway to in-ternational use, which dedication, if relied upon, creates legally enforceable rights in favor of the shipping of the in- ternational community. " 123

The U.N. Charter raises a special situation as to the binding force of multiparty constitutive agreements on nonmember states. Article 2, paragraph 6, of the Charter requires that the U.N. ensure that nonmember states act in conformity with the principles of the Charter in order to further international peace and security.Thus,it is argua- ble that, as a condition precedent to international dealings, states now run the risk that their actions will not escape the sanction of the U.N., 124 and that Article 2, paragraph 6, as evidence of a trend to create in the Charter a law affecting both members and nonmembers. 125 The I.C.J.'s reasoning in its Advisory Opinion Concerning Reparations for Injuries in the Service of the United Na- tions reflects this tendency, referring to the purposes of and large number of signatories to the U.N. Charter, in deciding that a claim could be pressed by the U.N. against a nonmember. 126 The Antarctic Treaty of December 1, 1959, 127 is a further example of an attempt by signatories to influence the behavior of nonsignatories, stating: "Each of the contracting parties undertakes to exert ap- propriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in
120.
Sinclair, supra note 66 at 8-10.

121.
R. Boxter, The Low of Internotional Wotewys 168-69

(1964) (hereinafter cited as Baxter).
See McNoir, The Low of Treoties 268-71 (1961). Baxter, supra, note 121 at 182. See Friedrnann, supra, note 23 at 600. 122.

123.

124.

125.
See Falk, The Authority of the United Notions to Control Non- Members, 19 Rutgers L. Rev. 591 (1966).

126. Advisory Opinion Concerning Reparations for Iqjuries in the Service of the United Nations 119491 I.C.J. 174.
127. 12 U.S.T. 794, 402 U.N.T.S. 71.

Antarctica contrary to the principles or purposes of the present treaty. " 8-26. Retroactive and Successive Treaties. When a treaty is signed, there is often a question as to whether it applies retroactively or to successive treaties on the same subject matter. Article 28 of the Vienna Convention pro- vides that, unless a different intention appears from the treaty or elsewhere, an agreement is not retroactive, that is ". . . its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty." As regards successive treaties, Article 30 pro-vides that a treaty may specify either that it is subject to or that it is not to be considered as incompatible with an earlier or a later treaty. However, if the earlier treaty does not specify the above and is not terminated or suspended, it then applies ". . . only to the extent that its provisions are compatible with those of the later treaty . . ." when the parties to the agreement are the same. When the signato- ries are different, the earlier treaty applies as between states which are parties to both, to the extent this agree- ment is compatible with the later treaty. However, as be-tween a state party to both treaties and a state party to only one of the treaties, the treaty to which both are parties governs. 8-27. General Rule of Interpretation. Article 3 1 of the Vienna Convention establishes the rule that ". . . [a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." The meaning of "context" for the purposes of this rule in- cludes the text, its preamble and annexes, as well as:
(1)
Any agreement relating to the treaty which was made between all the parties in connection with the con- clusion of the treaty, and

(2)
Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

Article 31 further provides that in addition to the context of the agreement, the following should be taken into ac- count for purposes of interpretation:
(1)
Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(2)
Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and

(3)
Any relevant rules of international law applicable in the relations between the parties. 8-28. Supplementary Means of Interpretation. a. Arti- cle 32 of the Convention permits recourse to "supple- mentary means of interpretation in order to confi the meaning resulting from the application of the general rule of interpretation articulated in article 31 ." These supple- mentary means may also be utilized when the interpreta-

tion accorded an agreement under the general rule results in an ambiguous or obscure meaning, or leads to a result which is manifestly absurd or unreasonable. Such means of interpretation include "the preparatory work of the treaty and the circumstances of its conclusion."
b. There was considerable debate at the conference draft'i the Vienna Convention over the propriety of recourse to materials concerning the preparatory work of the treaty, the travauxpr~paratoires. 128 A literal reading of the text, in referring to such materials a "supplemen- tary means of interpretation," gives the indication that they are limited to a minor role. However, under custom- ary international law, draft'i history is not subordinated to textual analysis. One authority maintains that reference to the preparatory work as a supplemental interpretative means was not intended to place such works in a subordi- nate status and that ". . . discriminating recourse to tra- vaux pr6paratoires in order to throw illumination on the meaning of terms employed in the text of a treaty is per- mitted." 129

8-29. Treaties Authenticated in Two or More Languages. Article 33 of the Convention provides that when a treaty has been authenticated in two or more languages, the text is equally authoritative in each unless, the treaty provides, or the parties agree, that a particular text will prevail when conflicts occur. The terms of the treaty are presumed to have the same meaning in each authentic text. Thus, a version of agreement ina language: other than one of those in which the text ,was authenti- cated shall be considered an authentic t&# only if the. treaty so provides or the parties so agree. ,hen a corn=, parison of the authentic texts discloses a difference OF, meaning which cannot be removed by applying the, general rule and supplementary means of interpretation, the meaning which best reconciles the texts shall be adopted, with due regard given to the object and purpose- of the treaty.
8-30. Summary. In closing this discussion of treaty in-, terpretation, it is essential to note that, as in the municipal law of contracts, there are a variety of approaches to the interpretation of an international agreement. "Black let- ter" rules of construction are frequently inadequate to solve the variety of problems and situations which call for interpretations. However, the I.C. J., in rendering its deci- sion in the Second Admissions Case, 130 reaffied the general rule of interpretation when it stated that ". .: [wlhen the Court can give effect to a provision of a treaty by giving to the words usedin it their natural and ordinary meaning, it may not interpret the words by seeking to give them some other meaning."
128. Briggs, The Travaux Prkmratoires of the Vienna Convention on the hw of Treaties, 65 Am. 3. Int7 L. 705, 709 (1971).
129. Id.at 712.
130. Second AdmissionsCase [I9501I.C.J.8.

Section V. TERMINATION AND MODIFICATION OF INTERNATIONAL AGREEMENTS
8-31. Denunciatioo of or Withdrawal From a Treaty. a. General. The Vienna Convention states that a treaty may be terminated, a party may withdraw from it, or its opera- tion in regard to a party may be suspended if this is Pro- vided for in the treaty or if all the parties consent to those terms. 131 Unless it SO provides, a multilateral treaty will not be terminated automatically when the mnber of sig- natories to it falls below the number necessary for its entry into force. 132 Parties to a multilateral treaty may agree to suspend its operation, temporarily and as between them- selves alone, if provided for by the treaty or if suspension not prohibited by the treaty and does not affect the
rights or obligations of other parties. However, a SusPen- sion of an agreement's operation must be compatible with its object and purpose. 133
b. Despite the doctrine of pacta sunt servanda, under customary international law, states have been permitted to withdraw from certain types of treaties which contain no express provision regarding termination. Treaties of political alliance and commercial arrangements are generay regarded as agreements of fype'
56 of the Convention states that a treaty provision regarding termination is not subject to denun- ciation or withdrawal unless:
A right of denunciation or withdrawal may be (1)
It is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(2)

implied by the nature of the treaty. A party must give not less than twelve months' notice of itsintent to denbun= or withdraw under these conditions. 8-32. Termination or Suspension of Treaty Due to Breach or Impossibility of Performance. a. Article 60 of the Convention provides that: ". . . [a] material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part."
A material breach of a multilateral treaty by one of the parties permits:
(1)
The other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either as between themselves and the defaulting state or between all the parties;

(2)
A Party specially affected by the breach to invoke it to suspend the operation of the treaty in whole or in Part as between itself and the defaulting state;

(3)
Any party other than the defaulting state to in- voke the breach to suspend the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach by one party radically changes the position of every party with respect to the

131. Vienna Convention, Arts. 54 and 57.
132.
Id. at Art. 55.

133.
Id. at Art. 59.

134. G.l?Qmaurice, Second Report on the Law of Treaties. U.N. Doc.A/CN 4/107 (IS March 1967).
further performance of its obligations under the treaty. 135

b. The term "material breach" is defined as a repudia- tion of the treaty not sanctioned by the Convention or the violation of a provision essential to the accomplishment of th, object or purpose of the treaty. Because of concern
that the right of unilateral denunciation due to breach
wodd seriously undercut law-making treaties, a paragraph
added to Article 60 which provides that material

breach by a party does not permit termination or suspen-
sion of provisions ". . . of an agreement relating to the
protection of the human person contained in treaties of a
humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected
by such treaties." 136
Article 61 permits a party to terminate or withdraw from a treaty on the ground of impossibility of perform- ance ". . .if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty." However, if the impossibility is temporary, it justifies only suspension of the operation of the treaty. If the impossibility is the of a own breach of an obligation under the treaty or any other international obligation owed to another party to the agreement, the party may not invoke it as grounds for ter- mination, withdrawal, or
8-33. Fundamental Change of Circumstance. a. Rebus sic stantibus. The doctrine of rebus sic stantibus (change of circumstances) fell into disrepute as a result of indiscrimi- nate invocation by states prior to 1914 in order to escape from inconvenient treaty obligations. 137 Article 62 of the Vienna Convention states the doctrine in negative terms, holding that a fundamental change in circumstances not foreseen by the parties may not be invoked to terminate or withdraw from a treaty
(1)
The existence of those circumstances constituted an essential basis ofthe consent of the parties to be bound by the treaty; and

(2)
The effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

b.
Even if the exceptions stated in the above paragraph are met, a fundamental change in circumstances may not be invoked for terminating or withdrawing from a treaty if the agreement establishes a boundary or if the change is the result of a breach by the party invoking it either of an obligation under the treaty or of any international obliga- tion owed to any other party to the agreement. 138

Viema Convention, ~rt.60(2). 135.

136.
Id. at Art. 60(5). Agreements of this nature would include the Hague Regulations and Geneva Conventions Regulating Armed Con-

tlict.

137. Sinchir, supra, note 66 at 106.

138. For a thorough analysis of this concept, see Friedmann, supra, note 23 at 413-21.
8-34. War Between Contracting Parties. a. No interna- tional tribunal has had occasion to decide a case involving the question of the effect of war upon treaties, and na- tional court decisions relating to the problem are con- cerned only with the effect of treaties as domestic law. It is thus dficult to draw any conclusions as to the present state of customary international law with respect to the problem under consideration. 139 An excerpt from Kar-nuth v. United States, 140 a leading case dealing with this subject, follows.
The effect of war upon treaties is a subject in respect of which there are widely divergent opinions. The doctrine sometimes asserted, especially by the older writers, that war ips0 facto annuls treaties of ev- ery kind between the warring nations, is repudiated by the great weight of modem authority; and the view now commonly accepted is that "whether the stipulations of a treaty are annulled by war depends upon their intrinsic character." 5 Moore's Digest of International Law, 5 779,
p. 383. But as to precisely what treaties fall and what survive, under this designation, there is lack of accord. The authorities, as well as the prac- tice of nations, present a great contrariety of views. The law of the sub- ject is still in the making, and, in attempting to formulate principles at all approaching generality, courts must proceed with a good deal of caution. But there seems to be fairly common agreement that, at least, the following treaty obligations remain in force; stipulations in respect of what shall be done in a state of war; treaties of cession, boundary, and the like; provisions giving the right to citizens or subjects of one of the high contracting powers to continue to hold and transmit land in the ter- ritory of the other; and, generally, provisions which represent com- pleted acts. On the other hand, treaties of amity, of alliance, and the like, having a politic. character, the object of which "is to promote rela- tions of harmony between nation and nation," are generally regarded as belonging to the class of treaty stipulations that are absolutely annulled by war. Id., p. 383, quoting Calvo, Droit Int. (4th Ed.), IV.65 5 1931.
6. Some multilateral conventions provide for their effect in time of war. For example, Article 89 of the Con- vention on International Civil Aviation 141 specifies that: "In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or neutrals. .. ." Moreover, it is important to note that treaties which regu- late the conduct of hostilities are not affected by the out- break of war.
Section VI. STAl'ESUCCESSION
8-35. General Principles. a. The transfer of territory from one state to another creates numerous legal prob- lems. These transfers, which may be thought of as a change in sovereignty or in international status, have oc- curred frequently in history, and their extent and conse- quences have often been drastic. Transfers of territory or change of sovereignty over territory, or change in interna- tional status, may come about in several ways, which fall into three main categories: (1) the attainment of independ- ence by a territory or entity which was previously under the sovereignty, suzerainty, protectorate, mandate, trusteeship, or other form of legal control exercised by another state or states, or which was in a federal or other "real" union with other international entities; (2) the loss of statehood or independence through annexation by another entity, merger with another entity or entities, or coming under the protectorate of, or some other legal control by, one or more other states; and (3) the transfer of sovereignty or other form of legal control over an area from one state to another existmg state through cession or unilateral annexation. Whatever the formal differences between these modes, the changes have one feature in common: one state ceases to rule in, or have legal control over, a territory, and another state assumes legal control. The essential issue in the "law of state succession" is to what extent the state replacing the former sovereign assumes the rights and duties of the former sovereign. Within each of the three main categories of change, the legal consequences of different types of change are not necessarily similar; for example, the establishment of a protectorate may have consequences different from those
279 U.S.231 at 236 (1929). 139.
For a comparative study, see Rank, Modern War and the Validity of Treaties, 38 Cornell L. Q. 321, 51 1 (1953).

140.

of annexation by another state.
b.
Whatever form the change of sovereignty or legal control takes, it represents a disruption of continuity, and a body of law, known as the "law of state succession," has developed to determine the extent and consequences of this discontinuity. The use of the imprecise term "state succession" may appear to beg the question, that is, to what extent the state which acquires sovereignty or con- trol over a smc territory becomes "heir':ito the juridi- cal consequences of the acts of its predecessor. The terms "successor" and "succession" designate the new-sovereign and the process of acquiring sovereignty or legal control, and do not necessarily imply a juridical substitu- ' tion of the "successor" state in all the rights and duties possessed by its predecessor. 142

c.
One dimension of the consequences of change of' sovereignty is the extent to which sovereignty over ter- ritory is affected. If the legal identity of the territory is completely changed, as in the independence of a new state, the change is denominated "total" succession. If some aspects of legal control change hands, but interna- tional legal personality remains relatively unimpaired, as in the establishment of a protectorate, the process is called "partial" succession, because the degree to which the "protected" state surrenders legal control over its internal , affairs, and its international relations, may vary, and as a consequence the extent to which the protecting state assumes legal responsibility for the consequences of acts prior to the establishment of the protectorate may vary. Similarly, when the protected state resumes full control over its internal and external affairs, the extent to which it

141. 15 U.N.T.S.295, 356.

142. See Jones, State Succession in the Matter of Treaties, 119471 Brit. Y.B. I.L. 360.
may or must succeed to international rights and obliga- tions may vary with the degree of control it retained over these matters when it was a protectorate. 143
d.
Since World War 11, state succession has most fre- quently taken place not in the context of annexation, ces-sion, or federation, but in the context of independence or secession of former colonial territories. When the classical writers of international law dealt with the problem of the effects of change of sovereignty, they introduced the Roman law concept of succession after death. 144 This became known as the theory of "universal" succession, as it resulted in the view that the successor state inherited all the treaties, debts, and contracts of its predecessor. In the nineteenth and early twentieth centuries, many writers and governments reacted strongly against this approach, and arrived at the opposite conclusion: that new, or suc- cessor, states did not, as a matter of international law, in- herit any of the rights or obligations of the predecessor state (with the possible exception of "dispositive" or "ley treaties). 145 This became known as the "clean slate" theory. 146 Neither theory appears to accord with present state practice, nor does either, in its extreme form, result in a satisfactory solution of the problems aris- ing from a change in international status. The practice of states in the matter of succession is inconsistent, and it is impossible to arrive at a general theory or set of rules ap- plicable to all categories of legal relationships.

e.
Although a "new" state generally succeeds to some international agreements, it is not charged with meeting all of the international obligations of the predecessor state unless it enterxinto a devolution agreement. Under this arrangement, the new state succeeds to all of the treaty obligations of the former. These agreements appear to have two purposes: (1) to relieve the former colonial power from the performance of treaty obligations in a ter- ritory to which it had previously applied the treaty, but over which it no longer exercises legal control, and (2) to bind the newly independent state to perform the obliga- tions imposed by the treaties and to enable it to enjoy rights under treaties. 147

Devolution agreements have had the effect of prevent- ing undesirable discontinuities. However, new states have been increasingly reluctant of late to use this device, ap- parently because they fear they may commit themselves to abiding by agreements of which they might not have been aware, or which they do not fully understand.
f. Traditionally, a special category of treaties, usually

'43. See, e.g., Nationality Decrees in Tunis and Morocco (19231 P.C.I.J., ser. B, No. 4 at 30,; Rights of Nationals of the United States of America in Morocco, (19521 I.C.J. 176.
These types of agreements are discussed in chap. 7, supra. '46. See Keith, The Theory of State Succession (1907). 144.
See H. Lauterpacht, Private Law Sources and Analogies of In- ternational Law 125 (1927).

145.

147. See Lauterpacht, State Succession and Agreementr for the Inheritance of Treaties, 7 Int? Comp. L.Q. 524-30 (1958).
denominated "dispositive" or "localized," was regarded as automatically binding on a new state. 148 A "disposi- tive" or "localized" treaty is one which imposes restric- tions of a continuing and permanent character on the ter- ritory of a state, or which is by its character related to a specific territory, or applied to a specific territory. The categorization of these treaties has not been clearly defined. Illustrations often employed include boundary treaties and treaties creating "international servitude" such as transit rights, rights with request to rivers, customs, free zones, and demilitarized zones. The tradi- tional view that automatic succession takes place with regard to "dispositive" or "localized" treaties is not com- pletely borne out by recent practice. Treaties for military bases, for example, which were thought to fall within this category, have often been renegotiated. 149 Moreover, boundary treaties, which more clearly come within this classification, have not been uniformly inherited. 150
g. Actual state practice with regard to succession to treaties since World War I1 has been neither consistent nor coherent. None of the traditional doctrines satisfac- torily explains contemporary approaches toward state suc- cession. At least two policies, however, seem to be para- mount. First, most new states (with the exception of Israel, the Philippines, South Korea, Upper Volta, and Algeria) have not applied the "clean slate" doctrine in all it. rigidity. They have sought to avoid the sudden, com- plete, and automatic discontinuity in treaty relations that would result from a total application of the doctrine. Sec- ond, most new states have not expressly rejected the "clean slate" doctrine and have not adhered to any other general rule, such as one of "universal" succession. They have tended, on the other hand, to adopt techniques which would give them the freedom to pick and choose the treaty rights and obligations they wish to retain. Most of the older states have refrained from attempting to coerce newer states into acceptance of any general doctrine and have accepted this "pick and choose" method of treaty succession.
8-36. Summary. As has been noted, international agree- ments are now the most important source of codified in-ternational jurisprudence. Military attorneys stationed overseas are responsible for providing legal advice in an environment almost completely controlled by agreements between the host and sending states. For these reasons, it is essential that the attorney possess a basic understandmg of the particular norms which comprise "treaty law." The contents of this chapter should provide this degree of familiarity.
148.
2 O'ComeU, State Succession in Municipal Law and Interna- tional Law 231-72 (1967).

149.
See Esgain, Militaty Servitudes and the New Nations, in The New Nations in International Law and Diplomacy 52-97 (O'Brien ed. 1963).

150.
International Law Association, The Ufect of Independence on Treaties 354-55, 361-62, 364-65, 371-73 (1965).

Pam 27-161-1

CHAPTER 9
INTERNATIONAL ORGANIZATIONS

Section I. THE UNITED NATIONS 1
9-1. The Beginnings of the United Nations. The United
Nations represents the second attempt on the part of the
states of the world to organize themselves into a true com-
munity of states, wherein the security of each member
would be safeguarded not by itself alone but by the whole
community. The fust attempt at such a goal was the
League of Nations. With the start of World War I1 there
was general agreement that the League experiment was a
failure. However, such a realization did not amount to an
abandonment of the idea of an international organization
to ensure world security. The reverse was true. On 12
June 1941 Great Britain, Canada, Australia, New Zea-
land, the Union of South Africa, and a number of Euro-
pean governments-in-exile issued the London Declara-
tion. The Declaration declared that:
The only true basis of enduring peace is the willing
cooperation of free peoples in a world in which, relieved of
the menace of aggression, all may enjoy economic and
social security.
The theme was repeated a few months later in the Atlantic
Charterof 14 August 1941. In it the United States and the
United Kingdom stated:
Clause C. After the frnal destruction of Nazi tyranny, we hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want.
There was nothing specific in either the London Declara- tion or the Atlantic Charter about the mechanics of preserving peace among the states following the end of the war. This was left to the Moscow Declaration of Decem- ber 1943. In it China, the United States, United Kingdom and U.S.S.R. stated:
We recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of interna- tional peace and security.
This was the fust positive announcement of the intention to establish a new collective security organization after the war. It amounted to an abandonment of the League. At the time of the Moscow Declaration in 1943 the League was still in existence, though not functioning. The League, after the Moscow Declaration, had no part to play in the postwar world.
At Dumbarton Oaks, Washington DC, in 1944 the four signers of the Moscow Declaration met to draw up a detailed plan for the new organization. The first phase of
the conference was between the representatives of the
U.S.S.R., the United Kingdom, and the United States
from August 21 to September 28, 1944. The second
phase was between the representatives of China, the
United Kingdom, and the United States from September
29 to October 7. This splitting of the conference served to
respect U.S.S.R. neutrality in the war against Japan. On
February 11, 1945 the conference made the following an-
nouncement:
We have agreed that a conference of United Nations
should be called to meet at San Francisco in the United
States on the twenty-fifth April 1945, to prepare the

charter of such an organization, along the lines proposed
in the informal conversations of Dumbarton Oaks.

Fi nations answered the invitation of the Big Four to
meet at San Francisco. These nations worked on the
Dumbarton Oaks proposals from 25 April to 26 June
1945. From this conference came the Charter of the
United Nations and the Statute of the new International
Court of Justice. The United Nations Charter is a

multilateral treaty. The United Nations organization cre-
ated by the treaty is an international person, independent
of its members, possessing sufficient international per-
sonality to enable it to fulfill its purposes. *
While the United Nations started out with fifty members, its membership has increased along with the increasing number of nations which make up the world community. During the 1976 fall session of the General Assembly, membership had expanded to 145 nations, and plans were made @build facilities for a future membership of 170na-tions. The Charter has been amended two times. First, in
1963 Articles 23 and 27 were amended changing the size and membership of the Security Council. Then, in 1973 Article 61 was amended changing the size of the Econom- ic and Social Council. Both changes were made in view of the expanding membership of the United Nations. 9-2. The Structure of the United Nations. The United Nations is divided into six organs:
1.
The Secretariat

2.
The Security Council

1.
For information on the steps which led to the adoption of the United Nations Charter see Everymn's United Nations, 2-9 (7th ed. 1964), and Goodrich & Hambro, Charter of the United Nations, 3-84 (2d. ed. (1949)). The Text of The Charter may be found in DA Pamphlet 27-24, Selected International Agreements, Vol. I1 @ec. 1976), pp. 3-1 to 3-21.

2.
On the international personality of the United Nations Organiza-tion see the advisory opinion of the International Court of Justice on 11 April 1949, concerningReparations for LqiUries SufTered in the Senrice of the United Nations (1949) I.C.J. Rep. 174. The U.N. Organkation is given personality for itsactivities within member states by virtue of arti-cles 104 and 105 of the Charter.

3.
The General Assembly

4.
The Trusteeship Council

5.
The Economic and Social Council

6.
The International Court of Justice

a.
The Secretariat. The Secretariat is composed of a Secretary General and such staff as is required for him to perform his functions. 3 He is appointed by the General Assembly upon the recommendation of the Security Council. 4 His term of office is not set out in the Charter, but is usually specified at the time of his appointment. To date the Secretary Generals have been serving for five- year periods, which may be renewed. He is the chief ad- ministrative officer of the United Nations. 5 He also per- forms such other functions as are entrusted to him by the Security Council, General Assembly, Trusteeship Coun- cil, and the Economic and Social Council. 6 The office has increased in importance since 1945, principally through the use of the Secretary General by the Security Council and General Assembly in its interventions in the Middle East and in the Congo.

b.
The Security Council. The Security Council is com-posed of fifeen members, five of whom are permanent members. 7 The remaining ten are elected by a two-thirds vote of the General Assembly for a term of two years. 8 The five permanent members are the U.S. A., U.S.S.R., The People's Republic of China, France, and the United Kingdom. The Security Council has the primary respon- sibility for the maintenance of international peace. 9 Each of the five permanent members has a "veto power" over the actions of the Security Council because of the voting procedure. No action can be taken which is not procedural unless it is concurred in by seven members, five of whom must be permanent members. 10

c.
The General Assembly. The General Assembly con- sists of all the members of the United Nations. 11 Each has one vote. 12 It disc-almost all world problems that are called to its attention. In itself it does not have the power of action. Most of its resolutions are recommendations. Besides acting as a world forum, it also supervises the ac- tivity of the Economic and Social Council and the Trustee- ship Council. 13 Together with the Security Council, it is responsible for the admission and the suspension of mem-

3. U.N. Charter Art. 97.
4. Id.
5. Id
6.
U.N. Charter Art. 98.

7.
U.N. Charter Art. 23, para. 1. (1973 Text).

8.
U.N. Charter Art. 23, para. 2.

9.
U.N. Charter Art. 24, para. 1.
lo. U.N. Charter Art.27, paras. 2 and 3.

11.
U.N. Charter Art. 9, para. 1.

12.
U.N. Charter Art. 18, para. 1. Voting is either by a simple ma-jority or a two-thirds majority of those present. The latter system is reserved for "important questions." Questions considered important are those listed in Article 18 para. 2, and any other questions considered important by a majority of those present. Art. 18, para. 3.

13.
U.N. Charter Arts. 16, 60, 63, 64 and 66, para. 3.

bers. 14 Further important functions are the control of the purse strings of the United Nations, 1s and the election of members to positions on the other organs of the United Nations. 16
d. The Tmsteeship Council. Following the end of World War I, former German and Turkish colonies were turned into mandated territories under the general super- vision of the League of Nations and under the direct ad- ministration of several of the victorious powers. These territories were classified as A, B, and C mandates de- pending on their degree of advancement toward self- government. By the time the United Nations was created the A and most of the B mandated territories had achieved their independence. The mandatory powers which administered the remainder were invited to turn them into trust territories under the supervision of the
U.N. Allhave done so with the exception of the Union of South Africa in regard to Southwest Africa. The former German island possessions in the Pacific which Japan ad- ministered for the League after World War I were transferred to the administration of the United States. These islands are now held as a "strategic trust." 17 Such a trust differs from other trust territories in that it is super-vised by the Security Council rather than by the General Assembly and the Trusteeship Council. 18
The Trusteeship Council is the organ of the U.N. which supervises the administration of the trust territories. The council is composed of three different groups, (1) those members of the U.N. who administer territories, (2) those five members who have permanent seats on the Security Council, and (3) as many other members of the
U.N. as are necessary to make the membership of the council evenly divided between those members who ad- minister trust territories and those who do not. 19 This third group is elected for a three-year term by a two-thirds vote of the General Assembly. 20
The chief function of the Council is to see that the ad- ministering power looks after the welfare of the people of the trust territory in accordance with the trusteeship agree- ment under which the administering power exercises its authority. 21 The importance of the Trusteeship Council
14.
U.N. Charter Art. 5.

15.
U.N. Charter Art. 17.

16.
U.N. Charter Art. 23, para. 1 on the election of the nonperma- nent members of the Security Council; art. 97 concerning the election, in conjunction with the Security Council, of the Secretary General; STAT.INT'LJUST.art. 4 on the election of the judges of the I.C.J., in conjunction with the Security Council; art. 61 (1) concerning member- ship in the Economic and Social Council; and art. 86(l)(c) on the elec- tion of the nonpermanent members to the Trusteeship Council.

17.
U.N. Charter Art. 82 permits the designation of certain trust temtories as strategic areas. The United States is the only power which administers such a "strategic trust."

18.
U.N. Charter Art. 83, para. 1.

19.
U.N. Charter Art. 86, para. 1.

20.
U.N. Charter Art. 86, subpara. 1 (c); art. 18, para. 2.

21.
U.N.Charter Arts. 75 and 76.

has decreased due to the fact that most of the territories

1 originally supervised have gradually over the years gained
/ independence. The last important trust territory still con-
sidered as such is the Trust Territory of the Pacific Islands, which is administered by the United States. Plans are bei made for the independence of these islands, but they are hampered by the fact that some of the islands would prefer a continued relation with the United States and others would not. In 1975 a covenant to establish a commonwealth of the Northern Mariana Islands was signed at Saipan by representatives of the United States and the Northern Mariana Islands. Under the agreement, the Northern Mariana Islands will achieve self-governing commonwealth status under United States sovereignty. It will come into force at the time the United States termi- nates the Trusteeship Agreement it has with the Security Council. The United States has informed the United Na- tions Trusteeship Council that it will terminate thisagree-ment simultaneously for all parts of the Trust Territory. Siplans for the rest of the Trust Territory have not yet been settled, it may be some time before this takes place. 22
It should be noted that the problem of non-self-governing territorieshas expanded from what was originally contem- plated in the Trusteeship provisions. In 1960, the General Assembly adopted in resolution 15 14, a "Declaration on the Granting of Independence to Colonial Countries and People," and in 1961, established a 17-member special committee to make suggestions and recommendations on the programs and extent of the implementation of this 1960 Declaration. The committee was enlarged in 1962 to 24 members. It annually considers those territories which have not, in the view of the General Assembly, achieved independence. Until the independence of the Portuguese colonies, these territories in Africa were a major concern. It is still concerned with Namibia or South-West Africa and to some extent even with a state such as Rhodesia which is considered as controlled by a minority govern- ment not truly representatives of the majority of the population. United States Territories such as the Vrgin Is-lands, American Samoa, and Guam have also been con- sidered.
e. Economic and Social Council. One of the purposes of the U.N. is to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character. 23 The League was successll in this endeavor, far more so than it was in the settling of serious international political disputes. 24 The way had
22. See Digest of United Sates Practice in International Law at 97. (Dept. of State 1975).
U.N. Charter Art. 1, para. 3. 23.

24.
See II Walters, A History 4the League of Nations, chap. 60 (1952) for a description of the renaissance of the economic and social agencies of the League during the period 1935-1939 which culminated in the Bruce Report of August 1939 which recommended an organ for the League closely resembling the Economic and Social Council of the

U.N.
been prepared for cooperation of thissort during the 19th
Century. Such organizations as Universal Postal Union,
the International Bureau of Weights and Measures, and
the Rhine and Danube River Cornmissions showed the
feasibility of international economic cooperation.
The Economic and Social Council consists of 54 members
elected by the General Assembly. 25 Members are elected

for a term of 3 years with one-third of the membership of
the Council beii replaced each year. Besides initiating

studies and conventions dealing with its field of interest, 26
it also brings into cooperation with the U.N. the
numerous governmental and private international eco-
nomic and socialorganizations which already exist. If the
organization is intergovernmental, it must enter into an
agreement with the Economic and Social Council defining
the terms on which the organization shall be brought into
relationship with the U.N. 27 The Council may make such
arrangements with private international organizations as
may be suitable to both parties concerned. 28
f. The International Court of Justice. The Permanent Court of International Justice was created in 1920 shortly after the League of Nations. However, it never became an organic part of the League. When the decision was made during World War I1 to create a new international organization to replace the League of Nations, it was thought best, despite the commendable reputation which the court enjoyed, also to create a new court and to make this new court an organic part of the new organization. Such was done in articles 92-96 of the Charter of the United Nations.
Article 92

The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present charter.
The Statute of the International Court referred to in article 92 was copied almost in its entirety from the Statute of its predecessor, the Permanent Court of International Justice. This was done because the Statute of the Perma- nent Court was highly regarded in international legal cir-cles. Its Statute was never subject to the same criticism as was the Covenant of the League of Nations. 29
The organization of the Court and the opinions it has rendered since its creation will be discussed in section I1 below. 9-3. The Settlementof Disputes by the UnitedNations. Article 1, paragraph 1 of the Charter declares that one of the four purposes of the United Nations is:
U.N. Charter Art. 71. U.N. Charter Arts. 57, para. 1, and 63, para. 1. U.N. Charter Art. 62. U.N. Charter Art. 61, para. 1 (1973 text). 25.

26.

27.

28.

29.
See Goodrich & Hambro, op. ci~ supm note 1, at 476-478 for a discussion of the debates surrounding the decision to discontinue the Permanent Court of International Justice.

To maintain international peace and security, and to that end [I] to take effective collective measures for the pre- vention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace and [2] to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
Article 1, paragraph 1 outlines two methods for the main-tenance of peace, the fust is by collective measures when there is a threat to the peace, breach of the peace, or act of aggression; the second is by peaceful settlement of dis- putes. Chapter VI (arts. 33-38) contains the pacific settle- ment provisions of the Charter. These will be discussed before the collective peace enforcement measures are ex- amined.
a. The Pacific Settlement of Disputes. Chapter VI of the Charter (Arts. 33-38) outlines the procedure for the pacific settlement of disputes. This procedure is asfollows:
Article 33
1.
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, fust of all, seek a solution by negotia- tion, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

2.
The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.

Article 33 calls upon the parties themselves to seek a solu- tion to any dispute "the continuance of which is likely to endanger the maintenance of intemational 'peace and security." This is the key to the procedure of peaceful set- tlement. 30 The primary duty is placed upon the parties themselves. The means offered are many. The first listed is negotiation. Negotiation is the direct intercourse be- tween two or more states initiated and directed for the purpose of either effecting an understanding between them or settling a dispute. Enquiry is a method of deter- mining the facts of a disputed incident, and of itself is not meant to fm any responsibility that may result from the facts. Mediation is the intervention of a third sovereign who offers his objective solution in an endeavor to bring the two disputing states to an understanding. Conciliation differs from mediation in the fact that the solution is recommended by an impartial body of experts. It is an im- provement on both enquiry and mediation. Enquiry alone offers no solution. Mediation by a sovereign may be in- fluenced by national self-interest. Conciliation also has some advantages over arbitration. Its solution is only a recommendation and therefore not binding as is an ar- bitrator's award. In addition the conciliators are not bound by the narrow legal limits that usually are made the authority of an arbitrator.
30. Eagleton, International Government 499 (3d ed. 1957).
Article 34
The Security Council may investigate any dispute, or any situation which might lead to intemational friction or give rise to a dispute, in order to determine whether the con- tinuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
Article 35
1. Any Member of the United Nations may bring any dis- pute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.
2. ….
3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.
The Security Council affiatively enters the dispute in articles 34-38. In Article 34 the Security Council may, on its own, conduct an investigation to determine if a "dis-pute" or a "situation" is one likely to endanger the main- tenance of international peace and security. Article 35, paragraph 1, fimishes another means of getting a "dis- pute" or "situation" before the General Assembly or the Security Council. Article 35, paragraph 3, was inserted in order to keep distinct the separate roles of the General As- sembly and the Security Council. Article 11 permits the General Assembly to discuss matters relating to interna- tional peace and security and to make recommendations with regard to any such question to the state or states con- cerned or to the Security Council. Article 12 prohibits the General Assembly from recommending a solution to a dispute which the Security Council is then considering, unless the Security Council requests such a recornmenda- tion.
Articles 36, 37, and 38 contain the positive peacemaker rules that can be exercised by the Security Council if such a "dispute" or "situation" exists. Under article 36 it may recommend the procedure for settlement, be it arbitra- tion, conciliation, or adjudication. For example, in the
1946 Corfu Channel dispute between Albania and the United Kingdom, the Security Council recommended that the parties go before the International Court of Justice. 31 If the parties themselves cannot settle their dis- putes they are obliged to refer it to the Security Council who may, under article 37, either recommend a procedure for settlement or recommend the actual terms of settlement. Article 38 permits the Security Council to make recommendations to the parties at any stage of a dis- pute if the parties so request. Article 36 places the Security Council in the role of a mediator. In articles 37 and 38, the Security Council is given the authority of a conciliator. Mediation and conciliation, the two nonjudicial means of settling disputes, are therefore put at the disposal of the Security Council.
31. Id. at 360, 506, 507.
Pam 27-161-1

The weakness in chapter VI is that nowhere are the par-
3
ties actually obliged to settle the dispute. 32 Article 33 only imposes upon them the burden to seek a solution. If they cannot find a solution, article 37 requires them to refer the matter to the Security Council. However, the Security Council can only recommend a solution to them. Neither party is bound to accept this recommendation.
If the procedure of padk settlement is exhausted by the stages described above the Security Council may under the enforcement action of chapter W apply sanctions if the unsolved situation constitutes a breach of the peace, a threat to the peace, or an act of aggression.
b. The Forcible Settlement of Disputes

(1)
The Charter Provisions. Chapter W (Articles 39-50) outlines measures which are to be adopted by the United Nations in the event of (1) a threat to the peace,

(2)
breach of the peace, or (3) an act of aggression. Before settingforth chapter W,it is necessary to quote three arti- cles of the Charter which precede it and which throw light upon the chapter's meaning.

Article 2(7)

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are es- sentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to set- tlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under chapter W.
Article 24(1) In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of in- ternational peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in ac- cordance with the present Charter.
CHAPTER W
ACTION WITH RESPECT TO THREATS TO
THE PEACE, BREACHES OF THE PEACE,
AND ACTS OF AGGRESSION

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggres- sion and shall make recommendations, or decide what measures shall be taken in accordance with Article 41 and 42, to maintain or restore international peace and security.
Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommenda- tions or deciding upon the measures provided for in Arti-
32. Eagleton, op. cit. supra note 29, at 502.

cle 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desira- ble. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
Article 41

The Security Council may decide what measures not in- volving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic rela- tions and of rail, sea,air, postal, telegraphic, radio, and other means of communication, and the severance of dip- lomatic relations.
Article 42

Should the Security Council consider that measures pro- vided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Na- tions.
Article 43 All members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, in- cluding rights of passage, necessary for the purpose of maintaining international peace and security.
Two developments not contemplated at San Francisco in 1945 have altered somewhat the method which the drafters of the Charter outlined in chapter W. The first was the failure of all members to enter into any agree- ments which would place armed forces at the call of the Security Council. The second was the cold war and the rise of anticolonial sentiment which prevented, to a great ex- tent, the unanimity of action required of the permanent members before the Security Council could take effective action. The result has not been inaction on the part of the World Organization. It has reacted to criseswith the forces at hand, and through the organ or organs best adapted at the moment to deal with the situation. For example, the Security Council was the fust to react in Korea in 1950, followed by the General Assembly when the Security Council was no longer able to function effectively. In Suez in 1956 it was the General Assembly alone. In 1960 both the Security Council and the General Assembly played roles in this crisis. In addition, the Secretariat took over the functions originally contemplated by the Military Staff Committee established under Article 47 to advise the Security Council on all questions relating to its military re- quirements and the armed forces that were to be at its dis-
posal. A partial survey of United Nations practice in peace keeping will illustrate the actual operation of the Charter provisions.

United Nations Practice. (2)

(a)
Korea. Hostilities in Korea commenced on June 24, 1950. On June 25 the Security Council was con- vened at the request of the United States to consider the matter. The Security Council, under Article 39, deter- mined by a vote of 9-0, with one abstention, and one member absent (U.S.S.R.) ,that a breach of the peace had occurred. Under Article 40, the Security Council then called for an immediate cessation of hostilities and the withdrawal of North Korean forces to the 38th parallel. 33 On June 27, when the Security Council again met, it was evident that the North Korean forces had not complied with the provisional measures of the day before. The Security Council was then faced with a problem. It had no forces at its disposal because no agreements under article 43 to place national forces at the disposal of the Security Council had ever been entered into by any member. The Security Council therefore under Article 42, made the following recommendation on June 27:

The Security Council . . . recommends that the Mem- bers of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area. 34
Lacking any real militarycommand structure for directing the efforts of the member states who complied with the recommendation on June 27, the Security Council on July 7 further recommended that:
All members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions make such forces and other assistance availa- ble to a unified command under the United States. 35
The United States, therefore, acted as the agent of the United Nations in Korea. General MacArthur was ap- pointed by the President of the United States to command this unified command. However, it was the United States which directed the unified command. The United States did so in compliance with the Security Council's recom- mendation on July 7. The died command was formed by a series of bilateral agreements between the contribut- ing members and the United States.
When the Soviet Union returned to the Security Council the Council was unable to take further effective action. The Soviet Union was absent because of its boycott of the Council over the Council's refusal to seat the Red Chinese Government. The U.S.S.R. was under the mistaken im-pression that its absence amounted to a veto of Security Council actions. The arena of UN activity then switched to
33.
5 U.N. SCOR (473rd mtg.) 7, 13-14 S/1501 (1950).

34.
5 U.N. SCOR (474 mtg) S/1511 (1950).

35.
5 U.N. GAOR Supp. (No. 2) 25 M1361, U.N. Doc.S/1583,9

U.N. Bull. No. 3, 96 (1950).
the General Assembly. Under its now famous "Uniting
for Peace Resolution" the General Assembly made the
following statement:
If the Security Council, because of lack of unanimity of
the permanent members, fails to exercise its primary
responsibility for the maintenance of international peace
and security [the General Assembly may] make appropri-
ate recommendations to Members for collective
measures, including in the case of a breach of the peace or
act of aggression the use of armed forces when necessary,
to maintain or restore international peace and security. 36
The General Assembly assumed this secondary respon- sibility for the maintenance of peace under articles 10 and 11 of the Charter which permit it to make recommenda- tions to members of the U.N. It was hotly debated at the time of the General Assembly actually had such authority. 37 However, subsequent events in the Middle East and the Congo have confumed in practice and law the existence of such authority. 38

Before examining these situations, however, it should be noted that the United Nations Command in Korea still fulfis its functions although it is the United States which carries out these functions on behalf of the United Na- tions. In 1975, the United States informed the U.N. Security Council that it was ready to terminate the U.N. Command in Korea provided that an alternative arrange- ment could be made for maintaining the 1953 armistice accord. In the same year, the U.N. General Assembly adopted two competing resolutions on Korea. Resolution 3390 A, supported by the United States, called for negotiations to find an alternative arrangement for preserving the Korean armistice by the nations directly in- volved-North and South Korea, China, and the United States. Resolution 3390 B called for a dissolution of the
U.N. Command, withdrawal of all foreign troops from South Korea, and for a peace agreement between the "real parties to the armistice." 39 The Korean situation awaits future developments and a final settlement, but this has not altered the historical fact of United Nations inter- vention and its authority to do so.
(b) The Middle East. When fighting broke out on 29 October 1956 between Egypt and Israel, the Security Council attempted to pass a resolution calling for a cease fire under article 40. 40 This resolution was vetoed by England and France. Here then was the first difference be- tween the U.N. action in the Middle East and in Korea.
36. U.N. Gen. Ass. Off. Rec. 5th Sess. Supp. No. 20, 10 (M1775) (1950).
37. See Stone, Legal Controls of International Codict 268-278

(1959) for a synopsis of the argument for and against the legality under .articles 10 and 11 of the "Uniting for Peace" Resolution.
38. Advisory Opinion on Certain Expenses of the United Nations, (1962) I.C.J. 151.
39. Digest of United Sutes Practice in International Law 820-827 (Dept. of State 1975).
40. 11 U.N. SCOR S/3710 (Oct -NOV-Dee 1956).

The Security Council could not act at all. On November 2, the General Assembly then took up the matter. It called for a cease fire. 41 None of the parties to the hostilities, which now included England and France, carried out im- mediately the terms of the General Assembly call for a ceasefire. On November 4, the General Assembly, under section A of its Uniting for Peace Resolution, called for a voluntary U.N. Force to restore peace and security in the area. 42 The General Assembly intended to call for an en- tirely new force and not to utilize the Unified Command which had been organized at the start of the Korean War and which was still in existence in Korea. England an- nounced that she would welcome such a force if Egypt agreed that such a force could enter her territory. 43 On November 7 all hostilities had ceased. Therefore, the force which the General Assembly intended to send did not have the mission of restoring peace, but of maintain- ing it. Peace had already been restored. The force could be small. Therefore, instead of working through a big power agent as was done in Korea, the General Assembly authorized the Secretary General to gather such a force entitled The United Nations Emergency Force. 44 The General Assembly formed an Advisory Committee on 7 November 1956 to assist the Secretary General. 45 The Secretary General, after consulting with the Advisory Committee, issued regulations for this United Nations Emergency Force on 20 February 1957.46 These regula- tions defined the relationship between the Force and the host state, the relationship between the contributing members and the Force, and the relationship between the Force and the United Nations.
The United Nations Emergency Force was more an emergency police force, than it was an emergency military force. It could not compare in power to the Unified Com- mand in Korea. It did serve to help maintain the peace for eleven years. In 1967, the United Arab Republic re- quested the withdrawal of UN troops from its territory. Secretary General U Thant ordered the withdrawal, and the 1967 Middle East War followed.
(c) The Congo. On 12 July 1960, the President and the Prime Minister of the Republic of the Congo ad- dressed to the Secretary General a message requesting military assistance becauseof the dispatch of troops from Belgium to the Congo. 47 There was at the same time a breakdown of internal order in the Congo. However, this fact did not prompt the request for assistance. On July 13
U.N. Doc. S/4382 (1960). Id. at Resolution 1'001 (ES-1). Id. at Resolution 998 (ES-1). 41.
U.N. GAOR (1st Emg.Sp. Sess. Supp. No. 1, Res. 997) (ES-1) (1956).

42.

43.
Reply by the British Gov't to Mr. Harnmarskjold's cable of Nov. 4, 1956, Nov. 5, 1956.

44.
U.N. GAOR (1st Emg. Sp. Sess. Supp. No. 1, Res. 1000) (ES-1) (1956).

45.

46.
ST/Smetary-General's Bulletin, United Nations Emergency Force, No. 1, dated 20 February 1957.

47.

the Congo leaders made it clear to the Secretary General
that the purpose of the request was to protect the Congo
from Belgian military intervention.
The Secretary General requested an urgent meeting of the Security Council and presented to it the requests he had received from the Congo Republic. No threat of veto stood in the way of any action the Security Council decided to order. The Security Council adopted two basic resolutions. The first on 14 July "called upon" the Government of Belgium to withdraw its troops from the territory of the Congo and authorized the Secretary General:
To take the necessary steps, in consultation with the Government of the Republic of the Congo, to provide the Government with such military assistance, as may be necessary, until, through the efforts of the Congo Government with the technical assistance of the United Nations, the national security forces may be able, in the opinion of the Government, to meet fully their tasks. 48
There was an interplay at the beginning between the pres- ence of Belgian troops and the breakdown of law and order. Belgum originally intervened because law and order had broken down. Therefore, in order to hasten the withdrawal of Belgian troops, the Security Council authorized the Secretary General to use U.N. troops to assist the local authorities in restoring law and order.
The Secretary General, under authority of the Security Council Resolution of July 14, 1960, proceeded to organ- ize a force based as far as possible upon his experience in the Middle East. However, there was one basic difference. In 1956 the United Nations Emergency Force was estab- lished by the General Assembly as a subsidiary organ with a United Nations Commander appointed by the Assem- bly, who has acted under the instructions and guidance of the Secretary General. The force authorized for the Congo was exclusively under the c~rnrnand of the Secretary General as the agent of the Security Council.
On July 22, 1960, the Security Council passed a second resolution which stated that the complete restoration of law and order in the Republic of the Congo would con- tribute to the maintenance of international peace and security. 49 With the passage of this resolution, the rnis- sion of the U.N. in the Congo became twofold, (1) to hasten the withdrawal of the Belgian troops and (2) to restore law and order. The requests of the Congo on July 12 and 13 only applied to the first. However, on July 29, 1960, the Government of the Republic of the Congo agreed with the Secretary General that it "will be guided, in good faith, by the fact that it has requested military assistance from the United Nations and by its acceptance
48.
U.N. Doc. S/4387, text of which is contained in 43 Dep't State Bull. 161 (1 August 1960).

49.
U.N. Doc. S/4405, text of which is contained in 43 Dep't State Bull. 223 (8 August 1960).

of the resolutions of the Security Council of July 14 and
22, 1960." 50 On November 27, 1961 regulations somewhat similar to those for the United Nations Emergency Force in the Middle East were adopted for the United Nations Force in the Congo. The force included at its greatest extent 20,000 soldiers from a number of participating nations. It remained in the Congo from July of 1960 until June of 1964. The purpose of the force was to maintain law and order, to prevent foreign intervention, and to help unify the country. With United States support it was largely responsible for defeating the attempt of the province of Katanga to be independent. After resistance in Katanga had been eliminated, the U.N. force was withdrawn. This proved to be premature. The leader of the Katanga reces- sionist movement, Thsombe, returned. A full-scale civil war ensued. At one point, the United States supported Belgium in a paratroop operation to rescue several hundred white persons held as hostages. 51
(d) Other Situations and Future Prospects. Another situation which should be mentioned was the creation of a United Nations peace-keeping force in Cyprus in 1964. This force was never, however, made large enough to accomplish any other purpose than con- tributing to the negotiation between the rival parties. Due to negative reaction against the Congo operation, the
U.N. force in Cyprus was deliberately kept small to avoid taking any side in the conflict. Firepower was not used ex- cept for self-defense. Meanwhile, the United Nations called for negotiation and settlement. It was to no avail. Turkey intervened and partitioned the island by force. A final settlement is still awaited. The Korean situation was an example of the fact that effective action could be taken where enough of the mem- bers of the United Nations support it. While the fact that the USSR was not present in the Security Council to block initial action may be unique, the Uniting for Peace Resolution still stands as a possible means for the United Nations to take military action to keep the peace even where the members of the Security Council disagree. To what extent it will act in the future is doubtful.
In the Suez, United Nations intervention was only effec- tive while the support remained to keep the force there.
The fact that it was so quickly withdrawn indicated lack of support for its presence. The Congo operation resulted in a feeling by many states that the United Nations should not become directly involved in disputes through military intervention. It may be impossible not to support either one side or the other. Direct U.N. military intervention has since that time remained on a low level as in the Cyprus situation. And while the United Nations has ac- tively debated almost every conflict which occurs in the world, the major peace movements have taken place out- side of its control. The Vietnam war ended with an agree- ment negotiated mainly between the United States and North Vietnam. 52 The latest Arab-Israeli hostilities were with an agreement between Egypt and Israel with the United States agreeing to station a small civilian force to monitor the peace. 53 It seems that there is an increasing tendency for peace keeping to take place either as the result of the individual relations of the parties involved or through the intervention of one of the great powers. This does not mean that this tendency will continue, nor that any conflict situation should be examined without reference to United Nations settlement requirements or effort.
The fact that the United Nations may take effective action
in the future remains a definite possibility. Also, the
United Nations seems to be taking an increasingly impor- tant role in the settlement of disputes by its influence on world opinion as to when force may or may not be justified on the part of a state. After many years of study, the United Nations issued, in 1974, Resolution 3314, which defined Aggression. It has also issued many other resolutions, such as Resolution 2625 on The Principles of International Law concerning Friendly Relations and Co- Operation Among States (Adopted in 1970). The study of these resolutions involve the legality of the use of force and should be studied in detail in relation to the law of war. However, it has become a function of the United Na- tions to define and interpret rules of international law even though it cannot make law. If the member states are con- vinced of the illegality of the acts of any particular state, all of the peace keeping powers enumerated in the Charter may be utilized.
Section 11. THE INTERNATN )NAL COURT OF JUSTICE
9-4. The Judges of the Court. The Court consists of 15 judges, elected for nine-year terms no two of whom are nationals of the same state. 54 Vacancies are faed by a complicated procedure. The Secretary General of the United Nations addresses a written request to the mem- bers of the Permanent Court of Arbitration inviting them to nominate candidates for the position. 55 Each state group on the Permanent Court of Arbitration nominates not more than two persons if one seat is to be fded. If
50. U.N. Doc. S/4389, Add. 5 (1960).

Stat. Int'l Ct. Just. art. 3, para. 1. 51.
See "The Question of the Congo" in Everyman's Unigd Na-tions. supra, n. 1 at 143.

52.
Agreement on Ending the War in Vietnam, 1973, United States -North Vietnam, 24 U.S.T. 1, T.I.A.S. No. 7542.

53.
Peace Agreement and U.S. Proposal, 1975, Fgypt-Israel, in Dept. of State Bull. LXXIII, No. 1982, Sep. 29, 1975, pp. 466-470.

54.

55.
Stat. Int'l Ct. Just. art. 5, para. 1. The Permanent Court of Ar-bitration was formed in 1899. It is not a court in the institutional sense of the term, but rather a list of from 150 to 200 persons from whom a panel of arbitrators may be selected. Panels drawn from this list have handled 20 cases, many of which were extremely important. The Court, though not used since 1940, is still in existence.

Pam 27-161-1

more than one seat is to be fded, each group may nomi-
\ nate up to four, no two of whom are of its own na-tionality. 56 In making up its list, each national group is urged to consult its highest court ofjustice, schools of law, and national academies. 57 The Secretary General places all nominations on one list, a copy of which he sends to the Security Council and the General Assembly. 58 The candi- date or candidates who obtain an absolute majority of votes in the separate elections which are held in the General Assembly and in the Security Council shall be considered elected for a nine-year term. 59 The members of the Security Council and General Assembly are urged befhe the election to bear in mind that the court should represent the principal legal systems of the world. 60 In this way two Communist judges are usually elected to the Court despite the fact that Communist states will not uti-lize the Court as applicants or allow themselves to be brought before it as respondents. 9-5. The Law Applied by the Court. Article 33
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a.
international conventions, whether general or partic- ular, establishing rules expressly recognized by the con- testing states;

b.
International custom, as evidence of a general prac- tice accepted as law;

c.
the general principles of law recognized by civilized nations;

d.
subject to the provisions of article 59 [article59 pro-vides that "the decision of the Court has no binding force except between the parties and in respect of that particular case"], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as sub-sidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
9-6. The Jurisdiction of the Court. It must be born in mind at the outset that only states may be parties before the Intemational Court of Justice. 61 The Court assumes jurisdiction of a dispute or disagreement in two ways. The first is with the consent of the states concerned. These are usually called "contentious cases" because there are two parties actually in a dispute before the court. The second type of case is an "advisory opinion" requested by an
56. Stat. Int'l Ct. Just, art. 5, para. 4 and art. 14.

57. Id. art. 6. See Baxter, The Procedure Employed in Connection with the United Skates Nominations for the International Court in 1960, 55 Am. J. Int'l L. 545 (1961), for an account of the actual operation in the United States of article 6.
58.
Stat. Int'l Ct. Just. art. 7.

59.     
Id. at arts. 10 and 13.

60.     
Id. at arts. 10 and 13.

61.
Id. at art. 34, para. 1.

authorized international organization. 62
a. Contentious Cases. Two members of the United Nations may agree to take a certain dispute which has arisen between them before the International Court. They may do this on ad hoc basis 63 or may agree beforehand that in the future the Court willhave jurisdiction in certain cases. 64 This latter method is prohded by the so-called "optional clause" of the Statute of the Court. This clause is as follows:
Article 36(2). The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state aaxpthg the same obligation, the jurisdiction of the Court in all legal disputes concern- ing:
a.     
the interpretation of a treaty;

b.     
any question of international law;

c.     
the existence of any fact which, if established, would constitute a breach of an international obligation;

d.     
the nature or extent of the reparation to be made for the breach of an international obliga- tion.

The declarations referred to above may be made uncondi- tionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
All members of the United Nations are automatically par- ties to the International Court. 65 Thisfact, however, does not permit one U.N. member to bring another before the International Court unless that member consents, either beforehand by accepting the "optional clause", at the time by an ad hoe agreement between the parties con-
,
62. The following organs and agencies are at present authorized to request advisory opinions:
United Nations:
General Assembly,
security Council,
Economic and Social Council,
Trusteeship Council,
Interim Committee of the General Assembly,
Committee on Applications for Review of Administrative Tribunal
Judgements; International Labour Orgarhtion; Food and Agriculture Chganhtion of the united Nations; United Nations Educational, Scientific and Cultural Organization; World Health Orgmization; International Bank for Reconstruction and Development; International Fice Corporation; International Development Association; International Monetary Fund; International Civil Aviation Chganhtion; International Telecommunication Union; World Meteom1ogicel Orgarhtion; Inter-Governmental Maritime Consultative Chganhtion; International Atomic Energy Agency.
63.
Stat. Int'l Ct. Just. art. 36, para. 1.

64.     
Id. at art. 36, para. 2.

65.     
U.N. Charter art. 93, para. 1.

Pam 27-161-1
cerned, or beforehand by a separate agreement.
A majority of the members of the United Nations has not accepted the "optional clause". 66 Those that have, have usually done so with reservations. The United States has accepted the "optional clause" with a reservation which reserves from the jurisdiction of the court. "Dis- putes with regard to matters which are essentially within the domestic jurisdiction of the United States." 67 This reservation would, on the whole, be innocuous but for the addition to it of the now well-known "Connally Reserva- tion." To this phrase Senator Connally added the words "as determined by the United States." The legal diff~culty created by this addition is that article 36, paragraph 6, of the Statute of the International Court requires:
In the event of a dispute as to whether the court has ju- risdiction, the matter shall be settled by the decision of the Court.
The Court has not yet been required to pass upon the compatibility of the Connally Reservation with the re- quirements of article 36, paragraph 6.
b. Advisory Opinions. The rendering of advisory op@- ions by the International Court is governed by Article 96 of the Charter of the United Nations and by Articles 65-68 of the Statute of the Court. Article 96 of the Charter authorized the General Assembly or the Security Council to request the International Court of Justice to give an advisory opinion on any legal question. The General Assembly has taken advantage of this oppor- tunity twelve times. The Security Council has asked the Court for only one advisory opinion. A brief analysis of the advisory opinions rendered by the Court follows.
9-7. Cases Before the Court. The International Court, as any court, can best be understood and evaluated by analyzing and understanding the disputes with which it has dealt, and the effect it has had upon their solution. Therefore, it will be the purpose of the remainder of this chapter to present the cases upon which the court has ren- dered an opinion. The contentious cases are presented under four general headings: Disputes relating to Ter- ritorial Rights; Disputes relating to Violation of Airspace; Disputes relating to Nationals; and Disputes of a Com- mercial Nature. 68 Within each topic area the cases are generally presented chronologically according to the date the dispute was presented to the Court. The advisoryopin-ions are also generally presented in chronological order ac-
66.
As of August 15, 1960, 38 states accepted the "optional clause," U.N. OK of Public Information, The International Court of Justice, 9 (2d ed. 1960).This faure was unchanged as of Jan. 1, 1963, Dep't State, Treaties in Force 280 (1963).

67.
Res. 196,Aug. 2, 1946. Text of the United States declaration at the time of its adherence to the compulsory jurisdiction of the Int'l Ct. Just. on Aug. 26, 1946 is contained in 15 Dep't State Bull. 452-453 (1946)and in 61 Stat. 1218 (1946).

68.
Where a particular decision may have connections with several topic areas, a cross-reference has been made. Additionally, several ad-visory opinions have been cross-referenced into the contentions cases.

cording to the date the Court is requested 69 to render the opinion.
a. Contentious Cases.
(1) Disputes relating to territorial rights. 70

The Corfu Channel Case (United Kingdom v. Albania) (1947-1949). 71 In 1946 several British warships were fued upon by Albania shore batteries while proceeding through the Corfu Channel which lies within the territorial waters of Albania. Great Britain protested and announced that she was sending warships again through the Channel with instructions to fue iffued upon. No fue came from the Albanian shore batteries. However, two of the ships struck mines which caused considerable damage and loss of life. Great Britain then, against the protests of Albania, swept the Channel clear of mines.
Albania, along with all other Communist states, had not accepted the "optional clause" in any form. However, upon the urging of the Security Council both Great Britain and Albania agreed to submit the dispute to the Interna- tional Court. After agreeing to submit the case, Albania challenged the jurisdiction of the Court to award damages against it, on the ground that it had only agreed to a limited submission to the jurisdiction of the Court. This objection was overruled.
The Court considered that it could not hold a state auto- matically responsible for everything that occurs within its territory. However, the evidence of this case certainly showed that Albania had knowledge of the existence of the mines. Therefore, Albania was liable to Great Britain for the damages sustained if Great Britain had a right to use the Corfb Channel. The Court held that since it was a shipping lane connecting two open bodies of water all states had a right to it in time of peace for innocent passage. The Court refused to distinguish between major and minor shipping lanes for the purposes of the right of innocent passage. It also refused to say that Great Britain's second passage was not innocent merely because it was performed to test Albania's hostile intentions. However, Great Britain's third entry into the channel in order to sweep it of mines was not for the purpose of passage. Therefore, it amounted to an unauthorized invasion of Albanian territory. Albania was ordered to pay a total sum of 844,000 pounds for the damage caused to the ships and
See supra note 9. 69.

70.
For related "contentions" case, see Appeal Relating to the Ju- risdiction ofthe ICAO Council, idra note 63;for related advisory opin- ion, see International States of Southwest rqfrca, idra note 100;Legal Consequences for States of the Continued Presence of South Ajrica in Namibia (South West Africa) notwithstanding Securiw Council Resolu- tion 276 (1970). idra note 108 and Western Sahara, iqfra note 113.

71. The case was heard in three phases by the Court: Corfu Chan- nel Case (Preliminary Objection) [I9471I.C.J. Rep. 7, 15; Corfu Chan-nel Case (Merits) [I9471I.C.J. Rep. 4;Corfu Channel Case (Assess-ment of the Amount of Compensation) [I9491I.C.J. Rep. 237.Cases are reported in 42 Am. J. Int? L. 690 (1948); 43 Am. J. Int? 558 (1949);and in 44Am. J. Int'l L. 579 (1950).
as compensation for the deaths of the members of the

\     crews and for personal injuries. Albania refused to take part in the hearing on the amount of the damages and has ignored the order to pay Great Britain.
The Security Council played a role in this case that from subsequent cases, has been somewhat unique. It was the Security Council which recommended, pursuant to its authority under article 36, paragraph 1, of the Charter that the parties take their disputes to the International Court. It was also the Security Council to which Great Britain, under article 95, paragraph 2, of the Charter, brought its complaint of Albania's refusal to pay the assessed damages.
The Fisheries Case (United Kingdom v. Norway) (1949-1951). 72 In 1935 Norway enacted a decree by which it measured its territorial waters outward from a series of straight base lines which were drawn between points along its famous rock rampart. This rampart is formed by numerous small islands lying off almost the en- tire length of the Norwegian Coast. By such a method Norway was able to include within its territorial waters certain fishing grounds for the exclusive use of its own fishermen to the detriment of British fishemen. Great Britain challenged the validity of this system of measure- ment, contending that a time-honored rule of interna- tional law required that territorial seas be measured from the coast. The Court did not dispute the general ap- plicability of the rule contended for by Great Britain, but qualified it in this case because of the geographical peculiarities of the Norwegian Coast.
The Minquiers and Ecrehos Case (France v. United Kingdom) 73 (1 95 1 -1 953). 74 Minquiers and Ecrehos are two small groups of islets lying off the coast of France. Both were claimed by Great Britain and France. Under a special agreement between France and the United Kingdom, the Court was asked to determine which of the partieshad produced a more convincing proof of title. The decision of the Court reveals its approach to ownership of territory. It gave little weight to titles founded on docu- ments drawn up in the Middle Ages. It was more con- cerned with the direct evidence of possession and the ac- tual exercise of sovereignty. Both sides contended for cer- tain "critical dates" at which their titles became vested. They then sought to exclude evidence of the exercise of sovereignty by the other which might have occurred after their proposed "critical date." The Court avoided setting such a date, noting that Great Britain had exercised almost uninterrupted sovereignty over both islets. On that basis title in Great Britain was affied. The Court gave no
72. [I9511I.C.J. Rep. 3;reported in 46 Am J. Int? L. 348 (1952). cf, North Sea Continental SheU; idra note 39 and Fisheries Jurirdlcrion idra notes 42 and 44.
73. In proceedings instituted by means of a special agreement, the names of the parties are separated by an oblique line.
74.     [I9531I.C.J. Rep. 4;reported in 48Am. J. Int7 L. 316 (1954);
weight in and of itself to the fact that the islets were
geographically closer to France than they were to England. The Antarctica Case (United Kingdom v. Argentina) (1955- 1956). 75 The government of the United Kingdom instituted this proceeding against the government of Argentina seeking a resolution of a dispute as to the sovereignty of certain islands and lands in the Antarctic. Since the government of Argentina did not consent to the jurisdiction of the court, the case was removed from the Court's list without decision. 76
The Antarctica Case (United Kingdom v. Republic of Chile) (1955-1956). 77 The government of the United Kingdom instituted this proceeding against the govern- ment of Chile seeking a resolution of a dispute as to the sovereignty of certain islands and lands in the Antarctic. Since the government of Chile did not consent to the ju- risdiction of the court, the case was removed from the Court's list without decision. 78
The Right of Passage over Indian Territory Case (Portugal
v. India) (1955-1960). 79 Portugal possessed in India, at some distance inland from the Portuguese port of Daman, the two enclaves of Dadia and Nagar-Aveli. Portugal con- tended that the right of passage to and between these enclaves suff~cient for the exercise of its sovereignty had been denied by India. Portugal based its right of passage on agreements entered into in the 18th century, local custom since that time, and on general international law concerning enclaves. The Court found that Portugal had in 1954 the right of passage claimed by it but that such right was limited to the passage of private persons, civil of- ficials, and goods in general and did not extend to armed forces, armed police, arms, and ammunition. The Court found that the control so far exercised by India did not restrict Portugal in the exercise of its legitimate limited right of passage. In deciding the case, the Court acknowledged the existence of binding custom of local ap- plication distinct from general customary international law. India contested vigorously the Court's jurisdiction in this case. On December 18,1961, seventeen months after this opinion was delivered, India seized all Portuguese ter- ritory on the subcontinent of India. 80
The Sovereignty over Certain Frontier Land Case (Belgium v. The Netherlands) (1957-1 959). 81 The Belgian commune of Baerle-Duc and the Netherlands commune of Baarle-Nassau adjoin. A Communal Minute drawn up about 1838 attributed the now disputed land to
75.
[I9561I.C.J. Rep. 12;digested in 51 Am. J. Int'IL. 11 (1957).

76.
See [1955-19561I.C.J.Y.B. 77.

77.
[I9561I.C.J. Rep. 15;digested in 51 Am J: Int'IL. 11 (1957).

78.
See [1955-19561I.C.J.Y.B.77.

79.     
(19601I.C.J. Rep. 6;digested in Am. J. In17 L. 673 (1960).

80. For a legal analysis of this seizure see Wright, The GOA Inci-dent, 56 Am. J. Int? L. 617 (1962).
81. [I9581I.C.J. Rep. 209; digested in 53 Am. J. Int7 L. 937 (1959).

Baarle-Nassau. The Descriptive Minute and the Boundary Convention of 1843 attributed the land to Baerle-Duc. The Netherlands claimed that this was a clerical mistake because the Descriptive Minute was supposed to be simi- lar to the Communal Minute. The Court did not find ~~cient
evidence that a mistake had actually been made. Therefore, in 1843 the land belonged to Belgium.Since 1843 the Court did not find suff~cient exercise of sovereignty on the part of the Netherlands to replace the title already vested in Belgium.
The Court's reasoning here should be compared to that in the Minquiers and Ecrehos Case. 82 Had the Netherlands been able to put forward as strong a caseas did Great Brit- ain for the exercise of its sovereignty over the disputed land the result might have been different. It is not possible to say so with any great assurance because the extent of adverse possession in international law is not clear. In the Minquiers and Ecrehos Case the Court never concluded that France at any time had title to the islets. Therefore, Great Britain's exercise of sovereignty was not adverse to any other title holder.
The Arbitral Award Made by the King of Spain on 23 December 1906 Case (Honduras v. Nicaragua) (1958-1960). 83 On October 7, 1894, Honduras and Nicaragua signed a convention for the demarcation of the boundary between the two countries. In October 1904, the King of Spain was asked to determine that part of the frontier line on which the two countries had been unable to reach agreement. The King gave his arbitral award on December 23, 1906. Nicaragua refused to comply with it on the grounds that no reasons were given for the deter- minations made, that the King of Spain had no authority to make the award, and that the award was not clear. The Court rejected these objections, holding that Nicaragua must comply with the award. The Court was not asked to re-examine the actual basis of the award or to draw a new boundary itself.
The case illustrates the difficulties that arise when the basis of an arbiter's award is attacked. Naturally an arbitrator's powers are limited and if he exceeds them his award may be invalid. The difftculty is establishing suitable procedures for determining if the power has actually been exceeded. It was only resolved in this caseafter a resolu- tion of the Organization of American States requested the parties to take the dispute to the International Court of Justice.
The Temple of Preah Vihear Case (Cambodia v. Thai-land) (1959-1962). 84 The merits of the case involve a dispute as to territorial sovereignty over the region of the Temple of Preah Vihear and its precincts. It represents the
82. See supra note 2 1.

I19621I.C.J. Rep. 6;digested in 56 Am J. IntlL.1033 (1962). 83.
[I9601 I.C.J. Rep. 192; digested in 55 Am. J. Int? L. 478 (1961).

84.

kind of dispute the World Court is capable of solving. It awarded the disputed territory to Cambodia, and Thailand announced its wihgness to abide by the decision. In the preliminary objections Thailand argued forcefully that its adherence to the compulsory jurisdiction of the Interna- tional Court made on 26 May 1950, was ineffective because it had intended to renew its 1940 adherence to the Permanent Court. Under the reasoning of the Court in the Aerial Incident of 27 Jub 1955 between Israel and Bulgaria, 85 the Court held that adherences, such as Bulgaria's, had lapsed when the World Court was discon- tinued. Thailand maintained that hers was similar to Bulgaria's. Therefore she could not "renew" something that had lapsed five years previously. The Court refused to extend the rule to Thailand because it looked upon Thai- land's 1950 adherence as a straightforward adherence and not as a renewal. The Court then went to the merits.
According to the Treaty of 13 February 1904 between France and Siam the frontier was to follow the watershed line. In the autumn of 1907 the Thai (then Siamese) Government, which had no mapping service, requested the French to map the frontier region. The French did so. The map supplied the Siamese Govemment showed the Temple on the Cambodian side of the Frontier.
Thai officials said nothing. It was not until 1958 that they maintained that the Temple region was on the Thai side of the watershed. Therefore, under the Treaty of 1904, the territory belongs to Thailand, the map being unofficial and not part of the treaty document.
The Court agreed that it was not part of the treaty. The Court also said that it did not have to decide if the map was inconsistent with the treaty because Thailand had shown by its silence that it accepted the map as accurate. Thailand explained her silence by contending that her local officers in fact had been in possession of the Temple from the beginning.The Court rejected the effect of local Thaiacts around the Temple which appeared to be in con- flict with the view of the Thai Central Government. For example, when the Prince of Siam visited the Temple in 1930, he was welcomed there by the French President of Cambodia province. No protest of comment was made.
The case is interesting for its discussion of mistake. Again, the court, as in the Frontier Case86 was slow to say that mistake will negate consent. Also, the acts of sovereignty of local officials will not be sufficient if not clearly reflect- ing central authority. In the Minquiers and Ecrehos case, 87 the acts performed did reflect the views of the Bri- tish Government.
The South West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa) (1960-1966). 88 The govern- ments of Ethiopia and Liberia filed separate actions (which
8s. See igra note 55.
86.
See supra note 28.

87.
See supra note 21.

88. [I9661I.C.J. Rep. 6;reported in 61 Am.J. Int?L. 116 (1967).
were consolidated by the Court) concerning the status of the League of Nations mandate for South West Africa and whether South Afiica had breached certain limitations of the mandate (e.g., alleged "military training of the na-tives," alleged erection of military installations in the ter- ritory, etc.), as well as certain responsibilities. After con- sidering many arguments by Ethiopia and Liberia with regard to their standing to raise issues concerning the ex- istence of the mandate and South Africa's conduct thereunder, the Court declined to decide the case on the merits fmding that (notwithstanding the nonexistence of a body, e.g., the Council of the League of Nations, that could properly bring into question the conduct of a man- datory) the applicants had not established any right to raise the issues in question to the Court. As a result, the Court rejected the claims. 89
The Northern Cameroons Case (Cameroon v. United Kingdom) (1961-1963). 90 This dispute concerned the Cameroons which were part of the territory renounced by Germany in the Treaty of Versailles and which were placed under two League of Nations mandat-ne under France and one under the United Kingdom. The United Kingdom further divided its mandate into North- ern Cameroons (administered as a part of Nigeria) and Southern Cameroons (administered separately from Nigeria). Upon the creation of the United Nations, the Cameroons mandates were included in the trusteeship system of the United Nations. In 1960, French-ad- ministered Cameroons gained its independence and became the Republic of Cameroon. On the recommenda- tion of the United Nations General Assembly, the United Kingdom held plebiscites to determine the wishes of the inhabitants of its mandated territory. In early 1961, Southern Cameroons voted to join the Republic of Cameroon, and Northern Cameroons voted to join the Federation of Nigeria. The United Nations General As-sembly approved these results (the Republic of Cameroon voting against the approving resolution) in April 1961 and ordered the trusteeships of the United Kingdom be termi- nated upon Northern Cameroons joining Nigeria and Southern Cameroons joining Cameroon. In May 196 1, the Republic of Cameroon instituted proceedings before the Court claiming that the United Kingdom had breached the provisions of its trusteeship with respect to Northern Cameroons (e.g:, alleged irregularities in hold- ing the plebiscites). Southern Cameroon joined the Re- public of Cameroon in October 1961, and Northern Cameroons became a part of the Federation of Nigeria in 1961. The opinion of the Court was handed down in December 1963. The Court stated that it was not required to hear every case in which it has jurisdiction, as a decision of the Court must have some practical impact and con- tinuing applicability. In the caseat hand, the Court found
89.
See [1965-19661I.C.J.Y.B. 83.

90.
(19631I.C.J. Rep. 15;reported in 58Am J. Int'lL. 488 (1964).

that while a dispute capable of adjudication might have been present when the proceedings were commenced (May 196 I), the dispute had been overcome by interven- ing events, i.e., Northern Cameroons had ceased to exist when it became part of the Republic of Nigeria in June 1961, thus terminating the trusteeship under the order of the United Nations General Assembly (April 1961). A declaratory judgment to the effect that prior to the ter- mination of the trusteeship of Northern Cameroons the United Kingdom had breached its obligations would, the Court declared, be without purpose. At a result, the Court determined that it would not decide the merits of the claims of the Republic of Cameroon. 91
The North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany
v. Netherlands) (1967-1969). 92 In 1967 Denmark, the Netherlands, and the Federal Republic of Germany (FRG) submitted by agreement to the Court the issue of how a portion of the North Sea Shelf should be divided among the three countries. (The claims of the United Kingdom to a portion of the North Sea Shelf had been resolved prior to these proceedings by agreement of the four parties.) Since the North Sea is relatively shallow, it lends itself to exploration for hydrocarbon deposits. Den- mark and the Netherlands argued for a division of the dis- puted Shelf area on the "equidistance principle" which would give to each country those portions of the Shelf that were nearer to its coast than to any point on the coast of any other country. Because of the nature of the Danish/Netherlands Coasts (protruding in the North Sea) and the German Coast (recessing inland), such a theory could have worked to the disadvantage of the FRG. The FRG argued that a "just and equitable share" (based on sea frontage) approach should be adopted. Article 6 of the 1958 Geneva Convention on the Continental Shelf, the Court observed, adopts the "equidistance rule" unless the parties agreed otherwise or "special circumstances" existed. The FRG argued that "special circumstances" did exist in the casei.e., the peculiar formation of the Ger- man Coast. The Court refused to apply either principle ad- vanced by the parties. The "equidistance rule," the Court found, was not binding under the 1958 Geneva Conven- tion because the FRG, although a signatory, had never formally ratified it and the FRG had not operated under it in a way that could give rise to an estoppel argument by Denmark or the Netherlands. Additionally, since the Convention allowed reservations with respect to Article 6, the "equidistance rule" could not be regarded as an emerging principle of customary international law. Likewise, the Court discarded the German proposal (the "equitable share" principle) by fmding that it would be inconsistent to the fundamental rule that "a coastal state's rights in respect of the continental shelf constituting a
9'. See [1963-19641I.C.J.Y.B. 95.
92. [I9691I.C.J. Rep. 3;reported in 63Am.J. Int? L. 591 (1969).
Pam 27-161-1
natural prolongation of its territory, exist pro facto and ab
initio by virtue of its sovereignty over the adjacent
land." 93 The Court concluded by delineating its solution:
''Vlhe boundary lines were to be drawn by agreements reached through good faith and meaningful negotiations, on the basis of equitable principles and taking into account the following particular factors; the general configuration of the parties' coastlines and any special or unusual features thereof; so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelfarea involved; and the element of a reasonable degree of proportionality between the extent of the continental shelfarea appertaining to each party and the length of its coast measured in the general direction of the coastline, taking into account the actual or prospective effects of any other continental shelf delimitations in the Same region." 94
The end result, the Court said, should be that each coun- try would receive the natural prolongations of its territory, with any overlap worked out by agreement, either as by a division or by joint exploration.
The Fisheries Jurisdiction Case (United Kmgdom v. Ice- land) (1972- 1974). 95 In this proceeding the United Kingdom protested Iceland's extension of its exclusive fisheries jurisdiction from 12 miles to 50 miles. Iceland did not take part in the proceedings, even though invited to on several occasions. (The Court declined to join this case with that of the Federal Republic of Germany (FRG) against Iceland because, although the basic issues were similar, the United Kingdom and the FRG took different positions with respect to their submissions; see next case.) The Court found that it had jurisdiction to render a judg- ment, despite the absence of Iceland's participation, because it had before it the necessary facts and law: In 1961 the United Kingdom and Iceland agreed by an Ex- change of Notes (which the Court considered a treaty) that the United Kingdom would no longer contest a 12- mile f~hingzone and that Iceland, while working on an extension of its fisheries jurisdiction under the 1959 policy of its Parliament ("Recognition should be obtained of Ice- land's right to the entire Continental Shelf area"), would not extend the zone without six months notice to the United Kingdom; if a dispute were to arise, the matter would be referred to the International Court of Justice. In 1971 Iceland announced to the United Kingdom that the 1961 agreement would be terminated and that the 12- mile limit would be extended to 50 miles. The United Kingdom disputed the right of Iceland to unilaterally ter- minate the 1961 agreement. After a number of incidents, the two countries in 1973 entered into a two year agree- ment by an Exchange of Notes which provided for interim
93.
Himel, Decisions of Internationaland Foreign Tribunals, 4Int'l Lawyer 920, 922 (1970).

94.
Id.

95. [I9741I.C.J. Rep. 3;reportedin 69Am.J. Int'lL. 154 (1975).
provisions "pending a settlement of the substantive dis- pute and without prejudice to the legal position or rights of either government in relation thereto." The United Kingdom sought a determination of four issues: Was Ice- land's claim to a 50 mile exclusive fisheries zone founded in international law? Was Iceland entitled, as against the United Kingdom, to extend the zone beyond the 12 miles agreed to in the 1961 agreement? Was Iceland entitled unilaterally to exclude or impose restrictions on United Kingdom ships beyond the 12 mile zone? And were the United Kingdom and Iceland under a duty to enter into negotiations with respect to conservation of the fisheries? Before addressing these matters on the merits, the Court concluded that the existence of the interim 1973 agree- ments was not a bar to its reaching a decision since the &is-pute was still ongoing. The Court recognized several prin- ciples of customary international law: the acceptance of a 12-mile exclusive fisheries zone and preferential fishing rights for the coastal state in the water immediately con- tiguous to the exclusive zone in situations of special de- pendence. The Court also quoted Article 2 of the 1958 Convention of the High Seas which declares that the prin- ciple of freedom of fishing is to "be exercised by all states with reasonable regard to the interests of other states in their exercise of the freedom of the high seas." (Emphasis added.) Notwithstanding Iceland's preferential fishmg rights, the Court concluded that Iceland could not ex- tinguish the concurrent rights of the United Kingdom in the adjacent waters beyond the 12-mile limit agreed to in 1961. The United Kingdom had traditional fishtng rights in and a certain dependence on the same waters. The at- tempt by Iceland to extend, as against the United Kingdom, its 12-mile limit to a 50-mile limit disregarded the exchange of notes in 1961, the interests of the United Kingdom, and was an infringement on the "reasonable- ness" principle of Article 2 of the 1958 Convention of the High Seas. Therefore, the Court concluded that Iceland could not unilaterally exclude or impose restrictions on United Kingdom ships beyond the 12-mile limit; however, the United Kmgdom was under an obligation in the 12-50 mile zone to take into consideration conserva- tion of the fisheries resources. Iceland and the United Kingdom were found by the Court to be under an obliga- tion to negotiate a solution for the fishing rights in the 12 to 50 mile zone, taking into consideration five factors: Ice- land's preferential fishing rights as a specially dependent coastal state; the traditional fishing rights and dependence of the United Kingdom in these waters; the interests of conservation; the fishing rights of both Iceland and the United Kingdom should be maximized, consonant with conservation considerations; and a continuing obligation to review the resources and the appropriate conservation
measures. 96 The Fisheries Jurisdiction Case (FMeral Republic of Ger-
96. See [1973-19741I.C.J.Y.B. 109.

many v. Iceland) (1972-1974). 97 In this proceeding the Federal Republic of Germany (FRG) protested Iceland's extension of its exclusive fisheries from 12 miles to 50 miles, arising out of the same facts as the immediately pre- ceding case. The Court declined to join this case with that brought by the United Kingdom, because the FRG case had an additional element, i.e., the FRG sought a deter- mination that "the acts of interference by Icelandic coastal patrol boats with fshing vessels registered in the Federal Republic of Germany were unlawful under international law and that Iceland was under an obligation to make compensation therefore to the Federal Republic. 98 Other than for this additional item, the decision in this casemir-rored that issued in the United Kingdom case (see im-mediately preceding case). With respect to the damages issued, the Court held that because of the abstract form of the claim, it was unable to render a decision because of in- sufficient evidence.
The Nuclear Tests Case (Australia v. France) (1973-1974). 99 The Nuclear Tes~

Case (New Zealand v. France) (1973-1974). 100 In 1973 Australia and New Zealand instituted proceedings in the Court to obtain a determination that France's atmospheric nuclear testing in the South Pacific Ocean was inconsistent with interna- tional law. During 1974, the French government made various representations that it intended to cease such test- ing (e.g., Communique of the Office of the President of the French Republic, dated 8 June 1974; note from French Embassy to New Zealahd Ministry of Foreign Affairs, dated 10 June 1974; and various other statements made by French officials, President of the Republic (25 July 1974), Minister of Defense (16 August 1974) and Minister of Foreign Affairs in the United Nations General Assembly (25 Sep 74)). Considering the totality of all the French pronouncements, the Court concluded that it was France's intention to terminate the tests and that they "constituted an undertaking possessing legal effect," 101 notwithstanding they were of a unilateral nature without a quid pro quo. The Court refused to speculate whether at some future time France would not comply with its com- mitment. Such being the case, the Court found that "no further pronouncement is required in the present case. It does not enter into the adjudicatory functions of the Court to deal with issues in abstracto, once it has reached the conclusion that the merits of the case no longer are to be determined. The object of the claim having clearly disap- peared, there is nothing on which to give judgment." 102
[I9731I.C.J. 135;reported in 67 Am. J. Int'l L. 778 (1973). [I9731I.C.J. Rep. 99;reported in 67Am. J.Int'l L. 778 (1973). [1973-19741I.C.J.Y.B. 116, 117. 97.
[I9741 I.C.J. Rep. 175; reported in 69 Am. J. Intl L. 154 (1975).

98.

99.

100.

101. Nuclear Test Cases, Int'l Lawyer 563, 571 (1975), quoting

I.C.J. opinion.
102. Id. at 573.
(2) Disputes relating to Violation of Airspace. 103 The Aerial Incident of 10 March 1953 Case (United States v. Czechoslovakia) (1955-1956). 104 In 1955 the United States instituted proceedings before the Court to complain of "certain wrongful acts committed by MIG- type aircraft from Czechoslovakia within the United States zone of occupation in Germany on March 10, 19 53. " 105 Since Czechoslovakia did not consent to the jurisdiction of the Court, the case was removed from the List of the
Court without decision.
The Aerial Incident of 7 October 1952Case (United States

v. U.S.S.R.) (1955-1956). 106 In 1955 the United States
instituted proceedings before the Court to complain of
certain willful acts committed by fighter aircraft of the
Soviet government against a United States Air Force B-29
aircraft and its crew off Hokkaido, Japan, on October 7,
1952. 107 Since the U.S.S.R. did not consent to the juris-
diction of the Court, the case was removed from the List
of the Court without decision.

The Aerial Incident of 27 July 1955 Case (Israel v. Bulgaria) (1957- 1959). 108 Bulgarian fighter craft shot down an Israeli civilian commercial airliner with the loss of life of all passengers. Israel attempted to bring Bulgaria before the International Court in order to obtain a judg- ment awarding it damages for the incident. The case aroused interest because no Communist country has ac- cepted in any way the jurisdiction of the Court. However, Bulgaria had accepted for an unlimited period the jurisdic- tion of the Permanent Court before World War 11. Article 36(5) of the present Court's Statute provides:
Declarations made under Art. 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed . . . to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run. . . .

Israel contended that Bulgaria was still bound by its 1921 acceptance. The Court disagreed with this argument. It restricted the application of article 36(5) to the original members of the U.N. Since Bulgaria did not become a member until 1955 its adherence to the Permanent Court had lapsed and could not now be revived. Israel's case was
dismissed.

The Aerial Incident of 27July 1955Case (United States v. Bulgaria) (1 957- 1959). 109 The Aerial Incident of 27 July 1955 Case (United
103. For related "contentions" cases see Treatment in Hungary of Aircrqft and Crew of the United States, irlfra notes 73 and 74 and Nuclear Tests, supra notes 46 and 47.
104.
[I9561I.C.J. Rep. 6;digested in 51 Am. J. Int'l L. 11 (1957).

105.
[1955-19561I.C.J.Y.B. 73.

106.
[I9561I.C.J. Rep. 9;digested in 51 Am. J.Int'l L. 12 (1957).

107.
(1955-19561I.C.J.Y.B.75.

108. (19591 I.C.J. Rep. 127; digested in 53 Am. J. Int'l L. 923 (1959), Ct; Temple of Preah Vihear, supra note 31.
109. [I9601I.C.J. Rep. 146.
Kingdom v. Bulgaria) (1957-1959). 110 In 1957 the United States (and the United Kingdom) instituted proceedings before the Court "against the government of the Peoples Republic of Bulgaria with regard to the damage suffered by American [and United Kingdom] na- tionals, passengers on board an aircraft of El A1 Israel Airlines, Ltd., which was destroyed on 27 July 1955 by a Bulgarian fighter aircraft. 111 Several years later the United States (and the United Kingdom), after the judgment of the Court involving proceedings brought by Israel against Bulgaria out of the same incident was decided adverse to Israel (seeimmediately preceding case), requested discon- tinuance of the case(s). The request(s) were granted and the case(s) were removed from the List of the Court with- out decision.
The Aerial Incident of 4 September 1954 Case (United States v. U.S.S.R.) (1958). 112 In 1958 the United States instituted proceedings before the Court against "certain willful acts committed by military aircraft of the Soviet government on September 4, 1954, in the international air space over the Sea of Japan against a United States Navy P2-V-type aircraft, commonly known as a Neptune type, and against its crew." 113 Since the U.S.S.R. did not consent to the jurisdiction of the Court, the case was removed from the List of the Court without decision.
The Aerial Incident of 7 November 1954 Case (United States v. U.S.S.R.) (1959). 114 In 1959 the United States instituted proceedings before the Court against the Soviet government "on account of the destruction on Novem- ber 7, 1954, of a United States Air Force B-29 aircraft [by Soviet fighter planes] in the Japanese territorial air space over Hokkaido, Japan. 115 Sithe U.S.S.R. did not con- sent to the jurisdiction of the Court, the casewas removed from the List of the Court without decision.
The Appeal Relating to the Jurisdiction of the ICAO CouncilCase (India v. Pakistan) (1971-1972). 116 Under the International Civil Aviation Convention and the In- ternational Air Services Transit Agreement, both signed by Pakistan and India in 1944, civilian aircraft of Pakistan had the right to overfly Indian territory. After the hostilities of 1965 between Pakistan and India had sub- sided, the two countries agreed in 1966 that overflights should continue on the same basis as before. Pakistan took this to mean under the 1944 Convention and Treaty, while India maintained the two treaties had been sus- pended and never revived; i.e., Pakistan overflights would be permitted only after specific permission was granted by India. In 1971 an Indian aircraft was high-
110.
[I959 I.C.J. Rep. 264.

111.
[1959-19601 I.C.J.Y.B.93.

112.
[I9581 I.C.J. Rep. 158.
11'. [1958-19591 I.C.J.Y.B. 90.

114.
119591 I.C.J. Rep. 276.

115.
(1959-19601I.C.J.Y.B.85, 86.

116.
[I9721 I.C.J. Rep. 46; reported in 67 Am. J. Int? L. 127 (1 973).

jacked to Pakistan; thereafter, India refused any over- flightsby Pakistani civilian aircraft. Pakistan submitted the dispute to the International Civil Aviation Organization (ICAO) alleging that India was in breach of the two treaties. The ICAO found that it had jurisdiction to hear the dispute; India appealed from thisrulingto the Court. After discussing Pakistan's objections to the Court hear- ing the appeal and overruling the objections, the Court upheld the competence of the ICAO to hear the com- plaint. 117
(3) Disputes relating to Nationab. 118 The Protection of French Nationals and Protected Persons in Egypt Case (France v. Egypt) (1949-1950). 119 In 1948 France instituted proceedings against Egypt before the Court to complain of "certain measures [taken] against the persons and property, rights and interests of certain French nationals and protected persons in Egypt." 120 Two years later, the French government notified the Court that the dispute had been settled by Egypt ceasing to take the complained of measures and requested the Court to discontinue the proceedings. There beii no objection from Egypt, the case was removed from the List of the Court without decision.
The Asylum Case (Columbia v. Peru) (1949-1950). 121
The Request for Interpretation of the Judgment of 20
November 1950 in the Asylum Case (Columbia v. Peru)

(1950). 122
The Haya de la Torre Case (Columbia v. Peru)

(1950- 195 1). 123 The Pan-American Havana Convention
on Asylum of 1928, of which both Peru and Colombia
were parties, provided (1) that political asylum could be
granted in a foreign embassy to political offenders in an
emergency, and (2) that asylum could not be granted to
common criminals who, if found in an embassy, must be
turned over to the local authorities.

In 1949 Haya de la Torre, claiming to be a political of- fender, sought asylum in the Colombian embassy in Peru. Peru demanded his release. Colombia refused. The par-ties to the dispute asked the court very niurow questions, the answers to which failed to resolve all the problems connected with the case. The questions and answers at the fvst hearing are as follows:
11'. [1972-19731 I.C.J.Y.B. 111.
118. For related "contentions" cases, see Corjir Channel, supm note 18; South West Afrca, supra note 35; Aerial Incident of 27 July 1955, supra notes 55 to 58; and Barcelona Traction, Light and Power Company, Limited, idra notes 91 and 92. For related advisory opinions see Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, igra note 99; International Status of Southwest qfrica, idra, note 100, and Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, idra note 103.
119.
[I9501 I.C.J. Rep. 59.

120.
[1949-19501I.C.J.Y.B. 68.

121.
[I9501 I.C.J. Rep. 266; reported in 51 Am. J. Int? L. 179, 781 (1951).

122.
(19501 I.C.J. Rep.395.

123.
[I9511 I.C.J. Rep. 4.

1. Can the state granting the asylum unilaterally determine if the refugee is a political offender or a common criminal?
No, here Colombia cannot make, under the treaty, such a unilateral determination. However, Peru has not proven that de la Torre is a common
criminal.

2.
If de la Torre is a political offender lawfully in the Colombian embassy, must Peru afford the neces- sary guaranteesto enablehim to leave the country in safety?

No. The 1928 treaty only provides for asylum in an embassy, not for immunity while going from the embassy to the border of the country.

3.
If de la Tone is a political offender, was the asylum granted according to the terms of the 1928 treaty?

No, because no emergency appears to have ex- isted.

Peru then called upon Colombia to surrender the refugee. Colombia refused to do so, maintaining that the Court's judgment did not place it under an obligation to surrender de la Torre to the Peruvian authorities. A second heating was held at which the Court agreed with Colombia. The 1928 Havana Convention provided only for the surrender of common criminals. No such obligation existed in regard to political offenders. The Court reasoned that Col- ombia was under an obligation to terminate the asylum. Surrender of the refugee to the local authorities is only one method of terminating an asylum. Colombia was not restricted to that single method.
Throughout the case the Court was careful to point out that the granting of asylum in an embassy is a derogation of the sovereignty of the local state, and that such deroga- tion, if made by treaty, must be strictly construed. It found no evidence of any Latin American customary interna- tional law which would permit the granting of asylum in the absence of a treaty.
The Rights of Nationals of the United States of America in Morocco Case (France v. United States) (1950-1952). 124 In 1836 the United States and Morocco entered into a treaty which granted the United States "most favored na- tion privileges" and certain extraterritorial rights in Morocco. In 1906 Morocco became a protectorate of France. In the General Act of Algeciras, of that year, France agreed to continue foreign rights in Morocco.
By a decree of December 30, 1948, the French authorities in the Moroccan Protectorate imposed a system of license control on certain imports. The United States maintained that such controls did not apply to United States nationals in Morocco because, (1) they were discriminatory in favor of France contrary to the General Act of Algeciras, and (2) the extraterritorial
I

I
124. [I9521 I.C.J. Rep. 1975;reported in 47 Am. J. Int'l L. 136 (1 953).
rights of the United States in Morocco were such that no
Moroccan law or regulations could be applied to United
States nationals in Morocco without its previous consent.
The Court considered that the controls were dis-

criminatory and therefore contrary to U.S. treaty rights.
The second contention of the U.S. gave the Court an op-
portunity to explore the extent of U.S. consular court ju-
risdiction. Such jurisdiction was formerly very common.
Under treaties known as "Capitulations" various states in
the 19th century secured special immunities from local ju-
risdiction for their citizens living in African or Asiatic
countries. The Court here dealt with such a treaty on its
merits and by implication saw nothing contrary to interna-
tional law in them. Now practically all "capitulation"
treaties have been terminated.
The Nottebohm Case (Liechtenstein v. Guatemala) (195 1-1955). 125 By the Application filed on December 17th, 1951, the Government of Liechtenstein instituted proceedings before the Court in which it claimed restitu- tion and compensation on the ground that the Govern- ment of Guatemala had "acted toward the person and property of Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law." In its Counter-Memorial, the Government of Guatemala contended that this claim was inadmissible on a number of grounds, and one of its objections to the admissibility of the claim related to the nationality of the person for whose protection Liechtenstein had seized the Court.
Nottebohm was originally a German citizen. In 1905 he went to Guatemala, established his center of business there, and established a residency on and off, for a period of 34 years. In October, 1939, he applied for Liechten- stein citizenship and after paying certain sums of money as waivers, and receiving preferential treatment, received his citizenship in that same month. He then returned to Guatemala. In 1943 Nottebohm was removed to the United States by Guatemala in a war measure on the basis of his beiia citizen of a belligerent state. Guatemala then proceeded against his property as an enemy alien.
The case is of fundamental importance. Diplomatic pro- tection can only be exercised by a state on behalf of its own nationals. Nationality is conferred by a state under its own laws. International law does not lay down any criteria which a state must meet before it canconfer its nationality on an individual. Such is left to the domestic law of each state. However, here the real issue was not whether Not- tebohm was a national of Liechtenstein under the laws of Liechtenstein, but whether he was the typeof national for whom Liechtenstein had an international right to protect from the actions of other states. This international right requires not merely nationality, but nationality coupled with a real connection of interests.
Under the circumstances, the Court found that Guatemala was under no obligation to recognize the
125. 11955)I.C.J. Rep.4;reportedin 49 Am. J. In17L. 396 (1955).
Liechtenstein citizenship; as a consequence, Liechtenstein was not entitled to extend its protection to Nottebohm and the claim must fail.
The Treatment in Hunggry of Aircrqft and Crew of the United States Case (United States v. Hungary) (1954). 126
The Treatment in Hungary of Aircrqft and Crew of the United States of America (United States v. U.S.S.R.) (1954). 127 In 1954 the United States instituted proceed- ings before the Court "against the Hungarian People's Republic and against the U.S.S.R., on account of certain actions of the Hungarian Government in concert with the Government of the U.S.S.R." 128 Since neither Hungary nor the U.S.S.R. consented to be jurisdiction of the Court, the cases were removed fiom the list of the Court without decision.
The Certain Norwegian Loans Case (France v. Norway) (1955-1957). 129 Certain Norwegian loans had been floated in France between the years 1885 and 1909. By their terms these loans were convertible into gold as well as various national currencies. Norway then suspended the convertibility into gold. France, exercis'hg its right of diplomatic protection on behalf of its nationals, sought to compel Norway to redeem the bonds in gold. France had adhered to the Court's jurisdiction under the optional clause with a reservation similar to the U.S. Connally Reservation.
Under conditions of reciprocity, both parties are en- titled to take advantage of any reservations the other has made. Norway, therefore, maintained that the case in-volved a matter exclusively within the domestic jurisdic- tion of Norway as determined by Norway. The Court therefore dismissed the case. It was not forced to rule on the validity of France's reservation because neither party contested it. Rather both were committed to argue for its validity, France in order to be a proper plaintiff before the Court, and Norway in order to use the reservation to defeat France's claim. Since this case France has with-drawn its reservation.

The Application of the Convention of 1902 governing the Guardianship of Idants Case (Netherlands v. Sweden) (1957-1958). 130 In 1902 Sweden and the Netherlands became parties to the Hague Convention on the guardian- ship of infants. The Swedish authorities placed an infant of Netherlands nationality residing in Sweden under the regime of protective upbringing instituted by Swedish law. The Netherlands maintained that the 1902 Convention required that the child be brought up according to Dutch law. The Court held that the Swedish law was outside the
126.
(19541LC.J. Rep. 103.

127.
(19541I.C.J. Rep. 99.

128.
(1953-19541I.C.J.Y.B.92.

129.
(19571I.C.J. Rep. 9;digested in 51 Am J. Int7L. 777 (1957).

130.
[I9581 I.C.J. Rep. 55; digested in 53 Am. J. Int7 L. 436 (1959).

scope of the treaty and therefore not in violation of it.
The Interhandel Case (Switzerland v. United States) (1957-1959). 131 In 1942, the United States appropriated almost all the shares, estimated at $150,000,000, of the General Aniline and Film Corporation, an American Corporation, on the ground that these shares, though in the name of Interhandel, were in reality owned by I.G. Farben, a German corporation. Interhandel, a Swiss cor- poration, contested such a f~nding, maintaining that it was the real owner of the shares and not merely a holder in trust for I.G. Farben. White Interhandel's case was proceeding through the United States Courts, Switzer- land, exercising its right of diplomatic protection, asked the International Court of Justice to declare that the United States Government was under an obligation to restore to Interhandel its property. It also asked interim measures of protection for the seized property. The Court saw no need for interim measures and refused to impose them. 132 The United States defended on the grounds that
(1) Interhandel had not. exhausted its local remedies in the U.S. Courts and (2) that certain actions taken against the American Corporation were within the exclusive domestic jurisdiction of the U.S., as determined by the
U.S. The Court disposed of the case on the first ground, that Interhandel had not exhausted its local remedies, a prerequisite for the exercise of diplomatic protection. It passed no judgment on the controversial domestic juris- diction implications of the second defense of the United States.
In April 1964 U.S. District Judge David A. Pine lifted an iqjunction he imposed in 1963 and thereby cleared the way for the Justice Department to sell General Aniline and Film Corporation, thus ending the long litigation, both national and international, surrounding the legality of the seizure by the American government in 1942.

The Trial of Pakistani Prisoners of War Case (Pakistanv. India) (1973). 133 In 1973 Pakistan instituted proceedings before the Court against India because "India was propos- ing to hand over 195 Pakistani prisoners of war to the Government of Bangladesh, which intended to try them for acts of genocide and crimes against humanity." 134 'Before the Court could schedule arguments on the juris- diction of the Court to hear the dispute, Pakistan in- formed the Court of negotiations between India and 'Pakistanand requested that the proceeding be discon- tinued. As a result, the case was removed from the list of the Court without decision.
131.
(19591I.C.J. Rep. 6; digested in 53Am. J. InrlL.671 (1959).

132.
(19571 I.C.J. Rep. 105; digested in 52 Am J. Int7 L. 320 (1958).

133.
(19731I.C.J. Rep. 347.

134.
(1973-19741I.C.J.Y.B. 123.

(4) Disputes of a Commercial Nature. 135 The Ambatielos Case (Greece v. United Kingdom) (1951-1953). 136 In 1919, Ambatielos, a Greek shipowner, entered into a contract for the purchase of ships with the Government of the United Kingdom. Because of a delay in the delivery of the ships, Ambatielos claimed he suffered pecuniary damage. He took his case through the British courts and lost. He then maintained that the judgments of the British courts were contrary to
'international law because they amounted to a denial of justice. The Greek Government, exercising its right of diplomatic protection, took up the caseof its national and sought to compel Great Britain to arbitrate under arbitra- tion agreements between the two countries. The sole question presented to the Court was whether Great Britain must arbitrate. The Court was not called upon to decide the merits. The British position was that this was not the type of dispute included in the arbitration agreement. The question for the Court was a dficult one because to hold a dispute as to whether a case should be arbitrated a matter for arbitration would tend to make any matter subject to arbitration upon the insistence of one party to the agree- ment. The Court held that Great Britain should arbitrate. In the arbitration on the merits, which followed in 1956 the decision of the I.C.J., the Greek Government was un-sucuxsful in sustaining Ambatielos' claim. 137
The Anglo-Iranian Oil Co. Case (United Kingdom v. Iran) (1951-1952). 138 In 1932 Iran adhered to the "optional clause" of the Permanent Court of International Justice, with the reservation that such adherence only applied to disputes based on treaties concluded by Iran after that date. In 1933 Iran entered into an agreement with the Anglo-Iranian Oil Company. Iran's 1932 limited adherence to the jurisdiction of the Permanent Court had been transferred to the International Court in 1945. In 1951Iran nationalized the properties of the Oil Company. The Company maintained that such nationalization was contrary to the 1933 agreement. Great Britain sought before the International Court of Justice to enforce the rights of the OilCompany under the 1933 agreement. Iran contested the jurisdiction of the Court. Great Britain re-
135. For related "contention" cases, see Fisheries Jurisdiction. supra notes 42 and 44; Certain Norwegian Loans, supra note 76; and Interhandel, supra note 78. For related advisory opinions, see meet of Awards of Compensation Made by the United Nations Administrative Tri- bunal, irlfm note 104; Judgments of the Administrative Tribunal of the ILO upon ComplainLs made against Unesco; irlfra note 105; Constitution of the Maritime S@iery Committee of the Inter-governmentcrl Maritime Consultative Organization, irlfra note 106; and Application for Review of Judgment [sicj No. I58 of the United Nations Administrative Tribunal, irlfm note 111.
136.
(19531 I.C.J. Rep. 10; digested in 46 Am. J. Int? L. 733 (1952).

137.
Opinion of the Arbital Commission is digested in 50 Am. J. Int'l L. 674 (1956).

138.
[I9521 I.C.J. Rep. 13; reported in 45 Am. J. Int'l L. 789 (1951).

quested that the court order Iran to cease its measures against the Company pending the outcome of the contest over jurisdiction. The Court granted this request over the protests of Iran. Iran refbed to comply with these interim measures.

The Court then dismissed the casefor lack of jurisdiction because Iran had only agreed that the Court would have jurisdiction over treaties entered into after 1932. The 1933 agreement was not a treaty between states. Anglo- Iranian Oil was a private company despite the fact that most of its shares were owned by Great Britain. The legality under international law of Iran's nationalization decrees was never decided by the Court. Since this case Iran has withdrawn entirely its submission to the com- pulsory jurisdiction of the Court.
The Monetary Gold from Rome in 1943 Case (Italy v. France, United Kingdom and United States) (1953-1954). 139 In 1943 Germany removed from Rome to Germany certain gold belonging to Albania. Both Italy and Great Britain claimed the gold, Italy for satisfaction of a claim against Albania and Great Britain for a satisfaction of the still outstanding Corfu Channel 140judgment it held against Albania. Acting under a 1946 agreement, France, U.S.A., and Great Britain decided jointly that the gold should go to Great Britain. Under a separate provision of the same treaty, Italy challenged the decision and took the matter to the International Court. The Court ruled that it had no jurisdiction to adjudge Italy's right to the gold because to do so would involve the merits of Italy's claim against Albania. Since Albania was not a party to the proceedings and could not without its consent be made a party the Court had no alternative but to dismiss the case.
The 'Electricite de Beyrouth" Company Case (France v,.
Lebanon) (1953-1954). 141 The Compagnie du Port, des Quais et des Entre pots de
Beyrouth and Societe Radio -Orient Case (France v. Lebanon (1959-1960). 142 In 1948 the Governments of France and Lebanon entered into an agreement, which purported to settle all the f~nancial problems resulting from the liquidation of the past and at the same time the monetary and fmancial relations of the two countries for the future. It included an undertaking by the Lebanese Government relating to concessions of the French com- panies and companies with French capital in Lebanon. It also contained in its Article 23 a clause granting jurisdic-, tion to the Court. 143 "Eledricite de Beyrouth Company" considered that measures taken by Lebanon were con- trary to the 1948 agreement, and it was able to persuade the Government of France in 1953 to institute proceed- ings before the Court against Lebanon. Before arguments
139.
119541 I.C.J. Rep. 4;reported in 48 Am J. Int?L. 649 (1954).

140.
See supm note 18.

141.
[I9541 I.C.J. Rep. 13.

142.
[I9601 I.C.J. Rep. 3.

143.
[1954-19551 I.C.J.Y.B. 75; seealso [1960-19611 I.C.J.Y.B. 83.

could be heard, the Government of Lebanon and "Electricite de Beyrouth Company" negotiated a settle- ment; the case was discontinued and removed from the list of the Court in 1954. In 1959 the Government of France again instituted proceedings before the Court against Lebanon with regard to the "Compagnie du Port des Quais et des Entre pots de Beyrouth and the Societe Radio -Orient," but within a year and a half it was also removed from the list of the Court by request of the par-ties.
The Barcelona Traction, Light and Power Company,
Limited Case (Belgium v. Spain) (1958-1961). 144 The Barcelona Traction, Light and Power Company, Limited (New Application) Case (Belgium v. Spain) (1962-1970). 145 In 1958 Belgium instituted proceedings before the Court against Spain with regard to the Bar- celona Traction, Light and Power Company, Limited. In 1961 the Belgian government with a view toward negotia- tion requested that the matter be discontinued and then removed from the list of the Court. This was done, but in 1962 Belgium filed a new application concerning Bar- celona Traction with the Court when negotiations failed. Barcelona Traction was incorporated in 191 1 in Canada and, primarily through subsidiaries, supplied electricity in Spain. Between WWI and WWII it was alleged that Belgian citizens acquired a large percentage of Barcelona Traction stocks/bonds. With the start of the Spanish Civil War, the company suffered fmancial dficulties and in 1948 was declared bankrupt by a Spanish Court. The claim submitted to the Court was presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in Barcelona Traction, a company incor- porated in Canada and having its head office there. The object of the Application was to obtain reparation for damage allegedly caused to those persons by conduct, said to be contrary to international law, of various organs of the Spanish State towards that company. 146 Spain object- ed to the application, inter alia, because Belgium lacked capacity to seek redress from injuries done to a Canadian company, even if the shareholders were Belgian. The Court found that where "it was a question of an unlawful act committed against a company representing foreign capital, the general ruleof international law authorized the national state of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of general international law expressly conferred such a right in the shareholder's national state." 147 After considering several situations (e.g., nonexistence of the company or protecting State lacks capacity to take action) that might be considered "special circumstances" demanding a different result and fmding no such circumstances in-

144.
[I9611 I.C.J. Rep. 9.

145.
[I9701 I.C.J. Rep. 3.
'46. [1969-19701 I.C.J.Y.B. 107, 109.

147. Id. at 110.
volved in the case before it, the Court rejected Belgium's claim. Likewise, the Court refused to adopt a special equity rule that would permit a State "to take up the pro- tection of its nationals, shareholders in a company, which had been the victim of a violation law. . . . [, as such a proposition] would create an atmosphere of insecurity in international economic relations." 148
b. Advisory Opinions The Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) Opinion (1947-1949). 149 Article 4(1) of the United Nations Charter contains three criteria for membership in the United Nations. The applicant states (1) must be peace- loving, (2) must accept the obligations contained in the Charter, and (3) in the judgment of the United Nations must be able and willing to carry out the Charter obliga- tions.
Since the creation of the United Nations some 12 states had unsuccessfully applied for admission. Their applica- tions were vetoed in the Security Council. A proposal was then made for the admission of all candidates at once. Such a proposal certainly implied that some states would only be admitted on the condition that others would be admitted also.The General Assembly questioned the im-position by the Security Council of conditions for admis- sion not contained in the Charter. The General Assembly asked the Court for an advisory opinion. The Court declared that conditions laid down in Article 4 for the ad- mission of states were exhaustive and that if these condi- tions were fulfied by a state which was a candidate, the Security Council ought to recommend to the General As- sembly that such a state be admitted. The Court added, however, that it was up to the subjective judgment of each member whether or not the conditions for admission had been met.
The Competence of the General Assembly for the Admis- sion of a State to the United Nations Opinion (1949- 1950). 150 The immediately preceding casedecided by the Court did not lead to a settlement of the problem of admissions in the Security Council. The General Assem- bly then sought an advisory opinion from the Court as to whether it could on its own, admit a candidate in cases where the Security Council failed to recommend the can- didate to it.
The Court refused to permit the Charter to be con- strued to permit such authority in the General Assembly. It held that Article 4(2) was clear in its requirements.
Art. 4(2). The admission of any such state to membership in the United Nations will be effected by [I] a decision of the General As-sembly 12) upon recommendation of the Security Council.
The only recommendation contemplated by the
'48. Id. at 11 1.
149.
[I9481 I.C.J. Rep. 9, 57; reported in 42 Am. J. Int7 L. 927 (1948).

150.
(19501 I.C.J. Rep. 4;digested in 44 Am. J. Int'/L.582 (1950).

Charter was a favorable recommendation. The lack of a favorable recommendation on the part of the Security Council cannot be construed by the General Assembly as an unfavorable recommendation, permitting it to proceed with its own vote on the admission. To do so would deprive the Security Council of an important function assigned to it by the Charter.

The Reparation for Iduries StGffered in the Service of the United Nations Opinion (1948-1949). 151 As a conse- quence of the assassination in Palestine of Count Ber- nadotte, the United Nations Palestine Mediator, the General Assembly asked the Court two important legal questions. (1) Does the United Nations have the interna- tional legal capacity to bring an international claim against Israel for damages caused to the United Nations by the assassination?; (2) Does the United Nations have the in- ternational legal capacity to bring an international claim against Israel on behalf of the relatives of the victim? The fust question raised not only the nature of the U.N. but further its relation to nonmember states. The Court said that the U.N. not only had sufficient legal capacity to bring an international claim against a state, but could even bring such claim against a nonmember. The U.N. had interna- tional existence not only in the eyes of its members, but even in the eyes of nonmembers because of its purposes and because of the great majority of states which make it up. The second question raised the problem of diplomatic protection. Ordinarily a state can only bring a claim on behalf of its own nationals. The Court permitted the U.N. to sponsor such a claim, reasoning that the risk of possible duplication between the U.N. and the victim's national state could be eliminated either by means of a general convention or by a particular agreement in any individual case.
The Interpretation of Peace Treaties with Bulgaria, Hun- gary and Romania Opinion (1949-1950). 152 In the 1949 peace treaties with the Allied States, Bulgaria, Hungary and Romania agreed, among other things, to respect cer- tain freedoms of individuals in their territories. In the event a dispute arose over the performance of the peace treaties each side was to appoint a representative to an ar-bitral board. The two representatives were to choose a third member.
The Allied States accused Bulgaria, Hungary and Romania of denying to some of their citizens the freedoms guaranteed by the treaties. The allegation was denied. The Allied States then asked for the appointment of commissioners to arbitrate the dispute. Bulgaria, Hun- gary and Romania refUsed to appoint a commissioner. The General Assembly asked the Court if the three Balkan countries were bound to do so. The Court, on March 30,
151.
[I9491I.C.J. Rep. 174;digested in 43 Am. J. In17 L. 589 (1949).

152.
[I9501I.C.J. Rep. 65, 121, 221; digestedin 44Am. J. Int? L. 742, 752 (1950).

Pam 27-161-1
1950, replied that they were. Upon the continued refusal
of Bulgaria, Hungary, and Romania to appoint a commis-
sioner, the General Assembly asked the Court whether
the Secretary General, who by the terms of the treaties
was authorized to appoint the third member in the ab-
sence of agreement between the commissssioners on his
selection, could proceed to make this appointment, where
one of the parties failed to appoint its commissioner. The
Court, on July 18, 1950, replied that the Secretary
General could not do so under the terms of the treaties of
peace.
The problem before the Court was one of treaty in-terpretation. By denying the Secretary the authority to ap- point the third commissioner the Court in effect construed the treaty in such a fashion that the deliberate failure of one side to appoint a commissioner could render the en- tire arbitration machinery ineffective. The Court realized that a treaty should, if possible, be so interpreted as to be effective. However, it also realized that a treaty should not
be rewritten by a court under the guise of interpretation in order to improve its operation.
The International Status of Southwest Africa Opinion (1949-1950). 153 The Court on June 11, 1950, held that South-West Africa was impressed with an international status when it became a mandate under the League of Na- tions. The death of the League did not affect that status. Therefore, the Union of South Africa, as the mandatory power, could not unilaterally cancel that international status and annex South-West Afiica. It was not under an obligation to convert the mandate into a trust territory under the U.N., but it was obligated to report to the General Assembly on South-West Africa as it had done to the League. This opinion permitted the U.N. to become an inheritor of certain prerogatives possessed by its pred-ecessor. The Court, however, stated that the United Na- tions was to exercise this prerogative subject to the same restrictions imposed upon the League of Nations. This restriction was the central issue in the two following ad- visory opinions.
The Voting Procedure on Questions to Reports and Peti- tions Concerning the Territory of Southwest Africa Opin-ion (1954-1955). 154 On June 7, 1955, the Court, at the request of the General Assembly, decided that the voting procedures adopted by the General Assembly in dealing with matters pertaining to South-West Africa were procedural in nature and therefore did not amount to supervision in excess of that performed by the League of Nations over South-West Africa.The Court was forced to reconcile the more liberal voting procedure in the General Assembly with its earlier opinion which restricted the U.N.'s supervision of South-West Afiica to that exercised by the League of Nations.
153.
(19501I.C.J. 128;digested in 44 Am. J. Int'l L. 757 (1950).

154.
[I9551I.C.J. Rep. 67; digested in 49 Am. J. In17 L. 565 (1955).

The Admissibility of Hearings of Petitioners by the Com- mittee on Southwest Africa Opinion (1955- 1956). 155 On June 1, 1956, the Court again had to reconcile the restric- tive provisions of its frrst opinion with the practice of the General Assembly in permitting oral hearings on South- West Africa. The League had only utilized written peti- tions. The Court said that nothing prevented the League from having oral hearings. Furthermore, the refusal of the Union of South Afiica to cooperate with the General As- sembly made oral hearings useful in keeping the General Assembly informed of events in South-West Africa.
The Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Opinion (1950- 195 1). 156 Reservations to multilateral treaties had long presented a problem. The Latin American nations, starting about 1926, developed the practice of permitting reservations. A reserving state was a party to the conven- tion as to those signatories which accepted the reservation, it was not a party as to those which did not. The League of Nations on the other hand pursued a policy that all sig- natories must agree to the reservation before the reserving state can become a party to the treaty.
The Genocide Convention was drafted under the auspices of the U.N. When it was opened for signature several states signed with reservations. The General As- sembly asked the Court what practice it should follow. On May 18, 1951, the Court replied that reservations are per- mitted if they do not go to the main objectives or^ the con- vention. It is up to each signatory to judge for itself if the reservation is compatible with the convention. The reserving state is a party to the treaty as to those states which consider the reservation compatible with the main objects of the treaty, it is not a party as to those states which do not think the reservation compatible. The result is almost the same as the Latin American practice. The Court rejected the League policy which required unanimity of acceptance by all signatories. This freedom to make reservations was purchased at the price of the unity and internal coherence of mulitlateral treaties.
The Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Opinion (1 953- 1954). 157 The employment contracts of several American employees of the Office of the Secretary General were terminated by the Secretary General with- out their consent. The United States was desirous of the termination because of suspected disloyalty to the United States. These employees appealed to the United Nations Administrative Tribunal, which had previously been es- tablished by the General Assembly to hear employment
155. 119561 I.C.J. Rep. 23; digested in 50 Am. J. Int7 L. 954 (1956).
1;6. [I9511 I.C.J. Rep. 15; reported in 45 Am. J. In17 L. 579 (1951).
157. [I9541 I.C.J. Rep. 46; digested in 48 Am. J. Int'l L. 655 (1954).
contract disputes. This tribunal restored the employees to their position.
The General Assembly asked the Court ifit was bound by such a decision of a tribunal it had created, or whether it could look upon such a decision as a recommendation. The Court replied that the General Assembly had created an independent and truly judicial body pronouncing final judgments without appeal and that its judgments were therefore bindii on the General Assembly.
The Judgments of the Administrative Tribunal of the ILO upon Complaints made against UNESCO Opinion (1 955- 1956). 158 The ILO (International Labor Organiza- tion) had established an administrative tribunal to settle disputes between ILO and its employees. UNESCO ac- cepted the jurisdiction of this tribunal. The tribunal gave four judgments in favor of four American employees of UNESCO who had refused to answer a questionnaire form or to appear before the International Organization Employees' Loyalty Board of the U.S. Civil Service. The statute setting up the tribunal permitted its decision as to its own jurisdiction to be challenged by the using agency. In the event of such a challenge the dispute would be set- tled by the International Court. UNESCO challenged the jurisdiction of the tribunal on the ground that the employees had no legal right to a renewal of their con- tracts and hence there was no nonobservance of the terms of the contracts.
The Court held that the tribunal did have jurisdiction to hear the complaints in question because UNESCO had told its employees that fixed term contracts would be renewed.
The case is interesting because it shows an instance of the Court acting as an appellate tribunal in an actual dis- pute between an international organization and private in- dividuals. The general rule is that only states may be par- ties before the Court. Here, the practical effect of the Court's willingness to give an advisory opinion in the cir- cumstances of this case is to relax that general rule.
The Constitution of the Maritime Consultative Organiza- tion Opinion (1 959-1 960). 159 Under Article 28(a) of the Inter-Governmental Maritime Consultative Organization, a Maritime Safety Committee of 14 members was to be elected. Not less than eight of those elected were to be from "the largest ship-owning nations." When the fust election was held on January 15, 1959, neither Panama nor Liberia was elected although both were in the fust eight of the nations with the largest registered tonnage.
The Court refused to permit the Inter-Governmental Maritime Consultative Organization to look behind the registered tonnage to actual ownership. It was evident that many ships were merely registered in Liberia and Panama
158.
[I9561 1.C.J. Rep. 77; digested in 51 Am. J. Int'l L. 410 (1957).

159.
[I9601 I.C.J. Rep. 150; digested in 54 Am. J. Int'l L. 884 (1960).

as a matter of convenience. There was little or no real connection between the ships and these states. If the &urt followed the trend of its reasoning in the Nottebohm case and looked for a real connection or community of in- terests it might have ruled against Liberia and Panama. However, it based its decision on its interpretation of the intent of the drafters of Article 28 (a) of the convention. It held that the intent of the drafters was that registered ton- nage was to be the criterion. Therefore, Liberia and

'Piinama should have been elected to the Maritime Safety Committee.
The Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) Opinion (1961-1962). 160 This advisory opinion involved legal issues of fundamen- tal importance to the United Nations. The United Nations is a collective security organization. One of its primary purposes is to keep the peace. It has put three forces into the field, the Unified Command in Korea, the United Na- tions Emergency Force in Gaza, and the United Nations force in the Congo. Several members refused to pay their allotted share of the costs for the latter two operations for various reasons. Some thought that a United Nations member was only compelled to pay "regular costs" and not "special assessments." Others, including the Soviet Union, contended that since these actions were taken or implemented under the "Uniting for Peace" Resolution of the General Assembly they were contrary to the United Nations Charter which placed responsibility for the use of force solely in the Security Council. Therefore the General Assembly was without authority to pass such resolutions. The court held that these were legitimate assessments and all members are required to bear their share.

The Legal ~onsequenbes for States of the Continued Pres- ence of South Africa in Namibia (Southwest Afrca) not- withstanding Security Council Resolution 276 Opinion (1970-1971). 161 In 1970 the United Nations Security Council requested an advisory opinion of the Court on: "What are the legal consequences for States of the con- tinued presence of South Africa in Namibia, notwith- standing Security Council resolution 276 (1970)?" 162 Resolution 276 had been adopted by the Security Council in 1970 and declared that South Africa's continued pres- ence in Namibia was illegal. After refusing to grant challenges for cause against three members of the Court, the Court was of the opinion:
by 13 votes to 2,
(1)     that, the continued presence of South Africa in Namibia beii illegal South Africa was under obligation to withdraw its ad- ministration from Namibia immediately and thus put an end to its occupation of the Territory;
by 11 votes to 4,

[1970-19711 1.C.J.Y.B 100. 160.
[I9621 I.C.J. Rep. 151; digested in 56 Am. J. Int7 L. 1053 (1 962).

161.
[I9711 I.C.J. Rep. 16; reported in 66 Am. J. Int'l L. 145 (1972).

162.     

(2)     
that States Members of the United Nations were under obliga- tion to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recog- nition of the legality of, or lending support or assistance to, such presence and administration;

(3)     
that it was incumbent upon States which were not Members of the United Nations to give assistance, within the scope of sub- paragraph (2) above, in the action which had been taken by the United Nations with regard to Namibia. 163

The Application for Review of Judgment [sic] No. 158 of the United Nations Administrative Tribunal Opinion (1972-1973). 164 Mr. Mohamed Fasla, an official of the United Nations on a fixed-term contract, was not rehired at the end of his contract. He appealed this decision to the United Nations Administrative Tribunal which found against him. Mr. Fasla requested the Tribunal, which it did in 1972, to seek an advisory opinion from the Court to determine whether the Tribunal had failed to exercise proper jurisdiction or had committed a fundamental error in procedure. The Court found proper exercise of jurisdic- tion and no fundamental error in procedure. 165
The Western Sahara Opinion (1974-1975). 166 In 1974 the United States General Assembly requested an opinion from the Court on two questions:
1.
Was Western Sahara at the time of colonization by Spain (1884) a territory belonging to no one (terra nullius)?

2.     
If the answer to question 1 is in the negative, what were the legal ties between this temtory and the Kingdom of Morocco and the Mauritanian En- tity? 167

After refusing to find that the General Assembly was attempting to accomplish by advisory opinion (for which no consent is required) what could not be done by a "con- tentions" case (since Spain would not consent to the juris- diction of the Court), the Court found unanimously that Western Sahara was not a territory belonging to no one at the time of Spanish Colonization, with regard to the sec- ond question before the Court, the Court advised in the penultimate paragraph of its opinion:
The materials and information presented to the Court show the exist-
ence, at the time of Spanish colonization, of legal ties of allegiance be- tween the Sultan of Morocco and some of the tribes living in the territo- ry of Western Sahara. They equally show the existence of rights, includ- ing some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the temtory of Western Sahara. On the other hand, the Court's conclusion is that the materials and information presented to it do not establish any tie of ter- ritorial sovereignty between the territory of Western Sahara and the
163.     Id. at 108.

See [1972-19731 I.C.J.Y.B. 125. 164.
[I9731 I.C.J. Rep. 166; reported in 68 Am. J. Intl L. 340 (1 974).

165.     

166.     [1975] I.C.J. Rep. 6.

167. Questions Concerning Western Sahara, 10 Int7 Lawyer 199, 199 (1976).
Kingdom of Morocco or the Mauritanianentity.Thusthe Court has not evaluating the effectiveness of the court in settling a partic- found legal ties of such a nature as might affect the application of ular type of dispute. For example, resort to the court has
General Assembly resolution 1514 0in the decdonizstion of been more beneficialin casesdealing with titles to territory
Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the and with routine international matters than it has in dis-
Tenitorv. 168 putes growing out of the vestiges of colonialism.
,9-8. Conclusion. A great many of the cases before the International Court, along with its predecessor the Perma- nent Court, have concerned the interpretation of treaties. The International Court has resisted any interpretation which would, in effect, redraft or improve the treaty. It has left the parties with the treaties as they wrote them. This is evident in the Asylum case, the Rights of U.S. Nu- tionals in Morocco, Sovereignty over certain Frontier Land, the U.N. admission cases, Balkan Peace Treaties, and the Constitution of the Maritime Safety Committee.
The cases discussed in this chapter have not emphasized the treaties involved, but have been grouped according to the general subject matter which gave rise to the particular dispute. Such a classification is useful in
168. ~d.
An opinion of the International Court influences the future behavior of states not a party to the contention. It also establishes an interpretation of intemational law which is considered by other courts and tribunals whenever a similar question of law is presented for deter- mination. Therefore, all I.C.J. cases,no matter what their origin or their actual effect in settling the particular dis-putes which gave rise to them, makes a valuable contribu- tion to a fund of law.
In recent years the court has been called upon less fre- quently than in the fust years of its existence for advisory opinions. This decline, together with the fact that acces- sions to the optional clause have not increased with the in- crease in U.N.membership, could affect materially the workload of the court. and conseuuentlv the develo~ment of international law by this judicial body.
Pam 27-161-1

CHAPTER 10
STATUS OF VISITING FORCES IN INTERNATIONAL LAW

Section I. COLLECTIVE SECURITY SYSTEM
10-1. Collective Self-Defense Under the United Na- tions Charter. The collective security system envisaged in the United Nations Charter has been affected by the "Cold War." 1 The resulting deep ideological split among fhe, members of the United Nations has forced many staps to turn from a world-wide collective security system ahd to seek security in defense alliances and in regional ar- rangements. 2 Both of these methods are authorized by Articles 51 and 52 of the United Nations Charter. Regional arrangements have for their primary purpose the settlement among the members themselves of their local disputes. This chapter will not be devoted to this type of a local arrangement. Collective self-defense, on the other hand, has for its purpose the protection of each member of the group from outside attacks. It is Article 51 rather than Article 52 which has given rise to the defense alliances so prevalent in the world today. 3 The collective self-defense system of which the United States is a party is world-wide and is commonly termed "The United States Mutual Defense System." 10-2. The United States Mutual Defense System. a. The Inter-American Treaty of Reciprocal Assistance (The Rio Pact). By this treaty, signed by Rio de Janeiro in September 1947, the signatory nations agreed that an "armed attack by any state against an American state shall be considered as an attack against all American states" and pledged each state to assist the others in repelling such an attack. The area defined in the treaty in- cluded all of North and South America, the Aleutians and Greenland, much of the Arctic and Antarctic regions, and vast ocean areas considerably broadening the defmition of' the western hemisphere. 5 Although Canada was not a party to the treaty, she was included in the protective cor-
1.
Collective security is an often misunderstood phrase. It means that every state in the organization looks to all others in that organiza- tion for protection against the aggressive acts of a fellow member. Blocs, favoritism, etc., have no place in such a security system. See K. Organski, International Politics 378-81 (1958) for a criticism of the col- lective security concept.

2.
Dr. Stikker of the Netherlands at the signing of the North Atlan- tic Treaty in 1949 remarked: "The treaty we are about to sign marks the end of an illusion: the hope that the United Nations would by itself en- sure international peace. Suddenly, in retrospect, the signing of the Charter of San Francisco only four yean ago is seen as a charming dream from which we had awakened gradually into a grey reality." N.Y. Times, Apr. 9, 1949 commented on in J. Stone, Legal Controls Of lnter- national Coflict 279 (1959).

Inter-American Treaty of Reciprocal Assistance, art. 4. 3.
L. Goodrich& E. Hambro, Charter of the United Nations 304-08 (rev. ed. 1949); C. Eagleton, International Government548-50 (3d ed. 1957).

4.
T.I.A.S. No. 1838, 62 Stat. 1681, 17 Dep't State Bull. 565-67 (1947), commented on by Men, The Inter-American Treaty of Recipro- cal Assistance, 17 Dep't State Bull. 983-87 (1947).

5.

don thrown around the hemisphere. The treaty entered into force for the U.S. on 3 December 1948. The mem- bers were at that time:
United States Dominican Republic Peru Cuba Costa Rica Bolivia Honduras Panama Paraguay Mexico Venezuela Brazil Guatemala Ecuador Chile El Salvador Colombia Argentina Nicaragua-Haiti –
Uruguay-

b. The North Atlantic Treaty Organization (NATO Treaty). 6 The treaty, signed at Washington 4 April 1949, entered into force for the U.S. on 24 August 1949. It offi- cially acknowledges that the destinies of Western Europe are inextricably linked with those of the larger geographi- cal area, commonly termed the North Atlantic Com- munity. The treaty created an operational organization which has provided multinational armed forces deployed across Europe to oppose any act of agression emanating from the "iron curtain." The members agree to regard an attack on one as an attack on all, and are to aid the one at- tacked. The members are:
united States West Gennany
Canada Belgium
Iceland Luxembourg
Norway Italy
United Kingdom Portugal
Netherlands France
Denmark Greece
Turkey

c. Security Treaty with Australia and New Zealand (ANZUS Pact). 7 The ANZUS Pact was signed at San Francisco, 1 September 1951, and entered into force for the U.S. on 29 April 1952. This treaty acknowledges that an attack in the Pacific against any will involve all and the parties agree to "act to meet the common danger." The members are:
Australia
New Zealand
united States

d. Southeast Asia Treaty Organization (SEATO). 8 The Southeast Asia Collective Defense Treaty and Pro- tocol were signed at Manila on 8 September 1954 and en- tered into force for the U.S. on 19 February 1955. These documents set up the Southeast Asia Treaty Organization covering the "general area of Southeast Asia" and the western Pacific. In case of aggression its members are to
6. T.I.A.S. No. 1964, 62 Stat. 2241, 20 Dep't State Bull. 339 (1949), commented on by Bohler, The North Atlantic Pact: A Historic Step in the Dewlopment of American Foreign Relations, 20 Dep't State Bull. 428-30 (1949).
7.
[I9521 3 U.S.T. 3420, T.I.A.S. No. 2493.

8.
(19551 6 U.S.T. 81, T.I.A.S. No. 3170.

"consult immediately in order to agree to measures which should be taken for common defense." The members are:
Australia France
New Zealand Pakistan
Philippines Thailand
United Kingdom United States

e.
Declaration relating to the Baghdad Pact. 9 The declaration was signed at London, 28 July 1958. The Baghdad Pact was signed at Baghdad on 24 February 1955 and provided that the parties would cooperate for their security and defense. 10 Parties to the Baghdad Pact were Iran, Iraq, Pakistan, Turkey, and the United Kingdom. In the London Declaration the parties, with the exception of Iraq, reaffmed the pact made at Baghdad, and the United States agreed to cooperate with them in their mutual defense. The Baghdad Pact has been known since 1959 as the Central Treaty Organization (CENTO). 11 The United States has maintained an observer status in regard to CENTO. 12

f.
Bilateral treaties of mutual assistance. Primary exam- lples of bilateral treaties of mutual assistance in Asia are:

(1)
Republic of China. Mutual defense treaty was signed at Washington, 2 December 1954 and entered into force for the U.S. 3 March 1955. 13

(2)
Japan. Mutual cooperation and security treaty was signed at Washington, 19 January 1960 and entered into force for the U.S. 23 June 1960. 14

(3)
Korea. Mutual defense treaty was signed at Washington, 1 October 1953 and entered into force for the U.S. 17 November 1954. 15

(4)
Philippines. Mutual defense treaty was signed at Washington, 30 August 1951 and entered into force for the U.S. 27 August 1952. 16

g.
This collective self-defense system, authorized under Article 5 1, has assumed proportions not anticipated at the time of the drafting of the U.N. Charter. 17 To be effective under modem conditions of warfare this collec-tive self-defense must be established during peace. It de- mands a close peacetime cooperation including in some instances the stationing of troops in foreign, allied and friendly states. This stationing of troops in foreign coun- tries in time of peace has been the occasion of the many status of forces agreements which specitjl the rights and duties of the receiving (host) State and the sending (guest) State. The matters covered vary in scope and in detail. In addition to criminal jurisdiction, other items

9. [I9581 9 U.S.T. 1077, T.I.A.S. No. 4084.
10.
Royal Institute on International Affairs, Documents on Interna- tional &fairs, 1955, 287-89 (1958).

11.
See 41 Dep't State Bull. 487, 581 (1959).

12.
44 Dep't Sure Bull. 780 (1961).

13.
[I9551 6 U.S.T.433, T.I.A.S. No. 3178.

14.
[I9601 11 U.S.T. 1632, T.I.A.S. No. 4509.
1s. [I9541 5 U.S.T. 2368, T.I.A.S. No. 3097.

16. [I9521 3 U.S.T. 3947, T.I.A.S. No. 2529.
17. Eagleton, supra note 3, at 551.
usually regulated are civil juisdiction, claims, taxes, duties, and the procurement of local supplies and employees. The criminal jurisdiction features of many of these treaties willnow be examined. 10-3. Jurisdictional Immunity of Visiting Forces. a. Historical Concept. Although the rights and obligations of most United States military personnel per- forming duties in foreign countries are now s@ied by international agreements, some writers and courts thought that under customary international law a foreign force, invited into a State without conditions, is by im- plication immune from the jurisdiction of the receiving (host) State. Until recently writers and judges have cited in support of this rule of implied agreement the dictum of Chief Justice Marshall in the case of The Schooner Ejc-change v. McFaddon. 18
b.
Modern View. Recently, however, in the companion cases of Reid v. Covert and Kinsella v. Krueger, 19 and in the case of Wilson v. Girard, 20 the Supreme Court of the United States in effect denied the existence of a customary international rule of implied waiver of jurisdiction by the host State when such an implied waiver is sought to be based solely on an unconditional invitation from the host State. The court held, citing The Schooner Exchange v. McFaddon, 21 that "a sovereign nation has exclusive ju- risdiction to punish offenses against its laws committed within its borders unless it expressly or impliedly consents to surrender its jurisdiction," 22 and that generally the only jurisdiction which United States military authorities could exercise over its militarypersonnel in foreign coun- tries was that which was permitted by the express consent of the foreign government concerned. The United States has sought to negotiate detailed agreements with all foreign countries where its forces are to be stationed.

c.
Types of Agreements. There are three general types of agreements which are concerned with the status of United States military personnel who are stationed in foreign countries. First, there are what may be called Status of Forces Agreements (SOFA), examples of which are the NATO SOFA and the Japanese Administrative Agreement; second, Mission Agreements such as those with Nicaragua 23 and many other Latin-American coun- tries; and third, Mutual Defense Assistance Agreements under which Military Assistance Advisory Groups (MAAG) operate. 24 With the exception of military at-tach& who enjoy hll diplomatic immunity,and U.S.

18.
11 U.S. (7 CRANCH) 116 (1812). A discussion of Justice Marshall's comment appears at paragraph 4-2a, supra. See also Cole-man v. Tennessee, 97 U.S. 509 (1878); Dow v. Johnson, 100 U.S. 158 (1879). For an examination of the customary law in the absence of a status of forces treaty see Re, The NATO Status of Forces Agreement and International Law, 50 N W LI.L. Rev. 349 (1955).

19.
354 U.S. 1 (1957).

20.
354 U.S. 524 (1957).

21.
11 U.S. (CRANCH) 116 (1812).

22.
354 U.S.at 529.

23.
[I9531 4 U.S.T. 2238, T.I.A.S. No. 2876.

24.
[I9541 5 U.S.T. 852, T.I.A.S. No. 2976.

,    forces in West Berlin, the rights and obligations of all United States military personnel performing duty in foreign territory are reflected in one of these three types of agreements.
d. Extent of Privileges. Generally, it may be said that those who perform duties contemplated by Mutual Defense Assistance Agreements enjoy more rights and privileges than are enjoyed by military personnel who per- form duties under status of forces agreements and under
Pam 27-161-1
mission agreements. This special status of the personnel of the various Military Assistance Advisory Groups (MAAG) is attributable to the fact that those groups generally operate as an integral part of the Embassy of the United States. However, the scope of the privileges and immunities vary from country to country. For example, MAAG personnel in Italy have little immunity from the jurisdiction of local courts.

Section 11. CRIMINAL JURISDICTION UNDER STATUS OF FORCES AGREEMENTS
10-4. The NATO Status of Forces Agreement. The NATO Status of Forces Agreement 25 (NATO SOFA) is a multilateral treaty to which the following members of the North Atlantic Treaty organization are parties:
Belgium . Canada
Denmark France
Gennany Greece
Italy Luxembourg
Netherlands Norway
Portugal Turkey
United Kinadom United States


Of the 15 NATO member states only Iceland is not a party to this agreement. This section of the chapter will be devoted to an article-by-article analysis of the criminalju-risdiction provisions of the treaty.
a. Persons protected by NATO SOFA. (1) Member of the 'Force" of the Sending State. Article ~(a): "Force" means the personnel belonging to the land, sea, or air armed services of one Contmcting Party when in the territory of another Contracthg Party in the North Atlantic Treaty area in connec- tion with their oflicial duties. ~rovided that the two Contractim Parties concerned may agree that &&in individuals, units or formati&s shall not be regarded as constituting or include in a "force" for the purpclses

of the present Agreement; .. . . A "force," therefore, includes that part of the armed forces of one contra- party stationed in the territory of another. However, it should be noted that the agreement is also applicable to personnel who are sent to a NATO country on temporary duty, and to personnel who may be in transit through a NATO country on oficial duty. Per- sonnel who are AWOL or who are on authorized leave alsoare covered by the agreement so long as they remain in the country in which they are stationed, for their pres- ence in that country is clearly in connection with their of- ficial duties. However, should a soldier who is AWOL or who is on authorized leave commit an offense in a NATO country other than the one m which he is stationed, a different situation is presented. The defintion of a force would not include such personnel, and they would be sub- ject to the rules of law applicable in the absence of a treaty. In practice, France hasbeen willing to apply the provisions of the SOFA to personnel who are in a leave status with-
2s. [I9531 4 U.S.T. 1792,T.I.A.S. No. 2846.It must be remem- bered that this agreement is as operativein war and in hostilities short of formal war as it is @peace. Article XV provides for a "review" in the event of hostilities.
out regard to the location of their permanent duty station. In Germany, a special agreement extends to persons on leave in European and North African countries the status of members of the force for certain purposes. 26
(a)
In contrast to the NATO SOFA, the compara- ble provision of the U.S. agreement with Japan does not contain the limiting phrase "in connection with their offi- cial duties." 27 Accordingly, the reason for the presence of particular individuals in Japan is not material to their in-clusion within the definition of a force. 28

(6)
In Germany, except in cases of military ex- igency, the sending states have agreed not to station in the territory of the Federal Republic as members of a force persons who are solely German. One of the reasons for this agreement is that, under Article 16 of the German Basic Law (Constitution), Germany may not extradite a German national to a foreign state. Exercise of criminal jurisdiction by a sending State over a German national soldier of that State within Germany is considered to be a form of extradition which is repugnant to the concept of the Basic Law.

(2)
Dependents of Members of the Force and Civilian Component. Article I(c): "Dependent" means the spouse of a member of a force

or of a civilian component, or a child of such member depending on him or her for support; .. .
(a) Definition. Under this definition, a relative other than a spouse or other than a child of a member de- pendent on him for support is excluded. Parents and other close relatives, for example, are excluded even though they may be dependent on the member for support and even though they may enjoy, under U.S. Forces military regulations, status as dependents. The definition fails to indicate at what age, if any, a child ceases to be treated as a child for the purposes of the agreement. Because of the restricted definition of a dependent contained in the NATO SOFA, the United States has encountered some practical diffculty in securing a liberal interpretation on
26. Status ofPersons on Leave, [I9591 14 U.S.T. 694,T.I.A.S. No. 5352.
27.     
[I960111 U.S.T. 1652,T.I.A.S. No. 4510 (Art. I(a)).

28.
The preceding agreement, which governed the status of U.S. Forces from 1952to 1960,also did not contain the qualifying phrase "in connection with their oflicial duty." (1952) 3 U.S.T. 3341,T.I.A.S. No. 2492.

Pam 27-161-1
the part of the authorities of the receiving State. A more liberal definition of dependent is contained in the NATO Status of Forces Supplementary Agreement 29 applicable in Germany and in the Chinese, 30 Japanese, 31 Korean, 32 Spanish, 33 and Turkish 34 SOFAS.
(b) U.S.military jurisdiction over dependents abroad. Kinsella v. Singleton35 and Grisham v. Hagan 36 This direct appeal tests the constitutional validity of peacetime court- martial trials of civilian persons "accompanying the armed forces with- out the continental limits of the United States" and charged with non- capital offenses under the Uniform Code of Military Justice, 10 U.S.C. section 802,70A Stat. 37. Appellee contends that the dependent wife of
a soldier can be tried only in a court that affords her the safeguards of Article 111 and of the Fifth and Sixth Amendments to the Constitution.
'he appellee is the mother of Mrs. Joanna S. Dial, the wife of a soldier who was assigned to a tank battalion of the United States Anny. The Dials and their three children lived in government housing quarters at Baumholder, Germany. In consequences of the death of one of their children, both the Dials were charged with unpremeditated murder under Article 118(2) of the Uniform Code of Military Justice, 10
U.S.C.A. section 918(2). Upon the Dials' offer to plead guilty to in- voluntary manslaughter under Article 119 of the Code, 10 U.S.C.A. section 919, both charges were withdrawn and new ones charging them separately with the lesser offense were returned. They were then tried together before a general court-martial at Baumholder. .. .
As has been noted, the jurisdiction of the court-martial was based upon the provisions of Article 2(11) of the Code. The Congress enacted that article in an effort to extend, for disciplinary reasons, the coverage of the Uniform Code of Military Justice to the classes of persons therein enumerated. The jurisdiction of the Code only attached, however, when
361 U.S. 278 (1960). 361 U.S. 234 (1960). [I9661 17 U.S.T. 1677, T.I.A.S. No. 6127. 29.
119631 14 U.S.T. 53, T.I.A.S. No. 535. Paragraph 2(a), article 2, provides "A close relative of a member of a force or of a civilian com- ponent not falling within the definition contained in subparagraph (c) of paragraph 1 of Article I of the NATO Status of Forces Agreement who is financially or for reasons of health dependent on, and is supported by, such member, who shares the quarters occupied by such member, and who is present in the Federal territories with the consent of the authorities of the force shall be considered to be, and treated as, a de- pendent within the meaning of that provision."

30.
[I9661 17 U.S.T. 373, T.I.A.S. No. 5986. '"Dependents' means (i) spouse and children under 21; (ii) parents, children over 21, or other relatives dependent for over half their support upon a member of the United States armed forces or civilian component." Id. at art. I(c).

31.
(19601 11 U.S.T. 1652, T.I.A.S. No. 4510. The language of arti- cle 1(c) defines 'dependents' as in note 30, supra.

32.

33.
[I9701 21 U.S.T. 2259, T.I.A.S. No. 6977. "Dependents. This term means members of the families [of military personnel and civilian employees] who depend upon such persons for their support and who are in Spain, and, in any case, the spouse and minor children in Spain of such persons." Id. at para. 2a(4).

34.
[I9541 5 U.S.T. 1465, T.I.A.S. No. 3020. "4persons whoare relatives of, and in accordance with United States law or regulations, de- pending for support upon and actually residing with any member of a United States force or the civilian component, except those who are not United States citizens, shall be considered dependents and will be treat- ed in all respects as those presons defined in Article I, paragraph 1, sub-paragraph c, of the aforesaid NATO [Status of Fom] Agreement." Id. at para. 1.

35.

36.

and if its applicability in a given foreign territory was sanctioned under
"any treaty or agreement to which the United States is or may be a par-
ty" with the foreign sovereignty, or under "any accepted rule of inter-

national law." The existence of such an agreement here is admitted.
The constitutionality of Article 2(11) as it applies in time of peace to,
civilian dependents charged with noncapital offenses under the Code is
the sole issue to be decided. .. .
In this field, United States ex rel. Toth v. Quarles, 350 U.S. 11
(1955), cited with approval by a majority in the second Covertcase, 351

U.S. 487 is a landmark. Likewise, of course, we must consider the effect of the latter case on our problem. We therefore turn to their teachings. The Tothcase involved a discharged soldier who wastried by court-mar- tial after his discharge from the Army, for an offense committed before his discharge. It was said there that the Clause 14 "provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards," 350 U.S. at pages 21-22, and that military tribunals must be restricted "to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service," id., 350 U.S. at page 22. We brushed aside the thought that "considerations of dis-cipline" could provide an excuse for "new expansion of court-martial jurisdiction at the expense of normal and constitutionally preferable systems of trial by jury." Id., at 22-23. (Italics supplied.) We were therefore "not willing to hold that power to circumvent these safeguards should be inferred through the Necessary and Proper Clause." Id., at 22. The holding of the case may be summed up in its own words, namely, that "the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdic- tion to persons who are actually members or part of the med forces." Id., at 15. The test for jurisdiction, it follows, is one of status, namely, whether the accusedin the court-martial proceeding is a person wh~ can be regarded as falling within the term "land and naval Forces." The Court concluded that civilian dependents charged with capital offenses were not included within such authority, the concurring Justices ex- pressing the view that they did not think "that the proximity, physical and social, of these women to the 'land and naval Forces' is, with due regard to all that has been put before us, so clearly demanded by the effective "Government and Regulation" of those forces as reasonably
to demonstrate a justification for court-martial jurisdiction over capital offenses." Concurring opinion, 354 U.S. at 46-47.
Moreover, in the critical areas of occupation other legal grounds may exist for court-martial jurisdiction as claimed by the Government in No. 37, Wilson v. Bohlender, 361 U.S. 281. See Madsen v. Kinsella, 343
U.S. 341 (1952). Another serious obstacle to permitting prosecution of noncapital offenses, while rejecting capital ones, is that it would place in the hands of the military an umeviewable discretion to exercise jurisdic- tion over civilian dependents simply by downgrading the offense, thus stripping the accused of his constitutional rights and protections. By allowingthis assumption of "the garb of mercy," we would be depriving a capital offender of hiconstitutional means of defense and in effect would nullify the second Covert case. We do know that in one case, Wilson v. Girard, 354 U.S. 524 (1957), the Government insisted and we agreed that it had the power to turn over the case of an American soldier to Japanese civil authorities for trial on an offense committed while on duty. We have no information as to the impact of that-trial on civilian dependents. Strangely, this itself might prove to be quite an effective deterrent. Moreover, the immediate return to the United States permanently of such civilian dependents, or their subsequent prosecution for the more serious offenses in the United States when authorized by the Congress, might well be the answer to the disciplinary problem. Certainly such trials would not involve as much expense nor be as diffcult of successful prosectuion as capital offenses. …
We therefore hold that Mrs. Dial is protected by the spedic provi- sions of Article III and the Faand Sixth Amendments and that her- prosecution and conviction by court-martial are not constitutionally per- missible. The judgment must therefore be AFFIRMED.
-, (3) Members of the "Civilian Component" of the Sending State.
Article I (b): "Civilian component" means the civilian perso~elac-companying a force of a Contracting Party who is in the employ of an armed service of that Contracting Party, and who are not stateless per- sons, nor nationals of any State which is not a Party to the North Atlan- tic Treaty, nor nationals of, nor ordinarily resident in, the State in which the force is located; . . .
(a) Definition. This definition does not include stapless persons, nationals of a state not a party to the NATO, nationals of the receiving State, and persons or- dinarily resident in the receiving State. It also does not in- clude Red Cross personnel, and technical representatives of contractors. This deficiency has been overcome in Turkey where, by bilateral agreement with the United States, 37 such personnel are expressly included as mem-bers of the civilian component. Further, in this connec-tion, the agreement with Japan includes within the defini- tion of the civilian component United States nationals who are ". . .in the employ of, serving with, or accompanying the United States armed forces in Japan, . . ." 38 In Ger-many, the Supplementary Agreement s~~cally

extends to certain personnel (e.g., Red Cross and technical ex- perts) the privilege of members of the civilian component (Arts. 71, 72, and 73). The exclusion of stateless persons and persons who are nationals of a state which is not a member of NATO would seem to present few practical daculties. Fist, aside from labor groups formed of state- less persons, 39 there are probably very few civilian employees who fall into either class of persons. Second, the exclusion of these two classes of persons seems to have been the result of a desire to prevent them from en- tering the receiving State. 40 If such persons are admitted, there would seem to be no compelling reason why they should be excluded from the operation of the agreement. Where a sending State employs resident nationals of the receiving State, it is obviously in the special interests of the receiving State to insure that such persons remain fully under its jurisdiction and protection. To this extent the ex- clusion of nationals of the receiving State from the defini- tion of a civilian component is based on sound reasons of public policy. However, the special interests of the receiv- ing State weaken when the nations in question had emi- grated and were returned to their native country as employees of the sending State, and completely disappear in cases where the person has also acquired the nationality of the sending State. A more realistic approach to the problem of the dual national is contained in the status of forces agreement with Japan, where it is stated: "For the purposes of this Agreement only, dual nationals, United
37.
[I9541 5 U.S.T. 1465,T.I.A.S. No. 3020.

38.
[I960111 U.S.T. 1652,T.I.A.S. No. 4510,art. I@).

39. Personnel of Labor Service and Civilian Labor Guard units in Germany, composed primarily of Polish and other Eastern European stateless persons, are also not included.
40. J.Snee& A. Pye,S~tadls CrfForces Agreement Crimi~IJurisdic-tion 17 (1957).
Pam 27-161-1
States and Japanese, who are brought to Japan by the
United States shall be considered as United States Na- tionals." 41 Another potential problem area is the result of the exclusion of persons "ordinarily resident" in the receiving State from the definition of civilian component. The reasons for such exclusion are apparent in &es in-volving resident aliens generally, but some difficulty could be presented by the fact that no exception is made for those resident aliens who are nationals of the sen- State. In Germany, for example, command policy precludes the appointment to appropriated or nonap-propriated fund positions of American nationals who are normally resident in Germany. The treaty protection afforded members of the civilian component, as far as criminaljurisdiction isconcemed, has been affected by re- cent pronouncements of the United States Supreme Court. 42 These opinions settle the law somewhat but at the same time challenge the jurisdictional assumptions ac- cepted as valid when the NATO SOFA was negotiated.
(6) U.S.Military Jurisdiction Over U.S. Civilian Employees Abroad.
McElroy v. Guagliardo (No. 21) and
Wilson v. Bohlender (No. 37)43
Mr. Justice Clark delivered the opinion of the Court.
These are companion cases to No. 22,Kinsella v. Singleton, supra, p.
234,and No. 58,Grisham v. Hagan, supra, p. 278,both decided today. AU the cases involved the application of Article 2(11) of the Uniform Code of Military Justice. Here its application to noncapital offenses com- mitted by civilian employees of the armed forces while stationed over- seas is tested.
In No. 21 the respondent, a civilian employee of the Air Force per- forming the duties of an electrical Lineman, was convicted by court-m~- tial a! the Nouasseur Air Depot near Casablanca, MOROCCO,
of larceny and conspiracy to commit larceny from the supply house at the Depot. Beforebeing transferred to the United States Disciplinary Ekmacks, New Cumberland, Pennsylvania, respondent fded a petition for a writ of habeas corpus in the District Court for the Districtof Columbia alleging that the military authorities had no jurisdiction to try him by court-mar- tial. . . .

In No. 37,petitioner, a civilianauditor employed by the United States Army and stationed in Berlin, was convicted by a general court-martial on a plea of guilty to three acts of sodomy. .. .
We believe that these casesinvolving the applicabiity of Article 2(11) to employees of the armed services while serving outside the United States are controlled by our opinion in Kinsella v. Singleton, 80 S.Ct. 297, and Grisham v. Hagan, 80 S.Ct. 310, announced today. In Singleton we refused, in the light of Reid v. Covert, 1957, 354 U.S. 1, 77 S.Q. 1222,1 L.Ed.2d 1148,to apply the provisions of the article to noncapital offenses committed by dependents of soldiers in the armed serviceswhile overseas; in Grishamwe held that there was no constitu- tional distinction for p-of court-martial jurisdiction between dependents and employees insofar as application of the death penalty is concemed. The rationale of those cases applies here.
Although it is true that there are materials supporting prosecution of sutlers and other civilians by courts-martial, these materials are "too episodic, too meager, to form a solid basii in history, preceding and con-
41.
[I960111 U.S.T. 1652,T.I.A.S. No. 4510,art. I@). A similar provision is contained in the Korean Stcrtus of Forces Agreement, [I9661 17 U.S.T. 1677,T.I.A.S. No. 6127.

42.
See McElroy v. Guagliardo and Wilson v. Bohlender, 361 U.S. 281 (1960).

43. Id.'
temporaneous with the framing of the Constitution, for Constitutional
adjudication." . . .
In the consideration of the constitutional question here we believe it
should be pointed out that, in addition to the alternative types of
procedure available to the Government in the prosecution of civilian
dependents and mentioned in Kinsella v. Singleton, supra, additional
practical alternatives have been suggested in the case of employees of the
armed service. One solution might possibly be to follow a procedure
along the line of that provided for paymasters' clerks as approved in Ex
parte Reed, supra. Another would incorporate those civilian employees
who are to be stationed outside of the United States directly into the
armed services, either by compulsory induction or by voluntary enlist-
ment. If a doctor or dentist may be "drafted" into the armed services,
50 U.S.C. Appendix section 454(i), extended, 73 Stat. 13,50 U.S.C.A.
Appendix section 454 (i); Orloff v. Wioughby, 1953, 345, U.S. 83, 84;
73 S.Ct. 534, 97 L.Ed. 842, there should be no legal objection to the
organization and recruitment of other civilian specialists needed by the
armed services.
I
Moreover, the armed services presently have suRicient authority to set up a system for the voluntary enlistment of "specialists." This was done with much success during the Second World War. "The Navy's Construction Battalions, popularly known as the Seabees, were estab- lished to meet the wartime need for uniformed men to perform con- struction work in combat areas." 1 Building the Nally's Bases in World War I1 (1947) 133.-Just as electricians, clerks, draftsmen, and sur- veyors were enlisted as "specialists" in the Seabees, id., at 136, provi- sions can be made for the voluntary enlistment of an electrician (Guagliardo), an auditor (Wilson), or an accountant (Grisharn). It likewise appears entirely possible that the present "Specialist" program conducted by the Deparmtent of the Army could be utilized to replace civilian employees if disciplinary problems required military control. Although some workers might hesitate to give up their civilian status for government employment overseas, it is unlikely that the armed forces would be unable to obtain a sufficient number of volunteers to meet their requirements. The increased cost to maintain these employees in a military status is the price the Government must pay to comply with constitutional requirements.
The judgment in No. 21 [Guagliardo] is affmned and the judgment in No. 37 [Win] is reversed.
An attempt to exercise jurisdiction over a civilian accom- panying the U.S. forces in Vietnam under Article 2(10), UCMJ, was rejected in United States v. Averette 44 which held that the phase "in time of war" means a "declared war."
b. Application to Political Subdivisions. Article 1(2) is applicable to those states which are organized along Federal lines, such as the United States and Canada. Nor- mally the powers of such a state are divided between the Federal Government and the political subdivisions. Such is not the case in unitary statessuch as Denmark and Ire- land. Article 1(2) was inserted in order to make it clear that all subdivisions of each state are bound by the treaty, not merely the Federal Government. Article 1(2) is clear as to that objective. However, it raises certain other prob- lems. Does it purport to give each subdivision that has autonomy within the Federal structure a direct voice in the administration of the treaty; Normally in a Federal State the Federal Government alone represents the State in foreign relations. It alone has signed the NATO SOFA. It alone is responsible to the other signatory states for the
44. 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970); accord, U.S. v. Zamora & Wiiams, 19 U.S.C.M.A. 403, 42 C.M.R. 5 (1970).
obligations it assumed under the treaty. It would seem that other signatory states would expect to be bound finally by the dete~mination of each subdivision in such matters as requests for waivers, etc. 45 See in this respect the Supplementary Agreement with Germany 46 wherein the initial determinations with respect to exercise of crirni- nal jurisdiction are made by the German States
(Laender).
c. Personal Obligation to Respect Local Law (Article II). Ifa member of the force of the sending State violate* law of the receiving State, Article VII of the NATO SOFA will be the guide in determining if the receiving State will try the member. The question still arises, however, whether a violation of the local law under Article 11is ipso facto an offense under Article 134 of the UCMJ so that he may be tried by the sendii State. If the receiving State tries him, the problem of double jeopardy arises in any at- tempt by the sending State also to exercise jurisdiction. 47 If the receiving State does not try the individual then the problem is twofold. (1) Every violation of one of U.S. local State laws is not in itself an offense under the Uniform Code; there must be some service discrediting facts and circumstances attendant to the violation. 48 Therefore, reasoning by analogy, if the individual is not triable under any other article of the Code, the foreign in- fraction does not automatically cause him to violate Arti- cle 134. (2) If, however, the charge is based not on a violation of the law of the receiving State, but upon a violation by an individual of Article 11of the treaty then the question is whether a violation of a treaty, which is the supreme law of the land under our Constitution, is in itself a federal criminal offense. One aspect of this question came before the Court of Military Appeals in United States v. Ekenstam. 49 In that case the accused was charged with a violation of Article 134 under a specifica- tion which alleged that he had violated a provision of the Administrative Agreement with Japan by selling nonap- propriated fund merchandise to a Japanese national. The court acquitted him on the ground that the specification did not state an offense under the Code. One judge held that the Admininstrative Agreement with Japan bound the signatory governments and not individuals, and that
45.
1 L. Oppenheim, International Law 175-79 (8th ed. Lauter- pacht 1955) analyzes the problems in international law presented by a Federal State whose Federal Government sometimes does not speak in international affairs for all of its component parts. See, e.g., The At- torney General of Canada v. The Attorney General of Ontario and Others, 53 T.L.R. 325 (1937) wherein the limited power of The Government in International Affairs is clearly illustrated.

46.
Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Ger- many, [I9631 14 U.S.T. 531, T.I.A.S. No. 535.

47. Art. VII, 8 8.
48.
United States v. Grosso, 7 U.S.C.M.A. 566, 20 C.M.R. 30 (1957); United States v. Hughes, 7 C.M.R. 803 (1953).

49.
7 U.S.C.M.A. 168, 21 C.M.R. 294 (1956).

Pam 27-161-1
in any event an individual could not commit a military offense by violating a treaty. The court cited Over the Top, 50 which held that the Federal criminal code cannot be enlarged by treaty. If it could then a Federal criminal law can be made without the participation of the House of Representatives. Two years later in United States v. Cur- tin, 51 the Court of Military Appeals again held that the Japanese Administrative Agreement did not bind in- dividuals. The exact point has not been raised in regard to the NATO SOFA. Ifit is raised and it is determined that Article II, NATO SOFA, does bind individuals then the Court will be faced with its dictum in Ekenstam that such a violation of a treaty is not a violation of a Federal criminal law.
d. The Division of Jurisdictional Competence Between the Sending and the Receiving State. The right to exercise jurisdiction as between the receiving State and the sending State is governed by the jurisdictional formula of Article W of the NATO SOFA. This formula characterizes offenses as being subject to the exclusive jurisdiction of the sending State, to the exclusive jurisdiction of the receiving State, and to concurrent jurisdiction.
(I) Exclusive Jurisdiction.
(a) Exclusive Jurisdiction in the Sending State. Most offenses over which the United States would have exclusive jurisdiction would be purely military type offenses, such as AWOL, desertion, disrespect, etc. Offenses relating to security are treason, sabotage, and es- pionage against the United States, offenses with which the receiving State is nor particularly concerned. The Krueger and Covert, 52 the Guaglirado and Bohlender, 53 and the Singleton 54 cases have restricted the exclusive jurisdiction of the United States as a sending State by eliminating dependents and U.S. civilian employees from the category of "persons subject to the military law" of the United States.
(b) Exclusive Jurisdiction in the Receiving State. If Article 134, UCMJ, and Article 11, NATO SOFA, were construed to make any act which is punishable by the receiving State also punishable by the United States as a
50.
5 F.2d 838 @.Corm. 1925).

51.
9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). Judge Ferguson, speaking for the majority stated:

[w]e held in that case [EKENSTAM], that the Adminsitrative was intended to defme the rights and obligations of the signatory govern- ments rather than to prescribe the conduct of individuals or organiza- tions subject to their authority and thus the specification failed to state the offense.
For other cases on the application of treaties directly to individuals, see Jurisdiction Over the Courts of Danzig, [I9281 P.C.I.J. ser. B, No. 15 digested in 5 G. Hackworth, Digest of International Law 171; United States v. Rauscher, 119 U.S. 407 (1886); The Over the Top, 5 F.2d 838 (1925); United States v. Smigar, 6 U.S.C.M.A. 330, 29 C.M.R. 46 (1955).
52.
354 U.S. 1 (1957).

53.
361 U.S. 281 (1960).

54.
KinseUa v. Singleton, 361 U.S. 234 (1960).

sending State there would be no exclusive jurisdiction in the receiving State. The Grosso and Ekenstam cases dis- cussed above in regard to Article I1 also have reference to Article VII. They indicate the formulation of a rule that would prevent the expansion of Article 134, UCMJ, in a way that would change the effect of the exclusive jurisdic- tion provisions of Article W.It is doubtful if the exclusive jurisdiction of the receiving State can be reduced through the application of Article 134, UCMJ. On the other hand, however, the practical result of the loss of court-martial jurisdiction over accompanying dependents and civilian employees is to expand the scope of the exclusive jurisdic- tion of the receiving State.
(2) Concurrent Jurisdiction.
(a) Primary Right in the Sending State or Receiv- ing State. Having determined that an offense is subject to concurrent jurisdiction (i.e., that it is punishable both under the law of the receiving State and under the UCMJ), the question arises as to which State has the pri- mary right to exercise jurisdiction. This determination is governed by the jurisdictional formula of Article VII, NATO SOFA, which provides that the receiving State has the primary right to exercise jurisdiction over all concur- rent jurisdiction offenses except those solely against the properly or security of the sending State or solely against the person or property of another member of the force or civilian component or of a dependent or those arising out of any act or omission done in the performance of official duty. Problems which frequently arise in connection with concurrent jurisdiction are concerned with that portion of Article W which provides that the sending State has the primary right in cases involving "offenses arising out of any act or omission done in the performance of official duty." These problems fall generally into two groups. First, there is the question as to whether the particular offense arose out of the performance of official duty, and, second, the question as to who has the right to make the final determination of whether or not it arose out of the performance of official duty. Initially, it should be noted that the phrase "performance of official duty" is not in- tended to refer to a legal concept which is peculiar to one particular nation. Consistent with United States policy of asserting jurisdiction over its personnel whenever possi- ble, the United States military authorities construe this phrase broadly. In France, the United States successfully maintained that travelmg to and from work is the per- formance of official duty. On the other hand, Franqe maintained that offenses requiring specific intent could not arise out of the performance of official duty. The Korean Status of Forces Agreement 55 has attempted to delineate more precisely the concept of "official duty" as it is used in its jurisdictional formula. The Agreed Minutes Re Arti- cle 22 provide:
55. [I9661 17 U.S.T. 1677, T.I.A.S. No. 6127.
The term "official duty" as used in this Article and Agreed Minutes is not meant to include all acts by members of the United States armed forces and the civilian component during periods when they are on duty, but is meant to apply only to acts which are required to be done as func- tions of those duties which the individuals are performing.
Similarly, the Agreed Official Minutes Regarding Article XIII of the Philippines Bases Agreement as Revised 56 contains language identical to the Korean Agreement. The Philippine Agreement, however, precedes the above language by a provision that "[tlhe term 'official duty' . . . is understood to be any duty or service required or authorized to be done by statute, regulation, the order of a superior or military usage." The celebrated Girard case 57 arose out of a dispute between the Japanese and United States authorities as to whether the offense involved arose out of the performance of official duty.
(b) Wilson v. Girard. 58
. ..
A Security Treaty between Japan and the United States, signed Sep-
tember 8, 1951, was ratified by the Senate on March 20, 1952, and
proclaimed by the President effective April 28, 152 [TIAS24911. Article
III of the Treaty authorized the making of Administrative Agreements
between the two Governments concerning "[tlhe conditions which
shall govern the disposition of armed forces of the United States of
America in and about Japan." Expressly acting under this provision, the
two Nations, on February 28, 1952, signed an Administrative Agree-
ment covering, among other matters, the jursidiction of the United
States over offenses committed in Japan by members of the United
States armed forces, and providing that jurisdiction in any casemight be
waived by the United States [TIAS 24921. This Agreement became
effective on the same date as the Security Treaty (April 28, 1952) and
was considered by the Senate before consent was given to the Treaty.
Article XVII, paragraph 1 of the Administrative Agreement provided
that upon the coming into effect of the "Agreement between the Parties
to the North Atlantic Treaty regarding the Status of their Forces,"
[TIAS 28461 signed June 19, 1951, the United States would conclude
with Japan an agreement on aimhal jurisdiction similar to the corre-
sponding provisions of the NATO Agreement. The NATO Agreement
became effective August 23, 1953, and the United States and Japan
signed on September 29, 1953, effective October 29, 1953, a Protocol
Agreement [TIAS 28981 pursuant to the covenant in paragraph 1 of Ar-
ticle XVII.
Girard, a Specialist Third Class in the United States Army, was
engaged on January 30, 1957, with members of his cavalry regiment in
a small unit exercise at Camp Weir range area, Japan. Japanese civilians
were present in the area, retrieving expended cartridge cases. Guard and
another Specialist Third Class were ordered to guard a machine gun and
some items of clothing that had been left nearby. Girard had a grenade
launcher on his rifle. He placed an expended 30 caliber cartridge case in
the grenade launcher and projected it by firing a blank. The expended
cartridge case penetrated the back of a Japanese women gathering ex-
pended cartridge cases and caused her death.
The United States claimed the right to try Gid upon the ground
that his act, as certified by his commanding officer, was "done in the
performance of offcial duty" and therefore the United States had pri-
mary jurisdiction. Japan inisted that it had proof that Girard's action was

without the scope of hi official duty and therefore that Japan had the 'primary right to try him.
'
Article XXVI of the Administrative Agreement established a Joint
56.
[I9651 16 U.S.T. 1090, T.I.A.S. No. 5851.

57.
Wilson v. Girard, 354 U.S. 524 (1957).

58.
Id. See Baldwin, Foreign Jurisdiction and the American Soldier, 1958 Wis. L. Rev.52, for a review of official duty determination prob- lems.

Committee of representatives of the United States and Japan to consult
on all matters requiring mutual consultation regarding the implementa-
tion of the Agreement; and provided that if the Committee ". . . is una-
ble to resolve any matter, it shall refer that matter to the respective
governments for further consideration through appropriate channels."
The Joint Committee, af€er prolonged deliberation, was unable to
agree. The issue was referred to higher authority which authorized the
United States representatives on the Joint Committee to notify the ap-
propriate Japanese authorities, in accordance with paragraph 3(c) of the
Protocol, that the United States had decided not to exercise, but to
waive, whatever jurisdiction it might have in the case. The Secretary of
State and the Secretary of Defense decided that this determination
should be carried out. The Resident wnfiied their joint conclusion.
"A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or im- pliedly consents to surrender its jurrction." Schooner Exchange v. McFaddon, 7 Cranch 116, 136. Japan's cession to the United States of jurisdiction to try American military pemnnel for conduct constituting an offense against the laws of both countries was conditioned by the covenant of Article XW, section 3, paragraph (c) of the Protocol that
.. . The authorities of the State having the primary r@t shall give
sympathetic consideration to a request from the authorities of the
other State for a waiver of its right in cases where the other State wn-
siders such waiver to be of particular importance.
. .
The issue for our decision is therefori narrowed to the question whether, upon the record before us, the Constitution or legislation sub- sequent to the Security Treaty prohibited the canying out of this provi- sion authorized by 'the Treaty for waiver of the quatitied jurisdiction granted by Japan. We find no constitutional or statutory barrier to the encroachments, the wisdom of the- arrangement is exclusively for the determination of the Executive and Legislative Branches.
(c) "Official Duty'' in NATO Countries. A defi- ciency of the jurisdictional arrangements of the NATO SOFA and of the Japanese Administrative Agreement which in Japan gave rise to the jurisdictional dispute in the Girardcase, is the fact that the treaty does not specify who may determine definitely whether a given offense arose out of the performance of official duty. The authorities, both official and unofficial, are divided on this point. In spite of the absence of definitive provisions in the NATO SOFA, serious disputes regarding official duty determina- tions have been avoided by means of the acceptance by the receiving State of the certZcate of the United States authorities as to performance of official duty, and by the judicious use of the waiver provisions of the Agreement. Thus, a Turkish statute makes the United States certificate determinative.59 In France, a circular of the French Min- istry of Justice provides that the determination of the sending State will be accepted as conclusive if it is ren-dered by a staff judge advocate or legal officer. 60 This, however, has not been the practice in the United Kingdom. The Supplementary Agreement (Article 18) with the Federal Republic of Germany provides that this determination shall be made in accordance with sending State law and that the German court or authority "shall make its decision in conformity with" the certificate of the military authorities in this respect. In effect, then, the Ger- man authorities do, in the first instance, accept the certifi-
59.
See Snee & Pye, supra note 40, at 52.

60.
Id. at 51.

Pam 27-161-1
cate as conclusive. Another article provides, however,
that in exceptional cases the certificate may be made the
subject of review at the request of the German court or
authority, through the medium of discussions between
the Federal Republic and the United States Embassy. The
Korean Status of Forces Agreement provides that a cer-
tif~cate of official duty by competent U.S. authorities is
sufficient. Where the Chief Prosecutor disagrees with the
certificate, it will be made the subject of review by the
Government of the Republic of Korea and the U.S. Em-
bassy.

(4 Waiver of Primary Right. 1. Waiver by Failure to Prosecute. What conduct on the part of the State having the primary right amounts to a decision not to ex- ercise jurisdiction is not altogether clear. For example, suppose the sending State has primary jurisdiction and, after an Article 32 investigation, decides that a trial by court-martial is not warranted. Is such an investigation and determination an exercise of jurisdiction or a decision not to exercise jurisdiction? There is no definitive answer to the question. It is important because a determination that any action short of a trial is a decision not to exercise jurisdiction will force the State with the primary right into choosing the alternative of trial or waiver. It may for good reason wish to do neither.
2. Waiver at the Request of the Other Contract- ing Party. The U.S. Forces' policy is to request waivers in all cases subject to concurrent jurisdiction. Current mili- tary directives 61 require the designated commanding of- ficer, in each foreign country in which United States mili- tary units are regularly stationed, to assure that effective liaison is developed and maintained with appropriate ofi- cials of the foreign country concerned to the end that through the use of local procedures a maximum number of waivers of jurisdiction can be obtained. Constant effort is therefore made to establish relationships and methods
of operations which, in the light of local judicial procedures, will most likely result in waivers. In practice, these directives make the submission of informal requests for waivers at the local level a matter of routine. The response to these routine waivers has varied from country to country. It should be noted that the request for waiver need not be and in most casesis not predicated on the fact that there is a danger the accused will not receive the safeguards accorded him under the U.S. Constitution. Therefore, a denial of a waiver request is seldom the occa-sion for intervention by the Department of State.
3. The Wfect of a Waiver of Primary Right (The Whitley Case). Suppose a waiver is granted by the State with the primary right. Must the requesting State try the individual in order to prevent the State with the pri- mary right for reasserting its right? The Whitley case
answers this question as far as France is concerned. 62 In November, 1953, Major Whitley, an Air Force officer stationed in France with a NATO headquarters suffered a blowout while driving to his home from Paris where he had attended a social function. The car crashed into a tree and a passenger, a Canadian officer, attached to the same NATO headquarters, was killed. The cause of the blowout was never established. Pursuant to a request of Air Force authorities the public prosecutor agreed to waive French jurisdiction over the incident. An informal Air Force in- vestigation, not conducted under Article 32 of the Uniform Code of Military Justice, concluded that evi- dence was insufficient to warrant court-martial charges against Major Whitley for the death of the Canadian of- ficer. Whitley's insurance company refused the demand of the Canadian officer's widow for compensation on the ground that civil liability was not established. The widow, who under Canadian law could receive no pension if the husband was not killed while on duty, therefore initiated a mixed civil-criminal action against Major Whitley in the French criminal court relying upon a provision of the French Code permitting such mixed actions. 63 Among the hues considered by the French Court was the effect of the French prosecutor's initial waiver of jurisdiction. It was agrued on behalf of Major Whitley that a waiver divested the criminaljurisdiction of the French courts. The Tribunal Correctionnel of Corbeil rejected this argu- ment holding that a waiver is not irrevocable, and that since the United States did not try Major Whitley for his alleged offense the French court could try him without securing a waiver from the United States. The Tribunal Correctionnelin the Whitleycase, moreover, took a more extreme position. It held that a waiver of jurisdiction never affects the right of a civil party to initiate a mixed civil-criminal action. The decision of the Tribunal Correc- tionnel, as affumed by the Cour d2ppel of Paris, was one month's imprisonment (suspended) and a 50,000 franc fine. Major Whitley appealed to the Cour de Cassation. The Cour de Cassation annulled the judgment against Major Whitley. The basis of the decision of the Cour de Cassation was the irrevocability of waivers granted pur- suant to Article W 3(c) of the NATO SOFA holding to the effect that a waiver so granted was binding on all tri-bunals of the waiving state regardless of whether the ac- tion was brought by the public prosecutor or the partie civile. The court stated, in substance, that where the authorities of the state which has the primary right to exercise juris- diction under the NATO SOFA has waived that right at the request of the other state, the decision is final and precludes the criminalcourts of the former state from tak-ing cognizance of the facts on which the decision to waive
See appendix A, irlfm. 62.
See JALS 250 19/58, "A Chronicle of Recent Developments in Military Law of Immediate Importance to Army Judge Advocates," a letter setting forth the facts of the Whitley case.

63.

was based. The court further held that it is immaterial whether the state in whose favor the right is waived thereafter institutes criminal proceedings in its own courts against the individual involved, and that an exception to the principle of the irrevocability of waivers can ariseonly if the state in whose favor the waiver was granted ex- pressly states that it waives back the right to exercise juris- diction and returns it to the authorities of the other state. In Germany, intermediate appellate courts have held that, once the German authorities have failed to withdraw the general waiver of jurisdiction following notification under the provisions of Article 19 of the Supplementary Agree- ment, they may not subsequently exercise jurisdiction in the event that the sending State determines not to try the accused by court-martial.
(e) Trial in the Courts of the Receiving State. 1. Treaty safeguards. Article W, 9 of the NATO SOFA contains the following fair trial guarantees:
9. Whenever a member of a force or civilian component or a depen- dent is prosecuted under the jurisdiction of a receiving State he shall be entitled-
(a)
to a prompt and speedy trial;

(b)
to be informed, in advance of trial, of the spe&c charge or charges made against him;

(c)
to be confronted with the witnesses against him;

(d)
to have compulsory process for obtaining witnesses in his favor, if they are within the jurisdiction of the receiving State;

(e)
to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions pre- vailing for the time being in the receiving State;

(f)
if he considers it necessary, to have the services of a competent interpreter; and

(g)
to communicate with a representative of the Government of the sending State and, when the rules of the court permit, to have such a representative present at his trial.

2. The Safeguards in United States Senate Resolution. If the receiving State has exclusive jurisdiction or refuses to waive its primary right and proceeds to trial, the Senate Resolution of July 15, 1953,64 which accom- panied its advice and consent to ratification of the NATO SOFA comes into operation. It requires that the criminal laws of a country where U.S. servicemen are tried by such foreign courts be examined with reference to the procedural safeguards contained in the U.S. Constitu- tion. 65 If there is danger that the accused will not be pro-tected because of a denial of or absence of such a constitu- tional right the Department of State shall be requested to pr,ess for a waiver of jurisdiction. In addition, an observer will attend the trial of all servicemen in foreign courts in order to see that the treaty safeguards set forth in Article W, subparagraph 9, are observed.
(3) Implementation of the Senate Resolution by the
64. [I9531 4 U.S.T. 1828.
6s. For a listing of procedural safeguards contained in the Constitu- tion, see Memorandum of 17 November 1953 prepared by the Inter- Service Legal Committee, reproduced in Heorings on Status of Forces Agreements wore the House Comm. on Foreign .4ffoirs. 84th Cong., 1st Sess., part 1, 249 et seq. (1956).
Department of Defense. 66 The implementing Department of Defense Directive provides:
….
C. Designated Commanding Officer
Formal invocation of the Senate Resolution procedure shall be the responsibility of a single military commander in each foreign country in which United States military forces are regularly stationed (attach6 per- sonnel and other military personnel serving under the direction of a chief of a diplomatic mission will not be considered United States mili- tary forces for this purpose), i.e.,
1.
In the geographic areas for which a unified command exists, the commander thereof will designate within each country, the "Com- manding Officer" referred to in the Senate Resolution.

2.
In other areas for which a command does not exist, a commanding officer in each country shall be nominated by the military departments whose recommendations shall be forwarded by the Judge Advocate General of the hy to the Secretary of Defense, for imple- mentation through the Office of the Assistant Secretary of Defense (In-ternational Security Affairs). In designating the commanding officer to act for all the military departments, consideration should be given to the availability of legal officers and readiness of access to the seat of the foreign government. Such an officer may also be appointed by the mili- tary departments for countries where no military forces are regularly sta- tioned.

….
D. Country Law Studies
For each foreign country in which United States military forces are subject to the criminal jurisdiction of foreign authorities, the designated commanding officer for such country shall make and maintain a current study of the laws and legal procedures in effect. Studies of the laws of other countries shall be made as directed. This study shall be a general examination of the substantive and procedural criminal law of the foreign country, and shall contain a comparison thereof with the procedural safeguards of a fair trial in the State courts of the United States. Copies of these studies should be forwarded to each of the Judge Advocates General of the Se~ces. Principal emphasis is to be placed on those safeguards which are of such a fundamental nature as to be guaranteed by the Constitution of the United States in all criminal trials in State courts of the United States. (See Appendix B for enumeration of safeguards deemed particularly important.) These country law studies shall be subject to a continuing review, and whenever in any country there is a signifmnt change in its criminal law, the change shall be for-
[warded by the designated commanding officer to each of the Service 'Judge Advocates General.
E. Waivers of Local Jurisdiction -Military Personnel
1.
In cases where it appears probable that (a) release of jurisdiction over United States military personnel will not be obtained and (b) that the accused may not obtain a fair trial, the commander exercising general court-martial jurisdiction over the accused will communicate directly with the designated commanding officer, reporting the full facts of the alse and supplying his recommendation.

2.
The designated commanding officer will determine, in the light of legal procedures in effect in that country, whether there is danger that the accused will not receive a fair trial. A trial shall not be deemed unfair solely for the reason that it may not be identical with trials held in the United States. Due regard, however, should be had to those United States trial rights listed in Appendix B which are relevant to the particu- lar facts and circumstances of the trial in question.

3.
If he determines that there is such danger, he will then decide, . after consultation with the Chief of the Diplomatic Mission, whether to press a request for waiver of jurisdiction through diplomatic channels. If

66. Stotus of Forces Policies and Idormation, DoD Duective 5525.1, Jan. 22, 1966. This directive has been implemented by a tri-ser- vice regulation, AR 27-50/SECNAWNST 5820.4D/AFR 110-12, Sept. 5, 1974.
he so decides, he shall submit his recommendation through the unified commander, if any, and The Judge Advocate General of the accused's service to the Office of the Secretary of Defense. The objective in each case is to see that United States military personnel obtain a fair trial in the receiving state under all the circumstances.
….
G. Trial Observers and Trial Observer Reports

1.
The designated commanding officer shall submit to the Chief of Diplomatic Miion a list of persons qualified to serve as United States observers at trials before courts of the receiving state. Nominees will be lawyers, and shall be selected for maturity of judgment. The list will in- clude, where possible, representatives of all Services whose personnel are stationed in that country, to enable the Chief of Diplomatic Miion to appoint an observer from the same Service as the accused. The re- quirement that nominees will be lawyers may be waived in cases of minor offenses. Incidents which result in serious personal injury or ex- tensive property damage, or which would normally result in sentences to confiement, whether or not suspended, will not be considered minor offenses.

2.
Trial observers shall attend and shall prepare formal reports in all cases of trials of United States personnel by foreign courts or tribunals except minor offenses. In cases of minor offenses, the observer shall at- tend the trial, if any, at the dietion of the designated commanding of- ficer, but shall not be required to make a formal report. These reports need not be classified, but shall be treated asdocuments for OFFICIAL USE ONLY, and shall be forwarded intact to the designated command- ing officer through such agencies as the designated commanding officer may prescribe, for transmission to the Judge Advocate General of the accused's Service commander. These reports will be forwarded im- mediately upon the completion of the trial in the lower court, and will not be delayed because of the possibility of a new trial, rehearing, or ap- peal, reports of which will be forwarded in the same manner. Copies shall also be forwarded to the unified commander, if any, and to the Chief of Diplomatic Miion.

3.
The Trial Observer Report shall contain a factual description or summary of the trial proceedings. It should be prepared keeping in mind that its main purpose is to permit an informed judgment to be made regarding (1) whether there was any failure to comply with the procedural safeguards secured by a pertinent status of forces agreement, and (2) whether the accused received a fair trial under all the circum- stances. The report shall specify the conclusions of the Trial Observer with respect to (I), and shall state in detail the basis for his conclusions. Unless the designated commanding officer directs otherwise, the Report shall not contain conclusions with respect to (2).

4.
The dekignated commanding officer, upon receipt of a Trial Ob- server Report, shall have the responsibility for determining (1) whether there wasany failure to comply with the procedural safeguards secured by the pertinent status of forces agreement, and (2) whether the ac- cused received a fair trial under all the circumstances. Due regard should be had to those fair trial rights listed in Appendix B hereto which are relevant to the particular facts and circumstances of the trial in question. However, a trial shall not be deemed unfair for the sole reason that the conduct thereof was not identical with trials held in the United States. If the designated commanding officer is of the opinion that the procedural safeguards spe&ed in pertinent agreements were denied or that the trial wasotherwise unjust, he shall submit to the off~ce of the Secretary of Defense, through the unified commander and the Judge Advocate General of the service concerned, his recommendations as to appropri- ate action to rectify the trial deficiencies and otherwise to protect the rights or interests of the accused. This shall include a statement of efforts taken or to be taken at the local level to protect the rights of the accused. An information copy of the recommendation of the designated commanding officer shall be forwarded by him to the diplomatic or con- sular mission in the country concemed.

(4) ~m~lo~mentof Local Attorney for Ac-cused. (a.) . Criminal Cases. Representation by civilian
counsel at government expense of United States military personnel tried in foreign criminal courts is furnished in accordance with 10 U.S.C. 1037 when such action is deemed to be in the best interests of the United States. 67 Implementation of this statute is subject to service regula- tions. 68 The tri-service regulation provides that any per- son subject to court-martial jurisdiction who is cited to ap- pear before a foreign tribunal, civil or criminal, is eligible to submit a request for the appointment of counsel. For Army personnel, the request is to be submitted to the of- ficer exercising general court-martial jurisdiction over him. That officer may approve the request: (1) if it is an offical duty offense; (2) where the sentence which is nor- mally imposed included confinement-whether or not suspended; (3) in capital cases; (4) in appeals from proceedings which apparently denied some substantial right of the accused, and (5) where conviction of the offense alleged could later form the basis for administra- tive discharge proceedings for misconduct as a result of civil court disposition (e.g., eliminations actions pursuant to AR 635-120 and AR 635-206.) With respect to cases not meeting any of the five criteria, he may approve the request if he considers the case to have a significant impact upon our relations with the foreign country, or if he con- siders the case to involve a particular United States in- terest.
(b.) Civil Cases. In civil cases, the criteria for ap- proval of requests are two: (1) where the suit is based on an act which occurred in the performance of official duty, or (2) where the suit has a significant impact on United States relations with the foreign country, or involves a particular United States interest.
(c.) Procedures. Once his request has been ap- proved, the individual is free to select his counsel from a list furnished him of those civilian attorneys who are qualified and admitted to practice before the courts of the foreign country involved. After he has selected his at- torney, the attorney is asked to sign a contract of employ- ment with the United States in which he agrees to repre- sent the individual diligently and to pay all necessary costs and expenses, and in which the United States agrees to pay him for his services and to reimburse him for those necessary out-of-pocket costs and expenses. If a convic- tion with confinement results from the trial, the service-
67. 10 U.S.C. 1037 is in part as follows:
(a)
Under regulations to be prescribed by him, the Secretary con'- cerned may employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation, before the judicial tribunals and administrative agencies of any foreign nation, of persons subject to the Uniform Code of Military Justice. So far as practicable, these regulations shall be uniform for all armed forces.

(b)
The person on whose behalf a payment is made under the section is not liable to reimburse the United States for that payment, unless he is responsible for forfeiture of bail under subsection (a).

6s. Chapter 2, AR 27/50/SECNAVINST 5820.4D/AFR 110-12, Sept. 5, 1974.
man is not forgotten. DOD Directive 5525.1 provides in paragraph IVO as follows:
I. Treatment of United States Personnel Cortfined in Foreign Penal In- stitutions.
1.
Insofar as practicable and subject to the laws and regulations of the country concerned and the provisions of any agreement therewith, the Department of Defense seeks to assure that United States military per- sonnel (1) when in the custody of foreign authorities are fairly treated at all times and (2) when confiied (pretrial and post-trial) in foreign penal institutions are accorded the treatment and are entitled to all the rights, privileges and protections of personnel confined in United States mili-tary facitlites. Such rights, priviliges and protections are enunciated in present Service directives and regulations, and include, but are not limited to, legal assistance, visitation, medical attention, food, bedding, clothing, and other health and comfort supplies.

2.
In consonance with this policy, United States military personnel contined in foreign penal institutions shall be visited at least every thirty days, at which time the conditions of confmement as well as other mat- ter relating to their health and welfare willbe obsewed. The Services will maintain on a current basis records of these visits as reported by their respective commands. Records of each visit should contain the follow- ing information.

Information as to discharge of a prisoner from the service or ter- mination of confinement. Action taken to have any deficiencies corrected, either by the local commander or through diplomatic or consular mission. Assistance given to prisoner, i.e., legal, medical, food, bedding, clothing, and health and comfort supplies. Condition of prisoner, physical and mental. Change in status of prisoner, conditions of confinement or transfer to another institution. Conditions existing in the prison, i.e., light, heat, sanitation, food, recreation, religious activities. Treatment of the individual prisoner by prison warden and other personnel (include a short description of the rehabilitation program, if any, as applied to the prisoner). Name and location of prison. Name of each prisoner visited, serial number, and sentence for which he is serving imprisonment. Names of personnel conducting visit and date of visit. a.

b.

c.

d.

e.

f.

g.

h.

i.

j.
Designation of command responsible for prisoner's welfare and reporting of visits.

k.

3.
Should it not be practicable for the individual's commanding of- ficer or his representative to make visits, the designated commanding officer should be requested to arrange that another unit be responsible for such visits or to request that the appropriate diplomatic or consular mission assume responsibility therefor. Whenever necessary, a medical officer should participate in the visits and record the results of his ex- amination. If reasonable requests for permission to visit United States military personnel are arbitrarily denied, or it is ascertained that the in- dividual is beiig mistreated or that the conditions of his custody or con- fmement are substandard, the case should be referred to the diplomatic or consular mission concerned for appropriate action.

4.
To the extent possible, military commanders should seek to con- clude local arrangements whereby the United States military authorities may be permitted to accord United States military personnel confied in foreign institutions treatment, rights, privileges, and protection similar to those accorded such personnel confiied in United States military facilities. The details of such arrangements should be submitted to the Judge Advocates General of the Services.

5.
The military authorities shall make appropriate arrangements with foreign authorities whereby custody of individuals who are members of the armed forces shall, when they are released from confinement by foreign authorities, be turned over to the United States military authorities. In appropriate cases, diplomatic or consular officers should be requested to keep the military authorities advised as to the antici- pated date of the release of such persons by the foreign authorities.

6. In cooperation with the appropriate diplomatic or consular mission, military commanders will, insofar as possible, assure that dependents of United States military personnel, nationals of the United States serving with, employed by and accompanying the wed forces, and dependents of such nationals when in the custody of foreign authorities, or when confiied (pre-trial and post-trial) in foreign penal institutions receive the same treatment, rights and support as would be extended to United States military personnel in comparable situations pursuant to the other provisions of Section IV.1.
This paragraph of the DOD Directive is implemented by Chapter 3, AR 27-SOISECNAVINST 5820.4DlAFR 110-12, September 5, 1974.
0) Search and Seizure in the Receiving State. In the 1976 case of United States v. Jordan 69 the Court of Military Appeals extended the protection of the Fourth Amendment to American servicemen beyond that pre- viously afforded by the rationale of the DeLeo 70 decision. In Jordan the serviceman involved was questioned by Bri- tish police concerning several robberies which had occur- red in the American housing area. Jordan acquiesced in a request by British police to search his area. The subse- quent search was conducted, in the main, by the British civil authorities who were accompanied by two air police- men from Jordan's base. Theair police took no part in the actual search except to unlock a padlock on Jordan's locker and look around the room. When incriminating evidence was discovered, the British police requested a photographer and Air Force personnel complied. Judge Fletcher, writing for the majority, articulated the court's rationale as follows:
"The temptation confronting American officials to avoid the Fourth Amendment by merely delegating primary search authority to those not subject to our Constitution coupled with the unending judicial dilemma of resolving what is and is not sufficient participation to trigger the Con- stitutional guarantee leads us to conclude that the DeLeo standard no longer is satisfactory to safeguard the constitutional rights of servicemen stationed in a foreign country. .. .
We therefore hold that for trials by court-martial commencing after [March 12,19761, whenever American officials are present at the scene of a foreign search or, even though not present, provide any informa- tion or assistance, directive or request, which sets in motion, aids, or otherwise furthers the objectives of a foreign search, the search must satisfy the Fourth Amendment as applied in the military community before fruits of the search may be admitted into evidence in a trial by court-martial." 71
The court further restricted the court-martial use of evi- dence obtained from foreign officials.
If the government seeks to use evidence obtained either directly or indirectly from a search conducted solely by foreign authorities, a show- ing by the prosecution that the search by foreign officials was lawful, ap- plying the law of their sovereign, shall be a prerequisite for its admission in evidence upon motion of the defense. 72
Finally, the court stated that the trial judge had discretion to refuse to admit the evidence unlesshe was satisfied that the "foreign search does not shock the conscience of the
69, 24 U.S.C.M.A. 156, 51 C.M.R. 375 (1976).
7'3. 5 U.S.C.M.A. 148, 17 C.M.R. 148 (1954).
71.
24 U.S.C.M.A. at 158-59, 51 C.M.R. at 377-78.

72.
Id. at 159 and 378.

Pam 27-161-1
court." 73 This broadened application of the exclusionary rule would appear to be at variance with recent Supreme Court decisions. 74
(g) The United States as a Receiving State. The Service Courts of Friendly Foreign Forces Act was enacted in 1944 in order to permit the operation of allied military courts on U.S. soil. 75 The act is designed to come into operation by presidential proclamation. President Roosevelt issued the proclamation in 1944 shortly after the act was passed. The proclamation was withdrawn in 1955 inasmuch as Article W permits the establishment of such courts. However, there is much more involved than courts. Such matters as the bearing of arms, licensing of vehicles, waivers, taxes, postal privileges, the role of the state and federal authorities, etc., all must be taken into account. 76
10-5. Other Status of Forces Agreements.
a. Germany. 77 (1) Origins. Until 1 July 1963 the rights and obligations of the United States forces stationed in the Federal Republic of Germany were governed by the Bonn Conventions of 1952, as amended by the Paris Protocol of 1954. One of these Conventions, the "Convention on Relations Between the Three Powers and the Federal Republic of Germany," provided that three of the conventions, the "Finance Convention," the "Forces Convention," and the "Tax Agreement" would be replaced by the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA) and such supplementary arrangements as might be required to meet special conditions within the Federal Republic. On 11 October 1955, the negotiation of the Supplementary Agreement began. On 3 August 1959, almost four years later, the Federal Republic of Germany and the NATO countries with armed forces stationed in Germany (the United States, Belgium, Canada, France, the Nether- lands, and the United Kingdom) signed the agreement. 78 Because of delays incident to ratification, however, it did not come into force and effect until 1 July 1963. The Federal Republic of Germany became the 14th of the 15 NATO countries to be bound by the NATO SOFA. (Ice- land is the only NATO country which is not a signatory to
73. Id.
74. See, e.g., United States v. Janis, 19 Crim L. Rep 3323. The Court, in discussing the inter-sovereign applicability of the exclusionary rule stated:
It is well-established, of course, that the exclusionary rule as a deterrent sanction is not applicable where a private party or a foreign government commits the offending act. (emphasis added) Id. at 3330, n. 31.
75. 22 U.S.C.55 701-706 (1944).
76. See Ellert, The United States as a Receiving State, 63 DICK.
L.
REV.75 (1959).
77. See, Esgain & Kenyon, The North Atlantic Treaty Organization Status of Forces Agreement with the Federal Republic of Germany, 10 Fed. Bar News 291 (1963).
78. [I9631 14 U.S.T. 531, T.I.A.S. No. 535; 41 Dep't State Bull. 293 (1959).
the NATO Status of Forces Agreement.)
(2) The Supplementary Agreement. The Supplemen- tary Agreement is much more detailed and comprehen- sive than any previous or subsequent SOFA. It encom-
passes in one document matters which are generally treat- ed in a variety of agreements. Its comprehensiveness is in part attributable to the fact that a Federal system of Government exists in Germany and, as such, a detailed agreement which would bind the 10 states (Laender) of the Federal Republic of Germany on a host of local mat- ters was required. Similar arrangements have been the subject of general rather than detailed understanding in other countries where, in the absence of the Federal system, broad understandings can be centrally and uniformly administered. The Supplementary Agreement contains 83 articles which are concerned with such diverse matters as the personal status of the members of a visiting force, custody and jurisdiction (both criminal and civil), accommodations, taxation, customs, damage claims and maneuver rights, liability insurance, vehicle registration, the registration of deaths and births, social security, dri- vers' licenses, enforcement of judgments, aerial photogra- phy, procurement, and the like.
(3) The Jurisdictional Formula and Automatic Waiver. The item of greatest general interest is the ar- rangement pertaining to the exercise of criminal jurisdic- tion over members of the United States forces, the civilian component, and the dependents of both these categories of personnel. Under the superseded "Forces Conven- tion," the United States had what amounted to exclusive criminal jurisdiction over all United States service con- nected personnel in Germany. This arrangement has been replaced by the jurisdictional formula of the NATO SOFA as modified in important particulars by the Supplementary Agreement. Under the NATO SOFA, most serious offenses committed by sending State personnel are subject to the concurrent jurisdiction of both the sending and the receiving States. Article W of the NATO SOFA obligates the state having the primary right to exercise jurisdiction to give "sympathetic consideration'' to a request from the other state for a waiver of that right in cases of particular importance to the latter. In Article 19 of the Supplemen- tary Agreement, the Federal Republic of Germany has agreed to grant to a sending State, upon request, a general waiver of its primary right to exercise jurisdiction in cases under the NATO SOFA, subject, however, to the right of the German authorities to recall the waiver when they decide that, by reason of the circumstances of a specific case, major interests of German administration of justice make imperative the exercise of German jurisdiction. The ~i~cance
of the difference between this commitment and the waiver language of the NATO SOFA is obvious. In order to implement the waiver arrangement in the Federal Republic of Germany, the United States re- quested that the general waiver be granted. (The require- ment of a request for waiver was necessary because some

of the sending States, unlike the United States, were ap- parently not interested in securing any greater rights to ex- ercise criminal jurisdiction than are provided in the NATO SOFA itself, and therefore did not desire a general waiver.) When an offense is committed by a U.S. service- man over which the Federal Republic would have the primary right to exercise jurisdiction, the United States military authorities must notify the appropriate German authorities of the case. Within three weeks from receipt of the notification, the local German authorities may recall the waiver. Provision is made for discussion between the local German authorities and the local United States mili- tary authorities in cases of recall and, if there is disagree- ment on the propriety of the recall, for appeal to their counterparts at the Land (State) level. If the problem can-not be resolved at the Land level, the matter may be referred to the Mixed Commission established under Ar-ticle 30 of the Supplementary Agreement. The Ger- madAmerican Mixed Commission consists of a repre- sentative of the German Federal Ministry of Justice and the Judge Advocate, United States Army, Europe and Sev- enth Army. Final appeal is to the United States Embassy and to the Federal Republic. The Government of the Federal Republic, however, has the right to resolve the matter unilaterally and finally. However, both the United States Embassy and the German government must give "sympathetic consideration" to any joint recommenda- tion of the Mixed Commission. In an agreed minute, the Germans have indicated that the term "major interests of German administration of justice" includes such crimes as homicide, rape, and robbery. These criminal jurisdic- tion arrangements are much more favorable to the United States than are those of the NATO SOFA.
(4)
Arrest Powers. Under the Bonn Conventions, the German police possessed only a very limited authority to arrest United States servicemen. Under the new agree- ments, the German police have plenary powers of arrest over servicemen.

(5)
Custody and Trial. A United States serviceman who is to be tried for a crime by a German court may be retained in United States custody both before and during his trial. A United States serviceman who is charged by a German court may choose local defense counsel, who will be retained for him by the United States Army, which will normally pay for such counsel and for court cost, but not fines. The trial, of course, will be conducted in German but the accused is provided an interpreter. A United States trial observer (a JAGC officer or American civilian at- torney on the staff of the command Staff Judge Advocate) will attend the trial of United States service-connected personnel by German courts and will report on the fair- ness of the trial and whether the accused's treaty rights were respected during the proceedings. An accused sen- tenced to confinement in a German prison will be regularly visited by United States representatives who will report on the conditions of confinement. Once tried by a

German court, a serviceman cannot be tried again for the same offense by a court-martial in Germany.
(6)
Civilians and Dependents. Civilian employees of the United States forces in Germany and dependents have not been subject to peacetime court-martial jurisdiction since the Supreme Court decisions on this subject in Janu- ary 1960. Civilians in Germany, therefore, will continue to be fully subject to the jurisdiction of German courts for crimes committed in Germany. Trial safeguards in Ger- man courts for these civilians are the same as for United States servicemen.

(7)
Non-Criminal Jurisdiction. United States per- sonnel in Germany continue, under the new agreements as they were under the Bonn Conventions, to be subject to the non-criminal jurisdiction of German tribunals. They are not, however, subject to any proceedings for the enforcement of any judgment against them in Germany in a matter arising from their performance of official duties.

(8)
Further Implementation. Most of the 83 articles of the Supplementary Agreement contemplate the making of further and more detailed implementing arrangements and Agreements. A Protocol of Signature accompanies the basic agreement and contains Agreed Minutes and Declarations relating both to the NATO SOFA and to the Supplementary Agreement. In addition, numerous ad- ministrative agreements have been concluded between the United States and Germany at the U.S. Em-bassy/German Foreign Office level implementing or amending specific articles of the NATO SOFA, the Sup- plementary Agreement and the Protocol of Signature. The Agreement, therefore, cannot be authoritatively in- terpreted without recourse to these materials.

6. Japan. As Japan was not a member of NATO the status of U.S. forces stationed in the home islands of Japan after the conclusion of the occupation was first governed by a 1952 Administrative Agreement. 79 This Administrative Agreement was one of several agreements which were executed in implementation of a 1952 Security Treaty 80 with Japan. Both the Security Treaty and the Administrative Agreement came into force the day the Peace Treaty 81 with Japan came into effect. With respect to criminal jurisdiction, the Administrative Agree- ment provided that the U.S. was to have the primary right to exercise jurisdiction in all cases. However, the agree- ment also contained a pledge to revise this criminal juris- diction formula along the lines of the NATO SOFA when that latter agreement came into force for the United States. Therefore, when in 1953 the NATO SOFA became effective, the U.S. signed a protocol with Japan revising so much of the Administrative Agreement with Japan as pertained to the exercise of criminal jurisdic- tion-making it nearly identical with corresponding provi-
79.
[I9521 3 U.S.T. 3341, T.I.A.S. No. 2492.

80.
[I9521 3 U.S.T. 3329, T.I.A.S. No. 2491.

81.
[I9521 3 U.S.T. 3169, T.I.A.S. No. 2490.

Pam 27-161-1
sions of the NATO agreement. 82 The 1952 Security Treaty was superseded on 19 January 1960 by a Treaty of Mutual Cooperation and Security. 83 The new treaty (Ar-ticle VI) requires that the status of forces be provided by an agreement separate from the 1952 Administrative Agreement. Article VI was immediately implemented by an agreement 84 which now controls the status of U.S. forces in Japan. It is substantially similar to the NATO SOFA.

c. Republic of Korea. With the exception of MAAG personnel, the status of U.S. forces in Korea was governed, until 9 February 1967, by a wartime executive agreement entered into in July of 1950. 85 That agree- ment, actually an exchange of notes between the ROK government and our embassy at Seoul, gave the United States exclusive criminal jurisdiction over "members of the United States Military Establishment in Korea." On 9 February 1967, the Korean Status of Forces Agreement, with agreed minutes, 86 came into effect. Based largely on the NATO SOFA, it established a jurisdictional formula similar to that contained in the NATO SOFA. Members of the force are defined as personnel on active duty with the armed services of the United States when in the ter- ritory of the Republic of Korea except Embassy and MAAG personnel. MAAG personnel and their depend- ents continue to enjoy the immunities of Embassy person- nel as provided in the Mission Agreement of 26 January 1950.87 The civilian component is defined as civilians of
U.S.
nationality who are in the employ of, serving with, or accompanying the U.S. Armed Forces except persons or- dinarily resident in the Republic of Korea and "invited contractors." Invited contractors are treated as a special class and enjoy certain, but not all, of the rights accorded to members of the civilian component. For the purposes of the Agreement, dual nationals brought into Korea by the Armed Forces will be deemed to be U.S. nationals. Dependents are defined as the spouse and children under 21, as well as children over 21 and other relatives depend- ent for over one-half of their support on members of the forces or civilian component.

d.
Philippine Islands. U.S. forces in the Philippines, principally Navy and Air Force, come under a Military Bases- Agreement which has been in effect since 1947.88 In 1965, Article XIII of the Agreement governing crimi- nal jurisdiction was substantially revised. The revised Ar-

82: [I9531 4 U.S.T. 1846, T.I.A.S. No. 2848.
83.
I19601 11 U.S.T. 1632, T.I.A.S. No. 4509.

84.
[I9601 11 U.S.T. 1652, T.I.A.S. No. 4510.
8s. [I9541 5 U.S.T. 1408, T.I.A.S. No. 3012. See also [I9521 3

U.S.T.4420, T.I.A.S. No. 2593.
86.
[I9661 17 U.S.T. 1677, T.I.A.S. NO. 6127.

87.
[I9521 3 U.S.T. 2696, T.I.A.S. No. 2436.

88.
61 Stat. 4019, T.I.A.S. No. 1775. Seealso [I9581 9 U.S.T. 547,

T.I.A.S.No. 4033 establishing a Mutual Defense Board to work out problems under the base agreement.
ticle XIII, 89 like the current provisions of the Japanese and Korean agreements, contains a jurisdictional formula similar to the NATO SOFA. With respect to those offenses over which the United States has primary juris- diction, the Agreed Official Minutes Regarding Article XI11 specifies such jurisdiction will apply "only to those persons subject to the military law of the United States regularly assigned to the Philippines or present in the Philippines in connection with the presence of the U.S. bases." Further, it specifies that the term "persons sub- ject to the military law of the United States" does not ap- ply to members of the civilian component or dependents "with respect to whom there is no effective military juris- diction at the time this arrangement enters into force," thereby recognizing the recent United States court deci- sions 90 denying military jurisdiction over such personnel.

e.
Okinawa (Ryukyu Islands). Under the terms of the Peace Treaty with Japan, the United States was granted "the right to exercise all and any powers of administra- tion, legislation, and jurisdiction over the territory and in- habitants" of the Ryukyu Islands. 91 Exclusive criminal jurisdiction over all the Marines, Army, Navy, Air Force, and Coast Guard who are stationed at this defense bastion was thus vested in United States courts-martial. USCAR courts exercised jurisdiction over U.S. civilians who were either United States government employees or depend- ents. Since the entry into force of the Agreement for Reversion to Japan of the Ryukyu and Daito Islands, 92 jurisdiction over U.S. military and civilian personnel is governed by the Japanese Administrative Agreement. 93

f.
Saudi Arabia. Under earlier agreements (e.g., Dhahran Air Base Agreement 94 and the MAAG Agree- ment), 95 criminal jurisdiction was based on a geographi- cal concept, i.e., offenses committed by military personnel in certain specified areas of the nation were subject to ex- clusive U.S. jurisdiction. Offenses committed by military personnel outside those areas and all offenses committed by civilians irrespective of where committed were subject to exclusive Saudi Arabian jurisdiction. In later agreements (e.g., the Construction of Military Facilities Agree- ment), 96 the concept was changed so as to provide that "the senior representative of the Corps (of Engineers) element in Saudi Arabia shall have the sole authority to maintain discipline and good order among the members of the Corps and their dependents and to assure their full respect for the laws of Saudi Arabia by taking appropriate

[I9651 16 U.S.T. 890, T.I.A.S. No. 5830. [I9531 4 U.S.T. 1482, T.I.A.S. No. 2812. [I9511 2 U.S.T. 1466, T.I.A.S. No. 2290. [I9601 11 U.S.T. 1652, T.I.A.S. No. 4510. [I9521 3 U.S.T. 3169, T.I.A.S. No. 2490. See paras. 10-4a(2) and (3) supra. [I9651 16 U.S.T. 1090, T.I.A.S. No. 5851; 119711 22 U.S.T. 1469, T.I.A.S. No. 7160. 89.

90.

91.

92.
[I9721 23 U.S.T. 446, T.I.A.S. No. 7314, entered into force May 15, 1972.

93.

94.

95.

96.

action under United States law involving such persons." In the Agreement on Privileges and Immunities for United States Personnel Under F-5 Aircraft Maintenance and Training Program 97 and the National Guard Modern- ization Program Agreement, 98 identical treatment was extended to personnel under those programs.
g.
Other Agreements. Mentioned earlier in Part I are the Rio Pact 99 effective 3 December 1948, including all the nations of North and South America except Canada; the SEAT0 Pact 100 [Southeast Asia Collective Defense Treaty] effective 19 February 1955, between the United States, the United Kingdom, France, New Zealand, Australia, Thailand, Pakistan, and the Philippines; the ANZUS Pact 101 of 29 April 1952, involving the United States, Australia, and New Zealand; and the CENT0 Pact to which Iran, Pakistan, Turkey, and the United Kingdom are parties, and to which the United States has made a declaration. 102

h.
International Headquarters Agreements. (1) In ad-dition to the multilateral and bilateral SOFAS governing I the status of personnel assigned or attached to national military forces of a sending State within the territory of a receiving State, other agreements have been adopted governing the status of personnel assigned or attached to international organizations and international military headquarters in several states in which such international organizations or headquarters are located. Typical exam- ples of such agreements are as follows:

(a)
The Ottawa Agreement on the Status of the North Atlantic Treaty Organization, National Representa- tives, and International Staff. 103

(b)
Protocol on the Status of International Mili- tary Headquarters. 104

(c)
Agreement Regarding the Status of Personnel of Sending States Attached to an International Military Headquarters of NATO in the Federal Republic of Ger- many. 105

(4 SHAPE/Belgian Agreement 106 (to be ad-ded).

(e)
AFCENTmetherlands Agreement 107 (to be added).

(2)
The Ottawa Agreement, governing the status of the nonmilitary side of the North Atlantic Treaty

97. [I9721 23 U.S.T. 1469, T.I.A.S. No. 7425.
90. [I9731 24 U.S.T. 1106, T.I.A.S. No. 7634.
99.
62 Stat. 1681, T.I.A.S. No. 1838 (1947).

100.
[I9551 6 U.S.T. 81, T.I.A.S. No. 3170.

101.
I19521 3 U.S.T. 3420, T.I.A.S. No. 2943.

102.
[I9581 9 U.S.T. 1077, T.I.A.S. No. 4084.

103.
[I9541 5 U.S.T. 1087, T.I.A.S. No. 2992 [hereinafter referred to as Ottawa Agreement].

104.
[I9541 5 U.S.T. 870, T.I.A.S. NO. 2978 [hereinafter referred to as the I.M.H. Protocol].

10s. [1967] 20 U.S.T. 4055, T.I.A.S. No. 6792 [hereinafter referred to as I.M.H. Agreement-Germany].
106.
SHAPE/Belgium.

107.
AFCENT Netherlands.

Organization, provides that "[elvery person designated by
a Member State as its principal permanent representative
to the Organization in the territory of another Member
State, and such members of his official staff resident in
that territory as may be agreed between the State which
has designated them and the Organization and between
the Organization and the State in which they will be resi-
dent, shall enjoy the immunities and privileges accorded
to diplomatic representatives and their official staff of
comparable rank." 108 The Agreement further provides
that any other representative, including advisers and tech-
nical experts of delegations, as well as official clerical staff
accompanying a representative of a Member State shall,
while present in the territory of another Member State for
the discharge of his duties, be entitled to the same im-
munity from personal arrest or detention as that accorded
to diplomatic personnel of comparable rank. 109 However,
since the privileges and immunities accorded to these per-
sonnel are not for the personal benefit of the individuals
themselves but in order to safeguard the independent ex-
ercise of their functions in connection with the North
Atlantic Treaty, "a Member State not only has the right,
but is under a duty to waive the immunity of its repre-
sentatives and members of their staffs in any case where,
in its opinion, the immunity would impede the course of
justice and can be waived without prejudice to the pur- poses for which immunity is accorded." 110
(3) The IMH Protocol, on the other hand, governs the status of the military side of the NATO complex, specifically to Supreme Headquarters Allied Powers in Europe (SHAPE), Headquarters, Supreme AUied Com- mander Atlantic (SACLANT) , other equivalent interna- tional military headquarters set up pursuant to the North Atlantic Treaty (e.g., Allied Command Channel) and any other international military headquarters immediately subordinate to a Supreme Headquarters (the latter desig- nated as "Allied Headquarters"). 111 Examples of "Allied Headquarters" are the three major subordinate international military headquarters assigned to SHAPE: Allied Forces Northern Europe (AFNORTH) located in Kolsaas, Norway; Allied Forces Central Europe (AF- CENT) located in Brunssum, The Netherlands; and Allied Forces Southern Europe (AFSOUTH) , located in Naples, Italy. From the standpoint of criminal jurisdic- tion, the Protocol applies the provisions of Article W of NATO SOFA to the personnel of the national military ele- ments assigned to the several international military head- quarters "when such personnel are present in [the territo- ry in which the headquarters is located] in connection with their official duties." 112 The IMH Protocol establishes basic relationships in consideration of the expectation that
10s. Ottawa Agreement, supra note 105, art. MI.
"39. Id. at arts. XI11 and XIV.

110.
Id. at art. XV.

111.
I.M.H. Protocol, supra note 106, at art. I.

112.
Id. at art. 11.

international military headquarters in addition to
"Supreme Headquarters" and "Allied Headquarters" would be established, by separate agreement, in the ter- ritories of various member states. 113 Further, the IMH Protocol envisages the possibility of bilateral agreements between a receiving State and a Supreme Headquarters supplementing the IMH Protocol. 114 The agreements dis- cussed below are examples of those separate national agreements.
(4) The IMH Agreement-Germany is a multilateral agreement between the signatories to the NATO Status of Forces Supplementary Agreement 11s conferring on the personnel of the signatory sending State elements of the international military headquarters in Germany the same status as those personnel would enjoy under the Supplementary Agreement. At the present time, the international military headquarters to which this agreement applies are NATO commands subordinate to Headquarters AFCENT. 116
Id. at para. 2, art. XVI. 113.
Id. at preamble.

114.

115.
Belgium, Canada, Germany, Netherlands, United Kingdom, and United States.

116.
At the present time there are four International Military Head-quarters in Germany; Headquarters Northern Army Group (NORTHAG) located in Muenchen-Gladbach; Headquarters Central Army Group (CENTAG) located in Seckinheim; Headquarters 2d Allied Tactical Air Force (2d ATAF) located at Meunchen-Gladbach; and Headquarters, 4th Allied Tactical Air Force (4th ATAF) located at Ramstain.

Pam 27-161-1

10-6. Conclusion. As should be apparent from the foregoing, the United States is a party to a.multitude of agreements denominating the status of its military person- nel, its civilian employees, and their respective depend- ents. It is important to note that the status of American citizens may differ even within the same receiving State, depending on the official purpose for their presence. For example, American military personnel in Germany may be subject to either the NATO SOFA or to an Interna- tional Headquarters agreement and the privileges and im- munities would vary accordingly. Further complicating the issue, the treatment accorded American personnel under the same agreement may vary. Under the Ottawa Agreement, certain personnel have diplomatic immunity while others do not. Further, the liaison authorities may also differ. The "designated commanding officer" who is responsible for U.S. forces and personnel according to the NATO SOFA is not the "responsible authority" under the Ottawa Agreement.
The aforementioned examples are inserted at this point to alert the military attorney to the complexity of the prob- lems that may arise under the various agreements. Differences in result may apply not only to the jurisdic- tional status of personnel and their dependents but also to other rights and privileges.
Pam 27-161-1

CHAPTER 11
THE CIVIL LAW SYSTEM

11-1. Introduction. The legal status of members of the United States Armed Forces in foreign countries may to a great extent depend on the law of the country where the member is located. 1 The United States Supreme Court once stated that "[it] is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdic- tion of the place." 2 This proposition is no longer ac- cepted. The doctrine of "extra-territoriality," upon which the exemption of foreign troops from "territorial jurisdic- tion" was based, has been abandoned and is now ob- solete. 3 The broad waiver once thought to be implicit in the grant of permission by a receiving State to station troops in its territory is no longer recognized by modem state practice or by authoritative text writers. 4 Ac-cordingly, it is of practical importance that members of the United States Armed Forces appreciate the legal systems which they are likely to encounter outside the United States. 11-2. The Early European Models. a. In Western Europe, two prominent legal systems developed: the common law of the Anglo-Saxon contries, and the civil law of continental Europe. The effect of these two systems has been worldwide since many countries have used them as sources of their legal systems.
b. Roman origins. "Civil Law" can have several meanings. For example, it is used in contradistinction to criminal law or as a synonym for private law in general. Primarily the notation "civil law" is used to distinguish it from the common law. 5 The common law has its origins in the feudal system of England. The civil law system has a different origin and a different emphasis; the ius civile finds its bas; in legislative codif~catibns aid its brigins in Roman legal practice. Early in Roman history the jus civile applied only to citizens of Rome, while the jus gentium was developed for noncitizens. The Roman legal system contained relatively strict provisions which often resulted in excessive hardships. To resolve this harshness, the of- fice of praetor was established to temper the jus civile. 6
1. see chap. 10, supra.
2.
Coleman v. Tennessee, 97 U.S. 509, 515 (1878). "The sovereign is understood . . . to cede a portion of his territorial jurisdic- ti& when he allows troops of a foreign prince to pass through h5 do-minions." Id.

3.
See, e.g., Lauritzen v. hen, 345 U.S. 571, 584-85 (1952), and Chung Chi Cheung v. The King [1938] A.C. 1960 (H.L. 1938).

4.
For a survey of authorities and a comprehensive bibliography, see 99 CONG. REC. 9062-70 (1953) (statement of Attorney General Brownell).

5. SeeZepos, The Legacy of Civil Low, 34 Lo. L. Rev. 895 (1974);
R. Schlesinger, Comparative Law, 245, 251 (3d ed. 1970); R. David &
J. Brierly. Mqior Legal Systems in the World Today, 18-53 (1968).
6. This introduced a concept similar to "equity" which was to develop centuries later in response to the hardships of the common law.
The recent trend in the common law of combining "law" and "equity" functions in a single court closely resembles the consolidation that occurred in the civil law. 7 Through the centuries the prestige of the praetors increased and their opinions and advice were followed. Attempts to col- lect the work of the praetors culminated when Emperor Justinian caused Roman law to be compiled in Justinian's Code. In subsequent centuries the codified Roman law was alternately in and out of favor in Europe. During the 18th and 19th centuries it found increasing favor with pro- minent European jurists and the great codification move- ments of France and Germany occurred. These legislative codifications are the bases of the civil law system. 8 11-3. Modem Civil Practice. When investigating a foreign custom or a manner of doing something that is different than what one is accustomed to, the temptation is to use the familiar as a standard of excellence and to seek to determine how much deviation exists between the familiar and the practice under investigation. The obser- vations of a French jurist in the 1920's may reduce such a temptation: When a lawyer of the Continent comes for the fust time to America, he
is usually full of admiration for the administration of justice in the United States. He sees "efficiency" and "service" written and worship- ped everywhere. His imagination begins to work, and he thinks im-mediately of American courts like small Ford factories, where rights are recognized, set in motion, sanctioned in less time than is necessary to build a "fliwer." Then he enters into a courtroom. . . .Instead of look- ing at a trial conducted as a business meeting, with all the work prepared by well-trained specialists, what does he see? That nothing has been done before the trial to ascertain the facts; that oral evidence is seriously considered as reliable; nay! that such evidence is gathered not by a criti- cal and impartial inquiry, but by squeezing the witness through the theatrical scheme of cross-examination; that the inquiry is conducted by lawyers who are not interested in the discovery of truth, but, to say the least, in a certain presentation of the facts; that abstract mles, called evi- dence (!!), decide a priori what is relevant or not, what canbe proven or not; that a stenographer takes down all that is said at the trial and makes it eventually one of several volumes.9
To add to this confusion, consider the consternation of the civil lawyer who then realizes that the complicated facts must be unraveled and a decision reached by "ordinary" persons. A number of years ago, the civil law methodology was described thusly:
In the civil system the Code is central; judges and case law have a dis-tinctly inferior position, in comparison with common law jurisdictions. The controlling conceptualism of the civil law is contained within these mitten Code texts, which are authoritative because of their political
7. Dainow, The Civil Law and Common Law:Some Points of Com- parison, 15 AM. J. COMP. L. 419, 423 (1967) [hereinafter referred to as Dainow].
8. Id. at 420, 21.
9. Pugh, Cross-Observations on the Administration of Civil Justice in the United States and France, 19 U. Miami L. Rev. 345, 346 (1965) citing LePaulle, Administration of Justice in the United States, 4 West Pub. Co. Docket 3192 (1928).
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sanction. The Codes have unity and systematic arrangements; their
texts have a logical interdependence and coherence born of careful, con-
scious legislative formulation. 10
When conflicts occur and litigation becomes neesay, the fm qdon is whether the problem is controlled by one or more Code articles. In the , great majority of cases this will be so, and an elaborate apparatus of in- terpretation will be called into play. Regard will be had to the language of the text and the sense it conveys, the influence of other articles, con- siderations of the textual arrangement of the Code as a unit, historical factors, the clarifying effect of the motifs of obscure passages, and allowable areas within which the legislator has indicated that judicial dis- cretion may be used in taking account of special factors. The whole im- port of the process is the ascertainment of the genuine signifkance of the Code text. 11
It is always the Code itself to which the judge fmt turns; in no case does he allow himself to become insulated from the Code article by the doctrinal writing or the jurisprudence (decisions), both of which, however, are additional factors which may be said to possess persuasive influence. In some fields which have developed since the drafting of the Codes, these two factors are necessarily of considerable importance, and in these instances there may be said to be something approaching case law. There is, however, no doctrine of stare decisis, of interpretation or otherwise. 12
In the absence of a controlling Code text, the civilian judge by no means discards his Code. It is realized that properly drafted Codes have what the civilian calls "organic harmony," and contain within themselves a social and legal point of view consistently maintained throughout. Legis- lative activity as expressed in Codes is deemed to be only the starting point for further bold activity on all fronts, and the basis for all the future legal development of the country, rather than as an exceptional phenomenon to be discouraged and stifled as in America. Therefore, the civilian protects and extends his legislative text to a great variety of situations not precisely within its scope by use of "analogy." This method of handling statutory material involves the decision of problems not covered in the Code, but analogous to those precisely covered, in a manner consistent with a point of view revealed in the Code's disposi- tion of the problem specifically covered. The process consists of a deter- mination of the projective value of Code articles. The contest is fought over whether the analogy should be accepted, or whether there is an argument a contrario or a competing analogy. Or the text may be jus singulare, possibly by expressed command of the legislation in which cir-cumstances it may not be projected analogically. 13
[AJsmodem civilians have freely recognized, the process is a creative one, since the judge ultimately has the power to accept or reject the analogies, or to choose between them. Thus, in resorting to analogy, the judge is free of the legislator to a certain extent, yet it must be observed that, in this field of activity as well, the civilian juridical method is a socialized one, and one utilizing legislative, and not judicial conceptual- ism. . . . This means that the civilian system is assured of a point of departure for analogy which is more consistent with the demands of cur- rent society, because the texts of the Code reveal a social attitude as to the harmonization of competing sccial interests, established by a socialized ratchet [i.e., legislative] process and are freer than cases can be, under a system of precedents, from archiac and conceptualism and historical rubbish. . . . 14 If neither the texts of the Code nor their projec- tion by use of analogy yields a solution, the civilian at least has a truly "unprovided-for case." The next step at this point will vary considera- bly. . . . 1s
10. Morrow, Louisiana Blueprint: Civilian Codification and Legal Method for State and Nation, 17 Tul. L. Rev. 351, 548 (1943).
11.
Id. at 549.

12.
Id. at 549-50.

13.
Id. at 552-53.

14.
Id. at 553-54.
1s. Id. at 554.

Thisdoes not mean complete judicial freedom from authority-even where a "standard" is imposed, it is freedom only within limits. But it involves a recognition that there are some situations, and some whole fields of law, which lend themselves to individualized, discretionary ac- tion by judges, in rather administrative capacities. Yet this still involves no formation of judicial conceptualism, for the cases are to be truly in- dividualized; since no subsequent judge will be bound to follow the in- dividualized decision, and thus it shall have little future value. 16
Of course the civil law methodology is furthered by the form of legal education in civil law countries. As might be expected, the legal education of a civil lawyer tends to focus on legislation and c~~cation,
rather than on cases as is the practice in the law schools in common law coun- tries. The methodology of a civil law training has been stated as follows:
In civil law countries, the student starts his study with codes and textbooks. He learns about the Justinian ccdGcations and their influence on his present day legal system. He is taught general principles and how to think in abstractions. It becomes part of his being to appreciate classifica- tion and coordination of subject matter, and to take for granted a com- prehensiveness of the law as systematic and a whole. It is only recently in countries like France and Belgium that the law student has been re- quired to read some decided cases, and he ususally attaches only sec- ondary importance to the judicial decisions. He concentrates on the codes, the treaties, and the notes taken during the formal lectures by his professors. 17
11-4.The Working Civil Model. a. To understand more fully how a criminal case is processed under the civil law, it is necessary to appreciate that the civil law procedure has a different perspective than that of the com- mon law. This has often been explained in terms of an ac- cusatorial system (common law) versus an inquisitorial system (civil law). 18
6.The adversary model. An accusatorial (or adver- sary) procedure starts from the premise that it is being con-ducted between two sides, i.e., it is essentially a contest between the prosecutor and the defendant. As such, the participants generally frame the extent of the dispute by the pleadugs and stipulations. The prosecutor, in partisan fashion, indicates what facts are necessary to "convict" the defendant, and attempts to prove such facts. The de- fendant, conversely, attempts to block those efforts. Under such a process the defendant cannot be forced to give evidence since to do so would destroy the "theoreti- cal equality between the contestants." 19 The role of the fmder of fact (whether judge or jury) is passive and he acts merely to determine who has prevailed in the contest. A judge is present to ensure that the parties abide by the rules applicable to the conflict. Consequently, a great number of technicalities can arise, with the result that an
16. Id. at 555.
17.
Dainow, supra, note 7, at 429.

18.
For a discussion of the historical development of these different

judicial concepts, see Damaska, Evidentiary Barriers to Conviction and Two Modes of CriminalProcedure:A Comparative Study, 121 U.Pa. L. Rev. 506 (1973) [hereinafter referred to as Damaska].
19. Id. at 563.
accusatorial process can become "over-lawyered." 20
c.
The inquisitorial model. On the other side, the civil law proceeds from a quite different perspective. In the civil law the processing of a criminal case is not viewed as a dis-pute but rather as an inquiry to find out if an offense has occurred, who committed it, and whether punishment should be imposed. Since the process is one to find out what has happened, it is inconsistent that the parties (i.e., the government and the accused) may limit the sqpe of inquiry. Determination of the facts is unfettered by rules of evidence. The factfiinder seeks out allsources of reliable information, to include questioning the accused. Under such a system fewer technicalities arise and the role of the lawyer is reduced. 21

d.
Unfortunately, the contrast between the accusatorial (adversary) and the inquisitorial (nonadversary) procedures raise in the mind of a person accustomed to the common law, visions of the unfamiliar (i.e., the civil law system) at its historical worst. The civil law system is an alternative to the common law concept of due process and it should not be assumed that it necessarily must be based on [tlhe horrors of a procedural system where charges are not S~IC,

the accused is not accorded the benefit of doubt, his confession is coerced, his detention before trial is unlimited, he has no right to counsel, and is not advised of his constitutional rights. 22
11-5. The Civil Process. a. Investigation. What occurs when there is reason to believe that an offense has taken place? An investigation, requested by an "accuser" (nor-mally the public prosecutor), is conduted by an impartial official. Some civil law countries (e.g., France and Ger- many) make a distinction between the initial investigation and the special investigation, the former being conducted by the police, and the latter by an investigating judge. In modem civil law systems, some of the inquisitorial features of investigation have been deleted from the process and the accused is aware of all evidence before the trial begins.23
b. The Role of the Prosecutor. Once the investigation has been completed and the dossier compiled, the evi- dence is forwarded to the public prosecutor for a decision whether to prosecute or not. If the decision is made to
20. Id.
21.
Id. at 564.

22.
Id. at 569. These are what Mr. Justice Frankfurter listed as the indicia of an "inquisitorial" procedure in Watts v. Indiana, 338 U.S.49, 54-55 (1949). For a response to Mr. Justice Frankfurter's characteriza- tion, see Kunert, Some Observation on the Origin and Structure of Evi- dence Rules under the Common Law System and the Civil Law System of' "Free Proof' in the German Code of Criminal Procedure, 16 Byffalo L. Rev. 122 (1966) [hereinafter referred to as Kunert].

23.
For example, some evidence is gathered in the presence of the accused; the importance of confessions has decreased, the accused is no longer required to answer questions; and the accused with counsel (if not before the investigation is completed at least at its conclusion) is en- titled to review the entire file (or dossier) that has been compiled. Damaska, supra, note 18, at 558-59.

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proceed to trial, there is neither arraignment nor formal pleadings. The dossier is delivered to the judge who then convenes the trial in open court where the parties have an opportunity to present their arguments.
c. The Judge.
The prevailing contemporary continental system is that of a unified bench in which the professional judge or judges are flanked by lay assessors. Even in France, after the reforms of 1941, the 'jurors' deliberate and vote with the professional judges, so that the system re- mains that of 'jury trial' in name only. Adjudication solely by profes- sional judges, while not unkown . .. is usually employed in the disposi- tion of minor offenses and is deffitely not representative of the modem continental style. In sum, the continental law of evidence is most prof- itably examined against. the background of trial by a mixed tribunal. 24
In theory, the evidence produced by the investigation must be reexamined by the presiding judge who takes an active role in questioning witnesses and raising all inqu- iries relevant to the charge. He may even solicit evidence not previously requested by the parties. 25
d. Exclusionary Rules. Under the civil law system evi- dence is generally not excluded because its credibility might be in doubt. Exclusionary rules which attempt to protect the factfinding process against potentially welia- ble sources (e.g., heresay) are almost unanimously re- jected by civil law countries. Civil law factfiinders, whether lay or professional, give different weight to the evidence according to its credibility. 26 Thus, rules agairist hearsay, inflammatory, or gruesome evidence, and other rules of "auxilary probative policy" 27 are not found in most civil law systems. The defendant may also be freely ques- tioned, although he is not sworn prior to his testimony. 28 Devices do exist, however, which allow ajudge to exclude evidence from the factfiiding process "even though it ap- pears logically relevant and there is no specific exclusion- ary rule in point." 29 For example, a judge may refuse to hear evidence which he considers to be repetitious, and he may require the original source of the evidence to be brought before the court rather than re!ying on the sec- ondary source contained in the dossier. 30 Further, the judge may refuse to allow evidence of uncharged crimes or prior convictions of the defendant to be heard unless the prior criminal conduct establishes a modus operan-
24.
Id. at 510, n. 4.

25.
Id. at 559.

26.
Id. at 514.

27.
J. Wigmore, Evidence, 5 1171 (Chadboume ed. 1972).

28.
This has given rise to the observation that the defendant therefore has a "right to lie" since few, ifany, legal consequences occur if a defendant does so. See Damaska, supra, note 18, at 528, n. 4.

29.
Id. at 516.

3Q. Damaska refers to this as the "principle of immediacy" which may be viewed as a type of best evidence rule. Id. at 517. However, a precise def~tion of the concept is not possible as the principle varies from civil law system to civil law system. See H. Jescheck, Germany, in The Accused: A Comparative Study, 246, 247 (J. Coutts ed. 1966) for a discussion of the concept of the "principle of immediacy" and the prob- lems that it raises.
di. 31 On the whole, it is fair to say that a prosecutor in a civil law system has less diff~culty than his counterpart in common law countries in getting evidence before a court. One of the most important differences in this area is the ability of civil law prosecutors to get into evidence state- ments of witnesses made before trial, that is, declarations of witnesses made during the investigation, either to police or to the investigating judge. Such evidence may be used in practically all civil law jurisdictions for substantive purposes. This procedure allows a great deal of admissible evidence to be determined or "frozen" prior to trial. 32
e. Confessions.In addition to exclusion of evidence on the basis that it may interfere with determining the truth, relevant material is often excluded for other reasons. 33 Although provisions exist in continental systems for the interrogation of the defendant, such provisions generally do not address the question of what occurs if the authorized procedures are not followed. 34 The doctrine of the "fi-uit of the poisonous tree" does not generally exist in civil law countries. Therefore, as one might expect, fewer motions are made in civil law proceedings to exclude "il- legally" obtained evidence and acquittals based on exclu- sion of evidence are comparatively rare. 35
$ Witnesses. The theory behind the evidence pre- sented at a criminal proceeding differs greatly in the com- mon law and the civil law. While each side in a common law trial presents its evidence, in the civil law the evidence belongs to the court. Thus, in theory at least, the case does not "belong" to the prosecutor or to the defendant. The bulk of the questioning of witnesses is done by the presid- ing judge.
Continental systems distinguish, however, among defendants, expert witnesses and simple witnesses for the purposes of formulating procedural and evidentiary rules concerning, for example, the manner and formalities of interrogation, duty to take an oath, and so forth. Another important difference . . . concerns the continental rule of per- mitting all persons examined to give a narrative account fust, before being subjected to questioning. Thisfact, coupled with the more general preference for using 'spontaneous' rather than 'coached' witnesses, is of relevance. . . . 36
g. ~e@lncrirnination.As indicated, the defendant in a
31.
See Damaska, supra, note 18, at 519. Uncharged des and prior convictions often will be contained in the dossier which the presid- ing judge reviews before trial. Thus,it is not unreasonable to assume that in a close situation this expurte knowledge may affect the outcome. Id.

32.
This procedure, depending on the jurisdiction, can influence the conduct of witnesses, pretrial.discovery, and other aspects of a civil law trial.

33.
For example, testimonial privileges (especially those involving the defendant himself) and matters involving search and seizure may be included. See irlfra, notes.

34. A small number of civil law systems have adopted exclusionary rules under such circumstances. See e.g., German Code of Criminal Procedure, 5 136a; French Code of Civil Procedure, arts.114, 11 8, 170. See also, Pieck, The Accused's Privi!ege Against Ser-Incrimination, 11 Am. J. Comp. L. 585 (1962).
35. Damaska, supra, note 18, at 521-24.
36. Id. at 525, n. 38.
civil law criminal proceeding is also a source of evidence,
but it is incorrect to say that no privilege against self-in-
crimination exists. 37 Although in theory a defendant may
not decline to be interrogated, he may refuse to answer all
or some of the questions posed by the judge. 38 Even
though an adverse inference is not to be drawn from the
defendant's silence, most civil law defendants choose to answer the questions rather than ~isk an unfavorable h-pression, especially in situations where a refusal to answkr a particular question might raise an immediate adverse in-ference. Although the defendant is not sworn and no sanction is taken if the defendant is caught in a "con- tradiction," civil law systems believe that important infor- mation, such as demeanor and inconsistencies, can nevertheless be obtained from a defendant who testifies. In continental syterns, it is common for the defendant to be the first person interrogated. This is possible because there is no requirement that the prosecutor establish a prima facie case before the defense is called upon. There is little doubt that having the defendant appear before he has heard the other evidence is advantageous to the prosecu- tor. The defendant's story is thus placed on stage to be tested against the remainder of the evidence.
h. Corroboration.No rules exist in most civil law coun- tries requiring facts to be proved by more than one piece of evidence; corroboration is not so crucial as in common law jurisdictions. Such a requirement would be thought of as negative in nature, and has been avoided in varying degrees for several hundred years. 39 11-6.Pre-Trial Procedures: TheDossier.Probably one of the greatest differences between the civil law and the common law processes is pre-trial disclosure of evidence. As already indicated, in continental countries the defend- ant and his counsel have access to the entire investigative file (dossier) which contains, among other items, surn- rnaries of testimony, a record of all evidence obtained, the charge sheet and related documents. From the dossierthe defendant can generally discover the prosecutor's theory of the case, as well as what evidence will be submitted to the court. On the other side, the pre-trial investigation will disclose much of the defendant's case, as it is unusual for the defendant to withhold information that ultimately will be introduced at trial. Additionally, the defendant's pri- vate papers can be forcibly produced and placed in the dossier. Therefore, the dossier will contain all the facts, good and bad, that canbe ascertained before trial concern-
37. See Clapp, Privileges Against SeFIncrimination, 10 Rutgers L. Rev. 541, 548 (1956).
38. Darnaska, supra, note 18, at 427. This right of silence is of a relatively recent vintage on the Continent. The medieval inquisitorial procedure not only required the defendant to testify, but also permitted enforcement of this duty through tor- ture. After the use of torture was outlawed toward the end of the 18th century, most continental procedural systems still provided that the defendant had the 'duty to answer' and even threatened punishment . . . for failure to obey it. Id. at 427, n. 1.
39. Id. at 530-31.
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ing the defendant's involvement in the alleged offense. When the dossier is compiled, the testimony and evidence are "frozen" for use at trial. Such ''full disclosure" before trial probably favors the prosecutor because once the material is included in the dossier, there are few, if any, obstacles in presenting the evidence to the court. 40
11-7. The Decisionmaking Process. a. The decision process in a civil law proceeding is philosophically different than that found in the common law. There is, of course, a factfinding function, but a judge must still apply the evi- dence presented against the "law." Generally speaking the "law," in a common law sense includes constitutional, provisions, statutes, and decided cases. Treatises and other secondary material also bear on the decisionmaking process. In civil law systems decisionmaking tends to go from the general to the smc, in a common law jurisdic- tion a judge often seeks initially for general guidance to govern the specific situation under consideration. Addi- tionally, the points of reference are different: a continental judge looks to legislation (often broadly written to allow great interpretive leeway) while the common law counter- part looks to individualizing cases or statutes which, ifap- plicable, provide the judge little discretionary power as to whether they should be applied. 41
b. The influence of legislation. Not only is the judicial process philosophically different, but legislation in civil law countries also serves a different function. Of course both systems seek to balance competing values in various social situations. But beyond that, a -cation in a civil law country attempts to indicate a philosophy of government "so as to furnish a legislative basis for juristic and judicial development along modem lines." 42 In some respects the codes might be considered as a counterpart to a con- stitution in a common law jurisdiction. Courts, if the ques- tion at hand is not specifically covered by one of the arti- cles of the relevant code, will reach a solution by analogy from the legislative material at hand.
A code is not a lit of special rules for particular situations; it is, rather, a body of general principles carefully arranged and closely integrated. A code achieves the highest level of generalization based upon a scientific structure of classification. A code purports to be comprehensive and to encompass the entire subject matter, not in the details but in the princi- ples, and to provide answers for questions which may arise. The nature of such a code naturally calls for a liberal interpretation in order that it may serve as the basis of decision for new situations. . . . There is a great respect and high regard for legislation as the basic source of the law. 43
In the United States the function of legislation is generally
40. Id. at 534-36. See also, Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, 1180-92 (1960).
41. Dainow, supra, note 7, at 431-32.
42. Pound, Sources and Forms of Law, 22 Notre Dame Law 1,71 (1 946).
43. Dainow, supra, note 7, at 424.
not thought to be either philosophical or a source of analogies. 44 11-8. Codification. a. General. Continental penal codes are often structured into a General Part and a Special Part. 45 The General Part contains provisions such as at- tempts, principals and participation, self-defense, suspen- sion of sentence, and statute of limitations, which are ap- plied uniformly to all offenses, while the Special Part deals with specific offenses.
b. In the civil law, if the judge is unable to find a provi- sion in legislative sources, he handles the "unprovided- for-case" in a manner different than a jurist in the com- mon law. When the written law is silent or insufficient on an essential issue,
. . .[the] judge cannot refuse to adjudicate under penalty of being guilty of a denial of justice. The various civil law countries have adopted different formulae to guide and instruct the judges in this respect. Arti- cle 1 of the SwissCivil Code authorized the judge to render the decision which he would make if he were [a]legislator; in France and in Belgium, he is given only the instruction to adjudicate. . . . In Germany, the tradi- tion is that the judge must fd gaps in the written law; one way of doing this is to make use of customary law as a source of law, or else to resort to general principles. Whatever the explanation given . . . or the tech- nique used . . ., the civil law judges are not always limited to a mere ap- plication of the law; in effect they are obliged to make law. 46
c. Stare Decisis. The supremacy of legislation in civil law systems does not mean, however, that there is no place for prior case decisions. While judicial decision are used from time to time in the common law to "fill the gaps" or to "make law" and can themselves become a source of law, case decisions in the civil law are generally used only as sources of legislative interpretation. No case, even though decided by a reasoned decision based on an interpretation of legislation, is bin- in future cases, nor is it precedent. Although a similar result may be achieved in a future case, it is not based on any concept of stare decisis, but rather is reached because a similar reasoning process and legislative interpretation has occurred. In some countries like France and Belgium, the practice has been con-
solidated that when a certain point has been consistently decided in the same way by an appreciable number of cases, it becomes jurisprudence constonre and is considered biding in future cases. Thi serves to stabi- lize the interpreiation of the law. . . .There is also an increasing tendency among attorneys to cite cases as well as codes and other legislative texts. 47
Thus, while a common law judge may be constrained by his awareness of the potential effect of today's decision on the future, a civil law judge does not have to consider that a decision may tomorrow be an "echo from the past." 48
44. ~ote,-~he
Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 Yale L. J. 258, 279-80 (1972). For a discussion of the role of legislation in the common law system, see Dainow, supra, note 7, at 425-26.
45. See Angel, The Collection of European Penal Codes and the Snrdy of Comparative Law, 106 U. Pa. L. Rev. 329 (1958).
46. Dainow, supra, note 7, at 433.
47. Id. at 426-27.
48. Rudden, Courts and Codes in England, France, and Soviet Russia, 48 Tul. L. Rev. 1010, 1017 (1974).
d. Legislative history. Legal research in the civil law is of necessity affected by the favored position of legislation. The legislative history, including the drafters comments, is quite important as are the "doctrinal" materials, i.e., treatises and commentaries of legal scholars. In the civil law, [Dloctrine is an inherent part of the system and is indispensible to a
systematic and analytid understanding of it. The doctrine is not a recognized source of law but it has exercised a great influence on the development of the law. It molds the minds of students, it gives direc-tion to the work of the practitioners and to the deliberations of the judges, and it guides the legislators toward consistency and systematiza- tion. 49
Thus, analysis of a legal problem in a civil law jurisdiction would begin with the codes and other legislation, progress through the doctrine, and fmally, if required, peruse the judicial decisions for a possible interpretation. In common law countries, most analyses consist of syntheses of judicial decisions, rather than what canbe called doctrine, i.e., "systematic expositions and . . . discussions about
49. Dainow, supra, note 7, at 428.
broad legal priniciples . . . [which] formulate general theo- ries about the basic codes and legislation, in relation to the evolution of the legal system as a whole." 50
11-9.Conclusion. It has been said that among . . . all the legal systems of the world, we thus distinguish between the two great families of the common law and the civil law, and within the latter the two groups of the French and German patterns. An American comparatist will thus have to acquaint himself with the legal system of France or Germany or both. He will then hold the key to any other legal system to which he may feel attracted. 51
The French and the German civil law systems, as well Bs others, are discussed in more detail in appendix A, infra. The foregoing has been a general survey of some of the
major differences between the civil law and the common law systems. The works cited explore these differences in detail should the practicing lawyer require a more thorough knowledge of a particular system.
50. Id. at 430.
51. Rheinstein, Comparative Law-Its Functions, Methods, and Usages, 22 Ark. L. Rev.415, 418 (1968).
Pam 27-161-1

APPENDIX
Section I. CRIMINAL LAW PROCEDURESIN FRANCE

A-1. General. In analyzing the criminal code of a civil ju- risdiction, one must distinguish between the penal code and the code of criminal procedure. The former deter- mines criminality while the latter indicates in what manner alleged criminal conduct will be processed. Overlap often occurs between the two. The French Penal Code has re- mained essentially unchanged since its codification in 18 10. However, in 1958, a new French Code of Criminal Procedure was enacted which codified prior decisional law. The 1958 Code "retains the essentially secret and in- quisitorial nature of the proceedings before the juge d'instruction, but places the accused, the victim, and the prosecutor upon a more equal footing in these proceed-
ings." 1
A-2. The Prosecutor in France. a. In addition to the 1958 Code of Criminal Procedure, France has passed other laws which have decriminalized certain conduct and liberalized procedures. While French civil proceedings are becoming more "adversarial" in nature, the French criminal process still maintains its "inquisitorial" nature. The prosecutor in France has discretion whether to pursue a criminal case or not.
6. As a check against abuse of discretion by the prosecutor (procureur), the French Code of Criminal Procedure also permits the victim of a crime (partie civile) to institute proceedings. 2 This may occur in several in-stances. The victim may either join in the proceeding initi- ated by the prosecutor or, if no prosecution is brought by the government, the partie civile may institute what amounts to a private prosecution. 3 The aim of this inter- vention is the same in either case, to recover damages. Thus in one proceeding, civil and criminal liability may be, and fre-
quently are, determined. Although an iqjured party may always assert his claim for civil relief in a separate civil prcceedmg, intervention in a pen-criminal proceeding may be quite advantageous. By this means, he can take full advantage of the investigatory facilities and prosecuting personnel of the state, in the inquisitorial aspects of the proceedings, and the speed, economy, and more liberal rules of evidence charac- teristic of the criminal action. In addition, he reaps the psychological benefit resulting from his adversary's position as a criminally accused. 4
Although the intervention by the victim in an ongoing
1. Pugh, Administration of Criminal Justice in France: An Introduc-
tory Analysis, 23, La. L. Rev. 1, 14 (1962) [hereinafter referred to as Pughl.
2. French Code of Criminal Procedure, art. 1 [hereinafter referred to Penal Code]. Anyone claiming to be injured by a [crime] may con- stitute himself a partie civile by lodging a complaint with a competent [court]. Id. at Art. 85. See also Arts. 2, 31.
3. Penal Code, Art. 85. For a general discussion of the action civile, see Sullivan, A Comparative Survey of Problems in Criminal Procedure, 6 St. Louis (I. L. J. 380, 340 (1961); Vouin, The Protection of the Ac- cused in French Criminal Procedure, 5 Int7 & Comp. L. Q. 1, 7-11 (1956).
4. Pugh,supra note 1, at 12. Most personal injury suits involving car accidents are handled by such a process. Id.
criminal prosecution has its advantages, instigation by the victim of a private prosecution (action civile) does present some hazards, i.e., he may become liable to the accused for damages if the prosecution is not successful. This is, of course, a deterrent to the attempted prosecution of un- founded or frivolous criminal proceedings by private in-dividuals. A-3. Charging. a. The Dossier. When a charge is brought by the prosecutor, or by the victim, or the victim joins in a proceeding brought by the prosecutor, 5 a dossier is complied. Argument is based upon the dossier. While the defendant and even the clerk of the court also prepare dossiers, the most important is that prepared by the in-vestigating magistrate 6 (juge d'instmction) . Because of
.the importance of this dossier, the juge d'instmction is re-
quired to be neutral and is "obligated to develop for the
dossier not merely facts favorable to the prosecution, but
also those favorable to the defendant." 7 Therefore, the
dossier contains among other things,
the reports prepared by both the police and the juge d'instmction detail-
ing the nature of the crime, the date and place of the hearing, and a summary of the statements of each of the witnesses. At each phase of the investigation, considerable evidence relative to the character and personality of persons involved in the incident is received and made part of the dossier. Each time a witness is heard, such things ashis age, oc-cupation, address, employer, date and place of birth, parents, and num- ber of children are summarized. Succinctly, presumably so that his declarations may be evaluated accordingly and further information con- cerning the witness may be obtained without undue difficulty. Extensive annotated photographs and maps are usually made and included. 8
6. Witnesses and Suspects. Under French law, wit- nesses and suspects may be detained in custody for 24 hours and, under some circumstances, for 48 hours in order to facilitate questioning. 9 When the police conduct the questioning, a witness normally is not sworn but state- ments given to the examining magistrate generally are given under oath. Until a suspect "officially" becomes the defendant in the proceeding (the inculp6), he may be questioned numerous times. However, once he becomes the inclupg, he must be informed of that status in the in- vestigation, 10 the nature of the charges, that he has a right to remain silent, 11 and that he has a right to counsel. 12
5.
Penal Code, art. 373.

6.
Pugh, Cross Observations on the Administration of Civil Justice in the United States and France, 19 U. Miami L. Rev. 345, 356-57 (1 965).

7. Pugh, supra note 1, at 23.
8.
Id. at 15.

9.
See Code De Procedure Penale, Arts. 77 et seq. bereinafter cited

as Proc. Code]. lo. Id. at Art. 115.
11. Id. at Art. 1 14. "The fact that such notice has been given must be recorded in the official records. This stage in the proceeding is called the fmt appearance." Pugh, supra note 1, at 16, n. 1.
'2. Id.
This information is not necessarily given to the accused at the same time. More than likely, the sequence would be as follows. A suspect is questioned by the police and the examining magistrate. Once it is officially determined to characterize the person as "the defendant," he is so in- formed by the examining magistrate. He is further told that he has a right to remain silent and the nature of the charges against him. At this point, if the defendant wishes to make a statement, it may be taken. After the statement is given, a defendant is then informed of his right to counsel.
c. Corlfessions.It has been noted that in the vast ma- jority of cases in France, defendants seem to "exhibit a quite spontaneous desire to confess all." 13 When one considers the great number of confessions in French proceedings, this statement would appear to be justified. 14 Article 428 of the French Code of Criminal Procedure provides that a confession, "like all elements of proof, shall be left to the free appraisal of the judges." As many confessions are obtained by the police, French law includes a mechanism to protect against coerced confes- sions. Fist, the law provides that a person beii detained has a right to be examined after 24 hours of detention to determine his physical condition. The prosecutor may call for the examination prior to that time. 15 Second, it is a crime under French law for a police officer to use "un-justifiable force against a citizen" and discipline for mis-conduct may be imposed by the courts. 16 A-4. Role of Counsel. After being informed of his right to counsel, a defendant is entitled to be represented at in- terrogations or confrontations. 17 To assist counsel in rep- resenting the defendant, the law provides that the attorney shall be entitled to review the dossier of the juge d'instmctionat least 24 hours before any proceeding. 18 At such hearings, however, neither counsel for the state nor the defendant has the right to present any arguments, ex- cept when the court permits questions to be asked. 19 Under French investigatory procedure the defendant may be required to reenact the crime. The philosophy behind this requirement is that even the most accomplished liar will have dficulty remaining consistent if forced to relive the event in detail. Photographs of the enactment often are taken and then placed in the dossier. 20 A-5. Burden of Wf. Although there appears to be no expressly stated standard of "presumption of innocence" with respect to a defendant, it has been noted that "the
13. Anton, L'Instrction Criminelle, 9 Am. J. Comp. L. 441, 448 (1960) (hereinafter referred to as Anton].
14. See generally hgh,supra note 1,at 15-17;Proc. Code Art. 4. 1s. Id. at 19;Proc. Code, Arts. 64 et seq.
16. See French Penal Code, art. 186,and Roc. Code, Arts. 224 et seq.
17. Proc. Code Art. 118.Such a right may,of course, be waived by the defendant.
'8. Id.
19. Id. at Art. 120.
20. Anton, supra note 13,at 452.
standard actually employed is much more defense-oriented than that used for grand jury indictment. .. . [and] if the juge d'instmction is not reasonably convinced of guilt . . .the Defendant does not go to trial. Generally, the burden of proof is clearly on the prosecution." 21 A-6. Search and Seizure. When discussing the question of search and seizure under French law, one must con- sider that done by the police force before the start of the investigation, on the one hand, and that ordered by the investigating magistrate on the other. When a crime is dis- covered in progress, a search and seizure may occur with-out authority from a court. 22 However, in other cases, French police may not search a private home without judicial authorization. 23 Once the case has reached the in- vestigatory stage, the investigating magistrate has the authority, within certain statutory limits, to conduct or have conducted compulsory searches and seizures. 24 A-7. Pretrial Confinement. Although pretrial confine- ment is considered to be an "exceptional measure," 25 it appears that at least in serious cases it is the rule, rather than the exception, to place the defendant in preventive detention. 26 The French law allows or permits pretrial de- tention for a period not to exceed four months, but the examining magistrate has authority to extend the confine- ment for additional four month periods by an order which states the reason for the continued detention. 27 Even though a defendant may spend considerable time in pretrial confinement, such detention is, as a rule, deducted from any sentence imposed at the trial. 28
A-8. Bail. Bail exists under French procedure upon giv- ing security (caution) to the court. 29 However, little use of bail is made. Ifpreventive detention is not deemed ap- propriate, the defendant is not required to use the caution system since he simply is not detained in the fust place. 30 A-9.-The Judicial Process a. General. Even with the extensive investigation by the magistrate, the judicial system in France moves with reasonable speed. Once the investigation is completed and the investigating magistrate
21. hgh, supra note 1,at 23-24.
22. Proc. Code, Arts 56 et seq. Insome instances, this is limited to cases involving dklits which are punishable by imprisonment. hgh supra note 1,at 18,n. 119.
23. Proc. Code, Arts. 23, 76.
24. Id. at Arts. 94et seq., 151 et seq. For a discussion of search and seizure in general as the issue arises in French crimiaal procedure, see
G. Stedani & G. Levasseur, Procedure Penale (2d ed., Dalloz 1962).
25. Proc. Code Art. 137.
26. Id. at Arts. 138, 714 et seq. Article 138 limits detention to 5 days for fust offenders who are charged with offenses for which punish- ment is less than 2-yearsimprisonment. See also Anton, supra note 13.
27.
Proc. Code Art. 139.

28.
Penal Code Art. 24.

29.
PTOC. Code Arts. 145 et seq.

30. Anton, supra note 13,at 454.For a discussion of bail, prob-tion, and parole in various European countries, see Glos, a study in the Treatment of Crime and Law Enforcement in the United States as Corn-pared to the European countries, 3 St. Marip L. J. 194-200 (1971) [hereinafter referred to as Glos].
Pam 27-161-1
has recommended trial, the dossier is forwarded to the ap-
propriate court. The following summarizes the next step
in the process:
Generally, there is no guilty plea in French criminal proceedings. .. .[It]

is for the judge and jury to determine guilt, not the defendant. .. .At the trial, after the charge is read, the defendant is usually the fmt party examined by the presiding judge. As is the custom for witnesses, he 'stands. In serious cases, with painstaking care, the presiding judge, who has studied the dossier, interrogates the defendant, asking him to atXm or deny the truth of the statements contained therein, both his own and those of others. The judge attempts to bring out the pertinent circum- stances, both favorable and unfavorable. Questions by counsel for the defendant and civil party may be posed through the president of the court. After the defendant has testified, other persons are heard. French procedure makes a distinction between witnesses and those who simply give information. Persons affected with an interest, such as the defen- dant, the civil party, and those closely related to them by blood or affinity, are not permitted to testify under oath–although they may give statements and be questioned as though they were witnesses. As a result, these persons are not subject to prosecution for perjury. What they say is viewed with scepticism, in light of their interest. Persons under the age of 16, and certain individuals with past criminal records, are also prohibitied from giving testimony under oath. When permitted to take an oath as a witness, one swears to "tell all the truth and nothing but the truth." Persons other than the defendant usually give their testimony in narrative form, and are permitted to say whatever they feel is pertinent, uninterrupted by the objections of counsel. . .. After all testimony has been received, counsel for the state, the civil party (if there be one), and the incube' [the defendant] deliver oral presenta- tions, which are frequently eloquent and moving. The summation (or rbquisitorie) by the procureur [the prosecutor] … is probably more restrained and judicious than its American counterpart. . . . Frequently, as a result of confessions confumed beyond serious question by the fruits of the exhaustive pretrial research reflected in the dossier, the defense counsel does not contest his client's guilt, but instead elaborates on the psychological, sociological, and economic factors which prompted the commission of the infraction. …
The judges are spedkally prohibited from basing their decision on evidence other than that available at the trial. They may consider all matters within the dossier properly acquired, for it is felt that as trained professional magistrates, they can weigh the testimony and give it the value to which it is entitled. In aniving at their decision, the test to be employed is "inner conviction" (intime conviction) [of the guilt of the defendant]. 31
Although it might seem that such a proceeding would be quite lengthy, this generally is not the case.The thorough- ness of the dossier preparation and the fact that the judge and counsel have studied it in advance of the trial combine to make a French trial move through the various stages without great delay. In some particular circumstances, a French trial may proceed without the presence of the de- fendant. 32
b. Types of Procedures. Under French law, offenses are divided according to their seriousness, and each type of offew has its own procedure and court. Contraventions, or petty offenses, are tried by a single judge without jury. 33 Delia, or intermediate crimind offenses, are tried by three judges without a jury. 34 Crimes, or serious
31. Pugh, supra note 1, at 26, 27.
32.
Proc. Code arts. 410 et seq., 487, 544, 627 et seq.

33.
Proc. Code Arts. 521 et seq.

34.
Id. at Arts. 381 et seq.

offenses are tried by three judges and nine jurors. 35 In a case involving a crime, the inculpimust be adjudged guilty by 8 of 12 votes, i.e., a majority of the lay jurors must vote to convict. 36 A-10. Appeals. Under French procedures, in those cases for which appeal or review is provided, 37 either the state or the defendant may initiate the appeal or review. Except for the most serious offenses, questions of law and fact are reconsidered by the appeals court (Cour d'Appel). After reviewing the record as a whole (i.e., the dossier), as well as any additional evidence thought necessary, the Cour d'Appel may substitute its judgment for that of the trial court. Obviously, this is a much broader review than is possible under the law as it exists in the United States. The appellate court apparently is permitted to substitute its judgment because the great part of the evidence before the trial court is written (i.e., the dossier) and hence the de- meanor of witnesses assumes less significance than it does in American courts. If the appellate court substitutes its judgment, the decision is final, i.e., it is not remanded to the trial court for it to enter judgment. 38 A-11. Sources of the Law. a. Under French law, as is the case with most civil law systems, legislation is the only source of civil law. If that is so, what position do judicial decisions play in the French legal system? It is quite clear the judicial decisions, or bbjurisprudence" as they are fre- quently designated in civil law countries, are not a source of law, but are merely an authority in the civil law. This is consistent with the concept of the separation of govern- mental powers. Even an uninterrupted line of caseswhich has decided a particular point uniformly does not establish that jurisprudence as law. 39 Precedent is only one of several factors that may be taken into consideration before a decision is reached, "an influence, of varying intensity, but never legally imposed." 40 The influence that a partic- ular jurisprudence may have upon the practicing bar and judge varies, as might be expected, according to the prestige of the rendering court.
b. Precedent. Notwithstanding the foregoing, jurispru- dence still eqjoys a privileged position because "the thesis in support of which it may be cited in litigation has the
35.
Id. d Arts. 214, 231, et seq., 240 er seq.

36.
See Patey, Recent Rdorms in French Criminal Law and Procedure, 9 Int'l and Cow. L. Q. 383 (1960).

37. E.g., Crimes, which are tried by the Cour d'Assises or by recommendation of the Chambre d'Accusation which is similar to a grand jury in the United States.
38. Proe. Code Arts. 496 et seq., 512 et seq., 546 et seq. and the penal CodeArts. 443 et seq.
39.
Article 5 of the Civil Code states that in deciding cases submit- ted to them, judges areforbidden to lay dorm general rules of conduct. Further, the French Penal Code imposes forfeiture of office as a sanc- tion against judges and judicial officers who "interfere in the exercise of legislative power." Penal Code Art. 127(1). See also Carbonnier, Authorities in Civil Low: France in The Role 4f Judicial Decisions and Doctrine in Civil Law and in Mked Jurisdictions 95-96 (J. Dainow ed. 1974) [hereinafter referred to asCarbonnier].

40.
Carbonnier, supra note 39, at 97.

greatest chance of becoming the law in fact." 41
Therefore, when speaking of the "law" of France (driot)
one should include not ony the enacted law (101) but also
the judicial decisions (jurisprudence). Since jurisprudence
does occupy a position of beii a "privileged" authority
in the civil law, practitioners and judges alike must be able
to locate relevant judicial decisions. The decisions of lower
French courts (e.g., juges d'instancesktty court judges)
are rarely published. Only selected decisions of the inter-
mediate level courts (tribunaux de grande instance) and
the Courts of Appeal are available. However, all of the
decisions of the highest court in France (the Cour de
Cassation) are published. The oficial reports of the Cour
de Cassation are published in two parts, one for the civil
chambers, the other for the criminal chambers under the
title, Bulletin des arr8ts de la Cour de Cassation. A central
index Cfichier central) is available and is based upon a
statutory system of subject headings (Service de documen-
tation et dhdes de la Cour de Cassation). Supplement-
ing the oficial reports, periodic private reports are
published. These generally contain, in addition to the
selected cases, head notes and annotations on the deci-
sions reported.

c. Doctrine. In addition to jurisprudence, doctrine,

Section 11. CRIMINAL LAW PROCEDURES IN
A-12. General. The law of Germany dealing with what
can be called "criminal" conduct is divided into a number
of separate enactments. 44

a.
Penal Code. The German Penal Code (hereinafter referred to as StGB), like other continental penal codes, is divided into two parts: the General Part and the Special Part. The former contains provisions that are applicable to all of the offenses contained in the latter. For example, sections dealing with attempts, principals, self-defense, and statutes of limitation are found in the General Part. Provisions dealing with treason, forgery, murder, manslaughter, and so forth, are found in the Special Part.

b.
Regulatory Offenses. In 1968 Germany removed from the German Penal Code certain regulatory offenses, i.e., Ordnungswidrigkeiten (OWiG). The Regulatory Offenses Act of 1968 sought to decriminalize a number of penal offenses for minor infractions unworthy of punishment, partly by removing them

from the ambit of the penal law and sanctioning them merely as so called regulatory offenses. . . .This has been put into operation mainly in the area of traffic violations, provided they did not cause or threaten life, lib, or valuable property. 45
Under the OWiG, the primary punishment is a fine. 46 In addition to reducing the possible sanctions (in comparison with the StGB), procedures for regulatory offenses have been simplified, 47 the statutes of limitation are shorter, 48 and the procedure, to include imposition of fines, is an ad- ministrative process rather than a judicial one involving a judge. 49 AS one might expect, appeals are possible but only under restricted conditions. 50 Although it would ap-
which includes "legal scholarship, the opinions of the authors of legal literature about the law such as they, as theoreticians, understand it . . . [i.e.,] the body of legal writing or literature," 42 also plays a role. During the nineteenth century, French commentators concentrated their scholarly efforts on the Code Civil by researching the legislative history of the various provisions. Modem doctrine tends to deal more with the interpretation of jurisprudence and with commenting on the civil law as a whole rather than on the specific section of the Code Civil. The commentators do not view their function as mere technicians but rather attempt to analyze jurisprudence and legislation from a critical point of view. As with jurisprudence, doctrine is not a source of civil law, but it definitely is an authority in the civil law. This means that
[a]judge is never bound either by an isolated doctrinal view . . . or by a unanimously adopted view of doctrinal writers. . . . Moreover, even ifa judge does adjudicate in a manner indicated by the doctrine, its mere citation is insufficient; he must adopt, and as his own, all the reasoning upon which it is based. . . . It is only to be expected, however, that greater weight will be given in the courts to jurisprudence than to
doctrine. . . . Doctrine, on the other hand, may be of greatest influence in those areas precisely where there is no established jurisprudence..It has, however, sometimes, happened that persistent doctrinal criticism wiU prompt the abandonment of established jurisprudential positions. 43
THE FEDERAL REPUBLIC OF GERMANY
pear that the regulatory offenses have in some respect been removed from the StGB, there is an indication that the principles embodies in the "General Part" of the StGB still apply. 51
c. Comparison. The offenses covered by the German Penal Code are, as a rule, more broadly defined than one would find in a simiiar enactment in the United States. As a result, German judges often engage in a great deal of statutory construction,
for example, when the defmition of an offense appears to be so wide as
41. Id.
42, Id. at 104, n. 119.

43. Id. at 106-07.
44. Strqfgesetzbuch, or StGB, is the penal code; Jugendgerichtgesetz or JGG, is the law for juvenile courts; and Strqfjfprozessordnung,or StPO, is the law of criminal procedure. There are, likewise, other laws which deal with regulatory and administrative offenses.
45. Eser, The Politics of Criminal Law Reform: Germany, 21 Am
J. Comp. L. 245, 251 (1975) [hereinafter referred to as Eser].
46. The fme usually ranges from DM5 to DM1000. The fme is called a Geldbusse and the administrative order imposing the fme a BUSSGELDBESCHEID. Id.
47. 0WiG Q 47 (1).
48. Id. at Q 27.
49. Id. at QQ 35(2), 35(35).
50.
Id. at QQ 79, 80. See also Eser, supra note 45, at 250, 51; Robinson, Arrest, Prosecution and Police Power in the Federal Republic of Germany, 4 Duquesne U.L. Rev. 225, 276-77 (1965-66) [hereinafter referred to as Robinson].

51.
D. LEE & T. ROBERTSON, "Moral Order" and the Criminal Law: Reform wforts for the United States and West Germany 181 (1973) [hereinafter referred to as Lee & Robertson].

Pam 27-161-1
to include conduct not regarded as criminal. Strict construction of Penal statutes was never accepted in Germany. . ..The doctrine of extensive judicial construction is also used to broaden the definition of an offense if the interests of justice so require. 52
In Germany, several levels of offenses are defmed in the StGB. The most serious offenses, similar to what might be termed felonies in the U.S., are called Verbrechenand are defined as "illegal acts punishable as a minimum by a penalty of imprisonment for one year or more." 53 Other offenses are called Vergehen (misdemeanors) and are defrned as "illegal acts which are punishable as a minimum by a lesser penalty of imprisonment [i.e., less than one year] or by a fme." 54 The concept of an illegal act under German law has been succinctly stated: According to the established method of analysis of the criminal act
(Handlungslehre),an offense under the Criminal Code [StGB] has three necessary constituent characteristics: the combination of elements con- stituting a particular crime according to a smc title of the criminal code (Tatbestand),illegality (Rechtswidrigkeit),and guilt (Schuld).This analysis is not defined in the Code (StGB), but has become established in a body of German criminal law concepts. The "General Part" of the Code defmes the lits of the respective parts of this analysis.
The Tatbestandis what would correspond in Anglo-American law to the offense described under a particular Title of the Code. Given such an offense (Tatbestand),illegality (Rechtswidrigkeit)may be assumed if not excluded by reason of a justification (Rechdertigungsgmnd)such as: self-defense, consent, etc. Guilt (Schuld), in this system, means per- sonal responsibility. Thus guilt mot be established for an otherwise il- legal act or the omission of a legally required act, where personal respon- sibility is precluded by: lack of intent, error, mental incapacity, or where the fulfillment of a required act would mean the assumption of an action above and beyond that which may be reasonably expected. 55
A-13. The Prosecutor. a. Generally. In Germany the Prosecutor has no staff to investigate and must rely upon the Police to collect the information required for prosecu- tion. For this reason, prosecutors in Germany have been described as being "a body without a head. They don't even have feet. They have to borrow the feet of the police." 56 Unlike their counterparts in the United States, German prosecutors are appointed and are organized as civil servants on the state level (Land) under the state Mitries of Justice. Within a particular Land a hierarchi- cal system is created under the Ministry of Justice and each prosecutor must give way to those higher in the heirarchy in discretionary matters. As civil servants, prosecutors often are appointed to the bench and judges occasionally are used to fapositions in the hierarchy of the Ministry of Justice.
b. Prosecutorial Discretion. Germany attempts to con- trol prosecutorial discretion through what has come to be called the Legalitaetsprinzip (legality principle) or more descriptively, "the rule of complusory prosecution."
52.
Hem, The Rule of Compukoty Prosecution and the Scope of Prosecutorial Dircretion in Germany, 41 U.Chi. L. Rev. 468, 472 (1974) [hereinafter referred to as Hem].

53.
SlBG $ 12(1).

54.
Id. at $ 12(2).

55.
Lee & Robertson, supra note 51, at 187-88.

56. Robin, supra note 50, at 297.
Except as otherwise provided by law, the prosecutor is obliged to take action in the case of all acts which may be legally punished and prosecuted, provided there is sU!licient factual evidence, 57
What the Legalitaetsprinrip requires is that all nonpetty cases 58 the prosecutor must prosecute if evidence exists to prove the occurrence of the offense by the accused. No plea bargaining is permitted and charges are not to be withdrawn after the trial begins. However, the Legalitaetsprinzip is a two-sided sword; it also prevents undue pressure on the prosecutor not to take a case to trial. In practice, when doubt exists a prosecutor normally will send the matter to trial and force the judge to make the final decision. 59 Since the German prosecutor oper- ates in a hierarchical system (i.e., one in which the Minis- try of Justice may control his discretion), such protection is necessary to maintain the integrity of process. If a Ger- man prosecutor was ordered by a superior not to prosecute a case which fell within the Legalitaetsprinzip, he would be obligated, under penalty of criminal sanction, to disregard the order and bring the case to trial. 60
c. Closing a Case. If, after reviewing the evidence which has been gathered, a prosecutor believes there is in- ~~cient
evidence to convict the accused, the case may be closed. However, to close a case he must have the ap- proval of his superior. 61 If a case is closed, both the ac- cused and the party reporting the crime are to be notified. If the reporting party is also the victim, he will be advised of his right to appeal the prosecutor's decision not to prosecute. A-14. Rights of a Victim. The victim in such cases has two options: he can file a formal complaint which is decided by the Attorney General of the state (Land);or he can file a departmental complaint objecting to the deci- sion of the prosecutor. If the formal complaint to the At- torney General is unsuccessful the victim may seek judicial review and request that the prosecutor be com- pelled to file the charge. Complaints to the prosecutor's departmental superiors are quite numerous, but the great majority are unsuccessful unless the victim can produce new evidence. If, however, the victim is successful in the court action, it is provided that he may participate in the ensuing trial as an "accusing litigant" (Nebenklaeger) to protect his case against the accused. A-15. Supervision of the Prosecutorial Func-tion. a. General. Integrity in the prosecutorial process is maintained by Close supervision and cooperation in the local prosecution office. The
head of the local office and the supervisors of its various sections control the work of their subordinates by personal contacts and review of the
57.
German Code of Criminal Procedure $1 52 (2) [hereinafter refer- red to as StPa].

58.
CJ, id. $ 153.

59.
See Cox, Discretion-A Twentieth Centuty Mutation, 28 Okla.

L. Rev. 311 (1975); see also Hermann, supra note 52, at 472.
60. Langbein, Controlling Prosecutorial Discretion in Germany, 41
U.Chi. L. Rev. 439, at 450 bereinafter cited as Langbeii].
61. Hermann, supra note 52, at 477.
Pam 27-161-1
fdes. Regular conferences are held to discuss individual cases and to work out general patterns for structuring prosecutorial discretion. 62
For one group of offenses (e.g., minor crimes of trespass, insult, and bodily injury; minor damage to property) the prosecutor may only file a charge if it is in the "public in- terest." 63 Otherwise, the victim must file a "private com- plaint" in which the process is similar to that followed when charges are filed by the prosecutors. 64 In the case of misdemeanors, a prosecutor may decline to prosecute il-legal conduct even though sufficient evidence exists to convict the offende~, if "the guilt of the perpetrator is minor and there is no public interest in prosecuting the of- fense." 6s Before taking such action, however, the prosecutor must obtain the permission of the court which would have heard the case. Since misdemeanors in Ger- many include many offenses which would be classified as felonies 66 if they were committed in the United States, it might appear that by allowing a prosecutor not to pursue prosecution when guilt in "minor" or prosecution is not in the "public interest," prosecutors operate with great discretionary latitude. Such is not the case. In addition to the necessity for judicial approval of a decision not to prosecute, German prosecutors regard complusory prosecution and restraint of discretion as over-riding
principles. They generally agree that they should bereluctant to exercise their discretionary power, and they abort proceedings only in really trivi- al cases.67
Effective check on prosecutional discre:icr, i: ;r2vided by departmental supervision. Before a prosecutor drops a case, his decision will be reviewed by a superior. The procedure is similar to that involved in reviewing a deci- sion not to prosecute for insufficient evidence.
6. Supervision of Minor Offenses. Another area of prosecutorial discretion involves appeals from fines im- posed for administrative and regulatory offenses (e.g., trafllc violations, health regulations, etc.). Such cases are prosecuted by, and the fines are imposed by, administra- tive agencies under the Ordnungswidrigkeitengesetz(Petty Infractions Code) rather than under the StBG. If the de- fendant files a complaint against the imposition of the ad- ministrative fine, the agency forwards it to the appropriate prosecutor. Before he sends it to a court for resolution, the
62.
Id. at 478.

63.
SIP0 5 376.

64. In actuality, private prosecutions play a very limited role in the German criminal system. StPO 55 373-90. It should be noted that StPO 5 377 allows the prosecutor to enter a private prosecution and to partici- pate, but he is not required to do so, unless ordered by the courts. When the prosecutor does participate, he assumes control of the case and the private party is treated as an intervenor. As an intervenor (Nebenklaeger),the victim still has the "major rights of a party: to have witnesses called, to appear by counsel, to put questions at trial, to pro- pose a judgment to the court, and to appeal against an unfavorable result." Langbein, supra note 60, at 462.
65.
StPO 8 153 (2).

66.
See Hermann, supra note 52, at 484.

67.
Id.

prosecutor is "authorized not to prosecute." 68 This is
rarely done, however, as most "prosecutors generally
agree that after a complaint is filed a judge should make
the final decision." 69
A-16. The Code of Criminal Procedure (StPO). Ac-
cording to StPO 4 403, if a prosecutor decides to file a
charge, he should notifj7 the victim, or his heirs, of the
possibility of asserting a claim against the accused for in-
demnification. If the victim decides to intervene, the
effect is the same as bringing a civil action. 70 Although
this procedure for indemnification exists, apparently little
use is made of it. One author has observed that the
[clourtcan decide the civil claim only if the decision is for the complain-
ant. (405) [referring to StPO § 4051 If the case is appealed and the con-
viction reversed, the civil judgment is reversed automatically. (405 A-
III) In addition, there are several practical considerations. At the time
the criminal trial is held, usually the extent of the injury is not clear; a
more liberal award is Iikely in a civil court; the civil action is not the main
concern of the criminal trial judge and the time that may be given to ex-
pert testimony concerning the civil claim would be limited. 71
A-17. The German Court System. When a criminal act as defined by the German Penal Code has been commit- ted, accusations may be made to the prosecutor, the police, or to a district court (Amtsgericht). The German court system, in some respects, is simpler than that in the United States. No municipal courts exist and there are no federal courts on the trial level (except for high treason and several other political type offenses). The courts are controlled by the various states (Laender). The lowest courts are the district courts (Amtsgerichte) which are col- lected under the intermediate state courts called the Land- gerichte, which are then grouped under the highest state courts (the Oberlandesgerichte). Matters tried in the Amtsgerichte are appealed to the Landgerichte and then to the Oberlandesgerichte. Matters which are tried initially in the intermediate state courts (Landgerichte) may be ap- pealed only once, i.e., to the BundesgerichtshoJ a federal court. Generally, it can be said that misdemeanors are tried before the Amtsgerichte and felonies before the Landgerichte, except for those reserved for trial before the BundesgerichtshoJ: The combined effect of the federal codes and the state laws, practically
identical from state to state, is to produce a uniform set of rules govem-
ing the prevention, repression and prosecution of offenses throughout
the Federal Republic. When this structure is combined with German
notions of service of process and venue, the state courts take on a na-
tional character. 72
A-18. Duties of the Prosecutor. As soon as knowledge of an alleged crime reaches the prosecutor, he must in-
68.
Id. at 481.

69.
Id.

70.
SIP0 8 404.

71. Robinson, supra note 50, at 274.
72. Kaplan, von Mehren, and Schaeffer, Phases of German Civil Procedure I, How. L. Rev. 1193, 1443-1461 (1958). See also W. Heyde, Administration of Justice in the Federal Republic of Germany (1971).
vestigate to determine whether charges are to be prefer- red. During the investigation the prosecutor gathers all evidence pertaining to the offense, whether incriminating or exonerating. In addition to collecting information con- cerning the crime, the prosecutor is charged with extend- ing his investigation to "circumstances which are impor- tant for the measure for punishment, for the suspension of punishment or probation, and for ordering measures of prevention and reform." 73 TO complete his investigation, the prosecutor may request assistance from all public authorities and agencies, as well as the police, to conduct the necessary inquiries. The agencies and police are re- quired by law to comply with the request of the prosecutor for assistance. 74 A-19. Rights of the Accused. a. General. The rights of the accused are set out in the Code of Criminal Procedure in great detail. He is to be interviewed by the prosecutor prior to termination of the investigation and, if the ac- cused requests that evidence be taken for his defense, the prosecutor is obligated to secure it if it is considered to be of sigmfkance. 75 At the initial interview the accused is to be advised of the offense charged, including the applicable section of the Penal Code. Additionally, he shall be advised that the law grants him the right to respond to the ac-
cusation, or not to make any statements regarding the subject matter and even prior to his examination to consult with a defense counsel of his choice. 76
b. Right to Counsel. The defendant is entitled to have a defense counsel at any state of the proceeding 77 and in certain cases, a defense counsel is maiidatory. 78 Provision is also made for appointment of defense counsel. 79 In ad-dition to the rights provided in the StPO, the Constitution of the Federal Republic of Germany, (1949) (Gnmdgesetz) guarantees certain procedural safeguards, e.g., exclusive jurisdictions of the judiciary in criminal matters, guarantee of an independent judiciary, prohibi- tion of irregular courts, right of the defendant to be heard before a court, prohibition against double jeopardy, and special rights that are applicable to judicial actions which may result in deprivation of liberty. 80 In addition to the domestic guarantees provided by the Code of Criminal Procedure and the Grundgesetz, Germans (as do other persons resident within the territory of a convention sig- natory) have the legal remedy of applying to the European Commission of Human Rights in Strassbourg or the European Court of Human Rights if they believe that basic or human rights have been violated. 81 Many of the decisions of these European organs have concerned cases
73.
SPO 5 160(3).

74.
Id. at 5 161(1).

75.
Id. at 5 136.

76.
Id. at 5 163(a).

77.
Id. at 5 137.

78.
Id. at 5 140.

79.
Id. at 5 141. : 80. Gnmdgese~,Arts. 92, 97, 101, 103, 104.

81. Id. at Art. 48.
Pam 27-161-1
of pretrial detention, in which the prisoner, who had been detained for an unreasonably long period, asserted the right to be set free during the pendency of the trial. 82
In addition, section 136 (a) of the procedural code (StPO) states that:
(1)
The freedom of decision and voluntary manifestation of the ac- cused's will shall not be impaired by ill treatment, fatigue, bodily inter- ference, drugs, torture, deception, or hypnosis. . .. Threats with measures not permitted by the procedural provision or promise of an ad- vantage not provided by the law are prohibited.

(2)
Measures which impair the memory or the capacity of judgment of the accused are not permitted. . ..

(3)
These prohibitions apply irrespective of the consent of the accused. Statements which were obtained by violation of this prohibition shall not be used, even if the accused agrees to their use.

A-20. Pretrial Confinement. During the investigation, a person may be placed in pretrial confinement if he is "strongly suspected of the act" and if the person has fled or is hiding or there is a danger the person would evade prosecution by fleeing; or if the person might destroy, alter, remove, suppress, or falsify evidence, to include im- properly influencing co-defendents, witnesses, or experts (or cause others to do so); or if the person is accused of a felony involving morality or indecency, he might commit another offense; or if the person is suspected of a felony against life. 83 If the act is punishable only by imprison- ment up to six months, pretrial detention is not permissi- ble on the grounds of the danger of obscuring evidence, but only to prevent evasion of prosecution by flight. Pretrial detention is imposed by order of a judge who is also responsible for granting bail which can be furnished by depositing cash or bonds, by pledging property, or by furnishing suitable persons as sureties. If a person is caught in the commission of a crime, anyone is authorized to apprehend him temporarily, without a judicial order, if there is reason to suspect that the person will flee or if his identity cannot be immediately ascertaned. Also, under certain circumstances, police officials or the prosecutors are authorized to temporarily detain a person if a danger of delay exists. Review of pretrial confinement may be on motion of the accused or in the discretion of the court sua sponte.
A-21. The Defense Counsel. The defense counsel has access to the prosecutor's entire fde including the material to be in- troduced into evidence upon completion of the preliminary investiga- tion. The defense counsel may even take the files to his office for study and preparation of his counter-argument. . . . But he does not have to reveal to the prosecutor the counter-proof which he plans to introduce at the trial other than the names and address of his witnesses and ex-
perts.84
A-22. Indicting. Once the prosecutor has investigated to the point where he believes that sufficient evidence exists for preferring public charges, he will do so either by mov-
82. Jescheck, Principles of German Criminal Procedure in Com- parison with American Law, 56 VA. L. Rev. 239, 242.
83. StPOfj 112.
84. Jescheck, supra note 82, at 246.

hg for a preliminary judicial investigation (Gerichtliche Vonmtersuchung), 8s or by submitting a bill of indictment to the appropriate court. In all other cases, he will termi-nate the proceedmg. If a preliminary judicial proceeding is not held, whether the case goes to trial or not is decided by the competent court upon review of the bill of indictment which contains a motion by the prosecutor to open the "main proceedings." Along with the bill of indictment, the prosecutor furnishes his investigative fde (i.e., his dossier). Thc court is to open the "main proceedings" if the evidence in the dossier indicates that the accused is "suiXciently suspected of the offense.." 86 When a preliminary judicial investigation is held, it is not to extend any further than is necessary to arrive at a decision as to whether the "main proceedings" should be opened or the charges dismissed. 87 Upon completing the preliminary in- vestigation, the examining judge (Untersuchungsrichter) returns the file to the prosecutor with his recommenda-tion. If the prosecutor believes that the matter should go to trial, the file is sent to the appropriate court with a bill of indictment for the court's decision. A-23. Charges. In ~ermany prosecutors generally charge an "entire transaction," i.e., The entire criminal transaction is presented to the court, rather than
merely those elements selected by the prosecutor. For example,, if employees of a bank were taken as hostages and a police officer killed in the course of a bank robbery, the prosecutor presents all the facts to the court and fies the charge for all possible offenses; he cannot choose to prosecute only one of the offenses and thereby bring a reduced charge. A final judgment of conviction or acquittal is res judicata as to the entire transaction described in the charge. The concept of the criminal trans-action is not limited to acts committed in one place and at one time. A transaction may include several separable acts that can be considered one episode. A series of frauds committed in several cities by a traveling salesman, the writing of numerous bad checks, or the fhg of several false tax returns have all been treated as one transaction. 88
At this stage, the charges are before the trial court for the "main proceeding" (Hauptverfahren) . Before discussing in detail the Hauptverfahren, it may be best to put the en- tie proceeding in perspective. Once a charge has been preferred, a German judge, using the fde of the
case,. . . will decide whether to authorize main proceedings (Hauptver- fahren), the question being whether there is sufficient evidence of guilt of the person charged. The latter will fust be heard. In addition the court can order supplementary judicial investigation of the case. It can also decline to open main proceedings. Furthermore., the presiding judge is responsible for the preparation of the main hearing of the case. In this way he decides whether to grant a defendant's application to obtain evi- dence. So on his own authority he may order the summoning of wit- nesses and experts, or the production of new evidence. He can also make out an order for an examination before designated or requested
A preliminary judicial investigation is required for cases going to the Bundesgerichtshof; the Oberlandesgericht, or the Schwurgericht for trial or where the prosecutor of defendant moves for such an in- vestigation. The preliminary judicial investigation is opened and carried on by a special examining judge (Untersuchungsrich&). See SffO 55 178-197.
86. StPO at 5 203.
87. Id. at 5 190.
88. Hermann, supra note 52, at 495.

8'

judges prior to the main hearing, as well as a judicial view to be taken by them. While preparing the main hearing, ajudge is even permitted to get in touch with the defendant, the defense, witnesses and experts alike, During the main hearing he is in charge of the conduct of the trial, the examination of the defendant, and the eliciting of evidence. While cross-examination is provided for in the German Code of Criminal Procedure (StPO), it is rarely applied as neither prosecuting nor defend- ing counsel are used to elicit[ing] evidence in court. . . . Where the proof of guilt of the defendant is insflicient, the prosecution will itself ask for an acquittal. Where a defendant has been wrongfully convicted, the prosecution will put forward an appeal for the restitution of his rights. This independent and impartial position of the state prosecutor is made possible by the judge bearing the responsibility for a complete and im- partial examination of the evidence. This in turn presupposes the prior knowledge of the fde [dossier] by the judge. So it is possible to claim that the prior access to the fie is closely related to the structure of German criminal procedure. 89

A-24.Composition of the Courts. if one factor could be chosen to explain the differences between the legal systems of Germany and the United States, it would have to be that in Germany there are no jury trials. Because there are no "jurors," German criminal procedure does not contain extensive exclusionary rules with respect to evidence. Although in earlier periods German trials were conducted by professional judges without the assistanceof lay judges, the system as it operates today is a middle ground between trial by judge alone and a jury trial because it is conducted before a mixed bench of profes- sional and lay judges. These lay judges are not merely "jurors" since they participate with the professional judge in deciding questions of law and fact. However, it should be noted that the lay judges have no prior knowledge of the file (dossier). They hear the evidence for the fust time at the trial. 90 A-25. The Exclusionary Rule in Germany. In addition to eliminating exclusionary rules (such as the heresay rule) which are, at least partially, based upon considera- tion of the lack of "sophistication" of jurors, the German system has also felt little urge to use exclusionary rules of evidence to discourage police and prosecutorial abuse. For example, although a confession obtained by illegal means might be excluded even if the defendant consents to its use, 91 Germany has not adopted the "fruit of the poisonous tree" doctrine. The Federal Supreme Court of Germany has held that
failure to warn the defendant about his right to remain silent and his priv-ilege to request an attorney before his interrogation does not render in- admissible the proof obtained as a result of his impermissible question- ing. 92
A-26. Conduct of the Trial. a. General. In a German criminal trial, there are no opening statements by defense counsel and prosecutor. The presiding judge calls the case and determines whether the defendant, counsel, and summoned witnesses and experts are present. If so, the
89. Jescheck, supra note 82, at 246-47.
90. Id. at 249-252.
91.
StPO 5 136(a).

92.
Jescheck, supra note 82, at 246.

Pam 27-161-1

witnesses leave the courtroom and the defendant is ex- amined by the presiding judge regarding his personal situation. Thereafter, the prosecutor reads the accusation and, under certain circumstances, is permitted to present the legal evaluation on which the order to open the trial has been based and to express his own legal opinion. The defendant is advised of his right to remain silent. If he desires to speak, he is immediately examined by the presiding judge. At the conclusion of a defendant's state- ment, if any, both defense counsel and prosecutor are given an opportunity to question the defendant in order to supplement his testimony. This is not a cross-examination in the common law sense; the defendant is not allowed to testify under oath as a witness. Once the defendant has been questioned, if he desires to speak, the presiding judge receives the evidence in the case.
b.
Introducing Evidence. In a German trial, evidence is received according to the Instruktionsmaxime, i.e., in order to determine the truth the court shall, upon its own motion, extend the taking of evidence to all facts and evi- dence which are important for the decision. The introduc- tion of proof does not proceed on direct examina- tionlcross-examination as in the United States. Rather, witnesses are allowed to testify as to what they know about the subject matter in a narrative form and only then are they questioned further. 93 After each witness, or after the introduction of each piece of written proof, the accused is asked if he has any statement to make and, upon request, the prosecutor and the defense counsel may make a state- ment. The court is not bound by the evidence presented by the prosecutor or by the defense counsel. In fact, it is fair to say that the prosecutor loses control of the case once formal charges have been filed. 94 He is not at liberty to drop the case without judicial concurrence, and the court is not bound by the prosecutor's theory of the case. It therefore follows that the prosecutor is not required to make out a prima facie case; nor is there a requirement that a particular fact be substantiated by more than one piece of evidence. In fulfiing the Instrukstionsmaxime a court is not bound by a defendant's confession and it may question as many witnesses as necessary to satisfy itself of the accused's guilt. The burden of disproving such ex- culpatory defenses as insanity, drunkenness, self-defense, or necessity is upon the government. However, the defen- dant has the burden of asserting the facts necessary to raise such a defense (Darlegungslast).If the government cannot meet its burden, the point is established by the presumption in the defendant's favor.

c.
Closing Statements. At the conclusion of the evi- dence, the prosecutor and the accused have the right to make closing statements, with a right of reply in the prosecutor and the right to close in the defendant. Even if the defense counsel has spoken for the defendant, the de-

93.
StPO $8 69(1), 72.

94.
Langbein, supra note 60, at 447.

fendant will be asked himself whether he has anything to
add in his defense. Once closing arguments have been
made, the court retires to deliberate its determination of
guilt or innocence and to fix the sentence, if appropriate.
The civil law system generally does not require a
unanimous vote for a verdict of guilty.
A-27.Conviction and Sentencing. a. Conviction. The German Code of Criminal Procedure states that a "ma- jority of two-thirds of the votes is required for any decision against an accused which concerns the question of guilt
[or] assessment of punishment." 95
b.
Sentencing. A study of sentences authorized by the German Penal Code (StGB) and those actually imposed by German courts show that they are generally less severe than those in the United States. 96 In 1969, Germany enacted two reform acts which were not merely changes in criminal law, but actually revealed ". . .a new basic orien- tation: a beginning with de-mythologizing and humaniz- ing criminal law." 97 Certain acts were made noncriminal and the concept of penal sanctions was reoriented. The law was divided into two parts, the fust of which was less controversial and became effective on I April 1970. The second part, which included the General Part of the Penal Code, as well as the new concepts with respect to penalties, did not come into effect until 1 January 1975. The penal policy as enacted in these two pieces of legis- lation provides for uniform imprisonment for all prisoners, regardless of offense, thus doing away with the former sanction of penal servitude. The reform acts also restricted the use of "short-term" imprisonment (i.e., less than six months) except in unusual cases. The rules regarding parole and suspension of sentence were liberalized, thus placing formerly ineligible persons within the zone of consideration.

c.
Fines. In these reform acts Germany also adopted the Scandinavian model of imposing fines in "daily incre- ments." Under this model, a judge is not completely at loose ends in determining the fine to be imposed. It

involves a 2-step calculation: fust the judge must determine a "dayw- multiplier appropriate for the particular offense, e.g., 30 days for burgla- ry. His next step is to calculate the amount for each day, having regard for the offender's personal and economic circumstances. Thus if our burglar's day tax is assessed at DM20, his fine would amount to DM600. 98
d. Probation. In some instances involving minor offenses, a perpetrator's record may be "wiped clean" ifa successful probation period is completed. The reform acts also introduced the concept of rehabilitating in "institutes
95. SIP0 8 63(1).
96. See generally Hennann, supra note 52, at 473. For a com- parison of criminal sanctions in various European countries see Glos, A Study in the Treatment of Crime and Law Ellforcement in the United States as Compared to the European Countries, 3 St. Mary's L. J. 177, 179-201 (1971).
97.
Eser, supra note 45, at 252.

98.
Id. at 256.

Pam 27-161-1
of socio-therapy' 'four categories of offenders: persons with severe personality disfunction, persons suffering from dan-gerous impulses, youthful offenders who have already undergone cor- rectional education without success and display a criminal inclination, and fmally persons who would qualify for psychiatric hospitalization but might respond more adequately to the special therapy and social help of the new institution. 99
These penal reforms provide German courts a wide range of sanctions to consider when deliberating and construct- ing an appropriate sentence. A-28. Sources of Law. German judges view the con- tinuity and development of the law as part of their respon- sibility. As with other civil law jurisdictions, judges are ex- pected to "fd the gaps" of legislation by extending the lkgal principles expressed in legislation. When Bruno Heusinger stepped down as President of the German Supreme Court in 1968, he placed the role of the German judge in perspective:
The highest jurisprudence, that of the Supreme Court, characterizes the law by emphasizing two special tasks:safeguarding both the uniformity and the development of the law. The Supreme Court, within its jurisdic- tion, has to provide a uniform application of the law throughout the Re- public of Germany. That can only be achieved if the Supreme Court does not, without necessity, decide a similar case differently today than it did yesterday or the day before. This continuity is not reprehensible conservatism, but simply indispensable to guaranteed stability of the law. 100
A-29. The Penal Order. Any consideration of German criminal procedure requires brief mention of the "penal order," or Strafbefehl. The penal order proCedure is a type of prosecution and is thus consistent with the Legalitaetsprinzip (the rule of compulsory prosecution). However, a penal order could be described'as a trial with- out a trial. It applies only to misdemeanors (Vergehen). When the prosecutor receives a case involving a misde- meanor, he may elect to handle the matter by applying to a district court judge (Amtsrichter) for a penal order. The application is to contain the facts of the case and a request for a smc penalty. 101 The judge may either issue the order, as requested, or deny it. He may not impose any other penalty than that requested by the prosecutor. If the order is denied, the judge may either return it to -the prosecutor or order a trial. 102 When the order is issued it is sent to the defendant who has one week from the date of service of the order to raise objections with the district court to the procedure. If the defendant does not object within the time allowed, the penal order becomes a final judgment. 103 When an objection is raised within the time limit, the case is set for trial which then proceeds like any other trial unless the prosecutor decides to drop the matter or the objections by the defendant are withdrawn prior to trial. As may be seen, the purpose of the penal order is to avoid trial only where the offense is minor and the facts are undisputed.
The similarity between the German penal order and the Anglo- American guilty plea is manifest: The prosecution invites the accused to waive any defenses and consent to the punishment propounded by the prosecution. There are, however, important differences. Fit, the penal order procedure applies only to misdemeanors, and even there only where relatively light sanctions are proposed. . . .The real parallel to the German penal order procedure is the short form American citation prac- tice for traffic offenses: 'Pay this fme or appear in court.' . . .Second, the German penal order might be said to invite a plea, but not a bargain. … [The accused] is offered the sentence on take-it-or-leave-it terms. .. . Third, and most important, the penal order does not offer a lesser sanc- tion in exchange for the guilty plea. The accused who objects to the order, demands trial, and loses is not likely to receive a stiffer sentence. . . . Hence, what the accused primarily risks in rejecting the penal order is not a greater sentence, but court costs and the notoriety of public trial. '04
A-30. Conclusion. Having examined the prototypes of a civil law system as it has evolved in both France and Ger- many, a brief discussion of other civil law systems follows.

Section 111. OTHER CIVIL L,AW JURISDICTIONS 10s
A-31. Republic of Korea. 106 a. Historical. Before World War 11, the criminal procedure of Japan was used to a large extent in Korea. After the War, Korea adopted its own law of criminal procedure.
b.
The Prosecutor. Under the Korean system the prosecutor is permitted to institute charges. The prosecu- tor directs the investigation of the case, either by conduct- ing the investigation himself or through police officials.

c.
The Defendant. Normally the defendant is not ar- rested during the investigation.

(1) Need for an arrest warrant. If a person is ar- rested, a warrant must be issued by a district judge except when the person is caught in Jagrante delicto or when there is insufficient time to obtain the warrant and it ap- pears that the person will flee or destroy evidence in a case involving an offense punishable by death, penal servitude, or three or more years of imprisonment. In such a case, a warrant must be obtained within 48 hours from the dis-
99. Eser, supra note 45, at 257.
100. Larentz, The Open Legal Development Germany in The Role of Judicial Decisions and Doctrines in Civil Law and Mired Jurisdictions
139 (Dainow ed. 1974).
101.
StPO §§ 407, 408. The only penalties that may be requested are minor in nature. Id.

102.
Id. A judge might disagree because "he believes the matter should not be disposed of by penal order, such order is not justified by the law or the facts, or he disagrees with the punishment. . . . If the prasecutor disagrees he may appeal [to a higher court]. .. .However, in practice, such disagreement is rare." Robinson, supra note 50, at 275.

1'33. StPO 5 410.
104. Langbeim, supra note 60, at 456-57.
105. For a discussion of the legal system in Italy, see Menyman, The Italian Legal System III: Interpretation in The Role of Judicial Deci- sions and Doctrine in Civil Law and in Mired Jurisdictions (Dainow ed. 1974). See also Vassali, The Reform of the Italian Penal Code, 20. Wayne L. Rev. 1031 (1974). The Spanish system is adequately dis- cussed in Murray, A Survey of Criminal Procedure in Spain and Some Comparisons with Criminal Procedures in the United States, 40 Notre Dame L. Rev. 1 (1 964).
106. The following material has been condensed from a publication entitled Korean Legal System distributed by the Supreme Court of the Republic of Korea in 1964 [hereinafter referred to as KLS].
Pam 27-161-1
trict court or the person must be released and cannot be arrested again for the same offense without a warrant.
(2)
Pretrial detention. If there is reasonable belief that a person has committed an offense and that the per- son has no "fmed dwelling place" or there is reason to believe the person may destroy evidence, or it is likely the person will try to escape, then he may be placed in pretrial confinement for a period of two months. The period of detention may be extended, if need be, for a maximum of six months. A suspect is placed in pretrial detention by a warrant of detention issued by a court at the request of the prosecutor. When the reason for detention ceases to exist, the person is to be released. If a person has been arrested under a warrant, a request may be made to an appropriate court by the person, his defense counsel, legal representa- tive, brother, sister, or head of his family for a decision as to the legality of the arrest. 107 If appropriate, the court can order the release of the suspect.

d.
Initiating Charges. There are two other ways in which a prosecution can be initiated:

(1)
Trial of the accused by summary proceedings for petit offenses, and

(2)
Where an Appellate Court overrules the deci- sion of a prosecutor not to prosecute and orders the case to trial.

e.
Petit Offenses. It would appear that for certain types of offenses, the chief of police may recommend that a summary trial procedure be used. If, however, the ac- cused informs the chief of police who originally requested the summary trial of his objection to the procedure, then the records and evidence must be forwarded to the prosecutor for a public trial. This procedure for petit offenses must not be confused with the procedure for summary judgment.

J: Appellate Court Order. If a complainant (or in- former) is dissatisfied because the prosecutor has decided not to prosecute a case, he may petition, within ten days of being notified of the decision not to prosecute, through the chief prosecutor of the district to the appropriate Ap- pellate Court for review of the decision. The chief prosecutor may reverse the local (district) prosecutor and send the case to trial or send the file on to the ofice of the higher prosecutor (i.e., to the prosecutor who operates at the Appellate Court level) within seven days of receiving the petition. At this level, the case may be sent to trial or to an Appellate Court which then must decide, within 21 days whether to send the case to trial. If the petition is not dismissed and the case is set for trial, the matter is handled just as though the charges had been filed by the public prosecutor. The main departure from an action brought by the prosecutor is that an attorney (other than the prosecutor) will be appointed to handle the case. This lawyer is said to act in an official capacity while prosecuting the
107. This would be akin to a habeas corpus action in the United States.
case; he merely steps into the shoes of the regular public prosecutor, and for this reason, he is paid by the government for his services. However, the lawyer is restricted in one respect: In directing the in- vestigation by police officials, the appointed lawyer must limit the scope of the inquiry to those matters which the presiding judge [of the trial (district) court] has approved in advance. If at any time the court feels that the lawyer is not properly performing his duties, .. .the court can withdraw the appointment and designate some other lawyer to take his place. 108
g. Bail. Under the Korean system, provision is made for bail: an accused who has been detained is [to be] released after he has been
required to deposit with the court a sum of money which will be for- feited if he does not present himself when required to do so. 109
In cases where the defendant is not entitled to bail, the court may, in its discretion, order bail. When a person is released on bail, the court may attach such conditions as it deems appropriate. 110
h. Standard of ProoJ: The prosecutor files charges when he has reasonable grounds to believe that a crime has been committed by a par-
ticular person. However, the prosecutor can choose not to prosecute because of the age of the suspect, his character, his intelligence, his background, his motive, the manner in which the offense was commit- ted, the result of the suspect's acts, and the suspect's attitude after the commission of the offense. I 11
Such "nonprosecution" is called a "suspension of indict- ment" and should be distinguished from an outright dis- missal of the charges based, for example, on insufficient evidence or a failure to follow procedural require- ments. 112
i. Indictment. If the prosecutor determines that charges should go forward, he files a written indictment with the appropriate court or moves that the matter be disposed of by "summary judgment." The latter procedure is reserved for minor cases which may involve only a fine. An

accused can request a formal trial within seven days from the receipt of notification of summary judgment. If the accused does not desire to re- quest formal trial, or if he withdraws such a request, or if the court dis-misses the request … and this decision is not appealed, the summary judgment becomes conclusive and has the same effect as a judgment by formal trial. 113
When a case is recommended for trial, a copy of the in- dictment must be sent to the accused or his attorney at least five days in advance of the first session of court.
j. Right to Defense Counsel. The accused may retain a
108. KLS, supra note 106, at 25.
109. Id. at 31.

110. For example, a court may restrict the individual to his dwelling place.
111. KLS, supra note 106, at 36.

112.
Id. "If a person is suspected of having committed more than one offense the prosecutor can try all of the alleged offenses together or can try only the most serious fmt." Id.

113.
Id. at 20. Compare this procedure with the concept of the penal order in the German system discussed supra at notes 101 through-104 and accompanying text.

defense counsel at any time, but if no counsel has been obtained by the time the case has been sent to trial, the court sua sponte must appoint counsel if the accused is:

a minor; (2) 70 years or more; (3) deaf or mute; (4) suspected of being mentally unsound; or, (5) unable to obtain counsel because of a lack of assets (or other reasons) and has requested counsel. 114 Additionally, if the offense is punishable by death, penal servitude, or im- prisonment for more than three years, the court must ap- point counsel. 11s Introducing Evidence. In Korea there are certain restrictions on the introduction of evidence at trial. For example, coerced confessions, confessions without cor- roborating evidence, or hearsay testimony may not be in- troduced. However, the prosecutor's file (dossier), in whole or in part, may be admitted, if authenticated even though it contains statements by the defendant or other persons. At the trial both the prosecutor and the accused may present evidence and the court on its own motion may call for additional information. The accused may refuse to "answer any or all questions," but "the court must give him an opportunity to make a statement favora- ble to himself." 116 (1)

k.

I.
Composition of the Court. In the trial process, there is no "provision in the constitution or in the laws for trial by jury." 117 Therefore, the trial is either before judge alone or a panel of judges. The proceedings in a Korean criminal trial may be summarized as follows: The presiding judge fixes the date for the fmt public session, although

he is limited by the requirement . . . that the accused or his counsel receive the indictment at least five days before the trial begins. On the fust day of the trial, the court summons the accused and notifies the prosecutor and the defense counsel. The court is convened in the pres- ence of the judge or judges, the court clerk, the public prosecutor, and the accused. . . . Hearings are generally open to the public; the court, however, canexclude the public by decision if the proceedings are likely to disturb public order or be harmful to the public's moral welfare. . . .If the public is excluded, the court must state the reason for its decision.
At the beginning of the trial . . . the presiding judge must confi that the apparent accused is the true defendant by asking him his name, age, address, and occupation. The prosecutor then describes the nature of the alleged offense, as set forth in the indictment. Before proceeding further, the judge must give the accused an opportunity to make an opening statement in his own behalf; the defendant need not say any- thing, however.

If the accused is willing to answer questions, the defense counsel and the prosecutor can examine him, in turn, regarding the alleged offense; then the presiding judge can interrogate him. Thereafter, an associate judge can ask questions of the defendant. . . . Even if the defendant has answered some questions, he can still refuse to answer others.
After the examination of the accused, the prosecutor, the defense counsel, and the defendant can introduce documentary evidence or other evidence and can request that certain persons be called as wit- nesses, both experts and lay. . . . me court may also investigate a par-ticular matter on its own motion.] The prosecutor, the accused, or his
114.
Id. at 26.

115.
Id.

116.
Id. at 23.

117.
Id. at 15.

counsel can object to the introduction of certain evidence; the court must then render a decision on the objection. After all the evidence hak been examined by the court, the public prosecutor makes his summa- tion in which he states his opinion of the facts proved and the applicabAe law, and suggests an appropriate punishment. The defense counsel ca;n then make a fmal argument concerning both the facts and the law; the defendant can also make a statement in his own behq. 118
d
m. Appeals. If the accused is found gdy, any appeal must be filed in writing within seven daybuter the sen- tence is adjudged. In Korea, any party to the action may appeal, not only the prosecutor, the accused, and his legal counsel, but also a legal representative, spouse, linql relation, brother, sister, or head of the family. Genera& the Appellate Court only considers matters raised by the appellant, but it is permitted to raise certain matters on its own motion. 119 The Appellate Court may not impose a heavier sentence than that imposed by the trial court. The decision of the Appellate Court may then be appealed to the Supreme Court, which generally only decides ques- tions of law. 120 A-32. Japan a. Historical Origins. The Japanese legal system is a mixture of the civil and common law systems. The fust Japanese Constitution (1889) was greatly in- fluenced by German and Austrian law because the com- mon law sytem was considered too "democratic" by the Japanese society in the latter half of the 19th century. 121 Initially, the Japanese drew heavily on the French legal system (e.g., the ofice of procurator or public prosecutor was established in 1872), but around 1880 the influence of French procedures dwindled and the German processes assumed preeminence. By the beginning of the 20th cen- tury, however, Anglo- American concepts were beginning to influence Japanese legal thinking. For example, the jury system was introduced in 1923. The common law did not make its full presence felt until after World War 11, follow-ingthe American occupation of the islands when the com- mon law influence became more pervasive. 122
Examples of such superimpositions are the guarantee of freedom from discrimination in political, economic or social relations because of race, creed, sex, social status or family origin (Art. 14); the right of life, liber- ty, and the pursuit of happiness (Art. 13); the right of all persons to be secure in their homes, papers, and effects . . . (Art. 35); and especially the fact that the judiciary is to be independent in the exercise of their conscience and shall be bound only by this constitution and the laws. The judiciary is the fmal arbiter of all legal matters (Arts. 76, 55 2 and 3). 123
b. Modern. Although the Japanese Penal Code and the Japanese Code of Criminal Procedure retain characteristic features of the civil law, several signif~cant points of the
118. Id. at 37-40.
119. For example, it can grant amnesty or abolish the penalty.
120. KLS, supra note 106, at 46, 47.
121.
Kuribayashi, The Japanese Legal System, 36 Australian L. J. 437 (1963).

122.
Note, The JudicialSystem of Japan, 6 Case Western Reserve J. Int'l L. 294, 295 (1974).

123. Id. at 397, n. 12. The citations are to the Japanese Constitu- tion of 1946.
common law have been added. The Code of Criminal Procedure incorporates such Anglo-American features as the requirement of ajudicial warrant for every kind of compulsory measure,
the proceeding for the indication of reasons for detention, restrictions on the use of evidence, . . . the increased use of the adversary party con- cept in the structure of public trial [, . . . the] abolition of the preliminary proceeding, the basic revision of the system of appeals, the prohibition against reopening the proceedings to the detriment of the accused, the restrictions placed on the system of summary proceedings, and the abolition of private actions collateral to public prosecutions. Details of procedure are provided by rule of court. 124
The Japanese Penal Code retains its basic framework even though originally enacted in 1907. It has stood the test of time because it has provided the courts with flexibility by defining offenses broadly. Further, Japanese courts are vested with a broad discretion in applying Code norms to individual
cases, and judicial interpretations by the highest court . . . are usually
124. S. Dano, Japanese Criminal Procedure 17, 18 (George ed.
1965).
Pam 27-161-1
followed by lower courts until the former changes its own previous view. Thus, the courts develop "case law" in many fields of criminal law, although law-making authority by courts has never been explicitly 'recognized in Japanese jurisprudence and judicial opinions are always based on the words of statutes and not on precedents. 12s
c. Rights of the Accused. In addition to the common law features in the Penal Code and the Code of Criminal Procedure, the Japanese Constitution of 1946 contains a number of "American-type" rights which are considered basic to defendants, e.g.: due process, arrest, search and seizure, fair and speedy trial, confronta-
tion of witnesses, right to counsel, coerced confession, and double jeopardy. 126
d. Conclusion. Japan has blended the precepts of oriental law, civil law, and the common law and has at- tained a rather unique criminal legal system.
125. Suzuki, The Politics ofCriminal Law Reform: Japan, 21 Am J. Comp. L. 287, 294 (1973).
126. Id. at 287, citing Japanese Constitution Arts. 31, 33-35, 37-39.

The proponent agency of this pamphlet is the Office of The Judge Advo- cate General. Users are invited to send comments and suggested im- provements on DA Form 2028 (Recommended Changes to Publica- tions) directly to The Judge Advocate General's School, US ARMY, ATTN: International Law Division, Charlottesville, Virginia 22901.
By Order of the Secretary of the Army:
E. C. MEYER

General, United States Army Official: Chief of Staff
J. C. PENNINGTON
Mqjor General, United States Army The A4utant General

DISTRIBUTION: To be distributed in accordance with DA Form 12-9A, Requirements for DA Pamphlets, Legal Services. Active Army: C ARNG: D USAR: C
QU.S. GOVERNMENT PRINTING OFFICE: 1979-280-9611'1353

 

US fighting code 1959

US fighting code 1959

COVER PAGE-FRONT
"RESISTANCE TO TYRANTS IS OBEDIENCE TO GOD", THOMAS JEFFERSON
EXECUTIVE ORDER 10631
CODE OF CONDUCT
FOR MEMBERS OF THE ARMED FORCES OF THE UNITED STATES
By virtue of the authority vested in me as
President of the United States; and as Com­
mander in Chief of the Armed Forces of the
United States, I hereby prescribe the Code of
Conduct for Members of the armed Forces of
the United States"which is attached to this
order and hereby made a part thereof.
Every member of the Armed Forces of the
United States is expected to measure up to the standards embodied in this Code of Conduct .while he is in combat or in captivity. To ensure achievement of these standards, each member of the Armed Forces liable to capture shall be provided with specific training and instruction designed to better equip him to counter and withstand all enemy efforts against him, and shall be fully instructed as to the behavior and obligations expected of him during comlmt or
captivity.
The Secretary of Defense (and the Secretary of the Treasury with respect to the Coast Guard exeept when it is serving as part of the Navy) shall take such action as is deemed neeessary to implement this order and to disseminate and make the said Code known to all members of the Armed Forces of the United States. THI'J WHITE HOUSE August 17, 1955
For sale by tbe Superintendent of Documents, U,S. Government Printing Office
9 am. at1,5\m~~icanJf.9titt~'9 tUat1-~ senJe in theI Jorces}l?lit~Q,9lla.s~n1,gcounh~an6ol\t"" UJ~ #[lfC;9m'ry'~r~/~09lue n'l\ 'lfe int~i,-6ifens.e.
9wi[neuersurren6er Qf m~ own fl-ee wHf. fJf inII COttltn~tlb'~UJi~Tnel'ersuncn6er ln~menwhl(e /fhe..9.stillhave themeans.:t"resist.
~0atnqapttl.~~6 g~uiLI continue {oreSiS\Gli all meatlS;~V:'litIl£j[e~ g will ma~~.~el}lijfop~.'l:OIII ~~rljtt<5ai?()thers10 e?c~e_0wUIacc~ tleit~er.J'aLOffi.tl0r~eclaDiuorgrom"theenem3_
~0fe~OtUeQyt:i:;Qnergf l~1Ur,~ll'ill (~~ J.ith With m.3fe~l()UJ.J'tisoners:-~ will gi~ no iL!forma. tion nor tal,c_pmi: in £mg action which mi.ght.~e bart0UC to tU3 comra6cs.·~ ~ an::.. 5eni()~,~~\~L fake camman6. ~-not. 0 wi([ obe.li1:he GUgrtC' or6ers.Efthose3'yointe6 oue,me· an6wiabacff them 'P inetJ~UJa..9.
v
cWhen q~tiqli~(s~;';'r6 9 become a yris()t\g~ ifwar, ~flt\l houn6 to giue on§lt).§l~f;.r.ran1i. servicenumbe.t:" ~n6 6ate'Zf. birtfL~IDi(feva6e. answct:in,g ji1t:th"crquestions to. tGe utmosto[tt'~
abili~_ g wi£[nlu(i'e no o~aror,-,;.ritten statem%ttt5
6is(O~aCto u:Y.country attp its atiles or h~t . to their cause.
VI
1II
CONTENTS
Page
Foreword……. …. …. .. 1
 
Introduction…………………….. 2
 
1.
TheNewRoleof thePOW………….. 4
 
2.
TheLessonsofHistory…………….. 12
 
3.
OutbreakinKorea……………….. 27
 
4.
"Progressives" and "Reactionaries"… . . 38
 
5.
Interrogation……………………. 44
 
6.
Indoctrination. ………………….. 51
 
7.
Propaganda…………………….. 59
 
8.
ProbingforWeakSpots……………. 66
 
9.
The POW Can Resist " .. .. 73
 
10.The CodeIsYourArmor…………… 80
 
11.
The GenevaRules………………… 90
 
12.You GuardOurCountry…………… 100
 
13.
Never SayDie…………………… 106
 
14.Keep UptheFight………………… 114
 
15.
Keep Faith……………………… 122
 
16.    
ByWordandByDeed………… .. 132
 
17.    
Faith Will Triumph , .. . 140
 
Bibliography……………………. 148
 

v
BLANK PAGE

FOREWORD
D
uring and after the Korean war it became appar­ent that many U.S. fighting men had been inade­quately prepared for the ordeal they faced in Korea. Accordingly, a "Code of Conduct for ::Uembers of the Armed Forces of the United States" was drawn up. Based on traditional ideals and principles, the Code is intended to give guidance to all members of the. Armed Forces in any future conflict.
Since the Code was proclaimed in 1955, each of the Serv­ices has improved its instruction on how to avoid capture and what to do if taken prisoner of war. Each Service program has been analyzed, and the best points are reflected in this revised pamphlet, "The U.S. Fighting Man's Code." Some of the material in the booklet has been drawn from Army Pamphlet No. 30-101, "Commu­nist Interrogation, Indoctrination, and Exploitation of Prisoners of 'Val'''; The Airman, official journal of the Air Force; and the Naval T1'aining Bulletin. Materials and suggestions have been received also from the U.S. Marine Corps, and these are reflected in this pamphlet.
The assistance of all of the Services is acknowledged with thanks.
INTRODUCTION
T
he United States is proud of the record of its fj.ghtingmen. The overwhelming majority of them have metthe standards of the Code of Conduct from the beginning
of our military history. Every war has produced outstand­ing examples of their devotion to duty, country, God.
Although the Code of Conduct grew out of studies of
behavior in Korea, that conflict also had its heroes, too
many to list here. The individual acts of courage and
fortitude by Americans in Communist prison camps alone
would fill volumes. For their exemplary conduct while
prisoners of war, many American fighting men were
decorated.
But the fact remains that in Korea, as in every other
war, a few Americans did less than their best to avoid
capture-and a few of those who were captured cooper­ated with the enemy. 'Vho is responsible? Certainly, themen concerned.
But the military Services, the Department
of Defense, and our Nation must assume a share of theresponsibility.
An indomitable will to resist is not acquired overnight.
Kor can it be supplied by military training alone. For itrests on character traits instilled in our homes, ourschools, our elull'ches-traits such as self-confidence, self­reliance, self-discipline, self-respect, moral responsibility,and faith in country and God.
The sen'iceman equipped with the will reinforced bythe skill to resist is prepared for whatever military serv­ice has in store for him.
Both the will and the skill toresist a Communist foe are strengthened by knowledge ofCommunist tactics and techniques. '
The serviceman who understands the nature of Com­munist enslavement will do his utmost to avoid it. Guided
by the vrecepts of tlle Code of Conduct, and profiting bythe experiences of those unfortunate enough to have beencaptured by the Comillunists, he will never surrender him­self 01' his men while there is the slightest chance of avoid­
2
ing it. He will never give up the fight before the situation is truly hopeless.
If capthre is inevitable, he will continue the battle in the prisoner-of-war camp. He will make every reasonable effort to escape and help others who attempt to escape. He will resist enemy efforts to make a tool of him. He will strive to maintain the unity of his group. He will assume leadership if necessary, or obey the leader of his group.
In so doing, he will be fulfilling his mission and uphold­ing the tradition of U.S. fighting men of the past.
3
Chapter 1
THE NEW ROLE OF THE POW
S
omething baffling happened to the American fighting
man who became a prisoner of war in Korea. It
baffled' his Service, the Department of Defense, and our
Nation as welL
The Po-W expected interrogation and brutal treatment. He knew the Communists would try to squeeze military information from him, and he certainly did not think they would use kid gloves. In this situation, he was to give only his name, rank, service number, and date of birth. He would evade answering other questions to the utmost of his ability.
If tortured, he could pray for strength to withstand his ordeal.
If possible, he would try to escape and rejoin U.S. forces.
Otherwise, based on the experience of past wars, the POW could expect to "sit out" the remainder of the con­flict in a prison camp.
The POW got what he expected … plus Illuch he had not expected!
ASSAULT ON THE MIND
The moment a PO'W fell into Comillunist hands in Korea, his captors launched an assault upon his mind and his spirit. Taking advantage of his bewilderment, they plotted their every move with a definite end in view,
The Communist aim: To make pl:isonel's of war serve the cau,se ot international communism.
Accordingly, American PO"V's were subjected to a well­planned and well-organized type of warfare with which few were familiar and for which few were prepared. Briefly, this warfare was aimed at undermining their loyalty to their country and their faith in the democratic
4
way of life–and thereby, conditioning them to accept communism.
How did the enemy wage this new type of war against our fighting men? 'Vhat strategy and tactics were em­ployed? What kind of weapons were used? A thorough study of hundreds of interviews with repatriated Amer­ican prisoners providecl the answers to those questions.
"rhere the Communists were most successful in making a prisoner do as they wished, they preyed upon his clefects, his lack of knowledge, and his lack of experience. It fol­lows, then, that if U.S. fighting men in Korea had known what to expect and had been prepared, those who became PO'V's could have spared themselves much agony … and could have put up much more effective resistance.
As long as the Communists threaten direct or indirect
aggression to free nations anywhere, the danger of war
continues. The United States and her allies will seek
by every honorable means to avoid a shooting war. In the
event of hostilities, however, you-as a U.S. fighting man­could become a prisoner.
The prisoner's life is never an easy one. And life as a prisoner of the Communists is especially grim, since it holels ordeals beyond the usual hardships of captivity. Hence, you will want to avoid it to the best of your ability. In doing so, you will not only be following the honorable course-set forth clearly in Article II of the Code–but you will be serving your own best interests as well. Some alternatives to surrender are indicated in
chal,ter 13. If you fail to explore every alternative when threatened with capture, you will be making a serious mistake–possibly a fatal mistake.
BE PREPARED
The purpose of this booklet is to help you prepare your­self for any eventuality. By reviewing what happened in past wars, especially in Korea, and by examining ,vhat the Communists are trying to achieve, you will be better pre­pared for what may lie ahead.
5
Specifically, this booklet aims to acquaint you with someof the tactics, techniques, and methods of Communistinterrogation, indoctrination, and handling of prisoners ofwar, and to suggest some defenses against these enemyweapons. It is intended to show you also how the U.S.];'ighting Man's Code can serve as your armor, either incombat or in a POlY camp.
"KnOWledge is power." 'I'his holds just as true for the
U.S. fighting man facing the Communist aggressor as itdoes for the scientist in the laboratory. Much of theknowledge and much of the strength you need to sustainJ'ou as an effective fighting man will sustain you also ifyou become a prisoner.
'['0 combat Comlllunists effectively, either in battle or ina prison camp, remember this:
.. International communism seeks world domination.
.. Communists will use military force when it suits theirpurpose.
s
•    
Military force is simply onc way of winning control of the world.

•    
Communists also keep up an unrelenting war of propa­ganda, subversion, sabotage.

In :1\"orth Korea, most American POlY'S learned the hareI way that no enemy is a friend in a prisoner-of-war camp; that friendships must be deYelolled among their own people and not with the enemy. In the eyent of another con­flict with a Communist foe, American fighting men can expect similar treatment. All Communists are trained for one purpose–defeat of the capitalist democracies, eSllecially the United States.
If you eyer find yourself a llrisoner of the COIlllllunists and are tempted to think that war has swept on beyond you, just remember: thcrc is 110 SlIch thing as "timc out" in the global struggle between communism and the forces of freedom. Your Communist captor \vill not take 'time out" to proyide shelter, food, or medical care. 'Yhateyer care or help he gives you will not be for humanitarian reasons. It will be giyen to help atlvc£nce thc COIIUllllnist cause.
How coulcl the Communists use you? What woulcl they expect of you?

THEY SEEK INFORMATION
First, as in preYious wars, they woulcl be seeking military information. There is nothing new about this. Captors haye been seeking this from llrisoners since the clays of primitiYe warfare. Next, they will attempt to get all kinds of nonmilitary information-about you, your fellow pris­oners, ancl your country. Your instructions in either case remain the same.
You will giye only your name, rank, service number, and date of birth. You will evacle answering other ques­tions to the utmost of your ability.
If you were defending a vital spot, you would not sur­rencler it simply because enemy fire threatenecl your life. To do so woulcl be to unclermine the safety of your outfit
and your ('ountry. By the :-;ame token, if you become a1'0\", you will not gi\"(~
the enemy any information Ill'('an use again:-;t your fellow PO\"'s, your fighting forees,
your eountry, or your ('ountry's allies.
A Comlllunist interrogator may threaten a 1'0\" withdeath, torture, or solitary ('ontinement:. If the 1'0\" givesIlim what he wants beeause of these threats, he is asdisloyal as the lllan who surrenders in ('omlmt to saveIli:-; own hide.
If eH~r you are ta ken priso]H'r of war, a big test willcome when you are firM interro,u:ated. Hefuse to giveanything but your n:une. rnnk. :-;en'ice number, and date ofbirth nnd you impro\"(~ yonI' "hnnees of survivnl. If you
waver. you nre lo:-;t! If you allo\v your Communist captorto drag other informn tion froll1 you-military or other­wise–he will ],eep mnl,ing more and more demands. Inthe end, he will foree you into n sh:unefnl ('ollaboration. The COmll11111ists ,,'ill nse wlwtever means they feel istbe most ejIe('tiH~ to g'et the information tlwy want. Being
8
only human, they prefer to ao this the easy way. If they can get what they want from you with sweet talk, so much the better for them. But if you indicate a willingness to talk, or cooperate, you are a better subject for further questioning than the prisoner who obviously will not cooperate. If you show you are afraid of harsh treatment, you invite it.
What can you expect when you resist? In later chap­ters, you will read of men who did resist-even when threatened with death or physical torture. Some of them did die, victims of Communist brutality. But many more lived … and came home with honor!
The path of honor is neyer easy for a fighting man. But it is the onTy path for a man who respects himself and loves his country!
THEY WANT TO USE YOU
Apart from information, what will the Communists be seeking from you if you ever become a PO'V?
They will want to use you in the cause of cOlllmunism. This does not mean that they want you to become a mem­ber of the Communist Party. Even in the Soviet llnion, the Communist Party has accepted only 8 million members out of a total population of 200 million. However, the Communists woulcl like to have you become an open cham­pion of their ideas. If they succeed in getting you to cooperate, they will find many uses for you-both as a PO'V and after you are repatriated. For example, while you're a PO'V, they would like for you to broadcast propaganda messages to the folks back home. After you are released they would like for you to help pave the way for commu­nism in the USA. They will not be concerned in the least with your welfare, your rights, or Y01tr happiness as an individual. 'l'hey will be concerned with you only as a tool of comm11llisill.
The Communists will sometimes offer small bribes or rewards to get you to do what they want. If you prove uncooperative, they will not hesitate to use force.
For example, suppose' the Communists want yon to be an informer-to tattle on your fellow PO\V's, If any PO\V yalues a few cigareUe's :md "ome ('andy more' than he does his honor and the welfa re of his fpllow PO\V's, lJe ean make a deal. If he ean supply information of more than routine usefulness. his reward may be more. Suppose he refuses; Ill' nwy be subjeeted to all kinds of penalties, from lJeatings to solitlHY confill('ment. But he still has his honor!
GUISES OF COMMUNISM Some of what happened in Korea may be outmoded if und jclicn another war breaks out:. If so, aIHI if ~'ou be­come a PO\\', be alert for ne\Y tricks and new ways to eon'r up old trieks. Comnll111ism assumes many disg:ui"ps. At Y1Hious times awl places, it Inay 1'rp"ent itself as friendl~' and eonsidera teo ()n the other hand, dependi n,S\' 011 the situation, it ma~' be displayed in all its naked brntality. Some Ameri<'lln prisoners o!Jsen'ed both sides and many g:ui"es dnring their captlYity in Korea. OtllPrs saw only one side of communism. Most Alllerieans were imprps"pd by the Illannpr in which cOlllml111hlll can undergo quick changes from one guisp to another. Any man falling into ('Olllmllllht hands in the I'utul'e should Ill' jJl'('jJah'd to
10
encounter communism in any of the forms it may assume-­even the indignant denial that it is communism at all.
No matter how the Communists change their tactics, their motives and broader purposes will not change. Learn these, and you will understand that whatever they want YO/l to do will have some calculated end in view, and that ena will be to advance the ComIllunist cause.

IN CONCLUSION
The odds are that 'you will never become a prisoner of the Communists. At the same time, in any realistic appraisal of what lies ahead, it is a possibility that can­not be overlooked.
If such a fate should overtake you, you may be sure that your Government will do everything possible to rescue you. Meantime, until such help comes, you will have to rely on your own resources. This is the hard, cold truth!
In sUlllming up, remember that the Communists have three basic uscs for prisoners of war. They may seek to use any prisoner in one or more of these ways:

As a source of military information.


As a champion of communislll.


As a stooge to do their dirty work.

All three possibilities are repulsive. Yet your Govern­ment would be doing you a disservice if it did not try to make you aware of them. As bad as they are, fear of the unknown is worse. An ugly truth is no less ugly if it remains in hiding.
Face the facts! You'll find them, unadorned, in this pamphlet.
505596°–59—-2 11
Chapter 2
 THE LESSONS OF HISTORY
 
F
OR a full understanding of today's prisoner-of-war problem, knowledge of the past is essential. This can help you prepare for the future.
Looking back to prehistoric times,we know that primi­th-e man and his barbarian descendant annihilated or enslaved all captive foemen. In time it occurred to the conqueror to hold a captured leader as hostage. Such a vidim was Lot. According to Scripture, he was freed by the forces of Abraham-perhaps the earliest prisoner­rescue on record.
The Romans sported with their war prisoners, often using them for target practice or for gladiatorial shows to amuse the public. Enslaved warriors rowed Caesar's galleys to North Africa and Britain, and were killed when they could no longer pull an oar. "Slay, and slay on t" Germanicus ordered his Rhineland invaders. "Do not take prisoners! vVe will have no peace until all are destroyed."
Chivalry developed in the ·Western vVorld with the rise of Christianity, the concept of "Do unto others." The code of knighthood served to curb the warrior's steel. The true knight refused to slay for slaughter's sake. Facing battle, he was pledged to remain true to his king or cause, even if captured. The disclosure of a trust or the deli\"er­ance of a friend to the enemy was treacherous and merited swift punishment.
Thus rules for the fighting man in combat or in cap­tivity were linked to knightly concepts; of duty, honor, loyalty to friend, and gallantry to a worthy foe.
Some time during the Crusades a prisoner-interrogation rule developed. The captive knight was permitted to divulge his name and rank-admissions necessitated by the game of ransom. However, the medieval foot soldier continued to risk death or enslavement at the hands of a conquering enemy, without hope of escape through ransom.
12
In Europe; during the 17th c"entury, the idea emerged that prisoners of war were charges of the capturing sov­ereign or state. No rules for their treatment had been formulated, but they were protected from servitude and personal revenge. Later, during the 18th century, captivity came to be considered a means of preventing the prisoner's return to friendly forces. This was a step forward. Military prisoners were no longer considered guilty of crimes against the state.

THE AMERICAN REVOLUTION
To discourage desertions during the Re\·olution,. the Unitecl States established the death penalty for prisoners who, after capture, took up arms in the service of the enemy. Duress or coercion was recognized as mitigating only in the event that immediate death had been threat­ened. This was the first definition of required prisoner conduct.
Since' George III decreed that all Americans who re­volted against Crown authority were war criminals subject to' hanging, Revolutionary soldiers and sailors went to war under the shadow of the gallows. The noose was relaxed only because it proved impractical and because English liberals deplored such high-handecl tyranny. Soon after the outbreak of hostilities, prisoner exchanges were begun and paroles arranged.

THE AMERICAN CIVIL WAR
During the Civil "Val', about 3,170 captured Federals joinecl the Southern forces, and about 5,450 captured Con­federates joinecl the Fecleral army. War Department Gen­eral Order No: 207, issued 3 July 1863, apparently was intended to curb widespread surrender and subsequent parole to escape further combatant service. It provided, among other things, that it was the duty of a prisoner of war to escape. Punishment for misconduct was based on three criteria:
• Misconduct where there was no cluress or coercion.
13

Active participation in comlmt against Federal forces.


Failure to return voluntarily.

In cases involving disloyal prisoners of war, the ques­tion of duress-or degree of duress-was weighed in the balance. The Union Judge Advocate General recognized coercion as a defense. It was held that "extreme suffer­ing and privation which endangered the prisoner's life" might justify his enlistment with the enemy. However, if the prisoner made no effort to escape when opportunity offered, he was liable to a desertion charge.
Lieber's Code. Civil 'War prison camps were harsh. In Southern camps, particularly AnderSOllYille and Florence, men suffered greatly from malnutrition and lack of medi­cation. The Union prison on Johnson's Island in Lake Erie was a bleak Alcatraz, and Union stockades at Point Lookout on the Potomac were described as "hell holes."
Humane citizens, North and South, appealed for lenient treatment of captives. In 1863 President Lincoln requested Professor Francis Lieber to prepare a set of prisoner rules. Lieber's Instructions tor the Governmcnt at Arm'ics at the Unitecl States were probably the first comprehensive code of international law pertaining to prisoners of war to be issued by a government. Based on moral precepts that recognized the enemy as a fellow human with lawful rights, Lieber's code contained the following injunctions:

A     prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.


A     prisoner of war remains answerable for his crimes committed before the captor's army or people, (for crimes) committed before he was captured, and for which he has not been punished by his own authori­ties.


A     prisoner of war … is the prisoner of the govern­ment and not of the captor.

JlIIII!! Civi! ·Wllr prisollcrs lI'crc cOllfillcd in ICllls (aliovc) or }J}II!;csiJ/f1 Slrll('[llrc8 (11('!01l') ((lid !lIc!;ed liJe most ele­Jl!clilllr/! sallitar/! facilitics.
15
•    
Prisoners of war are subject to confinement or im­prisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity.


A     prisoner of war who escapes may be shot, or other­wise killed in flight; but neitl1er death nor any other punishment shall be inflicted upon him simply for llis attempt to escape, which the law of order does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at esca[Je.

•    
Every captured wounded enemy shall be medically treated according to the ability of the medical staff.

Lieber's code was a step forward. The Confederacy agreed to abide by the code but could not always fulfill the code's intention. For example, the code required that prisoners' rations be similar to those issued their captors. But the South was slowly starving under pressure of blockade, and Southern soldiers as well as their prisoners suffered from the scarcity of food.
Interrogation and Information. In the American Civil War, espionage, military intelligence, and counterintelli­gence were important features. In previous wars, few trained intelligence operators had served the American forces. Efforts to gather military information had been haphazard and disorganized. The advent of the Pinkerton Service which operated with l\IcClellan, the Federal Secret Service under Colonel Lafayette Baker, and a well-organized Confederate Secret Service put intelligence-gathering (and defensive counterintelligence) on a modernized basis.
Spies were called "scouts." As old as war was the rule that enemy spies, caught in disguise, faced death. They were beyoncl the pale of prisoner-of-war exemptions. The Civil War featured many heroic spy exploits. It also featured daring raids on enemy lines to take prisoners for interrogation.
The officer or man who gave his captors military infor­mation was as dangerous to country and cause as the
16
deliberate traito'1', So soldiers were enjoined "not to talk." Lieber set down the rule:
•     Honorable men, when captured, will abstain from giv­ing to the enemy information concerning their own army, and the modern law of war permits no longer the use of "any violence against prisoners, in order to extort the desired information, or to punish them for having given false information.
The rule was easier to recite than observe. On the one hand, there was the interrogator ordered by his chiefs to acquire vital information-intelligence that might win a battle and save many lives. On the other hand, there was the prisoner, sworn to withhold information that might cost a battle and the lives of his countrymen. Here are the oPvosing forces for a cruel contest.
Despite Lieber's rules, prisoners were sometimes chained together, placed in brutal irons, or "bagged" (a suffocating canvas sack tied over the head). They were placed in soli­tary confinement and denied water. These vicious meas­ures were used more often to wring information from a cavtive than as disciplinary punishments. Such "third degrees" were conducted privately, usually by military police or Secret Service agents.
Backsliding there was on both sides. However, the gen­eral trend was toward more humane treatment of POW's. The going was slow, but the stel)s were in the right direc­tion.
THE INTERNATIONAL RED CROSS
III H:iG4, the Swiss philanthropist Henri Dunant wrote a book that set the stage for a conference at Geneva and the founding of the International Red Cross. The Red Cross offered relief to all combatants, regardless of the flag they served, All participants agreed that "the sanitary personnel might continue its duty in the presence of the enemy." 'l'hrough the determined campaigning of Clara Barton, the United States joined the convention in 1882, and the AmeriC'an Red Cross was organized.
17
Dunant's work inspired the founding of other prisoner­relief societies. In 1874, a conference was held in Bnls­sels at the instigation of the Russian Goyernment. Dele­gates of all the major European nations attended. A code based on Lieber's was projected. The Brussels code was not ratified, but it strongly influenced the first Hague Conference, which met at the turn of the century.
Czar Nicholas II sponsored the Hague Conference of 1899, which produced a Convention with respect to laws and customs of war on land. Representatives of 26 nations attended the conference. Discussed were disarmament proposals and the possibility of establishing a world court. The delegates negotiated various agreements relating to warfare and war prisoners.
The prisoner-of-war code adopted at The Hague was
based on the one proposed at Brussels. It embodied many of Lieber's original stipulations. Prisoners of war were to be considered as lawful and disarmed enemies.. They were captives of tIle hostile government and not in the power of the individual captors or jailors. It was agreed that unruly prisoners could be punished for insubordina­tion, but humane treatment was required.
Twenty-foul' of the attending powers ratified the Hague Convention. Signers included the United States, Germany, France, England, and Russia. A hopeful generation called the conference the "First Parliament of Man."
Acting on a Russian proposal, the Netherlands called a second Hague Conference in 1907. During this conference, the powers reaffirmed their adherence to the principles previously adopted.

THE FIRST TOTAL WAR
Another conference was in the making when the First 'World War exploded. German intentions seemed only too clear when the Kaiser's spokesman described a treaty with Belgium as a "scrap of paper."
The concept of total war-mustering an entire nation and its forces for the conflict-was not new. But in the mod­
18
ern sense, it was first advocated by a Prussian militarist before "World War 1. If rules and codes abetted the war effort, observe them. If they didn't, they were unrealistic and to be dispensed with. Total war was no gentleman's game. Any expedient that spelled victory was justifiable.
This concept was not entirely accepted by the High Com­mand, but the Prussian school generally endorsed a policy of Sclire7clichkeit (planned terror or "Frightfulness") to subdue defiant enemy peoples. Prussian "Frightfulness" was amateurish, and" not very effective. But it did repre­sent a 20th-century development in psychological warfare. Its usefulness was countered when it backfired in another area-propaganda warfare.
'l'he Germans introduced another innovation during World 'Val' 1. This new element could be called "political warfare." As distinguished from propaganda, it involved the process known today as political indoctrination.
At Limburg and Zossen, the Germans set up what were known as "political camps." To these camps were sent prisoners who seemed likely subjects for subversioll. The inll\ates were quartered in comfortable barracks. Instead of the normal prisoner ration they were fed the best food available. Tobacco and candy were plentiful. During the first eighteen months of the war, Irish prisoners were selected for these segregated camps.
As reported by Major H. C. Fooks in his book P1'isoners of War: "One commandant talked to his men and stated that the emperor was aware of the downtrodden state of Ireland, and wished that the Irish captives be placed in a separate camp, where they would be better fed and treated better than the English captives."
By ancl large, the Germans met with little Sllccess. Most of the Irish PO'V's resisted subversion. But the Germans were vioneering. They were setting a pattern for the future.
At war's end approximately 2,200,000 prisoners were in the hands of the Central (Germanic) Powers. The Allies were holding 615,900. The Americans had captured some 49,000 Germans and the Germans, 4,120 Americans. A total
19
of 1A7 Americans (lied in the enemy's prison camps. Few Americans escaped from Germany, but daring attempts \H're made. On the whole, the American prisoners \Yel'(~ \yell treated.
In reviewing ,Vor](1 ,,'ar I-the first total \\"Hr-one may note four major deH>]opments:
• Scientific intelligence ,,'arfare.
o Psychological warfare.

o Propaganda warfare.

• Political warfare.
All dealt with tlw Illlm:lll mind, and all \vou]d be IJrou,gbt to be'ar on future priso]l('rs of ,,'ar-in \\'or]dWar II :llU] in I\:orea,
THE SECOND TOTAL WAR
During ,Yol'ld \\"11' II a total of 12D.701 ,\lllel'k'lllS ,,'ere captured by tile ,\xis enemy.
A t this model German prisoner-oj-war camp neal' FVetzlar,
Gerll/allY, Allied ail'lI/cl/ captured dUl'ing lVorld lVal' 11 reecired e,rcellcnt eal'e.
20
T!tese liberaled Amerieall inmate!; of a German prison hos­
liila! at PlidtSlltlle!t1 (World War 1J) show tlte cjfects of a "farratitJII diet.
Perllnps fenring reprisnl more than public opinion, the German military were fairly careful in handling American ]>O\\"s–with SOllIe ex('elltions. Americnns captured in Italy were gin'n silllilarly ('Orl'ect trentlllent.
In tile matter of prisoner interrogation, the German mili­tary seem to have behaved well enclUgll-at least toward the
21
Americans. There was none of the brutalizing that existed in such Japanese camps as Ofuna and Ashio, where Ameri­can submariners were tortured.
Tl1e Americans captured by General Homma's forces on Bataan Peninsula and at Corregidor were fortunate if they reacl1ed a prison camp alive. In tl1e Bataan Deatl1 March General "\Vainwright's surrendered troops endured one of tl1e most excruciating ordeals of tl1e war. Britons and Aus­tralians caught at Singapore were treated witl1 similar brutality.
Airmen and submariners bore tl1e brunt of interrogation ordeals. Reason: tl1ey usually possessed information of more value to the enemy than an infantryman's. Tl1ey may have flown from a carrier or perhavs i>ailed from some l1id­den island base. The name of tl1e flattov, the location of tl1e base-this was vital intelligence. The submariner knew a dozen secrets: his sub's cruising range, its radar and sonar devices, its torpedo gear. One of tl1e best kept secrets of tl1e war, and one of the most important, was tl1e devth at which a U.S. submarine could operate.
So pilots and submarine sailors who were captured "got the works." The Japanese did not employ subtle interroga­tion methods. Prisoners were flogged and tortured. They were treated to such Oriental punishments as judo exverts and hatchet men could devise. The ordeal of one submarine skipper who "took it" hardly bears recital-cigarette burns, bamboo splinters under the fingernails. . .. But the Jap­anese did not extract from him the diving depth of U.S. submarines.
In the Pacific after the war, Americans found the graves of American destroyermen who had been beheaded and the bodies of other American prisoners who had been drenched with gasoline and burned alive.
These grim deeds, which the present Japanese Govern­ment condemns as heartily as we do, may be regarded as the exception. However, even where the treatment was more humane, the realities of war were making themselves felt. The blockaded Japanese were reduced to meager rations.
The Philippines and the Home Islands were undergoing non­Rtop bombardment. Consequently, food and medical supplies were at barrel-bottom. The 1'O",V's received the leftovers.
But beheadings, torture, the 1'alawan massacre, and the Bataan Death March were on the record. Like the Malmedy maRRacre in the Belgian Bulge, like Buchenwald and Belsen, they awaited an accounting. The outraged people of the United Nations demanded retributive justice.
The Germans applied other and seemingly more effective interrogation methods. Consider the testimony of Joachim Seharff, an interrogator stationed at Auswerstelle "'Vest, Obernrsel, Germany. This was the camp where all captured aviators (except Russian) were brought for questioning. From "all but a handful" of the 500 Americans questioned, Seharff obtained the information he was after. Scharff's methods were not so remarkable. It might be said that he killed his victims with kindness.
In the war there were many "Scharffs." Not all of them were on the German side. Adept Allied interrogators pumped information from case-hardened Luftwaffe pilots and U-boat skippers. In the closing days of the war they pumped their riYals-captnred Nazi interrogators-among them Joachim Scharff.
THE COMMUNIST SHADOW That coming events cast their shadows proved true in the Sovipt treatment of Axis prisoners taken during ",Vorld "'Val'
II. l<;yen then the Soviets demonstrated methods that they :11\(1 other Communist nations were to use in later years.
'l'he Communist pattern was beginning to unfold in Octo­ber 1!Jl1, when the Red (Soviet) Army sent a directive to all Communist interrogators, which read in part: "From the vpry moment of capture by the Reel Army, and during the entire period of captivity, the enemy enlisted men and offi­cerR IllUSt be under continuous indoctrination by our polit­ical workers and interrogators."
This was followed by a series of directives that explained in detail what type of information would be extracted from
23
German prisoners first, how the interrogations shoul<1' be conducted, and the manner and extent of the indoctrination. Analysis of these directives revealed that the Communists were more intereste<1 in economic all<l political inform:1tion than in purely military inform:1tion, though they di<1 not overlook military information. Military information was sought, as a rule, soon after the prisoner was capture<1 and while he was being enlcuated from the combat zone to the rear.
Physical Pressure. The COlllmlll1i~t intel'l'ogators ll.'<erl physical pressure against German PO",V's in an effort to lower their resistance to interrogation and to make the job of the interrogator easier. Physical pTCSSltTe, wilen IIscd, was dit'ectecl aga'inst sclectecl 'indidr/1lals ancl not '((!Jail/st gTOlipS ot p1"1soneTs. The Communists realized that vhysical pressure against a prisoner group would strengthen the unity of the group and defeat their purpose of obtaining information. Examvles of the types of physical IJreSsUre exerted against selected indiYidual prisoners are: Solitary confinement; requiring the prisoner to assume rigid and un­comfortable positions for long periods of time: prolong-ed interrogation of the vrisoner by using-relays of fresh inter­rogators; depriving the vrisoner of sufficient sleep or rest; and denying the prisoner the use of the latrine.
",Vhen the Soviet interrogators relaxed their pressure, it was not for humane reasons. They were being realistic. After all, the object of interrogation is to obtain informa­tion. A badly injured prisoner, or one too exhausted or confused to talk intelligently, is of no use to the interro­gator; therefore, there are definite limits on the amount of physical pressure that can be exerted on a man under inter­rogation. It should be noted that such methods as those mentioned above were reserved for selected prisoners who were known, or thought, to possess important information; they were not applied to the prisoner vopulation as a whole because of the obvious expense in both manpower and time.
The Indoctrination Process. Although some Cominnlli~t attempts at indoctrination of German prisoners were made near the front lines almost immediately after cavtul'e, the
24
organized, concerted indoctrination program began at per­mallent POlY ('tUllpS.
The basic technique was to disereflit not only Hitler but the whole German concept of goYernment. The ComIllunists attacked all German leaders and all German schools of thonght. Eyery social system exeellt communisIll was de­seribed as being against the common man. ComIllunism was adnmeed as the salYation of the workers and the guardian of peaee.
Propaganda. C(lll1Iilllllist propaganda was perhaps the most effeeti,-e part of the Communist indoctrination of German prisoners. 'l'he COIllmunists collected a large num­ber of diaries and letters of deacl German officers that indi­eated defeatist attitucles after Hitler's forces began to slow down on all fronts. These clocumeuts were disseminatecl to newly eavtured vrisoners. They were used to discredit and degrade the officer class and served to create doubt and to weakell the enlisted prisoners' faith in their officers and in Germany.
Germau prisoners were asked to make recordings, sup­poserlly to be broadcast to relatives in Germany. The re­corrlings were broadcast, instead, as propaganda to the ovvosing troops on the front line, and gave the impression that life with the Soviets was pleasant. These propaganda reeonlings caused Illany Germans to surrender to the Red Army.
"Peaee" was the basic theIlle of the Communists. How­ever, this theme was merely a frout to hide their true moth'es. In actuality, it meant peaee on Communist terms. Thron,~h fraud, deception, and some German collaborators, nllIllerous German prisoners signed "peace petitions," which the COIllmunists Imblished throughout the world. These "petitions" gave German soldiers and civilians the false iIll­pre"sion that only the COIllmunists wanted peace. As a matter of fact, the current Oommllnist "lwa,ce e1"1lsade'­st:1I'ted in their prisoner-of-war camp" in 1945.
Handling' of Japanese POW's. Communist methods of han­dling Japanese prisoners of war were generally the same as
25
those employed in handling German prisoners. The interro­gation procedures were the same, as were the techniques of indoctrination. The illegal and unjustified detaining of Jap, anese prisoners for years after hostilities had come to an end paralleled the illegal holding of German prisoners, some of whom were released as late as October 1955, more than ten years ajte1' the-ir capture. Others, so-called "war crim­inals," may never be released.

IN CONCLUSION
The interrogation and indoctrination methods used by the Soviets against German and Japanese prisoners of war fol­lowed the same pattern as those used against the Russian people. They are a Communist trademark, an established procedure peculiar only to communism.
At the close of 'VorIel 'Val' II, these facts had already been written on the pages of history. Unfortunately, llluch of what was on those pages was still a Comlllunist secret. If we had known all the facts and had taken them to heart, we could have spared oursel\'es much grief during the Korean
'val'.
Chapter 3
OUTBREAK IN KOREA
A
rmed with Soviet weapons, North Korean Communist
forces invaded South Korea on 25 June 1950. Six days
later a battalion of the U.S. 24th Infantry Division was
rushed to Korea from Japan.
Thus began one of the strangest wars in American history. Our cause was simple and just, but our objectives were frequently confused in the public mind.
The Korean war had three aspects. There was the civil war aspect-North Koreans fighting South Koreans for con­trol of a divided country. There was the collective aspect­the first United Nations' attempt to stop a treaty-breaking aggressor. And there w~s the cold war aspect-the Western powers blocking the expansion of Commlmist imperialism.
The causes of the war, United Nations' objectives, and the need for American intervention were not clearly delineated in the public mind. This lack of understanding prevailed among American civilians and fighting men.
The Communists attempted to exploit to the fullest this condition both in international propaganda and in dealing with our prisoners of war.

THE COLD FACTS
The United States began a piecemeal bUild-up of the fight­ing forces in Korea. The first units to reach Korea were not well prepared for combat. However, by November 1950, the North Koreans had been completely beaten, their capital was in Allied hands, and their remnant forces' were scat­tered and disorganized. The victory seemed assured until the Chinese Red avalallChe crashed over the Yalu.
In late November, the Chinese opened a massive counter­offensive, hurling our forces into retreat. Early in Decem­ber, American and Allied forces were trapped at the Chang. Jin Reservoir. By fierce fighting they broke the trap and fought their way to Hungnam, where they were evacuated.
There ensued a \vinter of back-to-wall battling in subzero cold.
It was during this grueling period, which began in .July 1950, that most of the American PO,Y's were captured.

"DEATH MARCHES"
The first ordeal the prisoners had to suffer-and often the worst–was the mardi to the PO,Y camps. 'l'he .L\orth Koreans frequently tied a prisoner's hands behind his back or bound his arIllS with wire. 'Younded prisoners \,"ere jammed into trucks that jolted, dripping blood, along broken roads. Many of the wounded received no medical attention until they reached the camp. Some were not attended to until days thereafter.
The marching prisoners \vere likely to be beaten or kicked to their feet if they fell. A nunrlJer of the Communist oflicers "·ere bullwhip barbarians. The~' were particularly brutal to
28
South Korean captives. Many ROK prisoners were forced to dig their own graves before they were shot-an old orien­tal custom applied to the execution of criminals. Some Americans, with their hands tied behind their backs, were shot by the enemy.
So the journeys to the prison camps were "death marches." On one of these marches, 700 men headed north. Before the camp was reached, 500 had perished.
The camps were what might be expected in a remote corner of Asia. Prisoner rations were scanty-a basic diet of rice occasionally leavened with some foul kind of soup. The average American could not stomach such fare. Sick­ness broke out in the camps, and many of the men suffered long sieges of dysentery.
The men suffered much from c0ld in winter and heat in summer. 'Water was often scarce; bathing became difficult. Barracks were foul and unsanitary.
In the best of the camps, the men behind the barbed wire were sometimes given tobacco, a few.morsels of candy, occa­sional mail. A few Red Cross packages got through. How­ever, the enemy consistently refused to permit the Interna­tional Red Cross to inspect prisoner-of-war camps. There was good reason!

THE "BAD" CAMPS
In the worst of the camps, the prisoners existed by the skin of their teeth and raw courage. Men in the "bad" camps were known to lose 50 pounds in weight in a matter of weeks.
The "bad" camps included the so-called "Bean Camp" near Suan, a camp known as "Death Valley" near Pukchin, an­other camp called "The Valley," apparently in the vicinity of Kanggye. Among the worst camps were the "Interroga­tion Center" near Pukchin and a neighboring disciplinary center called "The Caves." This last was literally composed of caverns in which the men were confined. Here they 'Were forced to sleep without blankets. Their food 'Was thrown at them. There were no latrine facilities. In "The Caves" the
29
prisoners were retlueetl to a tlegTE'e of miselT n]](l degradn­tion almost unbelievable. 'I.'hose sent to "Tile eaves" we.re prisoners accused of insubordination, breaking camp rules, attempting to escape, or committing some otller so-called crime. 'rhe testimony of sun'ivors suggests tlwt tl1E' "crime" was seldom fitted by the punisllllwnt.
Tile primnry interest of the Korth Koreans was to impress United Kations captives and Korean civilians with their "superiority" over "'Vestern barbarians." TllPY operated on the theory that "might is right" and demonstrated that "right" by some of the most inhumane types of atrocities and brutalities that "'estern civilization has seen. '1.'0 im­press the civilian pOlHllation, the Korth Korean Communists placed American capOn's on display in the village squares of Korea. They beat and even murdered exhausted, sick. :lllcl wounded Americans who could not defend themselves.
J:\Iistreatment of American prisoners by the Korth Koreans had no relationship to interrogation and political indodrina­tion. Ac:tually, the Korth Koreans were not primarily inter­ested in collecting intelligence information or exploiting the prisoners of war. 'I.'hey did not conduct an organized pro­gram of indoctrination.
They did conduct some interrogations of United Nations prisoners. These were limited, crude, and aimless, and did not produce enough tactical or political information to con­stitute an achievement. One of the stock questions was, "Why did the United States invade North Korea 'I" Most Americans questioned by the Koreans were asked, "How many automobiles has each American?" 'I'he manner in Which the Koreans conducted their limited interrogations, using tlll'eats and beatings, usually resulted in opposition by the prisoners rather than cooperation.
CAPTURE BY THE CHINESE
'I.'he brutal manner in which the North Koreans treated captives became known to thousands of the United Nations forces. As a result, many Americans felt that capture by the Chinese would bring similar treatment. Therefore, when an American captive of the Chinese was not shot or other­
30
trained and indoctrinated themselves in communism and all of its techniques was demonstrated by their bitter criticism of everything American and by repeated references to the "capitalists."
After the initial contact with the enemy. some Americans seemed to believe that the enemy was sincere and harmless. They relaxed and permitted themselves to fall into a well­disguised trap by a cunning enemy.
The Chinese Communist leaders, military and political, were educated-many, in the United States.c Many also spoke English fluently. Most of them possessed a fairly good understanding of Americans and of the other nation­alities that composed the United Nations forces. They were shrewd, and they recognized the potential value to the Oom­munist cause of converting prisoner-of-war camps into lab­oratories in which they could experiment with various methods of group-handling and indoctrination of United Nations prisoners, especially Americans.
THE FffiST BRIEFING
Shortly after capture, American prisoners were escorted to a point some distance behind the front lines. The Ohinese used these points for assembling and briefing the prisoners before marching them to permanent prison compounds. When assembled at the collecting point, the prisoners were briefed by an English-speaking Ohinese Communist officer.
The officer told the prisoners that the war in Korea was a civil war, like the Civil War in the United States in 1861. The prisoners were told that the United States was the real aggressor in Korea and that the American capitalists forced other nations to send troops to Korea to help fight a war for Wall Street. The prisoners were told that the military aggression by the United States so angered the Ohinese people that the "workers" of China decided to "volunteer" for military duty and come to the rescue of the North Korean people. The prisoners were told that the war in Korea was illegal because the Oongress of the United States did not declare war against the People's Republic in North Korea.
32
The Communist officer further told the prisoners that, in view of the fact that the war wrrsnot legal, the Chinese and K:or-ean peoplewonld not consider thecaptives:,pl"isoRers of war but rather as "students." As students they would be reeducated .by the Chinese and K:orean People's Govern­ments. The reeducation about which the enemy spoke meant indoctrination-Communist indoctrination.

PERMANENT CAMPS
After the prisoners.had undergone the briefing at the collecting points and had been identified and tagged, they were evacuated to one of the permanent camps in North Korea. The evacuation under the Chinese was more orderly and less ruthless than umler the North Koreans-another instance of the Communist deception technique in operation. The sick and wounded were assisted by Korean civilians who used carts to help them along the marches. The food en route did not meet American standards but was far better than the food given prisoners by the Koreans. Medical care for the marching prisoners was poor, but the Chinese made what they had available to the more serious cases of sick and wounded.
After arriving at permanent camps, the prisoners were immediately organized into units comparable in size to United States Army units. They were grouped into squads, platoons, and companies, each under a unit leader. Orig­inally, the leaders were selected by the Chinese Communists on the basis of leadership qualities, military bearing, and a loud, commanding voice. This manner of selection, however, was discarded almost immediately because the units were run too much like regular military organizations, and this was contrary to the Communists' strategy. The enemy re­examined the original leaders, checked their backgrounds, and determined which ones could be depended upon to lead the units in the way the Communists wanted them led. In many instances, the unit leaders were studied as potential group leaders and monitors for indoctrination classes. Obvi­ously, the objective behind all this was to gain and maintain complete control over the prisoners.
33
After the Chinese had established a POW organization that would satisfy their purposes, they began a conditioning process designed to render the prisoners more vulnerable to their propaganda assaults and to their political indoctrina­tion program. The enemy's initial objective was to gain the prisoners' neutrality, if not cooperation, by undermining their sense of duty, their friendships, and their democratic ideals. To attain this, the enemy had no set of rules. No trick was too dirty or mean, no weakness too unjust to ex­ploit, no threat too violent 01' subtle to be used again and again to batter the resistance of the prisoners and to crush their will.
Fear, threats, confusion, tension, isolation, retaliation, informers, and censorship of mail were used effectively by the Chinese Communists. Since these control measures played such an important part, and since they will probably be used again and again in any future situation of this kind, it is important to explain some of them in detail.
SPREADING FEAR
The Chinese Communists first generated fear among the prisoners by warning them that they might be strafed by our own planes in Korea. This was not an unfounded warn­ing, because we had ail' superiority in Korea at the time, and the Chinese did not report accurately the locations of the various PO'V inclosures. This warning created a pecul­iar fear in the minds of the prisoners-fear of harm by friendly forces. Stories of atrocities and brutalities, a few of which were based on fact, were deliberately spread. In this instance, the implication was that in some rare and unusual situation, the enemy might find it necessary to re­sort to torture, but if he did it would be as a last resort for the sake of discipline. The enemy spread rumors that some prisoners might be shipped to Manchuria or to China and that the trip might be a one-way affair.
Another rumor deliberately. planted and spread by the. enemy was that if prisoners did not cooperate wiJh the Chinese and Korean People's Governments for peace, some might not be repatriated. This inspired the greatest fear in
·34
the prisoners-of spending an indeterminate period as pris­oners of the ComIllunists.
Playing on basic human instinC't and emotions, the enelllY started a rumor that food might be withheld from those prisoners who did llot cooperate with the enemy. 'I'his rumor, coupled with another that even the primitive medical care would be withheld in case of illness, intensified the normal fear of siekness and disease. This fear increased further when the prisoners considered the fact that they were liVing under conditions far below the normal sanitary standards in the United States and other modern countries of the world.
Perhaps the most significant and destructive fear was fear of the unknown. The Chinese played upon it in the hope of redueing the resistance of the prisoners. 'I'his caused some prisoners to weaken and a few to accede to Communist de­mands. An analysis of this aspeet of group-handling by the Chinese COllUllunists reH~als that the prisoners actually
were more afraid of the unknown than of the things theycould see, feel, and hear.
INFORMING
One of the most VICIOUS and despicable tactics employedby the Chinese Communists was to organize nets of in­formers. The enemy had two types of informers. One ,yasthe unwitting informer. He had no specific instructionsfrom the enemy nor, as a matter of fact, did he realize thathe was serving as an informer. He was called to the enemyheadquarters at various times and engaged in general con­versation. The conversation would alwi1~-s lead to prisonlife and prisoner actiyities. Through careless talk, the pris­oner gave the enemy information about other pi'isoners andunwittingly informed on them.
The other type was the regular informer, who reportedto the enemy at night or at other specific hours designatedby the enemy. He gave the enemy information about otherprisoners through weakness or to enhance his position in theeyes of the enemy. In certain instances a regular informerdeliberately gave the enemy false information about some
prisoner or prisoners, which resulted in unwarranted pun­ishment or hardship for the victims. As a result, prisonerswere tried and severely punished for offenses about whichthey knew nothing-the work of the informer.
The position of the informer was so insecure that he hadto report any questionable act in case someone else informedon him, thus causing him to lose his position. These "ques­tionable" acts included such indefinable misconduct as "nn­wholesome" or "hostile" attitude, the recording of "impropernotes" at an indoctrination lecture, and expressing "a capi­talistic philosophy." The type of prisoner recruited by theenemy for this work was the opportunist, who stopped atnothing to further his own gains.
In return for informing,the Chinese enemy permitted him to conduct various activ­ities, snch as selling food to hungry prisoners. The informerswere feared to some extent by the other prisoners, but theirattitude and conduct more frequently were viewed withanger, shame, and dis6'ust.
36
IN CONCLUSION
Despite the wide publicity given to informers and collabo­rationists, they did not set the pattern for our fighting men in Korea. The large majority of American prisoners resisted the enemy in the highest tradition of the service and of our country. Of those who resisted, some were singled out for brutal treatment. Some of these cases will be discussed in later chapters. In the long run, however, those Americans who I:esisted fared about as well physically and materially as the few who chose t:p,lil road of least resistance. And they had this decided advantage-the personal satisfaction of having acted in the highest moral tradition of a nation under God.
37
Chapter 4
"PROGRESSIVES"
 AND "REACTIONARIES"
 
W
ho were the "progressives" and who were the "reac­tionaries" ?
These words took on special meanings in the prison camps of North Korea. American fighting men who considered themselves liberals were proud to be called "reactionaries" for demonstrating firm resistance in a Communist prison camp. On this point, they saw eye to eye with their more conservative buddies. And both liberal and conservative POW"s looked with contempt on the P01V who came to be known as a "progressive."
How did a man become a "progressive"?
If he began to show the "propel' spirit"-to cooperate with his captors-he was lectured and handed Communist litera­ture. A docile prisoner who read the literature and listened. politely to the lectures was graduated to a better class.
Finally he might be sent to "Peaceful Valley." In this lenient camp the food was relatively good. Prisoners might even have tobacco. And here they were given all sorts of Marxian propaganda.
The graduates from "Peaceful Valley" and others who accepted Communist schooling were called "progressives." And there were shades of meaning!
THE "PROGRESSIVE" ROLE
A British study described a "progressive" POW as one who accepted the political, economic; and social gospel of Marx, Engels, Lenin, and Stalin-even if he was not quite sure what this was. In order to be fully accepted as a "pro­gressive," however, the prisoner had to do more than pas­sively accept communism. He had to become a Communist propagandist and assist the Chinese, not only by giving them all the military information he had but also by acting as an
38
informer, reyealing the plans and thoug11tS of his fellow prisoners, and helping to spread COItlInunisIll among them and among his family and friends at home. Thus he would show that he had becOIl1e "politically conscious."
'l'lie seeond allil more literal application of the "progres­siYe" label beeallle apparent in the systematic exvloitation of a prisoner's serykes once he had giyen in on just one issue. Often the first bit of eooperatioll with the enemy seemeel minor in nature; and the prisoner eould rationalize, with the captor's help, to justify the act. But the first eon­cession vayeel the way for a second, and so on down the line. "l,Vith each "progressiye" step dOWll collaboration road, the chance of turning back becaml' more remote. 'rhus SOUle vrisoners learned too late that they couldn't be just "a little bit" of a collaborator so long as the COIIlmunists wanted their senices.
The "prog]'essin~s" were called UpOll to deliYer lectures, write pamphlets, and make propaganda broadcasts. They
•..39
wrote speeches condemning capitalism and "American ag­gression in Korea." They organized a group known as "Peace Fighters."
On a percentage basis, fewer officers than enlisted men were "progressives." However. the officers' influence, unfor­tunately, was strong on the enlisted men. "If the Captain can do it, why can't I?" "If the Colonel signs a peace peti­tion and orders the rest of us to do it, we have to follow orders, don't we?" Altogether, the officers and enlisted men who resisted were on a spot. That most of them refused to join the "progressives" (and rejected a promise, sometimes unfulfilled, of better food, minor luxuries, and mail call) says something for the spirit of both officers and enlisted men.
The Communists soon learned that Americans were not readily sold on communism. Even those of lesser education, or perhaps having little appreeiation of their own country's principles, were by no means eager to accept this foreign ideology or to submit to it. The early "converts" turned out to be simply opportunists seeking to better their own lot without regard to the consequences for their fellow pris­oners.

THE "REACTIONARY" LABEL
Ho,v did the "reactionary" fare? He could expect to be separated from those prisoners "'hom the enemy deemed to be more susceptible. 'Yhile there was good chance the "re­actionary" would experienc'e some solitary confinement, in time the Communists found themselves short of facilities for handling all resisters in that manner. Thus small "reac­tionary" groups formed, increasing in size as time ,vent by, isolated to prevent their interference with the subjugation program in the "progressive" camps. Brought together by virtue of their demonstrated resistance to the enemy, these were men who could, despite any personal differences alllong themselves, present a united front against the enemy and help each other survive.
Still, the "reactionary" label ,vas n6 guarantee that the
prisoner was permanently free from enemy efforts to sub­
40
jugate him. Any American who signed a propaganda leaflet, a peace petition, or a gerIll-war eonfession was a big f('ather in the enemy's hat. Logieally, the higher the rank of the prisoner the more useful would be sueh serviee to the enemy. Also, the "breaking" of a senior offieer, a "notorious reac­tionary," or anyone who had demonstrated leadership and other strong qualities that had earned the respeeot: and trust of fellow prisoners, was of tremenelous benefit in the COIll­munist effort to convince other prisoners (anel people baek home) that resistance was futile. For that reason, various ''reactionaries'' were subjected to pressures often loosely refel'l'ed to as "brainwashing."
Breakdown of leadership was what the enemy wanted. Ofiieers were usually segregated. "Progressives" were placed in leadership positions. And if the enemy's .appointees weren't obeyed by the other pOIV'S, punishments were in store for the "insubordinate prisoners."
THAT LONESOME ROAD
"'hat did the "progressiye" expect to gain in the long run … after the Korean war was oyer? "Vas he thinking that far ahead?
It is doubtful that any of the "progressiyes" beeame sin­cere converts to the Communist ideology. Even in the ease of the turncoats-21 American prisoners who refu~ed re­patriation and remained in Red China-the seemingly logi­eal assumption that they lw,d been c<l!1verted has pro\'ell erroneous. Perhaps this· misconeeption was fostered by frequent references to them during the repatriation proeess as ,·those who chose cOlllmunism." Indications are that this misleading phrase was introduced by Communist publica­tions.
In any event, reports by returned American prisoners on the actions of those men indicated that they remained for quite different reasons. The subsequent return of some of the 21 further refutes the idea that they "dlOse eommu­nism." One of these, interviewed in Hong Kong and asked why he stayed in Red China in the first place, replied, ".•• I'll tell you this much-it wasn't for political reasons."
,Yhy did the 21 refuse repatriation? Perhaps, in some cases, they feared vengeance at the hands of men they had betrayed, or at the hands of friends of men who had died because of their treason.
THE LAST MILE
Having cut himself off from his own country and his own people, what can the collaborator expect from the Commu­nists? The answer became apparent during the Korean war and it is just as true today.
The Communists know that the turncoat will be no more trustworthy for them than he was for llis own side. The enemy cannot expect to [lain actua.l allegiance from a col­la,bomtO?" if for no other reason tllan tllat lie has none to [live. For a chan[le of alle[lianee, the ultimate possibility of colla,boration, wouldneeessItate a willingness to die for the enemy. Obviously, the prisoller 1[ho betrays his Olen people
out ot teal' tor his lite isn't going to be willing to die tor anyone else, either.
:1'10 matter where collaboration begins, the Communists continue to press a POlY for further services until they have no further use for him. At that point they drop him; and no one is anxious to pick him up. Certainly his prison-mates will lwve little use for him, since his collaboration with the enem~'. no matter what it was, will have in some manner inflieted further hardship on them. Perhaps even more illl­pOl'tant, from the standpoint of his chances for survival, the collaborator will have little respect for himself.
'Yhatever the Communists may promise in exchange for collaboration, their payoff will be smalL Any slight advan­tage the collaborator might gain as a result of service to the enemy will be of no value over an extended period of im­prisonment. In the long run, the resister and the col­laborator may fare about the same in the purely physieal sense. But psyehologically, there will be a big differenee. For the man who gives in will have several handieaps: A sense of failure, or remorse: the loss of respect, both self­respect and that of his fellow prisoners, that in time may well destroy his ,vill to live. In any case, "Man does not live by bread alone," In a Communist prison, where bread is likely to be sean'e, snstenance of the spirit-hope, faith, and Will-may well be the determining factor in survivaL
Having kept faith, the "reactionary" is the winner.
505596°–59—-4 A3
Chapter 5
 INTERROGATION
 
A
pow should be prepared for brutal treatment if inter­rogated soon after capture by an enemy seeking military information of immediate value. Tactical inter­rogation, wherein time is of the essence, is more likely than any other to include severe physical torture. Certainly it will include many threats, probably beginning with the first refusal on the part of the captive to give information.
During the Korean war, practically all Air Force POW's were given special attention. The primary objective of the Chinese Communists was to use them for propaganda pur­poses, particularly for germ-warfare propaganda. How­ever, they were grilled also for military information.
Not only in fliers but in all POvV's, the Chinese interroga­tors tried to create a fear that, by some mysterious process, they would break under questioning. The idea of "brain­washing" was spread by the Communists to create the false
impression that their method and manner of conducting interrogations were irresistible.

METHODS ARE KNOWN
Actually, the methods used by the Communists to obtain information are not new, mysterious, or irresistible. They have been used for centuries. These methods are based on the simple idea of progressively weakening an individual's physical and moral strength. They are not based on some weird psychological theory. Numerous persons have faced Communist interrogation and withstood so-called Commu­nist "methods" for weeks, months, and even years, without "breaking" or even demonstrating fear of any kind. Many of those persons have returned without showing any IJecul­iar or unusual ill-effects as a result of their experiences.
Communist interrogation of United Nations prisoners of war in Korea revealed this significant principle-that Communist objectives frequently limit the use of physical
eoprdon or torturp. The intplTogator knows that thp pris­oner eannot answpr (] uestions after he is dead. AliYe, re­J'nsiug to yield, the prisoner remains a potclltial sourep oj' iu[ormation to his captors: dead he is worthless. Although the Commnnists will attempt to make use oj' a prisoner's nntural anxiety and J'ear, most oj' the prisoners who are subjP(·tp(l to Communist interrogation will not be physieally tortured, (,yen though they reJ'usp to cooperate with the pm·lll~·. '1'he rpnsons for this "nry. but a "ery important one is that the Comillunists are praetiC'al in their approaeh to illtprrogation. The~' learned during their earl~' reigu of terror in thp SOYiet {'nion that physieal "iolence. morp fre(llwntly than not, stiffens gronp l'l'sistance, rather than the rp\'prse.
NATURE OF INTERROGATION
Ill[('l'!'og"ation has some charnC'tpristics oj' both a sdpnce nud au art. It rpsemblps a sdenee ,,"hen conducted by a
45
shrewd and trained interrogator who knows what he wants and proceeds in an orderly, logical, and determined fashioll.
Interrogation resembles an art when the interrogator establishes a relationship between himself and the person being interrogated wherein the latter is subtly persuaded to cooperate in giving information beyond the simple answer­ing of questions. The interrogator, by demonstrating pa­tience, tolerance, sympathy, and understanding, is able to obtain cooperation in achieving his desired results.
Some of the Chinese Communist interrogators in Korea were skilled and possessed the drive, tolerance, and patience to obtain the information they were after. Often they knew English and were well-informed about life in the United States. Some had been educated in the United States and were familiar with the economic and political institutions of the United States. In fact, some of the enemy personnel in the interrogation section were better informed on certain aspects of American life than many of the prisoners.
From the first interrogation, the COlllmunists tried to confuse the American PO",V's into questioning the sincerity of our objectives in Korea. "Divide and conquer" was the insidious keynote. Only a few Americans were casualties in this battle to capture their minds in the PO",V camps. The Communists, nevertheless, regarded their interrogation and indoctrination program as an effective weapon in exploiting American POvV's.
FIRST INTERROGATION
The Communists began their interrogation soon after a PO",V was captured. ·With a downed flier, it began almost immediately after he was picked up. ",Vith other PO",V's, it began at the collecting point where they were brought to­gether. However, the first conversation was more like an interview than a real interrogation:
Generally, the enemy asked the prisoners several routine questions and a few questions on the military situation in the United Nations areas. After completing his direct inter­rogation, the enemy distributed numerous forms and told the prisoners to sign them. Some of these forms carried American, International Red Cross, or one of many other headings, most of which were invalid. In addition to sign­ing and completing these forms, the prisoners were told to sign just their names on blank pieces of paper, which the enemy collected and subsequently used for propaganda purposes.
Many Americans signed the various forms because they did not know or believe at the time that the enemy would use the contents of the forms for purposes of incrimination. During the initial interrogation, many Americans talked freely with the enemy and answered most of the questions asked. The lack of resistance during the initial interroga­tion by the enemy resulted from the apparent friendliness the Chinese had displayed when the prisoners were captured.
At the various collecting points were Chinese whose duties were to screen the completed forms and record the results of the initial interrogations. They studied the answers to the questions on the various forms and compiled a per­sonnel file on each prisoner, which included the question­naires, results of the initial interrogation, and the blank slips of paper on which the prisoners had signed their names. These files were later forwarded to the camps to which the prisoners were assigned, and the results of all subsequent interrogations were added to them.
An analysis of the results of the interrogations enabled the Communists to select or determine the subjects or atti­tudes that should be emphasized and exploited in the indoc­trination program. In this way they could hand-tailor the indoctrination given to the various groups of prisoners.
At the permanent camps, appropriate physical facilities were provided by the prison command. The United States­British Prisoner of 'Val' Camp Number 5, located near the city of Pyoktong, North Korea, was the model for all other camps in Korea. The interrogation sections were located in the camp headquarters, usually near the commanding officer or near the security officer. They were equipped with wire recorders, exposed and hidden microphones,two­way mirrors, and a version of a lie detector. The interroga­tors were Chinese officers, assisted by Chinese women,
47
whose duties primarily were to record interrogations on paper in Chinese characters and maintain accurate rosters of prisoners who had and who had not been interrogated. The sections operated on a 24-hour basis and conducted some of the most fruitful interrogations at night.
PRETENSE IS FUTILE
Alone and disarmed, what can one man do under such interrogation? If he yields, he knows he is disgracing him­self and undermining his country's safety. Yet when he holds out, he knows he may be in for rough treatment. Is there an easier way out?
Just after the Korean war, there was talk about sueh a solution. One suggestion was that members of our Armed Forces should be instructed, if taken prisoner, to "confess to anything." Not only would this take the pressure off the PO,,,, it was argued, but it would also confuse the enemy since he would not know where truth left off and fiction began.
This strategy was to haye included the preliminary announcement to the world that our men would do this if captured, thereby "nullifying" the propaganda value to the enemy of any such things as false confessions and peace petitions. In its original form, the "confess-to-anything" fOl'mula made clear that it was to apply only to such things as false confessions and propaganda. In the realm of military information and maintenance of unquestionable faith with fellow captives, there could be no deviation from a rigid standard.
It was a fine theory! However, experience has shown that once a prisoner started answering questions, the skilled interrogator could be certain of gaining some information from him if he had sufficient time. By no means does this mean, as some have contended, that an interrogator can get all that he wants from a prisoner in due time. It does mean, however, that the prisoner who tries to outmaneuYer the interrogator is certain to divulge some information.
Baiting a trap for the POW, the Communists will allow him to "get away" with pretense during interrogation­
48
eyen encourag"e it-for the simple reason that they want the prisoner to develop a habit of pretending. One official study of Communist methods in attempting to elicit false "germ warfare" confessions from captive American fliers describes them as something of a training process. The victim was not simply confronted with demands for a false "confes­sion": he was enticed into pretense. First the subject of "germ warfare" was discussed in very general terms, with broad hints that the prisoner knew quite well what it was all about. Suggestions were made that if the prisoner "had something on his conscience," it would be to his own advan­tage to "unburden himself." This could go on for days or "'eeks, until the prisoner himself Blight ask if he was being accused of such activity. To this, the enemy would often respond with something to this effect: "I have accused you of nothing. Howeyer, if you have something on your conscience …!"
The prisoner was left to figure out for himself exactly "'hat was wanted. If he did figure it out and if he did comply, he soon learned that "tongue-in-cheek" compliance was not enough. He must learn to speak, write, and act as if his false confession-hmyever preposterous-was en­tirely true. Since he was "confessing" to a "horrible atrocity," he must also pretend feelings of guilt, shame, and eyen repentance.
""here such pretense supported Communist propaganda, as in the case of a "confession" to germ warfare, the Com­munists could-and did-go along with it indefinitely. But where they had encouraged the PO,V to lie as a way of trapping him, they showed no leniency when the conflict in his stories became apparent.
The prisoner whose lies led him into the Communist trap was considered a more grievous offender than the man who refused to answer, for in addition to wasting the interroga­tor's time he proved that he was "insincere" and "had not learned the truth." An interrogator was more likely to desire personal vengeance against the prisoner who "sold" him on false information than against the prisoner who maintained a position of respectful noncompliance.
49
SUMMARY
The means employed by the Communists to obtain infor­mation from United Nations prisoners of war were not new, unique, mysterious, or irresistible. They were recognized and understandable methods of undermining an individual's physical and moral strength. By deception, and by other tricks, the Communists obtained apparently useless informa­tion from prisoners who did not realize that all information is important. The success of the enemy's program of in­terrogation depended, to a large extent, on the prisoners' lack of knowledge of what was happening to them-a factor on which the Communists have always relied.
The American fighting man should remember that the Communist interrogator is not a superman with mystic powers and unique methods by which he can accomplish the impossible. He is not all-knowing, nor is he all-powerful, eyen when dealing with a seemingly powerless Yictim, such as a prisoner of war.
It would be foolish, however, to underestimate the skill of the Communist interrogator. Effective resistance to in­terrogation, as one ex-prisoner has put it, is not so much a matter of outwitting the interrogator as of otttlasting him­by determined, steadfast refusal to cooperate in the face of all manner of treachery, threat, coercion, and even death.
Those who resisted completely the most skilled Communist interrogators deserve the gratitude and admiration of every American, for they are examples of courage, determination, and endurance.
Chapter 6
 INDOCTRINATION
 
W
hen plunged into a Communist indoctrination mill,
the average American PO'V was under a serious
handicap. Enemy political officers tried to force him to
read Marxian literature, to participate in debates. He was
prodded to tell what he knew about American politics and
history. Lectures -study groups -discussion groups -a
blizzard of propaganda and hurricanes of violent oratory
were all a part of the enemy teehnique.
To many American prisoners this procedure came as a complete surprise and they were unprepared. That some refused to read the literature, participate in the debates, or engage in politieal discussions with their skilled captors is a tribute to their courage.
But to a frightened, confused, and hungry prisoner, depri"ed of leadership and guidance, these initial steps by the Communist enemy were effective. Although most pris­oners did not realize what was happening to them as the program progressed and while they were being subjected to interrogation, there were no secrets about what the enemy planned to do along the line of "reeducating" the prisoners. It was reiterated numerous times that they were "students," and, as students, they were going to be reeducated along Communist lines. This fact was made clear at the very beginning. It was never altered.
Basically, the indoctrination program had two main objectives. One was to indoctrinate completely a smaH, select group of prisoners in the actual theory and practice of communism as a world conspiracy. The second objective was to undermine the faith and trust of the other prisoners in their country, their government, and its 'political leaders -not to make Communists out of all the prisoners.
In attempting to achieve the first objective, the Commu­nists selected the prisoners on whom they felt they could depend, gave them special training, tutoring, and counsel­
51
ing, and extended them special treatment. This was in keeping with the ComllJunist concept, as advaneed by Lenin, that a small, select, disciplined group should lead the masses. As an incentiTe for the "chosen few" to apply themselves to the task of betraying their country and their fellow prisoners, the Communists told them that tlH'y were the "liberators" of thc nHlsses, and prollJised tlH'm positions of leadership in the 17nited States-after a Commlmist­(ljreeted revolution had replaced our democratic system with a Communist forlll of government.
In pursuing their second objective, the Communists con­sistently smeared the 17nited States. Any imperfections of our political and economic institutions were (listorted com­pletely out of proportion. At no time was mention of the true democratic principles of the 17nited States Government permitted in discussions. In addition to attacking Ameri­can concepts of democra('y, the COIllmunists launelled attack
52
a[U'!' 1Itt1l('k :lg"ill"r..\lll('rican statesillen by nallle, c!1Iillling
th1lt tll('y we!'e the ('bid' pNpetrators of war and e\"il.
'1'11e COllllllunists felt that if they eoul<l su('('eed in the se('ond ol,jedil-e–sub,-erting the prisoners' loyalty–·-tlwse AllIericans would be less opposed to eOItlIllunislll after their repatriation to the United States. The COllllllunists also re:lsoned that these ex-pl'isoners would be mo!'e likely to be f'~-lllp:lthetie to all.v C"ltllllunist eonspiraey against the l'nited St:ltes. Part of their plan ('ailed for the thoroughly indoetrinated prisonerf', upon their return to the United Sr;ltes. to 1ISSllIll(, leadership of the snbverted ex-prisoners alld lII'ge tI,Plll to snppo!'t tile C"'lllllllllist eonspiraey through the instrunwnt:llity of the COlllIllunist Party.
OTHER OBJECTIVES III support of these two main but general ohjel'tiYes, there were sppelfie (J!JjeetiYes that had a more direct: e[[eet on the lin's of the prisoners. '1'0 faeilitate internal eontrol of the pris"ner p"pulation, the Chinese COlllIllunists at­tE,mptecl to org:lni%e a net of informers to relay to the camp
53
authorities information concerning the activities of other prisoners. Through informers, the Chinese Communists were able to thwart many escape attempts. Informers also furnished the Chinese Communists information concerning prisoners who were actively resisting indoctrination.
Another objective was to recruit collaborators to assist the Chinese Communists in implementing the indoctrination program. These collaborators would give propaganda lec­tures, write articles, and attempt to talk other prisoners into signing "peace petitions," surrender leaflets, and other types of propaganda.
Still another objective, which fortunately had no success, was to recruit potential agents to perform espionage or sub­versive activities for the Communists after re]latriation. The few who agr-eed to work for the Communists realized soon after their repatriation that they had been duped and notified the American authorities of this Communist ]llot.
COMMUNIST FRONTS
Every Communist activity in North Korea was geared for one general purpose-to support the overall mission of political indoctrination. Early in the war, for example, there were various Peace Committees, whose job was to smear America as a warmonger and to laud Communists as champions of peace. In addition to operational committees for indoctrination, the Communists established a number of committees for the administration of the prisoners. These were: Sanitation Committee, Daily Life Committee, Athletic Committee, Mess Committee, and a Committee for Prisoner Morale. The membership of these committees, like that of the others, was made up of prisoners. At all levels of committee activities there were Communist politi­cal advisers who insured discipline, control, and nondevia­tion from the established routines of the program.
Most Americans have heard about Communist-front organizations. A Communist front is an organization con­ceived by Communists, inspired by Communists,controlled by Communists, and directed by Comlllunists, but which has as a "front" some popular or ]lseudo-patriotic cause. The
various committees in the prison camps in North Korea served as fronts for the Communist enemy. POvV's who became members served the Communist enemy in North Korea in the very same manner in which other naive individ­uals have seryed the Communist conspiracy outside of prison camps.
PHASES OF INDOCTRINATION The Communists administered their indoctrination pro­gram in two general phases. The first can be called the preparatory phase, the second the implementation phase.
Preparatory Phase. This phase, a "softening-up" or "con­ditioning" process, was conducted through the medium of a series of lectures on the imperfections of the governments under which the prisoners lived before capture. Th.e United States Government and its economic and political systems constituted the main target for all lectures. During this phase, the United States was accused of instigating the war in Korea.
Implementation Phase. This phase of indoctrination was devoted to selling communism as a way of life to be preferred over the democratic system. The Communists used an old technique during this phase–comparing one with the other, pointing up the favorable aspects of com­munism and emphasizing the so-called "defects" of democ­racy. The enemy pictured the Communist state as a state in which every man, woman, and child lives a life of happi­ness, free of poverty and class discrimination.
METHODS OF CONTROL The Communists used the carrot-and-stick method of controlling POW's. When the carrot failed, they relied on three sticks: repetition, harassment, and humiliation. Repetition. This technique was used against all prisoners at one time or another during their captivity. Some pris­oners, yielding to pressure, memorized certain material and were questioned and examined on it for days, weeks, and months. They were asked to answer the same questions over and over again. They were required to read and re­
55
read Communist propaganda over and over again. By
repetition the enemy caused some prisoners with relatively
poor formal education to memorize heavy works on com­
munism and economics. Some of these prisoners memorized
entire sections pf books by Stalin and Lenin. .As a result of this repetition technique, some prisoners who had not advanced beyond the sixth grade could recite long essays on communism and its economic and political theories.
Harassment. This technique, like repetition, was used against a great number of prisoners during their captivity. Harassment was employed on a precise schedule that did not vary from day to day, week to week, or month to month. Its purpose was to create a state of anxiety in the prisoners -to keep them tense and in a state of constant uncer­tainty. It was also contrived to make the prisoners believe that harassment would end eventually, and that they could then live as normally as possible in prison. Harassment was usually based on trumped-up charges against prisoners. These charges could be anything from a very minor infrac­tion of the rules to a major offense, such as striking an enemy officer. However, it worked best on, and was designed for, prisoners who committed minor offenses in connection with the indoctrination program.
Humiliation. This technique was designed to be used against prisoners who demonstrated a great deal of per­sonal pride. Its objective was to break down a prisoner's personal pride by making him look ridiculous in the eyes of the other prisoners-to provoke shame and embarrassment in him. To assure its effectiveness, it was almost always used by the enemy in the presence of other prisoners.
GENERAL RESULTS
The results of Communist indoctrination in North Korea by the Chinese must be appraised in the light of the enemy's objectives. .As mentioned earlier, the Communists in North Korea did not attempt to convert every United Nations prisoner. They wanted to indoctrinate a few selected prisoners whom they could trust to accept com­munism as a \Yay of life. These could subsequently develop
,,·56
into Communist revolutionists. Primarily. the Communists in North Korea desired to destroy, or at least reduce, the hostility felt by the prisoners toward the Communist cause. They attempted to plant seeds of doubt that would grow and produce an attitude less opposed to communism.
In the light of those objectives, it is reasonable to assume that the Communist program of indoctrination in Korth Korea was successful to some degree. Official find­ings revealed that a small, select group of United Nations prisoners of war in North Korea was indoctrinated by the enemy in the theory and practice of communism. They also revealed that an undetermined number of other United Kations prisoners of war did not accept communism as such, but adopted an attitude of "seeing both sides" of commu­nism, observing some "good" points here and there. These sources further showed that the indoctrination weakened the old beliefs of some prisoners, confused other prisoners, and frustrated still others. 'With the exception of the allegedly indoctrinated prisoners, the others who saw merit in some aspects of communism failed to visualize com­munism as a threat to their democratic governments or the political institutions in their countries.
SUMMARY
The political indoctrination program had two major objectives:
•    
The first was to indoctrinate a small, select group of prisoners in the theory ancI practice of communism, not as it appears through Communist propaganda but as it actually exists-an international conspiracy.

•    
The second objective was to weaken the loyalty of the prisoners to their countries by undermining their political, religious, and moral convictions and thereby so confusing them that when they returned to their native countries they would be less opposed to communism.

Some American POW's did not know what the Communist program was all about. Some were confused by it. Self­
57
seekers accepted it as an easy out. A few may have be­lieved the business. They signed peace petitions and peddled Communist literature. It was not an inspiring spectacle. It set loyal groups against cooperative groups and broke up camp organization and discipline. It made fools of some men. and tools of others. And it provided the enemy with stooges for propaganda shows.
Fortunately, that was not the whole story. The over­whelming majority of United Nations prisoners of war rejected communism as a system of government and as a way of life. Generally, the Americans returned to their country wiser in the ways of communism and stronger in theIr faith in the United States of America.
58
Chapter 7
 PROPAGANDA
 
P
ropaganda is tl1e H'ry lifeblood of communism. It
keeps tl1e Communist world conspiracy alive. 'Yitl1out
propaganda, communism could never have grown an(l
spread as it has. Througl1 propaganda, tl1e Communi",t
leaders sound the keynote of tl1e current "party line" to be
followed and parroted by tl1eir underlings. The terms
"'Yall Street warmongers," "Yankee imperialism," and
"decadent democracies" are but a few that were conceived
by Communist l)rOva.~andists. The "big-lie" technique, em­
ployed in the germ-\varfare accusations leveled against the
"['nited States, exemvlifies tYllical Communist propaganda
in action.
It should have been expected, therefore, that the Com­munists \vou](l try to use e.x. prisoners in Korea for provaganda purposes. In the prisoner-of-war camps, provag'anda was the backbone of the enemy's indoctrina­tion program.
The tie-in with the worldwide Communist plot is shown by the fact that several Soviet vropaganda experts were attached to the Chinese Communist prison organization and actively supported the Chinese in all vhases of prisoner­of-war administration. The presence of these experts from the Soviet l;nion ,,-as one of the reasons that group­handling in North Korea by the Chinese was so similar to Communist group-handling in Germany, Polaml, and the Soviet Union. One such eXl'ert was from the )foscow Aeademy of Propaganda, where eareer Communist propa­gan<lists are specially trained in the propaganda themes best suited for each of the geograllhical areas of the world or for each of the various racial groups.
In addition to the Soviets serving on the propaganda staff, an Australian newspaperman and longtime Communist an(l a British Communist correspondent served as advisers to the Communist propaganda chief. These two "'estern newspapermen were responsible for giving the propaganda
50;)59GO-59~-5 59
n ""'est'ern sIn nt" nnd presl'nting it in a falllili:lr "'estern forlllat.
PROPAGANDA OBJECTIVES
The objel'tive of all CoIIInlllllist propng"lIl<1a in .'iorth Korea was the glorification of l'omlllunislll amI the degrada­tion of the Vnited States. It was tbe COlllnlOn ell'nH'nt of cOllllllunism present in all COllllllunist ac-tivities of the prison COIllIlW]H1.
TIle basil' theme of COlllmunist propag':l!Hla in 1'\orth Korea wns penl'e, nnd tlwt general tIlellle nen~r challged because the "pence offl'nsive" J)y COllllJl11l1ists throughout the Y\'orI<l hns ne\'er ch:lIlg-e(1. The COllllllllllists were talkill,g peace back in 1!)80 and said tIlPn that tlH'~' \vould lull tIll' free world into a stnte of pP:H'e nnd thell strike \dtIl a c1endwd fist. In lllore ]'('('('nt times. tIw Comlllllllists have llePIl trying actin'ly to achien' th:1t objectin'. In 1!)17. the COlllllll1lIists held a series of confer('I!('ps in :\Josco\\' and m:t<]e plans for an international peal'e oj'fpnsive, A similar
60
conference was heW in 1949. As a result of these peace con­ferences, the Stockholm Peace Convention, the Chicago Peace Crusade, and the Helsinki Peace Conference followed. The latter conferences were heW to convince the world that communism was a peaeeful movement and that the Com­munists were the real d1amlJions of peace. At the same time, the Communists were accusing the \Vestern powers of prelJaring for \Vorld \Var III. This strategy followed the plans made by the Communists at their various conferences for peace.
In 1Q:")O, the Comlllunists accelerated the peace offensive as. a result of the war in Korea. PrOIJaganda generated in North Korea by the Chinese COIllmunists was designed for the prisoners, for the Communist and non-Communist worlds, and for the hig;h eommand of the world Communist con­spiraey. The manner in ,vhkh a typical "peace lJetition" was used hy the Communists in Xorth Korea serves as a good example of the far-reaching effects of this type of propaganda.
Communist lJropagandists prepared the basic material for peace petitions. The petitions then were forwarded to the prison camps for signatures. After each petition had been signed by several hundred prisoners, the Communist propa­gandists checked it amI made ,vhatever additions woulel more sper-iti<-ally support the overall Communist objectives. 'rhe peace petition was then sent to certain strategic coun­tries, s\1(·h as the United Stntes, }~ngland, India, Japan, and all Communist countries. In those countries, certain Com­munist agencies receiyed them for further dissemination. l~or example, in the Unitecl States, the Daily 1Vorkcr, the Conm1l1lli,st Pnrty, nnd the Xationnl Peace Center receiYed the petitions and distributed them to the ;'front organiza­tions," In addition to Communist agen(jes, one other organ­ization receiYed at lenst fiye copies of almost eyery petition signed in Xorth Koren by United Xations vrisoners. That agene.y was the Unitecl Xations. The reason for this is obyious.
Few, if any, United Xntions prisoners who signed peace petitions thougllt those documents woulcl find their way into
61
every Communist channel in the world and eventually reach the United Nations as an "indictment" of the United States. Too late they realized that they had helped the Communists with two propaganda objectives, which were (1) to portray Communists as lovers of peace and (2) to demonstrate to the world that comlllunism had won hundreds of United Nations prisoners over to its cause.
PROPAGANDA TARGETS
Certain special propaganda targets were designated by the Communists. These, as a rule, were the aspects of American life that the Communists believed they could attack on the basis of their imperfection. The Communists attacked these targ"ets by using false "confessions" made by prisoners, in which they leveled charg"es against the United States and against the American way of life. For example, some 11ris­oners volunteered to write long papers on American banking, relating it to war and profits. Other prisoners wrote on racial discrimination and religious intolerance, making it appear that these practices were usual and not exceptional in the United States. The Communists would take this material, distort it, and fashion it into propaganda against the United States.
The most ambitious and far-reaching propaganda effort was the extraction of utterly false germ-warfare charges, which were coordinated with the "peace offensive." The Communists obtained from some United Nations prisoners "confessions" in which the prisoners allegedly admitted that they personally had engaged in germ warfare against the Korean civilian population. Such "confessions" were not, in themselves, enough to support the Communist charges, so the Communists also used "confessions" from other pris­oners who said they believed that America used germ-war­fare weapons against the Korean people. The prisoners' voices were recorded, and the comments of those who heard and saw them were recorded.
By actual count, the Communists broadcast the germ-war­fare charges against the United States throughout Asia at least 415 times during one period of 17 days. They prepared
62
(lnd (]istributed the "eonfessions" in book form, eom]llete \\itll 1'1lUtogral'hs of the "bombs" and the Unite(] "'ations prisoners who admitte(] using the "bombs," So deU'rmined \\ere the COlllmunists to distl'edit the United Stat('s that the eharges were oflieially ]lresented to the Unite<1 Xations Gen­eral Assembly by (]elegates "frolll the Soviet Union. Tbese ebarges \\"l!re so serions that the Cnited States Govermnent found it ]l(.'eessary to issue an official denial.
On a [ess('r seale, the COllllllnnists trie(] lllany other triC'ks. Tbey tried to pr()pag'lIj(li~e the fre(! world into belie\'ing that tbt'y l\"l're providing the Cnited Xations prisoners \I'itll faeilities eOlllparable to those the prisoners had enjoyed be­fore their ('apture. The COlllllll111ists l)('lien~ that notbing produ('es better "proof" tban a picture. So, in pnrsuit of their objeetin" t!lPY made lIUlllel'ons photographs of pris­
oners enjoying ba:–:k(lthall. f('Ullis, s\\'inulling, and cheC'l\:er:-;
in a nlUdern re(']'('al iona1 elllbilOllse. These )lllOtographs were
63
disseminated to the world under glowing captions, indicating that the prisoners in North Korea were well treated by the COmllllll1ists.
For months, prisoners did not receive any mail whatsoever because the Communists were withholding it. At the same time, the Communists did not permit the prisoners to write letters to the Cnited States. At the propaganda center, how­ever, the enemy made numerous "prop" photographs of prisoners sitting at tables in the clubhouse writing letters or reading alleged mail from their families in the United States. These "props," like the others, were given wide dissemination in the free world to create the false impres­sion that the Communist enemy in North Korea was permit­ting a free exchange of communications between the pris­oners and their families. Some such "prop" photographs even had captions "urging" the prisoners to write to their families.
"TOWARD TRUTH AND PEACE"
This publication was the official organ of the Communist prison command and was under the supervision of the propaganda section. Although it was staffed by United Na­tions prisoners, a Communist propagandist served as adviser and insured that the newspaper would not deviate from the accepted policies. The paper appeared to be a purely pris­oner activity, with prisoners contributing to it as editorial writers or as reporters of camp news. However, most of the articles were Communist-inspired, supporting the enemy and severely attacking the United States and the United Nations. The prisoners submitted an average of 600 articles for each iSHue, of which approximately one dozen were published. The ones that were not published in the paper were pub­lished in a wall newspaper-a sheet plRced on all company and unit bulletin boards at all camps. "Toward Truth and Peace" was published at United States-British Prisoner of 'Val' Camp Number 5 and was circulated to all other camps.
A WORD TO THE WISE
Of the various aspects and techniques of communism, propaganda is one vital element that the American fighting
64
lllan shou!<l know, lllH]erstand, and be able to evaluate in the light of COlllmunist. objc'etives. The lUere reeognit:ion of
C\Hlllllunist IH'()paganda is a defense against COllllll1ulist in­
doctrination, beeause in(]oetriuation is nothing more than an organized distortion of faets aud fabric-ation of falsehoods disseminate(] through the medium of propaganda.
It. SllOU!<l be reiterated, too, that the Amerlean fighting lnan should yiew (;omnl11uist propaganda in the light of COlUmunist. objettin's-loeal, uational, and worldwide. Com­munist propaganda nen'!" ehanges its basic liue of exaltiug communism and eriticizing eapitalism, especially eapitalisIU as it exist.s in the Unite(] States. All local COlUlUuuist prop­ngauda lias a din'tt or ind]n'('(: relntiouship with worl(I\Yitle COIlllunllist IIl'Ollag:lnda.
.i1 !.'JJ/Z SCCIIC at Dcalh Gallip (Calilp O'DollllclI) on LII;OIl, Aftcr tli c pllOlo[jraplicr SII«PPCr! Iii is picturc of Amcric«u prisollcrs Of /1"«1', sclcctcr! for thcir hcalthy appcarancc, the ricc ICC18 rCl/torcr!.
65
Chapter 8
PROBING FOR WEAK SPOTS
F
rom the moment a PO'V falls into their hands, the Com­munists begin probing him for weak spots. Sometimesthey cajole; sometimes they threaten. In either case, theyare trying to find ways to make him do their bidding. Sometimes by direct threat, sometimes by subtle implica­tion, the prisoner is made to feel that unless he does theenemy's bidding, he will die.
In early stages of captivitythe threat is more likely to be direct: "Answer the question!-"-rite a self-criticism! -Sign this peace petition! 01'you will die!"
Captain Theodore Harris, an Ail' Force PO'V, experiencedthis in dramatic fashion during the Korean war.
One dayhe was forced to dig his own grave. Then he was told hewould be shot unless he signed a confession that he haddrolllled germ bombs on North Korea.
'Vhen he refused, hewas lliaced before a firing squad. Triggers were pUlled, butthe guns were emllty.
By his bravery, Captain I-Iarris won this game of Russianroulette. But this did not end his troubles. 'l'hroughout his14 months as a PO'V, the Communists kept probing-IJrob­
ing-probing.
TACTICS CAN CHANGE Sometimes a PO'V will respond to a threat of death with
hopeless resignation, rather than with the determinationthat moved Captain Harris. 'When this happens, the Com­munists can do a quick about-face. Dead, the PO,,' is of no
value to them. Their job now is to find other ways of makinghim do what they want him to do.
Kext comes a period of "reassurance" to bring the man outof his fatalistic, resigned mood.
"'Ve do not kill prisoners,"he is told; "we have a lenient policy." Great "sympathy" isshown by the enemy for this unfortunate fellow, much "con­cern" for the things concerning him the most. But at the
66
first sigh of relief or flicker of IlOPO in the prisoner's eyes, there follows: "Of course, if yon are to qualify for our lenient treatment, you must demonstrate your Willingness to ('ooperate."
In some such nUlIlner it begins. Like a eat toying with a mouse, the captor manipulates the llrisoner's emotious, alter­nating between wistful hope for release and abject fear of death. Whether the threats are direct or implied, til(; skilled interrogator does his best to hold the captive on the fine edge of indccision. He relies on the tug of war between the prisoner's hopes and fears to wear down his resistance. For
a prisoner, except for the opportunist, does not decide collaborate; he submits gradually-"progressively," fro the Communist point of view.
DECENCY IS UNKNOWN
In probing for weak spots, the Communists make no co: cessions to decency. They know that food, medicine, ar mail are important items in prisoner-of-war camps, more f than in normal life. In North Korea, they used these thin! to break down prisoner resistance. Each had a place in tt enemy's program of indoctrination, and each was used by tl: enemy in a variety of ways, for a variety of reasons.
Food. Food was manipulated, not so much by tIle enem. as by prisoners whom the enemy had selected to distribut it. "Progressives" or collaborators in several camps weI' given the responsibility of issuing food. They manipulate, the food as a reward for cooperating with the enemy. AI though this practice was not the general rule, it nevertlleles was used to persuade certain prisoners.
Medicine. Medicine and medical treatment for a time wen offered to prisoners as special rewards. The fact that th. enemy did not allow the captive American medical officer! to attend the sick and wounded prisoners indicates tIm medical treatment was considered a controlled function re served for the enemy to use as he determined. Many Ameri can lives could have been saved if the enemy had actec humanely by dispensing available medicine and hy llermit ting American doctors to care for the sick and wounded prisoners.
Mail. Under the provisions of the Geneva Com"pntion, and under the established policy of the International Red Cross, the detaining power is required to deliver the mail to the prisoners after it has been censored. Such mail must be conveyed by the most rapid method at the disposal of the detaining power. Instead of following this established pro­cedure, the Communist enemy used the mail as a weapon and released it piecemeal in many instances as a reward for
"cooperation."
68
To break down the resistance of the prisoners, the Com­munists established a "system" of releasing mail. If they wanted to gain control of an individual prisoner, they would select and release only letters whose contents reflected worry and discontent, or conveyed bad news. Naturally, such let­ters would have an adverse effect on the prisoner. Knowing what the normal reaetion would be, the enemy approached the prisoner and, by hints and insinuations, further added to his worries and loneliness. The Communists tried to con­vinee the prisoner that they were the only friends he had. By withholcling favorable letters from the prisoner, they weakened his spiritual bond with his family. In some cases, the enemy IH'aetically divorced prisoners from their families and loved ones simply by manipulating the mails. By so doing, the enemy hoped to establish himself as the only prop on which the prisoners could lean for moral support.
At this stage, Communist pressure would be applied gently. The Communist captors would do their best to arouse the POlY's self-concern. "You must consider yourself," they would tell him. Then they would add that he owed nothing to the "fat capitalists" who were living in luxury while he suffered in prison. Under the pressures of the moment, the POlY frequently forgot that the very enemy who pretencled this sympathy was responsible for his suffering.
GIVE-UP-ITIS
Sometimes the Communists defeated their own purpose by pnshing a man too far. Thus they learned that the sarne factors ancl cirCitrnstances that had aided thern in their efforts to s~tbj'l{,gate ancl eamloit a lwisoner can also destroy the pdsonel"s will to live! And in many cases, death inter­vened to end a POW's troubles.
Unquestionably, the physical hardship of imprisonment accounts for most of the deaths; lack of medical care for the wounded and siek, for example. But time and again when survivors were asked how some particular prisoner of their acquaintance had died, the answer was, "He just gave up."
69
Investigation of the nature of "give-up-itis" showed certain similarities in all cases. One of the most noticeable was what might be termed the "withdrawal." Each prisoner who died in such a manner had isolated himself from the others. Not only had he avoided conversation or association, but he had actually resisted-in the earlier stages when he had strength to resist-overtures of friendship or assistance from others. In the latter stages, he had lacked the strength to tell anyone to leave him alone, but his unresponsiveness had usually been enough to discourage any would-be Samar­itans.
Most often the victim huddled in a corner. He would cover his head with a blanket, if he had one, or some piece of his clothing-anything to shut himself off more com­pletely. He refused to eat, if anyone bothered to offer him food. He soiled himself rather than get up and go to the latrine. Usually, when he died his body would be drawn up into an approximation of the prenatal position. Each "victim" of "give-up-itis" died tttterly alone. Rarely, if ever, did any of the witnesses sincerely mourn his passing.
WHILE THERE'S LIFE … The Communists do not want to promote "give-up-itis" any more than a lobsterman wants to promote a disease that will kill his lobsters. Most of the men who resisted the more extensive pressures realized somewhere along the line that the enemy did not want them to die; at least not while they were under special duress. Often, in fact, the Communists exerted considerable effort to keep a prisoner alive if he became dangerously ill. And they tried to prevent him from killing himself if he appeared suicidally inclined. This is perhaps explained in part by the simple fact that the Com­munists want martyrs tor their "cause," not against it.
This was shown in the case of Captain Theodore Harris, previously mentioned. Once, as a protest against the type of questions being asked him, he went on a hunger strike that lasted 12 or 13 days. His Chinese captors finally got him to end the strike by agreeing not to ask him any more ques­tions about germ warfare. They honored their agreement
70
for one month-nntil he lwll rei!:ninell some of his streni!:th. 'l'hen they bei!:an probing ni!:nin for weak spots.
'l'he Communists ha"l"e leilnwd through long experience that seH~re physical mistreatment is not the best way to obtain reliable information from a prisoner. 'l'hough an in­tt'lTog-lltor lllily be able to foree a lUan to talk by nsing torture. he lloes not know whether a nswers so obtainell are reliable or false. 'I'ht, answer may hnY(~ been made up for the simple purpose of stopping the torture. Nor llo all meu break (lo\\n nwl talk under tortnre. Sometimes uneonsdous­ness or siwek relieves them of all pnin: in other eases, so intense is the hatred awl delianee aroused that they o\er­whelm all other sensa tions.
COllsider th(~ case of it tough .ArlllY Sergeant natHed ~ral­bert, who was a PO\\' in Korea. Questioned ai!:ain and ai!:ain, he stu('k to name, rank, serinl nUlllber, and dnte of birth. In tellini!: of his experienees, he said the Communists made
71
him kneel on sharp boards, they put him in a grave, the made him stand outside in the winner cold in his unckrwem They shot a pistol behind his head.
"If I got no other satisfaction out of the war," he saic "I do have the satisfaction of knowing that I didn't tel those anything and they couldn't make Ill< tell them."
In probing for weak spots, the Communists frequentl: meet "Sergeant Talberts." They provide food for thought
72
Chapter 9
 THE POW CAN RESIST
 
T
he C'ommunists haH~ j('al'llel1 that if they push a POIV too far too soon, their al1vautag-l' will be lost. A pris­oner's acceptance of his fate–ileath, torture, or whatevl'r­l1eprh'es them of tllPir main lever ag-ainst him: tear.
.\t till' mOlllent of his l1edsion to resist the enemy, eome \\-1111 t may, the prisoner will 1mn' overcome the main psycho­log'ii'al ohstnl'les to slll'\'intL '['his cOl/l/l/est of fear on his part relien'S his minl1 of frustration. Ill' retains hope, hut lIP is no long'er torn lll'tween hope nUil fear. His lllinl1 is now alert to prohlems of survival awl escape. No long-el' is lte ilreamy allll wishful; heneefot'th, he will a vail himself of
11t the risk of death, A-meTiean prisollCrs of war celebrated
ttll: -1tt! of .TI/tl!, I.'Jf!, in a Japanese j)ri.~oll eamj) on, Jli}/(talw.o, Pit ilij!Jline T8tU liltS.
73
every opportunity to care for himself and help others do the same. He welcomes work details that might offer an oppor­tunity to pilfer from enemy supplies or scavenge for food in fields or woods. Rather than benHmnhis cireumstanee, he makes the best of it: thus he counters the eaptors' efforts to make him feel dependent on them.
THE POW MUST BE ALERT
Despite his apparent vietory, the POlY must remain alert. His Communist captors have not given up; they probably are biding their time … just as tIley did with Captain Harris during his hunger strike. IVhen they think the time is ripe, they will renew their efforts.
If ever you become a PO,,' and find yourself at this point in your relations with your Commujlist captors, remember this: not only must you gct outside yourself; you must stay outside yourself. For the man who is free in spirit, "stone walls do not a prison make,nor iron bars a eage."
Even if you are kept isolated for long periods of time, you can stay outside yourself if you think of yourself as a fighting man, still fighting for your country. Think of your fellow Americans who are counting on you to help preserve our way of life. Think of your fellow POlY'S whose welfare will often depend on your success in resisting subjugation. You are not alone!
TOGETHER WE STAND
Although long periods of solitary confinement are a possi­bility for which you must be prepared if you become a prisoner of war, the chances are much greater that you will spend most of your time in the company of other POlY'S. If so, you can draw strength from them, and they will draw strength from you. This was pro,ed again and again in Korea.
Especially insplrmg was the record of the Turkish pris­Ollers captured while fighting on the side of the U.N. forces. Although almost half of the Turkish POlY'S had been wounded before being captured, not one died in prison. In an article on prisoners of war that appeared in The New
74
rorkCl' o[ :2(; Octobpr 1!);')/, Brig-ac1ipr Gpneral Willis A. Perry, CSA, \\'as quoted as [ol!O\\'S :
At Dpath "allpy, one of the tpllll'Onu'y prison camps established by thp .\'orth I(orpan COllllllunists in the early <1ays o[ thp war, wheJ'(~ thp skk amI \\'onIlde<1 pOllr('d in
for \yeeks ill a ghastl.v stTf?Hlll, the T1nl'ks lost not :l sing'le
Illan ont o[ a hUIHlrec1 all(l ten, \\'hile we lost I'onr huu<1red to eig-ht hIllHII'('([ out of tiftppn hUIHlred to eig-bteeu Imn­dred. \\'hen a Turk g-ot skk, thp I'(,,.;t nur,.;pd him back to hpalth, If a ,.;ick Turk \\'a,.; ordered to thp llO";l'ital, t\\'O wpll Turk,.; weut along'. Thpy mini,.;tpred to him hand all(l foot \\'hile he \\'as there, all(l when lIe \\'as discharg-ed, they carripd him hack to the COIllPOIIIHL The Tnrk,.; all ,.;lwrpd thpi l' (·loth ing-and thpi I' food equa Ily. "'hen thp Com­lll\llIists did the cooking-for thp caJllp, t\\'o Tnrks were dispatched to bring-ba('k 1'00<1 [01' thp g-ronp, amI it was <11\'ided in equal portion,.; ([m\'ll to the Inst JIlor,.;el. '1'11erp
,vas no hog'g'illg'~ no rule of dog eat clog.
75
"'hile it is true that some Americans fell short of what was expected of them, this was not the general rule. MallY seryicemen exhibited pride in themselyes and their units. This was particularly vronounced in those who had belonged to the same unit for years. They stood by one another like that "hand of brothers" inspired by Nelson. If a man was sick, his fellow POlY'S took care of him. They washed his clothes, bathed him, and pulled him through. They exhibited true fraternal spirit, comradeship, military lll·ide. These men did not let each other down. Nor could the Korean Reds win much cooveration from them.
'Yherever resistance was successful, esprit de C01·pS aIHl disciVllne were imvortant factors. This was true of Ameri­cans as well as Turks. In their hatred of COllllllullism, how­ever, the Turks were eyen more outspoken than the Ameri­cans. HaYing llYed near the Communist world where they could see communism at close range, the 'l'urks loathe~l everything communistic. They broke camp rules and refused to obey eyen reasonable requests simply because those re­quests were made by Communists.
ANTAGONISM DOES NOT HELP
,Yhile such behayior showed courage, it is generally true that an unduly antagonistic attitude 'Yill not help you if you become a POlY. The best conrse is to maintain a proper and forlllal military bearing. 'Yhile no course of aetion ean relieve all hardship, respectful refusal to gi\-e information or to comply with other improper demands is less apt to incur further vhysical maltreatlll,,"nt than are those actions or mannerisms that in themselYes might insult or infuriate the captors.
Self-resvectlng demeanor and formal prnvriety in the face of all threats and abuses will in some measure hinder the enemy's efforts, perhrrps in time thwart them altogether. A3To{jauce, on the other hand, cannot but bring on further abuse. A captor can hardly be expected to accept personally abusiYe or insulting language from a captiye. Nor would he be likely to permit for long an insolent attitude or actions disrespectful to himself. A little comIllon sense-an appraisal
76
of the situation from the captor's point of view-will show why proper military bearing is the most desirable conduct in the face of whateYer the enemy might threaten or do.

SUICIDE IS NO WAY OUT
As a fighting man, you are prepared to give your life for your country. If you fear that under torture you may do or say something that would hurt your country, the thought of suicicle may haye occurred to you. If so, get rid of that thought NOW.
Neither yonI' country nor your Service will countenance suicide. Kor will your God! Suicide runs counter to the teachings of both Christianity and Judaism.
You are prepared to giye your life only when you are so oYerwhelmell that you c-an no longer resist. If you choose to die at tllC 7/(/nd8 at tlic cllcm!J rather than to yield in such a way that yon compromise yonI' country, you will have died a hero's death. Between death and dishonor, you will have chosen death.
You haye no such choice if you contemplate suicide to esc-ape torture. If you resist to the bitter end in a POW camp and if death comes at the hands of the enemy, you will haye liYed and died as a fighting man. But if you die by your myn hanel because you are afraid you will not be able to uphoW your honor and your country's honor when the test comes, yon actually will have surrendered-finally, and for all time.
Suicide is no way ont!

THE BREAKING POINT
Resistance by a fighting man can bring on his death, either in combat or as a PO'V. A wise man understands and accepts this. He knows also that resistance can lead to his surviyal. "'hat will be his own fate, he cannot say.
It has been said that "eyery man has his breaking point." If by this we mean that any man can be broken physically, driven to the point where he may collapse because of pain, hunger, or lack of sleep, the statement is true. However, it
77
is not true if we mean that a man of intc,gTity can reach a point at which-to escape further suffering-he will con­sciously and willingly do or say things to dishonor himself and his country.
Viewed thus, anyone who still holds that "eYery man has his breaking point" is necessarily including himself among the breakable. He also is demonstrating a fairly common human shortcoming: namely, he is trying to justify his own self-recognized shortcomings by telling himself that "eyery­body is like that." A man may very well not be sure how much physical or mental stress he can withstand until he is put to the test. He can be taken at his word if he announces in advance that he lias no values, principles, or convictions for which he is willing to endure more than minor incon­venience.
HE WHO DIES RESISTING
The man who dies resisting is not broken. Nor is one who is driven to mental distraction. Men were driven to distrac­tion by psychological pressures in the Communist prison camps of Korea. But this was a form of mental escape, much as unconsciousness is relief from physical suffering. ViThen the preSfHlres were removed, mental faculties soon were restored. The man who dies for something in which he believes does so willingly, and without regret unless the regret is such as that expressed by Nathan Hale-that he had "but one life to lose."
Our foes in the past have expressed admiration fot' U.S. fighting men who fought valiantly against them or held fast to their convictions at all costs. The Communists actually fear the man who proves himself willing to die rather than submit to their demands. His resistance creates for them something of a dilemma; even though they are in a position to kill him if they wish, to do so would create a martyr against their "cause." This they wish to avoid. Further than that, such resistance proves that the Communists are not invincible, negating the Marxist premise that comnlU­nism is the "irresistible waye of the future."
78
So long: as tht'l'e l'('llUtillS rt llUlll \\"ho is \vHling h) (lie for
his cOll\'idious, it cauuot be said that "e\'ery man has his brpakiu,:';-I'0iut:." Those who woul(l claim for themselves the title of U.S, fighUug Ulau, a.nd all olhers who staud reso­lnlel:..-for luullan <1ig'nity ami freedom, must be persons of sw,h ('ouyictions ami faith, So 10llg as men lin~ there will he those who, by one me:lllS or another, will strin> to force their ways 11iH>!1 all lll:lllldnd, Only so long as other lllell are \villing to die for their principles, will they c011tin11e to know-or even deserve to know-the meaning of freelloJU!
79
Chapter 10
 THE CODE IS YOUR ARMOR
 
E
yery war has its disturbing aftermath. 'l'here is al­ways another side to the Victory coin. If the victory is not clearly imprinted and the war has ended in what seems a stalemate, the coin becomes susjlect. In any event, there is usually a postwar inventory. If losses haye been heavy and objectives obscure, the coin may seem debased.
'l'he inventory after the "War of 1812 was unpleasant. There were some painful reactions after the Spanish-Amer­ican ,Val'.
In a great war, some battles are inevitably lost. lIlilitary leaders study these battles, determined to uncover' "mistakes, if any were made, so that errors in kind may be avoided in the future.
Correction of possible errors and the need for a unified l,lan for the future led the Dejlartment of Defense to ex­amine closely the prisoner-of-war situation in Korea. Accord­ingly, the Defense Advisory Committee on Prisoners of ,Yar was organized early in 1955 to study the problem.
Guidelines for the Committee were given by Honorable Charles E. ,Vilson, then Secretary of Defense. In a memo­randum to Mr. Carter L. Burgess, then Chairman of the Committee, he had this to say:
I am deeply concerned with the imllortance to our na­tional security of provifling Americans who sen"e tlleir country in battle with every means ,ve can devise to defeat the enemy's techniques. To assure tile success of our Armed Forces it is equally as essential to arm them with the best weajlons of the mind and body as it is to W'ovide them with the machines of war.
Our national military needs must be met. This requires that each member of the Armed Forces be thoroughly in­doctrinated with a simple, easily understood code to gov­ern his conduct while a jlrisoner of war. However, this
80
!IIilit:I!'Y nel'd 11ll1~t be Inet ill a ll\;lllllPr cO!llpatible with thp prilleil'h'~ and p!'eeepts l"ISie to onr fO!'!11 o[ gOH'rn­!IIent. En [oj'('ellIPll]-!IInst bp 1ll'l'Olllpiisheil \\'ith justice and nnderstall<ling,
A SEARCHING STUDY Going to \\'ork i!llllll'diatply, thp COIll!llitl:ep Illade a search­illg ~tndy o[ thp 1'0\\-probleills rHi~ed by the {(orPHn \\'ar. AftPI' a review 0[ the treatment of PO\\"s in past centnrips, thp Comlltitl:ep sc!'ntini%pd \\'hat the COlllllllmists bad done to (',S, lighting lllen \y!lo ],l'l'ame pl'isoners in KorPIl, It stndipd t!lp CO!llmnnist Illenwds of iIltl,lTogation, indoctri­natioll, anll propagallll:l Ile~crihed in prpyions (·bapters. Delying' into statbties, the COllllllit(:ee facell t!H'se filets: A totlll of ct,t::!'" Allle!'iean fighting mpn were recovered
frtnn ellPlllY pl'i~()n C'alllpS ill I~()l'ea. rrhe prison exchanges
],egan \yUh "Operation Litne S\\'itcb" in April lD;i8. Some noo .\llietl prisoners were retnnwd in eXI'bange for ten times
"Operation Little 81uiteh." American soldier in first: group
oj' si('k II}/({ f("o/Ii/(/('iI 1'0 lV's ('.I'chllili/cllin Eorca reachcs JlljillII , .n April l!6.i.
81
"Operation Hip S1vitch." U.N. prisoners, released by Com­
11/lIllisl fol'('I',~ ful' I'I'))(//I'i(//iol/, (/1'1'11'(' (// ]'(/)/1111111)0/)/. 11'01'('(/. ti ..I11,1/lls1 If/.j'!.
thut muny Conllllunist ChilW~P und :\orth Kor('un~.Dlll'il1" Nub~elluent "Operution Big S\\'i!'ch" mo~t of tbe Alllerir'ull pri~oller~ \\,prp re,'oYered. At thi~ tillw it \\'n~ lenrned thnt 2,7:30 Amerir'un~ hud (liell ill Korenn prisoll cump~. ThiN \Yn~ f! gha~tly denth toIl~-gS%, or nenr]y fOllr out of en'!'Y tell.
By joint action of the SerYir'e~, all of the ]Jri~olll'r~ I'('COY­ered \\'ere ~crpened by militnry intelligence ngen('ie~. Of the 565 \yhONe cOllduct \\'a~ /lne~tiolled. a7:3 \\,el'(' c!P,lred or the charges again~t them \\'('1'1' dropped after in\'('~tigntion, ()f the remnining 1!l2 sll"']Ject~, the Cf!~es of ,17 \\'(~re j'ol'\yarded to the appl'oprin te lield comlllaIj(ler~ for in\'('sl ig'u lion to dptermine \Yhether they \\'f!l'I'anted Irial by ('onl't~-III:lrtin!. Only 14 of the 47 cases \\'(~rp Iried by conrt~-lllnrtia!. nnd of tl)(' 1'1, three \\'en" f!c/lnitted nnd 11 conyicted.
Typical Charges. A PO\\' \\'n~ aC('ll~ed b~-1SO otll('l'~ of delh'pl'ing anti-U.S. ",peecl!es, infol'llling on fello\\" prisoner~,
82
hoarding food, teaching classes in communism, and ordering men to sign peace petitions. There was no evidence he suffered duress.
Another case involved a PO,Y accused by many witnesses of "ratting" on his prison-mates, beating a sick prisoner, forcing' a fellow prisoner out into the snow and leaving him therp. to die.
There was a PO,Y who allegedly courted favors of his captors as soon as he reached prison camp. He was charged with confiscating the small tobacco ration dealt to the other men and eating more than his share of the food. Allegedly, he made the heartless remark, "The more men who die here, the more food for the rest of us." He signed peace petitions, made propaganda broadcasts, and evidently "ratted" on other prisoners. There was no evidence that he was coerced.
There was evidence that a PO,Y informed on fellow pris­oners planning to escape. He wrote Red literature for his cal)tors. He was put in charge of a spy system that led to the lmnishment of "reactionaries" in his camp. He asked for the job. No "brainwashing" there.
Turncoats. The Oommittee studied the cases of the 21 turncoats who decided to stay with the Oommunists. Their nUlnlJer included men accused of informing-which sugg'ests a good reason for electing to remain in the enemy's country. Evidence indicates that few of these 21 were "sincere" con­verts to communism. Expediency, opportunism, ancl fear of reln'isal doubtless infiuenced some of the group.
No Drugs Used. The Committee also learned that POW's in Korea had not been drugged. Other methods, such as denial of food or sleep, had been equally effective and more practical.
POW SHORTCOMINGS
The "braimvashing" question ,vas thoroughly investigated. In some cases this time-consuming and coercive technique was used to obtain confessions. Most of the prisoners, how­ever, were not SUbjected to brainwashing but were given high-powered indoctrination for propaganda purposes.
83
Only a handful of the PO'V's in Korea were able to main­tain absolute silence under military interrogation. Xearly all of the American prisoners went beyond the "absolute" name, rank, number, date of birth restriction.
Reviewing the interrogation matter, the Committee felt that the steps taken up to 1955 by the Armed Forces had been decidedly inadequate.
The Committee heard evidence which revealed that many of the PO'V's knew too little about the United States and its ideals and traditions. So the Chinese indoctrinators had the advantage.
The uninformed PO'V's were up against it. They couldn't answer arguments in favor of communism with arguments in favor of Americanism, because they knew very little about their America. The Committee heard a number of ex-PO''''s state that a knowledge of communism would have enabled them to expose its fallacies to their camp-mates. The Red indoctrinators tried hard to win the support of faetory workers. But as one of them put it, "'Ye'd heard all that guff before. Back home. 'Ye knew their line." Knowledge was a defense weapon.
'Yhile it might be argued that few of the men became sincere converts to communism-indeed, the percentage seems to have been infinitesimal-the inability of many to speak up for democracy distressed loyal PO,Y's. Acti"e collaborators aside, there were certain passive prisoners "'ho "went along." They lacked the weapon of knowledge.
However, such conduct was not typical of U.S. prisoners in Korea. On this point, the Committee exvressed itself as follows:
A few statistics may prove reassuring to anyone who thinks the Armed Forces were undermined by Communist propaganda in Korea.
A total of about 1,600,000 Americans served in the Korean war. Of the 4,428 Americans who survived Com­munist imprisonment, only a maximum of 192 were found chargeable with serious offenses against comrades or the
84
United States. 01' put it another way. Only lout of 23 American PO'V's was suspected of serious misconduct.
'Vhen one realizes that the Armed Forces come from a cross-section of the national population, the record seems fine indeed. It seems better than that when one weighs in the balance the tremendous pressures the American PO'V's were under. "'eighed in that balance, they cannot be found wanting.
THE REMEDY
As the Committee grapIlled ,,'ith these problems, answers gradually became apparent.
In a war for'the minds of men, the enemy's methods can be successfully combated by military training and civilian education. In battle and in captivity the fighting American is no better than his training and character. Military school­ing can teach him combat skills. Such know-how is a "must."
But skill must be reinforced by will-by moral character and by basic beliefs instilled in home and classroom long before a lad enters the military service. Pride in country and respect for its principles-a sense of honor-a sense of responsibility-such basics should be established long before "basic training," and further developed after he enters the Armed Forces.
As the Committee saw it, united action was needed. Al­though all the Services had regulations on conduct, the U.S. Armed Forces had never had a clearly defined code of con­duct. There had been piecemeal legal restrictions and regu­lations but no comprehensive codification. However, despite this lack of a code, American fighting men had demonstrated through all wars that they do not surrender easily. They had never surrendered in larg'e bodies. 'Vhen overwhelmed and captured, they had-in the main-acquitted themselves with honor. Still, a clear-cut code was desirable.
Accordingly, the Committee undertook to (lraft a code of conduct that would reflect the basic 11rinciples by which U.S. fighting men have lived since the days of the Revolution. But was some change needed to meet new conditions? For
85
example, should a PO,\, be ginm :my leeway in ans\ypring questions beyond name, rank, seryice nl1ln]wr, and date oj' birth '!
'There \"as s()ulethin,g to l)e said IIY ()Xppl'iellCed oHlcC'l's
who felt: t1Jat a man could bp taught to hold his O\yn in thp battIe of wits against enemy interrogators. Authoritips pointed out that the Gpl1('ya Conn~ntion (lid not impose "absolute silence" on the interrogated war prisoner. Thpre were e1auses indicating that he might discuss his employ­ment, his finances, his state of health. or "conditions of eaptiYity" if necessity demanded. In short. he did not han: to remain IIlute.
The Committee agree(l that the main line of resistance must he drawn as far fOl'\yanl as possible. The name. rank, and sen'ice number vroyj,.don of tllt: Geneya Conn'ntion \yas accevted as this line of rpsistance.
In the fnee of exveri<~n('e, it wns recognized that the PO'V might be subjected to a n extreme of coercion. En'll then he
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86
is expected to avoid by every means any disloyalty in word or deed to his country, his Service, or his comrades.
THE CODE IS PROCLAIMED After long study and earnest deliberation, the Committee came to its decision. That decision is embodied in the Code of Conduct for Members of the Armed Forces of the United States. The Code, duly proclaimed by President Eisenhower, is as follows: Article I I am an American fighting man. I serve in the forces which guard my country and our way of life. I am prepared to give my life in their defense.
Article II I will never surrender of my own free will. If in com­mand I ,vill never surrender my men while they still have the means to resist.
Article III 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.
Article IV If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information nor take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every ,vay.
Article V "'hen questioned, should I become a prisoner of war, I am bound to give only name, rank, service number, and date of birth. I will evaell' answering further questions to the ut­most of my ability. I will make no oral or written state­ments disloyal to my country and its allies or harmful to their cause.
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Article VI
I will never forget that I am an American fighting man, 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.
YOUR ARMOR
The Code is your armor. It was hammered out for you by successive generations of fighting men, who loved their coun­try and who demonstrated their love by what they dirt In drafting the Code, the Committee merely put down on paver certain basic ideals and rules by which these fighting men had lived. Tried and tested, the Code meets the neefls of
this new age.
The conscience and heart of all America are needed in the support of this Code, and the best of training that can be provided in our homes, by our schools and churches and by the Armed Forces will be required for all who under­take to live by this Code.
Thus spoke the Committee in a letter to the Secretary of Defense. Signed by all the members, the letter continued, in part, as follows:
America no longer can afford to think in terms of a limited number of our fighting men becoming prisoners of war and in the hands of an enemy in some distant land. Modern warfare has brought the challenge to the doorstep of every citizen, and so the Code we propose may \vell be a Code for all Americans if the problem of survival should ever come to our own main streets.
And then too the United States must constantly be aware of her high position of world leadership, and the Code we propose must consider the standard of the 'l'en Commandments and of our Constitution, as well as our pledge to the United Nations.
No Code should overlook the watermarks of America's greatness or bow to the easier courses which might entrap more easily our men as alleged war criminals and \veaken
88
their fiber for the many ordeals they may face. We must bear in mind the past and future significance of the reser­vation made by Soviet Russia and other Oommunist na­tions to Article 85 of the Geneva Oonvention of 19c19 on prisoners of war.
How does this reservation affect you? How can you meet the obligations imposed upon you by the Geneva rules and by the Oode? How can the Oode protect you?
. These and other questions will be considered in the re­maining chapters.
89
Chapter II
 THE GENEVA RULES
 
A
ny discussion of atrocities, brutalities, and mistreat­ment of prisoners must logically include some reference to the provisions of the Geneva Conventions of 1!l29 and 1949. These grew out of the Hague regulations, mentioned in Chapter 2.
Troubled by the terrible death toll of prisoners in ·World War II, delegates of many countries met at Geneva in 1949 to formulate and define 11igher standards of treatment for POlY'S. The articles of the earlier Geneva Convention ,vere clarified and strengthened. It was agreed that the detaining power would be responsible for the health and welfare of any prisoners held. Fifty-seven nations signed the new Geneva treaty.
In general, the rules llrovide that prisoners of war nllmt be treated humanely. Svecifically forbidden are "violence to life and person … cruel treatment and torture … out­rages upon personal dignity, in particular humiliating and degrading treatment."
Under the articles of the Convention, vrisoners must be given decent housing; nourishing food, adequate clothing, and the right to communicate with their families.
They may not be punished for refusing to ans\ver qnes­tions of any kind. They are to be given medical care, and allowed to worship, exercise, and participate in sports and intellectual pastimes.
Machinery was set up to enable protecting powers amI the International Red Cross to have access to camIJs amI to investigate conditions in them.
In short, the Convention spells out in detail the treatment to be accorded prisoners of war.
THE COMMUNIST RECORD
The Soviet Union signed the 1949 Convention as did eight other nations in the ComIIlunist bloc. 'l'he U.S.S.R. and its
90
satellites held out, however, on certain points. One of their reservations concerned Article 8;; of the Convention Relative to the Treatment of Prisoners of ·War. The Article reads:
"Prisoners of war prosecuted under the laws of the De­taining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Com'en­tion."
The Soviet delegate entered the following reservation:
"The Union of Soviet Socialist Republics does not con­sider itself bound by the obligation, ,,;hich follows from Article 85, to extend the aplllication of the Convention to prisoners of war who have been convicted under the law of the Detaining Power, in accordance with the principles of the Xuremberg trial, for war crimes and crimes against humanity, it being understood that persons convicted of such crimes must be SUbjected to the conditions obtaining in the country in question for those who unclergo their punishment."
Under this resel'Yation, a prisoner of war convicted of an alleged war crime under the laws of the captors loses the protection afforded a prisoner of war by the Geneva rules. Therefore, a confession or a statement by a prisoner is likely to be used to convict him as a "war criminal" and thus, according' to this Communist bloc device, deny to him any protection under the terms of the Geneva Convention, including repatriation until his sentence is served.
This reservation was a disturbing sign of Soviet intention. Moreover, it set the pattern for later action by other Com­munist countries.
Early in the Korean war, the United States and the Gov­ernment of South Korea announced that they would act in accordance with the humanitarian principles contained in the Geneva Convention Relative to the Treatment of Prisoners of ViTal' of 12 August 1949. A few days later, North Korea said that the terms of the Convention were being followed. Still later, the Red Chinese stated that they were following the provisions of the Convention "with resel'Yations."
505596°–59—-7 91
The effect of these reservations became painfully apparent when the Communists deluded prisoners and tricked them into admitting' acts that the Communists claimed were "war crimes." Then they used this admission, either verbal or written, to convict prisoners as "war criminals" and to declare that they had lost their status as prisoners of war.
In practice, the articles of the Convention were consist­ently violated by the Red Chinese and the North Koreans in their treatment of prisoners.
An investigating committee of the U.S. Senate noted that:
•    
American prisoners of war were placed in solitary con­finement for long periods of time.


They were shackled.

•    
They were subjected to the curiosity and insults of the local populace.


They were physically maltreated.

•    
They were not given adequate medical attention or adequate clothing.


Officers were forced to work.

•    
Prisoner-of-war camps and hospitals were not properly marked and identified.

All of these practices were in direct violation of specific articles in the 1949 Geneva Convention.
IMPORTANCE OF THE CONVENTIONS
Because experience has shown that the Communists will observe the Convention only when it suits their purpose, one must inevitably wonder why we should be concerned with it.
There are at least two reasons why you should have some knowledge of the provisions of the Geneva Convention.
1. The United States is a law-abiding Nation. We have ratified the Geneva Com'ention and we will abide by it­both as a Nation and as individuals. Your conduct as a
U.S. fighting man will be judged accordingly.
92
2. The second reason is equally important from your per­sonal Sl<lIH1point. If you (10 not know the provisions of the Connmtion. yOl1 nlig'ht violate some of them llllwitting1y. '1'he COlllmunists, altllOugh they may not obsen'e all the l'rol'isions o[ the ConHmtion. han~ demonstrated t:lwt they
are qnic-k to seize upon alleged yiolatiolls.
In ease yon eyer become a PO\". here are some of the illlportant Genenl rules yon sllOnl<1 I,now:
•    
Yon mnst giye your name. rank. spryice nnmber, and date of birth (Article (7),

•    
YOl1 lllay not rellOllllCe any of the rights to which you are entitled under the Geneva ConHmtion (Article 7).

o     You are snbjpct to medical inspection at least once a month (Artiele 81) .
•     If you a re a l'hysieian, a snrgeon. a dentist, a nurse. or a nlf>dical orderly. yon may be required to care [or pO\,,·s who need yonI' sen'ices crcil if !fOil o/'c /lot
93
attached to the medical service at your branch ot the AI'med Forces (Article 32).
o     You must salute officers of the enemy and show them any other mark of respect required of their own forces. However, officer PO'W's must salute only officers of higher rank… except for the camp commander, who must be saluted regardless of his rank (Article 3D).

o     Enlisted PO'W's who are physically fit may be required to work. However, noncommissioned officers who are prisoners of war may only be required to do super­visory work. Unless he volunteers, a POW may not be employed on labor of an unhealthy or dangerous nature. Nor may any POW be assigned to labor deemed humiliating by the detaining power when per­formed by a member of its forces. Prisoners of war may not be compelled to do, nor may they volunteer for, the following classes of work when these have a mili­tary character or purpose: (1) Public works and building operations; (2) transport and handling of stores; (3) public utility services (Articles 49-54;

62) . .. If you have cash in excess of a fixed amount when cap­hIred, it may be taken from you and held in account for you. However, before repatriation the detaining pmver must give you a statement showing the credit balance due you. The United States is responsible for settling with you any credit balance due from the detaining power at the end of your captivity (Articles 58, 64, 66).
o     You are subject to the la,,'s, regulations, and orders in force in the armed forces of the detaining powers. If accused of a violation, you may be brought to trial (Article 82).
RULES FOR ESCAPE
Under the Code of the U.S. Fighting Man, you must make
every effort to escape and to help others to escape if you
should be captured. The Geneva Convention recognizes
94
that prisoners will attempt to escape and limits punish­ment for POW's attempting it to mild disciplinary action.
However, you should know that you can be prosecuted in the enemy's courts for serious criminal acts committed while you are trying to escape.
Article 93 of the Geneva Convention states that "offenses committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offenses against public property, theft withQut intention of self-enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary punishment only."
The clisciplinary punishment so authorized (Article 89) consists of the following:
(1)    
A fine which shall not exceed 50 percent of the advances of pay and working pay which the pris­oner of war would otherwise receive under the provisions of Articles 60 and 62 during a period of not more than thirty days.

(2)    
Discontinuance of privileges granted over and above the treatment provided for by the present Convention.

(3)    
Fatigue duties not exceeding two hours daily.

(4)    
Confinement. The punishment referred to under (3) shall not be applied to officers. In no case shall disciplinary punishments be in­

human, brutal or dangerous to the health of prisoners of war.
You may steal the food or dothing-even money in small amounts-that you need to effect your escape and yet retain your status as a prisoner. But if you commit a murder, or steal valuables to enrich yourself, while attempting to escape, there are no limitations on the punishment you may be sentenced to as a result of appropriate judicial proceed­ings, except that it must be the same as provided for members of the armed forces of the detaining power who have committed the same acts.
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POINTS TO REMEMBER
The United States may, as a son~reign nation, prescribe certain rnles of conduct, compatilJle with the Geneya Con­vention, for its military personnel who become prisoners of war.
Artide 105 of the Uniform Colle of Milita!'y Justice is an example of sucll a rule. This artide, concerning the punishment of misconduct by a United States senieeman while a prisoner of war, proYides:
Any person subject to this code who, while in the hands of the enemy in time of war­
(1)     for the purpose of secnring faHH'able tl'(~atment by his captors aets without proper authority in a man­ner contrary to law, custom, or regulation, to the detriment of others of wlwten'r nationality held by the enemy as ciyilian or militarJ' prisoners: or
96
(2)     while in a Ilosition of authority over such tlersons maltreats them without justifiable cause; shall be punished as a court-martial may direct.
Another example of rules of conduct prescribed by the United States is the Code of Conduct for members of the Armed Forces of the United States.
Pillally, j·cmcmbcr this: If eyer you become a PO'V, you are expected to abide by all of the Geneva rules that affect you personally, eyen though the enemy is obserying only those he chooses to observe. In some instances, captiyes luwe been able to imluce their captors to comply with the Geneya rules, but this cannot be expected of a Communist captor.
During 'Vorld War II, Colonel Paul R. Goode, at the risk of his life, demanded that his German captors accord the prisoners of war the rights to which the Geneya Convention entitled them. The Colonel, who commanded a regiment of the 29th Infantry Division, was captured soon after the Allied invasion of Normandy while personally leading an attempt to rescue elements of his division. Stumbling" into a German bivouac in the rlarkness of night, he was oyer­powered and wounded by the enemy. Colonel Goode as­sumed the leadership of his fellow prisoners, American and British officers, organizing them along the lines of a regi­ment and maintaining the highest morale among them until his release in May 1945. He narrowly missed being shot for an attempt to escape but continued to work toward that end and to help others in their attempts. For his superior leadership, character, and soldierly conduct, Colonel Goode was awarded the Legion of Merit.
'Vhether or not your captor follows the Geneva rules, you should abide by them as a law-abiding fighting man of a law-abiding Nation. You can't force good faith on your Communist captor. But you can demonstrate to him and to the world that we Americans live up to our word-as individuals and as a Nation.
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BLANK PAGE
'! ONly 1ll::CRET TH,\T t
 HAVE Ht:T ONE Uff
 TO LosE rOR MY COU~ln'
 
.+:'''7'4 ;~
SEPT n. L:;"
-~,
oam an AmericanY..9llting man. f\ serve in -the forces whlchguar6 m~ countrg an6£ur ll7a.:~ £f ~.~\an~pt::pare6 to glue m-':.\ Cite in their6ifense.
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Chapter 12
 YOU GUARD OUR COUNTRY
 
I am an Ame1"ican fighting man. I se1've in the forces which guard my country and 01tr way of life. I am pl'epa1'ed to give my life in their defense.
T
-Article I, The U.S. Fighting Man's Code. hese words were quoted with deep conviction.
The speaker was Admiral Arthur Radford, appearing on 25 October 1955 at the Second Kational Conference on Spiritual Foundations. The Code of Conduct had been proclaimed during the preceding summer, and Admiral Radford-then Chairman of the Joint Chiefs of Staff­was discussing its meaning.
"I believe," he said, "most of you realize this is written in the form of a creed. Possibly some of you feel that it is written mostly for those of us in uniform. If so, you are not wrong. It is written as a guiding precept to be followed by the men in our Armed ]'orces.
"I would suggest, however, that this creed could ,ery well be a part of every American's attitude. '1'here is no hidden meaning, nor is there lack of meaning, when you pledge: 'I serve in the forces which guard my country and our way of life.' These words are the key to the part played by the mind and the spirit in our national security. They signify:. Militant Liberty.
Every American should be dedicated to this mis­sion. It is not sufficient for only a relatively few to defend the United States. In our present peril, lleople everywhere must unite in the fight against militant international com­munism, or any other threat to our American way of life."
The people of the United States have united in this fight. But if the need arises to defend our country on the battle­field or in the prisoner-of-war stockade, the United States relies on you.
You are an American fighting man!
100
YOU GUARD OUR WAY OF LIFE
Wllat is tllis Allleriean way of life \\'11 iell you-as a lllPlll bel' of tile ArlllPd Foreps-are sworn to l]pfend'! Can you dptine it'! A(lmiral Hadford did so in a few silllple words.
":\Iy own unclerstamlin." of tile AlllPl'!eau \\'ay of life is many-foW," he sa1<1. "First it is Frc'edom awl Liberty.
"l·'reedom bpgan \\'ith a bl'lief in human dignity. and it' gre\\' \\'itll thp history of the world. Often it {'ame in eon­flkt \\'itll tyl'<lnny and {lespotbm, Oftpn it was lmoekpl! do\\'n. bnt al\\'a~'s it arose to figllt again. It. \\'ould fight. and losp, am] tllpn figllt again,
"WP lparnp(] this in hbtory \\'hen ]\Josps stood ll{<[ol'e Pllar'lOll ;1]1(1 sai(l: 'Lpt illy peop]p go.' \\'e read it again \\'llpn thp barons stoo(l ]wf'orpKing Jolln am] the :\lagna Carta \\'as Plllbodipil into l,[\\'s, \\'p li\'e(] it still agnin in thp epk of \'all('y Porg(',
lor
"Our Founding Fathers were adept at choosing the right words to explain the meaning of our way of life. Thomas .Jefferson called it 'Life, Liberty and the pursuit of Happi­ness.' Patrick Henry summed it up when he said: 'Give me liberty or give me death.'
"All of you lmow well the other meanings of our four freedoms. They are all part of the American way of life: -freedom of religion, freedom of press, freedom of assem­bly, freedom of speech, and many more. We have liYed with these freedoms so long, and have enjoyed them so much, that we are prone to take them for granted."
Continuing, Admiral Radford cited faith as a "second primary ingredient in our American way of life."
"Faith," he continued, "is our belief in the equality of man in the sight of God. It is our belief in what Alexander Hamilton referred to as 'the Sacred Rights of Mankind.' Far beyond the point of lip service, we must all belieye that each and every human is entitled to 'Life, Liberty, and the pursuit of Happiness.' These are the 'substance of things hoped for.'
"That cold winter at Valley Forge was truly an ordeal. The suffering from freezing and starvation almost led American troops to abandon their cause. Faith in their God; faith in their great leader, George Washington; and faith in the righteousness of their cause inspired the cour­age with which these men were victorious in their hour of trial. These are the 'evidence of things not seen,' to return again to the words of the New Testament.
"Without such faith, we could not be ready, as written in the Code of Conduct, 'to give my life in their defense.' But with it, we can meet successfully any future hour of trial."
Admiral Radford called next for "individual acceptance of responsibility" to defend our way of life against any threat. Then he asked how we could meet the Communist threat.
"The answer lies," he said, "in the heart, the mind, and in the spirit of all Americans. "\Ve must teach a better
102
understanding and appreciation of 'the American way of life'; ,,'e must rebuild the conviction that our path is the closest to that which God would have us follow, that it is truly worthy of personal sacrifices."
YOU ARE PREPARED TO GIVE YOUR LIFE
Toward the close of his address, Admiral Radford voiced this thought:
"'Ye must spread the word, both at home and abroad. "'e must call on the good offices and influence of the home, church, school, and Armed Forces, to develop the sound minds and deelicated spirits upon which our national secu­rity is fundamentally based. 'Ve can take our cue from Nathan Hale, who, when asked by his captors if he had any last words, simply said: 'I only regret that I have but one life to lORe for my country.' "
Life held great promise for Nathan Hale. A graduate of Yale, he had taught in Connecticut. His parents wanted him to enter the ministry. However, soon after the Lexing­ton alarm in 1775, he wrote his father that "a sense of duty" urged him to "sacrifice everything" for his country. Soon afterwarcls he entered the Army as a lieutenant, and a few months later he became a captain.
After the retreat of the Army from Long Island in 1776, General 'Yashington asked for a discreet officer to enter the British lines and get information as to British plans. Hale volunteered and was accepted.
Disguised as a Dutch schoolmaster, he visited the British camp "'here he made full drawings and memoranda of all the del'ired information. However, on his return, he was captured by the enemy. Taken before General Howe, of the British f01'('es, Hale was ordered executed the next morning.
Denied the comfort of a Bible or a clergyman, Hale stood facing the gallows. Instead of cringing, he spoke those last words that revealed the full measure of his elevation to his country.
In death, Xathan Hale sen-ed as an inspiring example to other Revolutionary fighting men struggling to safeguard
103
our country's new freedom. Ever since that tragic day in 1776, his name has symbolized the selfless devotion that American fighting men of all generations have felt for our country.
From their final resting places, other heroic fighting men speak also-to you, the men who have fallen heir to their task of defending our Nation. They speak in the words of the poet:
Take tiP our quarrel with the foe"
To you from failing hands we throw The torch,' be yours to hold it high. If ye break faith with us who die
We shall not sleep, though pOPIJies grow In Flanders fields.'"
'John McCrae, "In Flanders Fields."
104
9 wilT neuer surren6er ~ mg ownJl-ee wi(r. f1[i~ comman~, 0wi.ll ~e\Jer surren6er m.!J men UJhi(e 1he~1 still have themeans 10 resist.
105
Chapter 13
 NEVER SAY DIE
 
I wUl never s/l1"1'c}ulcr ot my own tree will. It in command, I will never slll"rendel' my men while they still have the means to l'esist.
-Article II, The U,S, Fighting Man's Code.
T
he tradition of "never surrender" \yas born during the Revolutionary ·War. On land and at sea, U.S. fighting men proved their mettle.
On 23 September 1779, John raul Jones, Captain of the Bonhomme Richm'd, challenged two British ships of war, the Sel"apis and the Oountess ot Scal'bol"Oit[lh. Old and slow, the Richard was outclassed. The Serapis was beating in one of the Richard's sides while blowing out 'the other. The Richard caught fire again and again. Meanwhile, the waters in her hold were rising alarmingly.
"Do you ask for quarter?" called the calltain of the
Scrapis.
"I have not yet begun to fight," Jones hurled back. The outcome is well known. After three and a half hours of fighting, the Serapis struck her flag. Then Jones and his crew boarded the Serapis and watched with mixed emotions as the Richard sank. The spirit of John Paul Jones has inspired America's fighting men ever since. On many occasions, the will to resist, no matter how unfavorable the odds, has served other fighting men as well as it did Jones. In modern war, combat units or individual combatants may frequently find themselves isolated from the main body of friendly forces. Without communications, the situation may appear hopeless. Even with radio or other communications, the isolated unit or individual cannot be completely aware of what goes on outside the immediate area. However, there are innumerable instances in which iso­
106
lalpd units haye fought tll('ir way out 01' llaye held fast until joinpd by olher friendly forcps.
Somplimps onr men haye foughl Iheir way out; at otller UlllPS t1H'y ll<lye slipped through pnemy lines. Airmpn shot down dePll in pnemy tpl'l'itory han' walk('cl 11luHlrecls of miles, liYing off natural foods from the land and ayoiding eapture, in order to reaeh fl'ipn(1Jy tpl'l'itory. Soldiers, sa ilors, airmen, or ma rines-they were fulfilling their mis­sions and their obligations.
. . . OF YOUR OWN FREE WILL
Recognizing tll(' flifTerent eireumstanees-tlle confusion, Ullcprtainty, apIll'P)lPnsion, and other pressures on the man who finds himself isolated in cOlllbat–the simple guirlelinc suggPSls itself-Iltc ji!lltlil/!/ II/llJl lI/u81 I/fTer surrcl/dcr of It is 0/1'1/ frec/cill.
It should not be neeessary to define the meaning of "his own free will," as some h11ye asked. If 11 man giyes up, he \\'ill lmow full \\"C'll wllNllcr his surrender was willful. No
107
amount of rationalizing will rid him of the stigma of failure to himself if his surrender was voluntary, born of wellk­ness. His sense of failure and the realization of his lack of will are with him for the rest of his life.
As long as a fighting man can inflict casualties on the enemy, he is selling himself short if he does not. For the casualties he infEcts, however few, or the disruption he effects in the enemy's attack may be the determining factor in repelling the enemy and in llis rejoining friendly forces. In case he is isolated and can no longer inflict casualties, perhaps because he lad;:s ammunition, it becomes his duty to evade capture.
Once in Korea, a machine-gunner found himself isolated. Having used all the available ammunition and worn out two gun barrels in the process, he sat helplessly-or so it seemed-in his foxhole as hordes of attacking Chinese Communist soldiers streamed by. But as the last of the enemy passed his position, his own forces moved in from the flanks and cut off the Chinese.
Suppose a man surrenders while he still has the means to fight back or can remain in hiding. 'Vlwt can Ill' expeet to gain? Four out of ten Ameriean prisoners of the Com­munists died in Korea. Untold numbers were coldly exe­cuted shortly after laying down their arms, and these were not induded in the "prisoner" statistics. The odds are in favor of the man who sticks by his guns. And realizing that many of the deaths in a prison eamp result from lack ot will, how much less is the chane'e of sun'inl1 for the fellow whose surrender to the enemy is for that very same reason?
IF IN COMMAND
No responsible U.S. comllwmler advocates suieidal resist­ance when nothing is to be gained by further fighting. The view of the average commander was expressed by Viee Admiral C. A. Lockwood, USN (Ret.), in these words: "I am not advising anyone to fight to the death. 'Yhen your chances of being captured or killed are so strong that further resistance is useless, then it is the duty of the
108
>"'lii,,]' 1l1:'11 ]irC'>'C'l11 t" dc'('ide wlwt lllllSt be dOlle, A1'ter all, gn';\ I :C;,'liC'r;\!s, ill IllallY II"arS, h;\ I'e snrrelll!el'e(l Iheil' ll'o"pS I" ]ll'eH'lll lIsl'll'ss I"ss "f lifl', bnl y"n Illusl always l'l'lllelll­1,,-1' Ih;\1 y"'1 Ill;\~' he OI"'lIp~'ill:':' a stl'all'!,d(' POSitiOll Il"1lidl Illll~1 h" hl'ld as 1"11(( as 1'"ssihl(, ill ol'dl'r 10 kel'1' Ihe l'lil'llly f1'<>lll :C;l'tlin:c; !>l'hind onr OIl'll Jilles, Thel'l' are a Ilulllhl'l' of alll'rli'lliI"l'S 10 ~lllT('Ill!l'r, ~I[("h as slippill:C; tllr"u:c;ll tlH' sllr­l'(ltlli(lill.~-C'll('ltly Hut's to your 0\\'11 troops or (lyen });1(·k ()f
tlll' ('lll'lll,\" lim's'"
(lltl' "l1ll-r alli'rllalin-is silllpl~' to fly/If ~'our \Ya~' ou!. alld this is wh"l tll(' Firsl Dil"isi"11 "I' Ihl' C,S, :\Iarille COl'PS (lid ill ]\:"n'<I iii l<lll' 11;;)0, C<ln,Ud ill a lll"mllaill"ns an'a
][(',11' flH' Chi).'-dll l'{,~t'l'\'(lir, Oll' IJi\"i:··:iI>ll \\'(\:-, :"tll'l'(lunt!e(l by Chilll'""r-C"II<lllnllisl~, Till' ,lilll o[ thl' ChitH'sr' \\',IS plaill: Th,',\" illl"l1d"l! I" "ll1lillil"I(' Ihc,\I,Il'illl'S, ,"\01 ol1l~' 1I'''l1ll! this I,,, " dl'll<"r,liizill,l( 1>1"11" to "II Cllitl'd :\aliolls for('('s, Imt it 11"'lllll! ('Iil<tilllll,' a siz,,]>I,' l'!<'llll'lll of Ihe tlH'1l al'"ilahle AI<H'ri"<lll ""IIlI',1I s1l"'ll"lh, For Ihis l"ask 111l' l'lll'llly h,\(l Ir,'rl<"lld"l1S lll1rl<"I'i",,1 ~rrp('riol"iIY, "'illl 110 rl'lil'[ possihle, llll'lIU','li"lwl>I,\" Ih,' pr"L>I"lll [or U,l' SUl"l'oulldl't! ullit hl'caIlll'
109
one of survival and breakout. As the Marine comman<ler pointed out, when a fighting unit is surrounded by the enemy there is no such thing' as retreat.
Three weeks of fighting in subzero cold preceded the lO-day ordeal of the breakout. There were daily instances of smaller units and individuals breaking out of smaller pockets of isolation, fighting their way or infiltrating through Communist forces, sometimes simply to join a larger force that still had to fight its way out. These included British Commandos, U.S. Army men, and men from otller forces­fighting men all.
Casualties? Of course there were-heavy casualties. Some due to the constant assault by the enemy, others due to the bitter elements of the :North Korean winter. But how many more would there have been if they had sur­rendered'? How many would have died as prisoners of war?
Command Knows No Rank. Often the decision to keep fighting or to surrender will be made not by an officer but by an enlisted man. During a land battle, more of direct command authority will be exercised by squad leaders than by generals, for the simple reason that there are more of them. Kot infrequently, when casualties are high, even the senior private in the remnants of a combat unit must assume leadership of his unit. He may not be as well prepared in terms of training or experience as those of higher rank, but he remains in command for the duration of the battle or until properly relieved. 'l'hat command carries with it certain responsibilities and demands that cannot be set aside. It is his job, in short, to keep his men fighting as a unit as long as tlley can fight effectively.
IN CONCLUSION If individuals and commanders were permitted to sur­render whenever a situation seems desperate it would he an open invitation to all weak of will or depressed in spirit. As an individual, a member of the Armed Forces may never voluntarily surrender himself. 'When he is isolated and can no longer inflict casualties on the enemy, it is his duty to evade capture and rejoin the nearest friendly forces.
110
The responsibility and authority of a commander never extend to the surrender of his command to the enemy while it has power to resist or evade. ·When isolated, cut off, or surrounded,a unit must continue to fight until relieved, or able to rejoin friendly forces by breaking out or evading the enemy.
]'\0 matter how tough the going, a U.S. fighting man never says die.
III
BLANK PAGE
~0amc::YJture6 g will continue to -resist Gg aCI means avaiGt6re_ 9 1.vilI make everg trtfort 10 esc~pe an6 ai6 others 10 esc~e_ 9 will acc!pt neithe:yaroLenor~peciaCfivor~omthe enel~_
113
Chapter 14
 KEEP UP THE FIGHT
 
If I am capturcd, I ~r;ill continllc to l'csist by all means avallable. Izeill make evcry effo'rt to escape awl aid (Jtli crs to cscapc. I ~cill accept ncIther parole nor spceial favors fl'om the enemy,
-Article III, The U.S. Fighting Man's Code,
H
oweyer determinNl a lighting man mH~' he to Hyoid it, there remains a llossibility that he will be cavtured by the enemy. The PO\V could be anyone of these:
•    
The soldier or marine rendered unconscious or badly wounded in battle.

•    
The sailor adrift at sea, whose raft is hardly equipped to engage an enemy warship or effect an amphibious assault on an unfriendly beach.

•    
The airman bailing out over enemy territory and com­ing down in a populated area or llerhaps into the waiting hands of an armed patrol; or caught during his long, evasive trek to freedom.

\Vhat can the PO,V do when he faces his Commnnist captors? He knows they 'Yill try to suhjngate him and use him to defeat his own country. Disarmed, he could feel completely helpless-if he let himself. But he is not alone! His country and his Sen'iee are with him in sllirit … guiding and sustaining him in this crucial hour. 'Vhen a PO\V repeats to himself the words of the Code, he is com­muning with his fellow Americans. He knows he is fight­ing their fight , .. as well as his own. He is one with them, and they are one with him . . . eyen thongh he IIlay be thonsands of miles from home. Liying by the Code, the PO,,, 1;;nmos also that he is keelling faith with America's fighting men of past generations. From these sources, he draws strength to resist his Communist calltors.
114
·. BY ALL MEANS AV AILABLE That the "me:lns :lyailahle" for resistance after capture are limite<l is (Iuite ohYiou". "\ Ilhyskal attack on an in­terrogator, for eX:lmple, will he use<l as an excuse fnr more Yiolent physical abuse of the jlrisoner. Sometimes the prisoner will IUlye to "take" treatment against which his instincts rebel.
Consider the case of one PO"W in Korea. '''hen his Chinese guard wiped his feet on the PO,,"s dothe:", the PO,,, struck him. );'01' this, the p(nV was jllaced in a box about 30 inches square. Kellt there for nine hours, the PO,,' became temporarily jlar:ll~·zed. Afterwards, his arms ,yere IWlHkuffed to his :lnkles for three or four days; following this, he ',",lS hallllcul'fe<l in a conYentional manner for about six weeks.
'VI' can admire the courage of the ro'v. At the same time, we recognize that this kin<l of resistance sen'es no useful jlurjlose. It takes "guts" to stand calmly in the face of insult and abuse, but it will most often be the best thing to do.
For the timc bcing, the PO,,"s best resi:-;tauce is jlassive resistant·p. The means he still jlossesses are his mental faculties :lnd his llloral code-the determination amI the will to resist. 'I'hese must be kept alive in the captiye lighting" man bec'ause they are what "'ill keep him alive. 'l'hat the Communist enemy is aware of these '"means" too, and their imjlortance, is eYidenced in his vrolonged and continuous efforts to destroy them.
YOU WILL MAKE EVERY EFFORT TO ESCAPE AND AID OTHERS TO ESCAPE
The fighting Ulan has one alternative to "taking" what­ever treatment his captors ajljlly-for as long as they choose to ajljlly it. 'l'hat is, of course, escave. Hc must conccn­tTatc all his 'resollrccs to/("ard cscapc-both for himsclf and oth crs. '1'his will eutail the full apjllication of his 1'1'­lllallllllg me'lIls-w!t:-;, wilL and jlatience. Furthermore, the Genenl Convention imJlliecUy recognizes the right of
115
\
a prisonpr of \,-ar to try to escape l)~' pro\'iding a limitation of puni"llment for certain offense"-",,ncll as oJTen"es against pnblic IJroperty, theft. \yitllont intention of self­enricllmpnt, tlle dra\ying up or u"e of false papers, or tlle wearing' of ciyilian clotlling"-\\'llen snell otIpnsps are COIll­mitted \yitll tlle sole intenUon of fal'ilitating escape and do not entail any \'iolenee against' life or limb,
HClI/ell/rIC)' t1/('sc p)'ocisiolls, and abide by tIH'm if yon become a 1'0,\', Xencr gin' ~'onr COllllllllllisj' captor any \'alid rpaSOll for labpling yon a \\'ar criminal.
Aboye all elsp, usp good jndglllPnt in pl:llllling to pscapp, Bp alprt to opportnniUes of tlle llJoJllPnt-tlle careless gnard or a fripndly one interested in dpsert!ng'-or moments of c'lllfnsion (Teated by an a ir raid or :J ttack by friendly forces, Sncll opportnnitips Illay be tlle (JllI~-ones ~'()n will get. Tlley are more likelr to occnr in til(' enrlr singes of enpt!yifT, before trnnsfer to a prison camp,
By all me:ws IlJnke :H1ya11<'e plans and pJ'('pnrations if you can, but don't e"pel't tllnt tIlis \yill be possible in
116
any COllllllllllist pl'isonl'r-of-\\'ar camp, Once in an e~tab­lishl'(l call1p, yOll Illay he ahle to org-anize an l1lHlerg-ronnd ('~capc COlllllliUl'l', Thi~ c'tn incn,"t~e your cllance~ of lilaking' a StlC'('p;..;;..;flll e:'(";l!Je.
11'01' reaSOllS pl'cyiol1s1y eite(l, physical yiolence agaillst l'llemy PCI'SO]lIlel dnring-escapl' from a l'O\V camjl shonld he al'oided except as a last n'sort, wilen the sitnation is despl'r'lte, (That is, if a prisoJl(']' fl'el:-; deatll hy tile
enC'IllY's lIalld is iIllIllillCllt ;lllY\Vay, and as a fighting lnan
he is detl'I'lltined to take some of the elH'my ,,'!til him in his tillal hattie,) Except in such extreillely desperate eir­('1llllstallces, it is a(!\'isahle for til(' prbo]l<'r to avoid violence dllring-his escape frolll camp 'tnd ltis trek to freedom until his ohjedin'-J'ril'ndly fOITI'S or Il<'lltl'al territory-is aT­tllally in viell' and nlltil snl'11 ph~'si<-al adion migllt elimi­llate til(' fillal o!>stal'1es to ltis hid for freedom.
Onc pilot who escapel] his captors in Korea against tn'mC!l<]ollS odc]s is Major Wan] :.\lillar (tllen Captain).
117
As his plane plunged into enemy territory both of his
ankles were broken. Dragging himself on his stomach
to a creek, he attempted to gain coYer, but the Communists
soon spotted him. From the moment of his capture, Cap­
tain Millar began planning to eSCalJe. He eluded his guards
before his improperly set ankles had healed and started
his slow, painful trek to freedom on foot, using sticks as
crutches and hobbling along in ill-fitting galoshes. As
hope of a successful escape was dimming, he enlisted the
help of a Korean-a sergeant in the Xorth Korean army­
'''ho also wanted to escape the Communists. The two
succeeded in signalling a U.S. helicopter, which flew them
to safety.
YOU WILL ACCEPT NEITHER PAROLE
A captor's deYiees-especially a Communist captor's-to subdue a prisoner or render him complacent are many and ,'aried. Among the more subtle of these is the offer of "parole"-an agreement whereby, in exchange for certain privileges or freedom of mo,ement, the prisoner gives cer­tain promises to the detaining power, such as the promise that he will not try to escape.
It is sometimes suggested that captured Chaplains and medical personnel should accept parole in order to minister to other prisoners. In accordance with the Geneva Con­"ention, parole is not necessary for such persons in that they are "retained" personnel, rather than prisoners, with minimal restrictions placed upon them in order that they may render their sen"ices as needed. Howeyer, you should remember that the Communists did not honor that ruling during the Korean war and cannot be expected to in the
future.
Recognizing that the captor is in a position to make parole terms advantageous to themselves and disadvanta­geous to an unwitting captive, the United States caJp1·cssly forbicls lIcr captive figll ting men to enter intosllch agree­ment with the enemy.
118
·.. NOR SPECIAL FAVORS Another ruse of captors such as the Communists is to offer special favors. However innocent these offers may seem, you may be sure there are strings attached. 'l'he cigarette or bit of candy offered by an interrogator at the beginning of a session, apparently to establish a relaxed atmosphere, may place the prisoner under an obligation. The wisest course is to reject all offers of favors, even in exchange for what may seem to be very minor concessions. Such offers should be Jeported promptly to the senior in cOlllmand of the prisoner group. There are several reasons why favors should not be accepted-even as a "planned" deception, so that the pro­ceeds may be divided among the group. In the first place, such a deception would necessarily involve pretense, which could lead to a trap. For another, there can be no overall benefit to the group for the simple reason that the favors­or the funds to purchase them-will have come from the sources allotted for the prisoners anyway. The prisoner who accepts favors and keeps them for himself is incli­rectly stealing from his fellows. And even if he accepts them in order to share them with the others later, he is contributing to the downfall of his group by allowing the enemy to increase his control over it. It thus becoI1l!!s apparent that the captive fiyht'iny man mU8t not accept 8pecial favor8 from the cnemy.
IN CONCLUSION
The fight is e,-erywhere. Even in the prison camp! ,"Vhen the use of physical weapons is denied, the mental ,and moral "will to resist" must be kept alive in every prisoner.
A PO'V has no alternatives. Either he resists, to death if necessary, or progressively submits, in time completely, to the dictates of his captors. Nor is death any less likely in submission than in resistance. It Illay be different in submission-more lingering-but the more to be avoided because of that. Certainly this leaves little choice for the fighting man who cherishes freedom.
119
He will escape if able to do so and will help others to escape. He will not sign or enter into a parole agreement.
In the POW camp as in battle, there is no place for the coward. In either place, the watchword is:
"Keep up the fight."
120
0J0_become ayrisoner gflvat~ 0 wier k€~ jaith with. ~feUol1)yt'isoners. £\ wier give no it}jDnna· tion nor ta[~e part in 1'mg action whi.ch m~ht be bar~C fo ;~ comrabes_ 0]~ am senior, f) wiU take comn~n6. Wnat, 0 will O(;E the GU~Jl1.[ or6ers§ those ~eP0inte6 over me an6 wi[ 6ack them ~ in eve~ wa~_
121
Chapter 15
 KEEP FAITH
 
If I become a p1'isoner of wa1', I will keep faith with my fellow prisoners. I will give no information n01' take part in any action which might be harmfnl to my C01nTCldcs. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed ove1' me and will back them up in every way.
-Article IV, The U.S. Fighting Man's Code.
O
ne of the worst acts an American can commit is to give aid and comfort to the enemy by informing on, or otherwise harming, fellow prisoners. A POW must avoid helping the enemy identify fellow prisoners who may have knowledge of particular value to the enemy, even if this course brings coercive interrogation.
If ever the Communists hold you as a prisoner, they will try in many ways to make you an informer. At the same time, they will try to break down your faith in your fellow PO'V's and their faith in you. In Korea, they deliberately placed many prisoners under a cloud of suspicion:'-by requiring their company on walks or by frequently calling them to headquarters for interrogation-in order to create the impression that they were "cooperating." This practice had a two-fold purpose. It made it difficult to detect an actual informer by hiding him within a selected group. It also cast suspicion on every other individual in the group.
YOU WILL GIVE NO INFORMATION WHICH MIGHT BE HARMFUL
l~aced by such tactics, tl/C fighting man who becomes a prisoner of war must keep faith 1cith his fellow p1'isoners.
It is natural during a long term of confinement for men to discuss intimately their past lives and their future dreams, as well as matters of immediate concern, such as thoughts or plans of escape. They will talk with eacl'
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other of many things they would .not wish disclosed to the enemy. The need for mutual confidence is obvious.
In this connection, an inspiring example was set by Derek Godfrey Kinne, captured on 25 April 1951.
In July 1952, the Chinese Comlllunists accused Kinne of being uncooperative. He was brutally interrogated about other prisoners of war who had uncooperative views.
"As a result of his refusal to inform on his comrades, and for striking back at a Chinese officer who assaulted him," his citation for gallantry in captivity stated, "he was twice severely beaten up and tied up for periods of 12 and 24 hours, being made to stand on tip-toe with a running noose around his neck which would throttle him if he attempted to relax in any way."
In conclusion, Kinne's example was cited as "an inspira­tion to all ranks who came into contact with him."
YOU WILL TAKE PART IN NO ACTION WHICH MIGHT HARM YOUR COMRADES
The Central Peace Committee was one of several organiza­tions used by the Communists to support their political in­doctrination program in Korea. Composed of prisoners, the committee helped prepare material to be used in courses given to other PO",V's. From the setup and activities, it should have been apparent that this committee was being used to undermine PO'V resistance and to mislead them as to the role of the United States in the Korean war and in world affairs.
Nevertheless, two American prisoners played key roles. One had charge of indoctrination. The other had charge of propaganda. Both took instructions from the Commu­nists. Under this committee was an elaborate workshop staffed by approximately 30 prisoners. The principal duty of the prisoners stationed there was to pose for propaganda pictures. For example, 10 men would be shown playing basketball. Others would be snapped playing tennis, swim­ming, or engaging in other sports or recreational activities.
505596 0 –59—-9 123
Subsequently these pictures would appear in various newspapers. The purpose, obviously, was to convey the impression that UN prisoners in Korea were being well treated by the Communists.
By their actions, the PO-VV's who worked on this COlll­mittee helped give an erroneous picture of their fellow POW's. At a time when world opinion should have been mobilized against atrocities in Communist PO'V camps, some of our own men were helping to a vert this. For their labors, they received a "mess of pottage."
Here, if you ever become a PO'V, is an example of what not to do. There will be many other things also. The COlllmunists are clever, and they will propose many things that cannot be predicted. Keep alert! Make up your mind now that in peace or in war, in combat or in a PO'V camp, you NEYER will take part in any action that could harm your fellow fighting men.
IF YOU ARE SENIOR,
 YOU WILL TAKE COMMAND
 
Strong leadership is essential to discipline. 'Vithout dis­cipline, camp organization, resistance, and even survival may be impossible. Personal hygiene, camp sanitation, and care of the sick and wounded are imperative. Officers and enlisted men of the United States will continue to carry out their responsibilities and exercise their authority after capture. The senior officer or enlisted man eligible to com­mand within the prisoner-of-war camp or group will assume command according to rank (or precedence) without regard to Service. This responsibility and accountability may not be evaded. If the senior officer or enlisted man is incapac­itated or unable to act for any reason, command will be assumed by the next senior.
Such command can be exercised, even when conditions make it seem impossible. This was demonstrated in Korea.
For their inspiring conduct while prisoners of war, 56 American soldiers were decorated. Consider the conduct of four, selected at randolll-Corporal Donald R. Bittner,
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Sergeant Gale \V. Cartel', Lieutenant Colonel .John :r. Dunn, and Corporal Riehard J? Doug!;lss. Theil' citations speak for themselYes.
Corporal Bittner's "leadership awl personal example in clefying his eaptors and in cliseouraging eo!lahorators raised the morale of his fellow prisoners and holstered their faith in Amerkan ideals." The Corporal headed an aetin' prisoner organi:oation to keep eo!lahorators in line. J;'or repeateclIy refusing to sign lll'opaganda dO(:lI­ments, he ineurre(l sw·h l>llnishlllents as hard lahor for more tlwn a year and eonfinement in a eold room for two months.
Sergeant Carter, who also led a prisoner resistance group, "was sel'erely punished and mistreatec1 for his aetivities. Howen'r, throughout the periods that he was sUhjeeted to solitary eonfinement, hard lahor, ,1I\(1 staryation, he re­mained steadfast in his devotion to duty and eountry."
Lieutenant Colonel Dunn, then Major, was the senior otIieer in a group of seyeral hundred Allleriean POW's.
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He received the Legion of Merit for his "courageous and outstanding leadership, despite the multitude of difficulties confronting him and without regard for the fact that he was sick and wounded at the time he assumed those im­portant responsibilities. He was instrumental in main­taining the morale and welfare of his comrades, assisting many to defy communistic teachings and to maintain hope necessary to remain alive. Throughout the period of cap­tivity he constantly demanded more food, clothing, and better living conditions essential to the preservation of life."
Corporal Douglass, whose "determined stand against Communist teachings gave heart to those with less spirit and fortitude . . . risked severe punishment by liberating from confinement a fellow prisoner suffering from maI­nutrition and cold."
But superior leadership was not a monopoly of the Army. Lieutenant Colonel 'Villiam G. Thrash, a U.S. Marine Corps aviator, won a Gold Star in lieu of a second Legion of Merit for his conduct as a senior officer in a Korean prison camp. Although threatened with harsh punishment if he attempted to organize resistance, and under constant surveillance, he went to work tightening discipline and uniting the prisoners-officers from several nations. For his work in counteracting Communist in­doctrination, the Colonel endured solitary confinement for eight months, intense mental pressure, and physical mal­treatment. These efforts to "break" him succeeded only in strengthening his influence upon the other prisoners.
YOU WILL OBEY LAWFUL ORDERS
The Communists in Korea attempted to prevent group unity by suppressing leadership. Prisoners were ordered to report to the Communist camp officials if any of their seniors in rank attempted to exercise authority. That there may be weaklings and opportunists who will comply must be considered. This happened in several instances.
Against such odds, the establishment of order and dis­cipline by the prisoners themseh'es is clifficult, to say the
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least, And even when established, it will need cOBstant reinforcement, as the Communists will do their best to undermine it. But it must be done, and it can be-as was proven in Korea-if men will stand together behind proper leadership. Obviously, the senior officer can effectively fulfill his responsibilities in this regard only when those of lesser 1'ank obey his lawful 01'ders and back him tiP in every way.
Being a PO'V does not relieve you as a serviceman from your obligation to follow designated leaders. 'Vhen pris­oners reject the autho:i'ity of their superiors and refuse to obey lawful orders, discipline and organization break down. This is just what the Communists want, for they know how important discipline is to the success of any resistance movement in a prison camp.
There is the possibility, of course, that the prisoner in authority may be an opportunist, a weakling, or one who will collaborate with the enemy. To prevent wholesale betrayal of the group by such a person, it is stipUlated that only lawfttl orders must be obeyed. This does not mean that a prisoner can arbitrarily refuse to obey orders. But, obviously, if a senior tells a subordinate to sign a propaganda leaflet or perform some other collaborative service for the enemy, it is not a lawful order and should be refused. By the same token, collaboration by a senior is not justification for similar action by those of lesser rank.
IN CONCLUSION
Sometimes keeVing faith calls for strange action. If some strange act contributes to the welfare of the POW group, it should be judged by what it accomplishes,
In Korea, for example, a PO'V was showing early signs of "give-up-itis." He was soon rejecting food and spurning the attention of his fellow POW's who were trying to "snap him out of it." Nothing his fellow POW's said Oll did seemed to make much difference. Expressions of sympathy seemed only to increase his self-pity.
One day when chow was being passed out, a Navy Chief
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Petty OiIicer noticed that this 1'0\\' had failed to dailll his portion. ~When called, the POW replied that he was not hungry,
"Tell that ," sahl the Chief, "to go out nnd dig his o\\"n gran" ilpfore hp gets too \\"eak to do it. OtlJel'\yise, some of the rest of us \\'i Il ha \'e to do it for
him, nnd \ye'ye got more importtIllt things to <]0." Soon aftel'\Ynrds the man callIe 0\'('1' am] ate his chow. Tl]('n he lW2:an to come out of his shell. nnd soon he oyercame his "giYe-up-itis." "It \\"ns shock trentllH'nt," psplaine<] tlw Chipf aftpl'\\"al'(]s, "and it \\'orke<1. He h;)(] pnssed the stage \I'1Jere ];ind words or sYllIpntlly would ha \'(~ helped hill!." Apart from "gi\'(~-up-itis." thpre \\"ill be mallY cases in nn:,' P()\\' camp where illdh'idunl prisoners dislike one nnutlll'r, But lW llIattpr \ylwt your fecdillg's as a prisoner
llW~'  be.  nil  disa~2:J'('PIlIPnts  llIust  be  resol\'('(l  \yithill  the  
P(J\\,  group.  
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"Behind-the-barracks" settlement of personal feuds is extremely risky in a prison camp. For one thing, injuries do not heal easily in the absence of decent food and medical facilities. Furthermore, such incidents are difficult to conceal from the ever-watchful eyes of the captors. COIll­munist camp administrators like nothing better than op­portunities to remonstrate with prisoners for their "bad attitudes" toward each other and to "counsel" them on their conduct. Such incidents provide the best possible opportunity for the enemy to aggravate discord and sow seeds of distrust.
Remember how essential teamwork was on your high school or college football team? You wouldn't slug your worst enemy if he was on yom: team. You'd cover up your own personal feelings and guard him while he was carrying the ball for YOU1" team.
How much more vital it is, then, for you to keep faith with your fellow fighting men!
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BLANK PAGE
eWhen questione6, shOuGS 9 become a yrisonet'ifwar, ~ am boun6 to give on~ name) Tan"k, service number an6 6ate eff birth. gwaf eua6e answertng..JUrther:..questions to the utmost~:fm~ abi(f~.gwillma(ze no oraror written statements 6isCO.,galto m~ countr.!:3 an6 its allies or harm.ful to their cause.
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Chapter 16 BY WORD AND BY DEED
When q'uestioned, should I become a prisoner of war, I am bound to g'i'De only na'me, 1'ank, se1'vice nttmber and date of birth. I Ifill evade answeT'ing further quest'ions to the 'ntrnost of my ability, I u;ill malce no O1'al 01' written statements disloyal to my COli ntry and Us allies 01' harmflll to the'ir cause.
-Article Y, 'l'he U.S, Fighting Man's Code.
E
very fighting man possesses some military information of potential value to the enemy, By revealing it to the enemy he might bring death to his comrades or dis­aster to his unit. Indeed, one man may have some small, seemingly unimportant bit of lmowledge that coulll com­plete a composite intelligence picture for the enemy and enable the enemy to defeat major forces of his own country. The length of time he has been in service; how "lOng and where he was trained; how long in combat-'1l1Y such information will serve to improve the enemy's avvraisal of our fighting strength and potential.
YOU ARE BOUND TO GIVE ONLY NAME. RANK. SERVICE NUMBER, DATE OF BIRTH
If you become a prisoner of war, there is an obvious need for some communication with your captors. To fulfill their obligations under the Geneva Convention, your cap­tors need to know who you are. Moreover, they need to identify you so unmistakably that you will not be con­fused with any other member of our Armed Forces. This is in your interest as well as in theirs, since you will want your Service and your loved ones to know what has happened to you.
For this reason, you are bound by the Code and the Geneva rules to give your name, rank, service number, and date of birth if captured. (For those who wonder
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wby tbe date of lJirtb is required, it is simply to establish yOll!' identity more eompletely.) If you refuse to give tllis information, you may be denied privileges you otller­wise might enjoy.
By tile same token, you are exvect:ed to help identify any of your comrades who may be too badly wounded or too ill to identify tllC'mselves. In so doing, you will apply the same restrictions that you would if you \vere being questioned about yourself.
Assume your captors al'(~ Communists. You know tbey will honor their obligations under tile Geneva COllvention only if it senes their elHls. 'WIly, then, you may ask yourself, should you give tbem any informatioll '! Why shoulcl you give tilem e\"(~n your name when they probably will try to use it for propaganda purposes?
'rhis is a risk you must tal,e. ,Yllen you give the Com­munists personal information they can relay to your Gov­
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ernment and your loved ones, you have no guarantee they will not misuse it. However, in spite of this possibility, you could not afford to give your Communist captors a bona fide excuse for not relaying word of your capture to your Government.
Remember, finally, that we Americans honor our obli­gations. Under the Code and the Geneva rules, you are obligated to give your name, rank, service number, and date of birth. 'i'his you can and should do in good conscience.
YOU WILL EVADE ANSWERING FURTHER QUESTIONS TO THE UTMOST OF YOUR ABILITY
Ideally, if ever you become a POvV, you should give your captors no information other than name, rank, service number, and date of birth. Don't be stampeded into going beyond this.
There are instances on record where Americans, when summoned for interrogation, have been so terrified by their own unrealistic imagining of what would happen to them that it was not even necessary for their captors to question them. These men had frightened themselves so badly that they poured out any information they had. Other prisoners, almost as frightened, held out until the C6mmunists mentioned that "it would be better" for the POW if he talked. In the prisoner's frightened state, he thought this statement was a threat of all kinds of torture and unknown, mysterious outrages-so that this remark was all that it took to make him give in. In this way, by playing on fear and lack of knowledge, the Communists had their work done for them-the prisoners had defeated themselves.
Actually, the Defense Advisory Committee on Prisoners of War has never been able to verify even one case in which a POW was killed because he refused to answer questions. Keep this in mind!
Whatever you do, don't try to evade questioning by
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making up a story. Sometimes highly trained and skilled persons can deceive a trained interrogator, but then for only a short period of time. Any improvised story, clutched by a desperate, confused, frightened prisoner of war, will probably be more of an aid to the enemy than a hindrance. The interrogator is always at an advantage, because the prisoner does not know exactly what information the interrogator has. The prisoner's answers are carefully screened by enemy intelligence experts, and false infor­mation is easily detected. After his story is destroyed, the prisoner is then at the mercy of his captors.
Playing stupid is something else. A POW who knows he cannot fool an interrogator with false information may evade answering further questions by appearing to know so little that the interrogator gives up.
This happened in the case of a Navy fighter-bomber pilot who was shot down behind enemy lines in Korea. After capture, his system was to be very polite, to be sorry that he didn't know this or that. He knew nothing about the new planes. He did not know where the bases were . . . nor did he know how long the runways were. This sort of game continued during most of his six months as a Po-W.
Just before the pilot was released, an interrogator told him he was a disgrace to his uniform . . . that he was the most ignorant naval officer he (the interrogator) had ever encountered.
Yes, the officer was dumb … like a fox!
lIe had resisted successfully to the utmost of his ability.
YOU WILL MAKE NO DISLOYAL STATEMENTS
On first thought, your pledge to make no disloyal state­ments seems merely an expression of fundamental decency. You find it hard to conceive of a situation in which you would break your pledge. Yet a number of American PO'V's signed germ-warfare confessions in Korea, and many othel'ssighed peace petitions that cast l'eflections
135
on lJnited States policy and ohjeetiycs. Tllese lllPn didnot intend to he disloyal. lJndoubtedly, they \yere )I]'('s­sured into signing. Yet the efIeet: of their statf'nl('nt"s \,":lSdefinitely harmful to our eountry.
'''hat led tlJelll to :Idas they did'! How can yon step] yourself now to \\"ith­st:llld sneh pressures if eyer you be('OIlle a pel\\' 'I
First, let it be understood that for en'ry Allleriean 11'110made a disloyal statement \\"hile he \\"as a 1'0\\' in Korea.there \\"ere lllany, lll:lny others who refused to do so.FolIo\\" the example of the majority.
Consider the ease of an Air Force c:I)ltain w]ws(' )llanewas struck by Comlllunist antiail'<'raf't firp OH'r Nol'! IJKorea on 8 April 1D52. IIp \\"as Pjected, and as ll(' fellinto range, a squad of Chinese COllllllllllists opell(,d fire.
On the ground, he saw stealthy figures running towardhim, still thing. "With lJis seniee .45, lJe killed t\\"o of
more than 200 Communists \\"ho eonyerge(] on hinl. ()yer­l!o\H'red, he \vas taken prisoner.
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'l'he cavtain was charged with germ warfare and "mur­dering Chinese Communist volunteers" in his last ditch fight. Despite unrelenting pressure, he steadfastly re­fused to sign any statements disloyal to his country. After a midnight trial, he was confined in a camp for unde­sirables. As a member of the camp's escape committee, he tried three times to make it to U.N. lines. All three at­tempts failed. Finally, on 31 August 1953, he was re­patriated in" "Operation Big Switch."
Courage and faith sustained the captain through his ordeal. 'l'hey can sustain you also if ever you are pressured to make a disloyal statement.
IN CONCLUSION
In the face of experience, it is recognized that you, if you should become a POiV, may be subjected to an extreme of coercion. Still, you must resist to the limit of your ability. Don't expect to fall back to successive lines of resistance. Once you have gone beyond the first-your name, rank, service number, and date of birth-in almost any respect whatever, you have taken the first step that leads to collaboration. On the first line you must endeavor to stand to the end.
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BLANK PAGE
owilt lleUeeSo~et that 0 am. au. American J9hti~ man, Te~on5i6[eJOr m~ actions, an6 6e6icate6 to theyrinciPces which.""u1a6e m~ count~ ftee. 0 will trust in m~ Gob anb in ihe UniteS States ifAmerica.
Chapter 17
FAITH WILL TRIUMPH
I wUl never fm"get that I am an American fighting man, responsilJle for 'my actions, and dedicated to the principles which made my connt1'y free. I 1ciU trust inlny God and in the UniteiZ States of America.
-Artide VI, The U.S. Fighting Man's Code.
American is responsible and accountable for his
A
n actions. Prisonel'-of-war statns doesn't change this nor does it change the obligation to remain faithful to the United States and to the llrinciples for which it stands. Throughout his cavtiYity, a vrisoner shoulc1 look to his God for strength to elHlure whaten'r may befall. He should remember that the United States of America '''ill neither forget nor forsake him, and that it will win the ultimate victory.
TIle life of a prisoner of war is hanI. He must never give up hope. He must resist enemy indoctrination. Pris­oners of war who stand firm and united against the enemy will aid one another in surviving their ordeal.
NEVER FORGET THAT YOU ARE A FIGHTING MAN
If you become a PO'V, you will be fighting for your country in a new arena.
Keep this constantly in mind. Never let yourself be lulled into a feeling that you are "out of the war" . that your only problem is to survive until you can be repatriated.
When you face a Communist interrogator, you are under fire–just as trUly as if bullets and shell fragments were flying around yOU. In trying to make you c10 his bic1ding, the enemy is attacking the United States of America and
our  way  of  life.  If you  succumb,  your  country  is  the  
loser.  
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Disarmed and unable to pnt up physical resistaJl('e, yon will tight with yonI' mind ami yonI' spirit:. If yon J'ield no military information, you help safeguard your conntry's fighting strength. If you remain faithful to your fellow POlY'S, you help l,eep up a united front in this new arena of war. Resist eyery attempt at indodrination, and you bea t back a Commtwist oft'ensin~. 'I'urn back eyery Com­munist effort to use you for propaganda, and yon help protect the good name oj' your country and maintain your own l,ersonal integrity as well.
Remember always that the Communists are waging a relentless war to oyerthrow our eountry and our way of life. YonI' role may ehange, but you are neyer out of the conflict as long as yon remain aliYe.
NiTer forget that you are an American fighting man.
YOU ARE RESPONSIBLE FOR YOUR ACTIONS '1'lJe proYisions oJ' the Uniform Code of Military .Justice continue to apply, whenen~r appropriate, to members of
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the Armed Forces while they are prisoners of war. Keep this in mind if you become a POW. The circumstances of your capture and your conduct during the period of your detention are subject to examination, with due re­gard for your rights as an individual amI consideration for the conditions of your captivity.
Still, you are a fighting man, and your Government ex­pects you to act like one.
Any man may face odds that overwhelm him despite his best efforts. If this explains your callture, your Gm'ern­ment will be understanding.
While you are a PO'V, your conduct will be weighed by your fellow prisoners. You will weig;h your own conduct. You will know in your own mind whether or not you are acting as a responsible fighting man.
If your conduct as a prisoner of war requires official examination, your guilt or innocence will be determined not by sentiment but by the actual facts. In short, your conduct will be judged by what could reasonably be ex­pected of a loyal, dedicated fighting man under the con­ditions you are called uIJon to endure.
Acquit yourself with honor, and you will have won the undying gratitude of your fellow countrymen!
For inspiration, look to the records of those heroes \vho stood up against staggering odds while prisoners of war in Korea. There were weaklings, of course, and much has been written about them. More important, there were many heroes-from the Army, the Navy, the Air Force, and the Marine Corps-and too little has been written about them!
Major 'Valter R. Harris, USMCR, for example, won the Legion of Merit for his adamant resistance. As the rec­ognized leader of a prisoner group in North Korea, he welded the prisoners into a disciplined military organi­zation and conducted educational and religious programs. He did his best to helll those who attempted to escape and
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macle certain they knew the probable punishment if recaptured.
'When Major Harris' influence among the prisoners came to the attention of his captors, they tried to force him to sign compromising statements. This he refused steadfastly to do, in spite of solitary confinement, loneliness, hunger, and llhysical torture.
YOU ARE DEDICATED TO PRINCIPLES
 THAT MADE YOUR COUNTRY FREE
 
We llOld these trllths to be selt-evident, that all men are created equal, that they are en­(101Oe(Z by tli cir 01'eat01' 10ith certain 1tnalien­able Rights, tlwt among tllcse a1'e Lite, Liberty and the lJ1Wsuit ot Ha.ppiness. That to seCU1'e these rights, Govcr'nments a1'e instituted antony .iIIen, deriving tlleir just pOlOers tro111 the con­scnt ot the f/ovcrne(l …
The Declaration of Inclependence contains the essence of our democratic faith. It was meant to give form to the sentiments of the colonists, to provide a common statement of a new Kation's reasons for carrying on the fight for freedom. The principles expressed in the Declaration heartened the soldier in the Revolutionary War, and those same principles sene as a time-tested standard for the American fighting man toclay.
If you become a PO,,, of the Communists, you will expect intensive indoctrination in atheistic communism, which rejects the idea of individual liberty expressed in the Declaration of Indepenc1eilce. It is your duty as a fighting man to carryon the battle in the prison camp by resisting Communist indoctrination efforts with all your ability. Your best answers to the Communists lie in the basic principles that have made our country great and free. Your best weapon is an appreciation of the true meaning of these principles.
Your steadfast adherence to the principles of, freedom and democracy ,,'Hl help both you and-YOl.n' fellow l)l:isoners.
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The Defense Advisory Committee on Prisoners of War found that when a few American POW's signed peace petitions and peddled Communist literature it had far­reaching results.
So long as the principles that have made our country free claim our love and respect, so long will our free and representative government endure and be a source of hope to those who seek human freedom and who believe in the dignity and worth of every human being. Such princillles are worth fighting for-on the battlefield or in a POvV camp.
TRUST IN GOD
Most religions consider valor and patriotism virtues of the highest order. The person with firm religious con­victions, whatever his religion, and the courage to defend those convictions at any cost, is _able to defend himself and to maintain his integrity as a man and as a fighting man.
If you are a devoutly religious man you do not need to be reminded that your faith is a source of courag-e and strength in time of peril. Men who recognize the existence of God and believe in the importance of a man's soul recognize also that there are worse things than death; as a result, the idea of death does not appall them. 'l'hey may not always understand why things are happening as they are, but they believe with firm conviction that God will not forsake the man who trusts Him and lives by His commandments. When death ends this earthly struggle, it opens the door to everlasting life.
The United States, when still a young, hard-pressed Nation, proudly proclaimed its position to the world in its slogan, "In God We Trust." This heritage helps ex­plain why there are few atheists in the Armed Forces. Even those men who do not subscribe to a formal creed of any kind generally recognize a God who rules the world with justice and mercy.
Centuries ago, a soldier wrote the 23rd Psalm. Its message has echoed in the minds and hearts of other soldiers in each succeeding generation:
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Yea, though I walle tTwough the valley of the shadow of death, I will fear no evil; for thOtl art with mc; thy rod and thy staff, they comfort mc.
TRUST IN YOUR COUNTRY
Your country expects you, as a member of the Armed Forces, to support it to the utmost of your ability. In return, you may expect your country to support you.
In times of war, communications sometimes break down. Messages from home' may neyer reach you. Undoubtedly, you will worry about your family.
If you are a prisoner of war, these worries and fears will be aggraYated. Meantime, you will be subjected to a steady onslaught of propaganda and lies about the defeat' of American forces and the victories of the enemy.
In such circumstances, remember this: The United States of America will win the war, and she will not forget you-no matter what the enemy says.
In signing the Executive Order that put the Code of Conduct for the Armed Forces into effect, the President of the United States declared:
No American prisoner of war will be forgotten by the United States.
Every available means will be employed by our govern­ment to establish contact with, to support and obtain the release of all our 11risoners of war.
Furthermore, the laws of the United States provide for the support and care of dependents of members of the Armed Forces including those who become prisoners of war. I assure dependents of such prisoners that these laws will continue to provide for their welfare.
IN CONCLUSION
The U.S. Fighting Man's Cocle sets a high standard for members of the Armed Forces of the United States. But it is a reasonable standard-one based on principles and ideals that have made America free and strong, on moral qualities found in all men of integrity and character. And
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it is a standard that every member of the Armed Forces of the United States is expected to meet. Complete and loyal support of the Code is to the best interests of the American fighting man, his comrades, the United States, and the free world.
The written Code of Conduct is a direct outgrowth of the Korean conflict. But the Code's importance extends far beyond the limits of a single war or a single group of Americans.
Every American citizen-whether in or out of uniform­must share the responsibility for preserving our freedom and our way of life. For in modern warfare, the home front is but an extension of the fighting front. There are no distant front lines, remote no-man's lands, far-off rear areas. Courage and loyalty are expectecl of every American. And every American might well adopt as his own personal code the Code of Conduct for the serviceman.
Scientific advances have resulted in weapons so for­midable that they stagger the imagination of mankind. Less tangible but no less formidable are the psychological weapons the Communists have devised. Their method of treating captives is but one of the weapons they use in their unending, worldwide war for the minds and hearts of men.
vVe cannot take freedom for granted. Threats to Amer­ican security must be met with appropriate Amerkan weapons.
The physical weapons of war are assured by American enterprise, science, and industry.
The mental and moral weapons are supplied by the strength, will, and minds of the American people.
So long as the weapons, whatever they be, are wielded by men of honor and integrity, who believe in-and practice-­the principles upon which this Nation was founded, so long will our Nation be free and invincible.
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BIBLIOGRAPHY
BOOKS AND DOCUMENTS
Beck, F., and Godin, tV. Russian Purge and the Extraction ot Oontession. New York, Viking Press, 1951.
Biderman, A. D. Oommunist Techniques ot Ooercive In­terrogation. Air Force Personnel and Training Research Center Development Report TN-56-132, Lackland Air Force Base, Texas, 1956.
Blair, Clay. Beyond Oourage. New York, David McKay Co., Inc., 1955.
Oommand and the Oode-Nevel' Surrender. Officers' Call. Department of the Army, DA Pam 355-6, July 1956.
Oommunist Interrogation, Indoctdnation and Exploitation ot American Military and Oivilian Pl'isoners. Hearings Before the Permanent Subcommittee on Investigations of the Committee on Government Operations, 84th Cong., 2d Sess., 1957. Senate Report No. 2832, 84th Cong., 2d Sess., 1957.
Oommunist Interrogation, Indoctrination, and Exploitation ot Prisoners ot Wal'. Department of the Army, DA Pam 30-101, May 1956.
Oommunist Psychological TVartm'e (Brainwashing). Con­sultation with EdwlJ.rd Hunter. Committee on Un­American Activities, House of RepresentlJ.tives, 85th Cong., 2d Sess., 1958.
Giovanitti, Len. The Prisoners ot Oombine D. New York, Henry Holt, 1957.
Hansen, Col. Kenneth K. Heroes Behind Barbed Wire. Princeton, New Jersey, D. Van Nostrand Co., Inc., 1957.
Hunter, Edward. Brainwashing: The Story ot the Men Who Defied It. New York, Farrar, Straus and Cudahy, 1956.
Am an American Fighting Man. Troop Topics. De­partment of the Army, DA Pam 355-51, 6 May 1957.
148
Kinkead, Eugene. In Every TVar But One. New York,
W. W. Norton & Co., Inc., 1959. Kirk, Russell. The American Cause. Chicago, Henry Regnery Co., 1957. The Law of Land Warfare. Department of the Army. FM 27-10, July 1956.
Lectures     on the Geneva Conventions of 1'2 August 1949. Department of the Army. DA Pam 20-151.
Manual for Courts-Martial Unitea States.
Meerloo, A. M. The Rape of the Mina: the Psychology of Thought Control, Mentici1le, ana Brainwashing.
Cleveland, World Publishing Co., 1956.
Millar, Ward. Valley of the Shadow. New York, David McKay Co., Inc., 1955.
Operations Research Office, Johns Hopkins University. Study of Combat Stress in Korea. ORO-T-41 (FEC), Dec. 1952.
Rigney, Harold W. Four Years in a Rea Hell. Chicago, Henry Regnery Co., 1956.
Sargant, William ·Walters. Battle for the Mind. Garden City, New York, Doubleday, 19G7.
Segal, Julius. Factors Related to the Collaboration ana Resistance Behavior of U.S. Army PW's in Korea. Tech­nical Report 33, Human Resources Research Office, The George Washington University, 'Vashington, D.C., 1956.
Thompson, Elizabeth M. War Prisoner Repatriation. Edi­torial Research Reports, 3 Dec. 1952, 11: 823-40.
Thorin, Duane. A Ride to Panmunjom. Chicago, Henry Regnery Co., 1956.
Treaties Governing Land Warfare. Department of the Army. DA Pam 27-1, Dec. 1956.
The Uniform Code of Military J1tstice.
Whitcomb, Edgar D. Escape from Corregidor. Chicago, Henry Regnery Co., 1958.
149
·White, ·William Lindsay. The Captives ot Eorea; An Unofficial White Papc1' on the Trcatment ot War Pris­
01W1'S. New York, Charles Scribner's Sons, 1957.
ARTICLES IN PROFESSIONAL AND OFFICIAL PERIODICALS
Berle, A. A., Jr. "Legal BackgTound of Communist Methods of Interrogation and Indoctrination." Bulletin ot the New York Academy ot Medicinc, Sel). 1957, 33: 645-53.
Bettleheim, Bruno. "Individual and Mass Behavior in Extreme Situations." Journal ot L11mormal and Social Psychology, 1943, 38: 417-52.
Biderman, A. D. "Communist Attempts To Elicit False Confessions from Air Force Prisoners of ·War." Bltlletin ot the New York Academy ot 1J[edicine, Sep. 1957, 33: 616-25.
"The Communist "'Varin PO",V Camps." DC1Jartment ot State BUlletin, 16 Feb. 1953, 28: 273-75.
Driscoll, Col. John J. "It Could Have Been You." Air Force Maga.zine, Nov. 1952, 35: 23-27.
Farber, 1. E., Harlow, H. F., and "'est, L. J. "Brainwash­ing, Conditioning, and DDD (Debility, Dependency, and Dread)." Sociomet1'y, Dec. 1957, 20: 271-85.
Henderson, B. A. "CoIllmunist Indoctrination Methods." Military Review, Nov. 1955, 35: No.8, 27-38.
Hinkle, L. E., and ",Volff, H. G. "Communist Interrogation and Incloctrination of 'Enemies of the State.''' A.M.A. Archives ot Nelwology and Psychiat1'y, Aug. 1956, 76: 115-74.
Hinkle, L. E., and Wolff, H. G. "The Methods of Interro­gation and Indoctrination Used by the COIllmunist State Police." Bulletin ot the New York Academy ot Medicine, Sep. 1957, 33: 600-15.
150
Johnson, Capt. James R. "If You Are Captured …" Marine Corps Gazette, Nov. 1952, 36: 60-62.
Klumper, G. H. "Army Psychiatry in Korea Following the Cease Fire Agreement." American Journal ot Psychiatry, 1955,112: 260-9.
Lifton, R. J. "Home by Ship: Reaction Patterns of American Prisoners of War Repatriated from North Korea." American Journal ot Psychiatry, 1954, 110: 732-9.
Lifton, R. J. "'Thought Reform' of Western Civilians in Chinese Communist Prisons." Psychiatry, 1956, 19: 173-95.
Lifton, R. J. "Chinese Communist 'Thought Reform': Con­fession and Re-Education of Western Civilians." Bulletin ot the New York Academy ot Medicine, Sep. 1957, 33: 626-44.
Maloney, J. C. "Psychic Self-Abandon and Extortion of Confessions." International Journal ot Psychoanalysis, 1955, 36: 53-60.
Marren, J. J. "Psychiatric Problems in Troops in Korea During and Following Combat." U.S. Armed Forces 111ed·ical Journal, May 1956, 7: 715-26.
Mayo, C. ·W. "The Role of Forced Confessions in the Com­munist 'Germ Warfare' Propaganda Campaign." Depart­ment ot State BUlletin, 9 Nov. 1953, 29: 641-7.
Meerloo, A. M. "Pavlovian Strategy as a Weapon of Menti­cide." Ame1'ican Jou1'nal ot Psychiatry, 1954, 110: 809-13.
"Misconduct in the Prison Camp : A Survey of the Law and an Analysis of the Korean Cases." Note to Prisoners of War Section. Colttmbia Law Review, May 1956, 56 :'709-94;
Murray, J. C. "The Prisoner Issue." Marine Corps Gazette, Aug. 1955, 39: 32-40; Sep. 1953, 39: 28-35.
Prugh, George S., Jr. "The Code of Conduct for the Armed Forces." Columbia Law Review, May 1956, 56: 678-707.
151
Prugh, George S., Jr. "Prisoners at War: the POW Battleground." Dickinson Law Review, 1956, 60: 123-50.
Schein, E. H. "The Chinese Indoctrination Program for Prisoners of ",Var." Psychiatry, 1956, 19: 149-72.
Strassman, H. D., Thaler, ~L, and Schein, E. H. "A Pris­
oner of ",Yar Syndrome: Apathy as a Reaction to Severe Stress." American Journal ot Psychiatry, 1956, 112: 998­1003.
Thorin, Duane. "Code of Conduct Training." Naval Train­ing B1tlletin, Spring 1958.
ARTICLES IN POPULAR PERIODICALS
"American Hero; Interview." W. R. Dean. Scholastic, 18 Nov. 1953, 63: 6.
"American Prisoners in Korea." E. Kinkead. Reporter at Large. New Yorker, 26 Oct. 1957, 33: 114.
"Analyze 'Mind ",Vashing.''' Science News Letter, 16 May 1953, 63: 310-11.
"Bugs and Buddy-Buddy, Washed Brains of PO",Ys: Can They Be Rewashed?" Newsweek, 4 May 1953, 41: 35-7.
"Asiatic PO",Vs Throw the Book at Reds." Sat1t1"day Eve­ning Post, 14 Nov. 19.53,226: 10-11.
"Atrocities in Korea." America, 12 Dec. 1953, 90: 283.
"Back from Red Death Camps, POW's Rediscover Freedom." Newsweek, 17 Aug. 1953, 42: 29.
"Back of Germ Warfare Hoax-Tortures: U.S. Officers' Own Story of Forced 'Confessions.'," U.S. News <I; W01'ld Report, 4 Sep. 1953, 35: 24; 18 Sep. 1953, 35: 20-6.
"Big Lie; How Reds Got Germ Confessions." Lite, 9 Nov. 1953, 35: 51.
"Brain 'Warfare-Russia's Secret ",Veapon." Allen W. Dulles. U.s. News <f World Report, 8 May 1953, 54-58.
152
"Brainwashing." Time, 8 Oct. 1951, 58: 39–40.
 "Brain Washing in Stalinist China." D. H. Lew. Vital
 
Speeches, 1 June 1952, 18: 497-501. "Brainwashing at Work." Time, 26 May 1953, 59: 41. "Burial Above Ground." E. E. Fahy. Lite, 8 Sep. 1952,
33: 126–46. "Captiye Sales Audience." Newsweek, 2 Nov. 1953, 42: 81. "The Changed Concept of Man." Fulton J. Sheen. Vital
Speeches, 15 Noy. 1953, 20: 83-5. "The Cliches of Conduct." News Republic, 29 Aug. 1955,
133: 4. "Code Also for Prisoners of Defeatism." D. Lawrence.
U.S. News & W01'ld Report, 26 Aug; 1955, 39: 128. "Code for Our paws." America, 3 Sep. 1955, 93: 524-1). "Conflict Oyer PWs." Ame1'ica, 17 Oct. 1953,90: 63. "Courage and Loyalty Are Not for GI's Only." Saturday
Evening Post, 17 Sep. 1955, 228: 10. "Cowardice in Korea." Time, 2 Nov. 1953, 62: 31. "Destroying American Minds; Russians Made It a Science;
Text of Report to Political Committee, UN." G. W. Mayo.
U.S. News & World Report, 6 Nov. 1953, 35: 97-101. "Dogs, Rats-and Now, Men." New Republic, 9 Nov. 1953,
129: 8. "Forced Confessions." Science News Letter, 21 July 1951,
60: 43. "General Clark Reports on Korea." U.s. News &; World
Report, 14 Aug. 1953, 35: 82-5. "Germ Warfare: Forged Eyidence." Time, 9 Nov. 1953,
62:     22.
 153
 
"Germ ·Warfare: The Lie That ·Won." Fortune, Nov. 1953,
48: 92-4.
"GIs Outshine Eggheads in Resisting Reds." Sat~trday Evening Post, 31 Oct. 1953, 226: 10.
"Have ",Ye Let Our Sons Down?" E. Kinkead. McCall's, Jan. 1959, 86: 4.
"Heroism of General Dean Is Revealed ",Vhen Most Famous POW Is Set Free." Lite, 14 Sep. 1953, 35: 42-45.
"How Much Red Brainwashing Do We Expect a GI to Take?" Saturday Evening Post, 16 April 1955, 227: 10.
"How Reds Tortured U.S. Prisoners." U.S. News a World Report, 2 Sep. 1955, 39: 26-7.
"How Reds Used Captive Brains." Lite, 27 May 1957,
42: 77-82.
"How U.S. Prisoners Broke Under Red 'Brain Washing.''' Richard Wilson. Laale, 2 June 1953, 80-83.
"I Saw Red China from Inside." John D. Hayes. U.S. News a World Report, 13 Mar. 1953, 26-32.
"I Came Back from a Red Death Cell." Robert T. Bryan, Jr. Satttrday Evening Post, 17, 24, and 31 Jan.; 7 Feb. 1953.
"I "'Vas Stalin's Prisoner." R. A. Vogeler with L. ",Yhite. Saturday Evening Post, 27 Oct.; 3, 10, 17, and 24 Nov.; 1 Dec. 1951.
"It's Easy to Bluff Americans." B. Fay. Colliers, 16 May 1953, 131: 20-3.
"Just a Stone's Throw" (Anti-Comlllunist North Korean and Chinese Prisoners). Time, 28 Sep. 1952, 62: 19.
"Korean Puzzle; Americans Who Stay." U.s. News d: W orlel Report, 9 Oct. 1953, 35: 38-40.
"The Korean Prisoner-of-",Var Issue." Paul H. Douglas. TTital Speeches, 1 July 1953, 19: 568-70.
154
"A Line Must Be Drawn." Time,29 Aug. 1955, 66: 16-17. "Marines to the Rescue." Reporter, 8 Sep. 1955, 13: 2-4. "From the Ordeals of Prisoners of War in Korea-Moral
Mandate for All Americans." Lite, 27 Aug. 1955, 39: 31-4. "The New Code for War Prisoners." Christian Century, 7 Sep. 1955, 72: 1012. "Operation Persuader Backfires." America, 31 Oct. 1953,
90: 115.
"Ordeal in the Desert; Teaching Men How to Resist Brain­washing." P. Wyden. Newsweek, 12 Sep. 1955, 46: 33-5. Discussion, 19 Sep. 1955, 46: 36-8.
"Prescription for Our P.O.W.'s." W. Keempffert. Science Digest, Dec. 1953, 34: 29-30.
"Prisoners of War." Ch'ristian Century, 4 Nov. 1953, 70: 1254-6.
"The Prisoners." Commonweal, 16 Oct. 1953, 59: 25-9.
"Prisoners Swayed-Didn't Fall .. ." (Interview with C. B. Peterson). U.S. News & World Report, 28 Aug. 1953, 35:
28. "The Prisoners Who Broke." U.S. News&; World Report, 1
Aug. 1953, 35: 30-31. "Pro-Communist Twenty-Three." America, 10 Oct. 1953, 90 :
35. "Pros on Trial." Ame'l'ica, 29 Aug. 1953, 89: 511. "The, Rats." Newsweek, 24 Aug. 1953, 42: 30. " 'Reactionaries.''' Time, 7 Sep. 1953, 62: 32.
"Real Story of Returned Prisoners." GIs back from Korea.) UB. News May 1953, 54-63.  (Tape recordings of <f World Report, 29  
505596°–59—-11  ISS  

"Red Torture Broke Few GI's." U.S. News ((; World Report, 26 Aug. 1955, 39: 38-9. "Resistance to the Death by P''i''s.'' America, 3 Oct. 1953,
90: 1. "Riots and Repatriation Rules." Newsweek, 12 Oct. 1953,
42: 36. "The Roots of Courage." Colliers, 30 Sep. 1955, 136: 106. "The Second Humiliation." Time, 9 Nov. 1953, 62: 26. "Snafu at Valley Forge." Newsweelc, 18 May 1953, 41:
44–46. "A Soldier's Soldier." Time, 7 Dec. 1953, 62: 27-30. "Story of GI Turncoats." U.S. News ((; World ReZJOrt, 28
June 1957, 42: 58-64. "Terror and Torture: Five Prisoners' Stories." Newsweek, 17 Aug. 1953, 42: 32. "Terrors of Brain-'Vashing Ordeal." Harold 'V. Rigney. Vital Speeches, 1 June 1956, 22: 504-9. "They CllOse Freedom." ScllOlastic, 28 Oct. 1953, 63: 12.
"They Refuse To Go Home." Scholastic, 7 Oct. 1953, 63: 17.
"To a Young Progressive." Time, 19 Oct. 1953, 62: 32.
"Torture Techniques of ComIllunist Prosecutors in Iron Curtain Countries." Scholastic, 15 Mar. 1950, 56: 22.
"Tough Prisoners." Time, 21 Sep. 1953, 62: 28-9.
"Train Pilots To Resist Brain Washing." Science Digest, Jan. 1955, 37: 30.
"Training by Torture." Time, 19 Sep. 1955, 66: 21; Dis­cussion, 10 Oct. 1955, 66: 8.
"A Turncoat Comes Home." L. Bergquist. Loole, 25 June 1957, 21: 125-8.
"Valley Forge GIs Tell of Their Brainwashing Ordeal." William Brinkley. Life, 25 May 1953, 108-24.
"We Can Baffle the Brainwashers!" D. V. Gallery. Satur­drty Evening Post, 22 Jan. 1955, 227: 20.
156
"What a Man Must Do; Servicemen's Code." Newsweek, 29 Aug. 1955, 46: 18.
"What About Reds Among Freed U.S. Prisoners?" N(!'/IJs­week, 17 Aug. 1953, 42: 21.
"What Communists Did to Americans in Korea: Official Report." U.S. News & World Report, 26 Aug. 19G5, 39: 40-8.
"What Is Brainwashing?" F. 0. Stockwell. Christian Century, 28 Jan. 1953, 70: 104-5.
"What To Do About Brainwashing." U.s. Ne1D.~ &; 1For7cl RepoTt, 8 JUly 1955, 39: 24-5.
"'Vhy Did Many GI Cavtives Cave In?" Interview with Maj. William E. Mayer. U.S. News & WOTld Report, 24 Feb. 1956, 40: 50-72.
"Why Did Some GIs Turn Communist?" B. Stavleton and T. D. Harrison. CollieTs, 27 Nov. 1963, 132: 25-8.
"Why PO'Vs Collaborate." Science News LetteT, 11 May 1957, 71: 301.
"Why Some GIs Stay with Reds: Interview." S. S. Dickenson. U.S. News & 'WoTld Report, 13 Nov. 1953,
35: 33. "Without Honor." Ne1csLceek, 13 July 1D53, 43: 30.
RELATED BIBLIOGRAPHIES
Biderman, A. D., Herman, Louis lVI., and Howard, Harwell.
Reading 1J1ateTials in Ch'inese Communist IndoctTination Attempts Against American Prisoners ot War. Air Force Personnel and Training Research Center, Lacklancl Air Force Base, Texas.
Communist Explo-itation and IndoctTination ot POW's. Air University Library, Svecial Bibliographies, 1956.
Oklahoma Medical Research Foundation, BehaviOl'al Science Section. PO,V Research Project, Unclassified B'ibli­ography, 30 Sep. 1966.
157
THE SECRETARY OF DEFENSE
 WASHINGTON
 
6 August 1959
THE U.S. FIGHTING MAN'S CODE (DOD Pam 1-16). This official Department of Defense publication is for the use of per· sonnel in the military Services.
By ORDER OF THE SECRETARIES OF THE ARMY, THE NAVY, AND THE AIR FORCE:
L. L. LEMNITZER,
Genenll, United States Army,
 OFFICIAL: Chief of Staff.
 
R. V. LEE,
Major     General, United States Anny, The Adjutant General.
H.P. SMITH,
Vice Admiral, United States Navy, OFFICIAL: Chief of Naval Personnel.
K. M. McMANES,
Rear Admiral, United States Navy,
 Assistant Vice Admiral of Naval Operations/
 DiTector of Naval Administration.
 
158
THOMAS D. WHITE,
OFFICIAL: Ohief of Staff, United States Air Force.
J. L. TARR,
Oolonel, United States Air Force, Director otAdministrative Services.
R. MeC. PATE,
General, U.S. Marine Oorps, OFFICIAL: Oommandant Of the Marine Oorps. WALLACE M. GREENE, JR.,
Major General, U.S. Marine Oorps, Deputy Ohief of Staff (Plans).
DISTRIRUTION :
ArrYl/lj:
Active Army:
3 Copies per each 100 Military Personnel: Plus: ASA (CMA) (2) TJAG (2) ASA (FM) (2) TPMG (2) ASA (LOG) (2) TAG(XO) (2) ASA (MP&RF) (2) OJfCh (2) ASA (2) Tech Stf, DA (2) CofS (2) USCONARC (15) DCSPER (2) US ARADCOM (15) ACSI (2) US ARADCOM Rgn (15) DCSOPS (2) OS Maj Comel! (15) DCSLOG (2) OS BaseComd (5) '&CSRC (2) Log Comd (5) CAMG (2) MDW (15) CoA (2) Armies (15) except CUSARROTC (2) First US Army (17)
CofF (2) Corps (5)
 CINFO (30) Div (10)
 
~"CNGB (2) USATC (10) CLL (2) Brig (5) DRD (2) Regt/Gp/Bg (5) CRD (2) Bn (5) CMH (2) Co/Btry (2) TIG (2) Inst! (5)
159
USMA (75) PMST Mil Sch Div Units
 USACGSC (20) (2)
 USAWC (20) Rct Dist (2)
 Dr Svc Sch (20) RMS (2)
 Specialist Sch (10) MAAG (2)
 PMST Sr Div Units (2) Mil Msn (2)
 PMST Jr Div Units (2) ARMA (2)
 
NG: State AG (3); Div (3)'; Brig (1); RegtjGp
 
(2) ; Bn (1) ; CojBtry (2). USAR: Div (3) ; Brig (3); RegtjGp (3) ; Bn (3); CojBtry (2).
For     explanation of abbreviations used, see AR 320-50.
Air Force:
F.
160
u. s. GOVERNMENT PRINTING OFFICE: 1959
COVER PAGE- BACK
"OUR RELIANCE IS IN THE LOVE OF LIBERY WHICH GOD HAS PLANTED IN US", ABRAHAM LINCOLN