Department of Defense Law of War Manual (June 2015)

Transcript

1 D E A R T M E N T O F D E F E N S E P N A L O F W A R M A W U A L J U N E 2 0 1 5 O F F I C E O F G E N ER A L C O U N S E L D P A R T M E N T E O F D E F E N S E

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3 FOREWORD The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are. George Washington, as Commander in Chief of the Continental Army, agreed with his British adversary that the Revolutionary War would be “carried on agreeable to the rules which humanity formed” and “to prevent or punish every breach of the rules of war within the sphere of our respective commands.” During the Civil War , President Lincoln approved a set of “Instructions for the Government of the Armies of the United States in the Field,” which inspired other countries to adopt similar codes for their armed forces, and which served as a template for international codifications of the law of war. After World War II, U.S. military lawyers, trying thousands of defendants before military commissions did, in the words of Justice Robert Jackson, “stay the hand of vengeance and voluntarily submit their captive enemies to the ju dgment of law” in “one of the most significant tributes that Power has ever paid to Reason.” Reflecting on this distinctive history, one Chairman of the Joint Chiefs of Staff observed that “[t]he laws of war have a peculiarly American cast.” And it is al so true that the laws of war have shaped the U.S. Armed Forces as much as they have shaped any other armed force in the world. The law of war is a part of our military heritage, and obeying it is the right thing to do. But we also know that the law of war poses no obstacle to fighting well and prevailing. Nations have developed the law of war to be fundamentally consistent with the military doctrines that are the basis for effective combat operations. For example, the self -control needed to refrain from violations of the law of war under the stresses of combat is the same good order and discipline necessary to operate cohesively and victoriously in battle. Similarly, the law of war’s prohibitions on torture and unnecessary destruction are consistent with the practical insight that such actions ultimately frustrate rather than accomplish the mission. This manual reflects many years of labor and expertise, on the part of civilian and military lawyers from every Military Service. It reflects the experience of this Department in - applying the law of war in actual military operations, and it will help us remember the hard learned lessons from the past. Understanding our duties imposed by the law of war and our rights under it is essential to our service in the nation’s defense. Stephen W. Preston General Counsel of the Department of Defense ii

4 PREFACE -wide resource for DoD personnel – This manual is a Department of Defense (DoD) including commanders, legal practitioners, and other military and civilian personne l – on the law of war. This manual has many distinguished antecedents that have provided important guidance to the U.S. Armed Forces. For example, General Order No. 100, the Instructions for the Government of Armies of the United States in the Field, commonly known as the Lieber Code, was prepared by Professor Francis Lieber and approved by President Abraham Lincoln during 1 the Civil War in 1863. A similar code related to naval warfare titled The Law and Usages of Captain Charles H. Stockton and War at Sea: A Naval War Code was prepared by then- 2 approved by President William McKinley in 1900. The War Department published instructions for the armed land forces of the United States in a 1914 manual titled Rules of Land Warfare, 3 which was updated in 1917, 1934, and 1940. After World War II, in connection with U.S. ratification of the 1949 Geneva Conventions, the Department of the Navy published Naval Warfare Information Publication 10- 4 2, Law of Naval Warfare, in 1955, and the Department of the Army published Field Manual 27 - 5 10, The Law of Land Warfare, in 1956, which was updated in 1976. The Department of the Army also published pamphlets on international law applicable in peace and war in the 1960s, 6 The Department of the and, in 1979, an updated version of the pamphlet on the law of peace. Air Force published in 1976 Air Force Pamphlet 110- 31, International Law – The Conduct of 7 Armed Conflict and Air Operations, which was updated in 1980. ore recently , the Judge M Advocate General of the Air Force’s School has published a manual titled Air Force Operations 8 The Navy, Marine Corps, and Coast and the Law in 2002, with new editions in 2009 and 2014. 1 E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies RMIES OF A OVERNMENT OF G NSTRUCTIONS FOR THE I Apr. 24, 1863, of the United States in the Field, reprinted in U NITED S TATES IN THE F IELD (Government Printing Office, 1898). THE 2 John D. Long, Secretary of the Navy, General Orders No. 551, The Law s and Usages of War at Sea , Jun. 27, 1900, reprinted as Appendix I in U.S. Naval War College, International Law Discussions, 1903: The United States Naval War Code of 1900 , 101 (1904). 3 War Department, Office of the Chief of Staff, (Apr. 25, 1914); War Department, Office of Rules of Land Warfare the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914 with Changes Nos. 1 and 2, corrected to Apr. 15, 1917); Basic Field Manual, Volume VII, Military Law, Part Two: Rules of Land Warfare (Jan War Department, . 2, 1934); War Department Field Manual 27 -10, Rules of Land Warfare (Oct. 1, 1940). 4 Department of the Navy, Office of the Chief of Naval Operations, Naval Warfare Information Publication 10 -2, AR AND W AW OF L HE T OBERT W. T UCKER , R as reprinted (Sept. 1955), Law of Naval Warfare Appendix in EUTRALITY AT (U.S. Naval War College International Law Studies, Volume 50, 1955). EA N S 5 Department of the Army Field Manual 27 The Law of Land Warfare (Jul. 18, 1956 with Change 1, Jul. 15, -10, 1976). 6 Department of t he Army Pamphlet 27 -161- 2, II International Law (Oct. 23, 1962); Department of the Army (Sept. 1, 1979). Pamphlet 27 1, I International Law: The Law of Peace -161- 7 Department of the Air Force Pamphlet 110 -31, International Law – The Conduct of Armed Confl ict and Air (Nov. 19, 1976). Operations iii

5 Guard have published several editions of The Commander’s Handbook on the Law of Naval 9 Operations starting in 1987 and most recently in 2007. nnotated supplements have Helpful a 10 also been published. In addition to these major publications, DoD components have produced many other publications that have supported DoD lawyers in giving advice on the law of war. For example, 11 since 1895, the Naval War College has published its International Law Studies journal. The Judge Advocate General of the Army’s Legal Center & School has published many editions of a Law of Armed Conflict Deskbook, a Law of Armed Conflict Documentary Supplement, and an 12 Operational Law Handbook. foreign experts The preparation of this manual also has benefited greatly from consulting and resources – for example, the 2004 edition of the Manual of the Law of Armed Conflict by 13 United Kingdom Ministry of Defence. In this way, the preparation of this manual is no 1956 Army Field manual benefited from different from its predecessors. For example, the considering a draft of what ultimately became the 1958 United Kingdom law of war manual , and the preparation of the 1914 War Department manual benefited from the Rules of Land Warfare 14 a Oppenheim . prepared by officers of the English Army and Professor Lass The law of war 8 Air Force Operations and the Law Department of the Air Force, The Judge Advocate General’s School, (3rd ed., 2014); Department of the Air Force, The Judge Advocate General’s School, Air Force Operations & the Law: A Guide for Air, Space, and Cyber Forces (2nd ed., 2009); Department of the Air Force, Office of the Judge Advocate General, Air Force Operations & the Law (1st ed., 2002). 9 Department of the Navy, Naval Warfare Publication 9, the Law of Naval The Commander’s Handbook on Operations (Jul. 1987); Department of the Navy, Naval Warfare Publication 1 -14M / Marine Corps Warfighting Publication 5 -2.1 / Commandant Publication P5800.1, The Commander’s Handbook on the Law of Naval Operations (Oct. 1995); Department of the Navy, Naval Warfare Publication 1 -14M / Marine Corps Warfighting Publication 5 -12.1 / Commandant Publication P5800.7A, The Commander’s Handbook on the Law of Naval Operations (Jul. 2007). 10 Department of the Navy, Office of the Judge Advocate Gener al, Annotated Supplement to the Commander’s (1989); U.S. Naval War College, Center for 10 Handbook on the Law of Naval Operations, NWP (Rev.A)/FMFM 1- Annotated Supplement to the Commander’s Handbook Naval Warfare Studies, Oceans Law and Policy Department, on the Law of Naval Operations (1997). 11 See, e.g. Non -International Armed Conflict in the , U.S. Naval War College, International Law Studies, Vol. 88, -first Century (2012). Twenty 12 See, e.g. , The Judge Advocate General’s Legal Center and School, U.S. Arm y, International and Operational Law Department, Law of Armed Conflict Deskbook (2014); The Judge Advocate General’s Legal Center and School, U.S. Army, International and Operational Law Department, Law of Armed Conflict Documentary Supplement (2014); Judge Advocate General’s Legal Center and School, U.S. Army, International and Operational Law The Department, Operational Law Handbook (2014). 13 United Kingdom Ministry of Defence, Joint Service Publication 383, The Joint Service Manual of the Law of Armed Co nflict (2004). 14 Rules of Land Warfare See War Department, Office of the Chief of Staff, , Preface 7 (Apr. 25, 1914) (“Especial use was made of the Rules of Land Warfare, prepared by officers of the English Army and Prof. L. Oppenheim, LL.D., and of Prof. N agao Ariga’s book, ‘La Guerre Russo -Japonaise,’ which deals so carefully and thoroughly with the laws and usages of war during one of the greatest wars of recent times.”). iv

6 manuals of Germany, Australia, and Canada were also helpful resources in the pre paration of this 15 manual . The preparation of this manual has also benefited from the participation of officers from the United Kingdom’s Royal Air Force and the Australian Royal Air Force on exchange assignments with the U.S. Air Force. In addition, milit ary lawyers from Canada, the United Kingdom, New Zealand, and Australia reviewed and commented on a draft of the manual in 2009 as part of review that also included comments from distinguished scholars. -wide manual on the law of war has been a long -standing goal of Promulgating a DoD da and meeting notes from the 1970s reflect that the international law DoD lawyers. Memoran offices of the Department of the Army’s Office of the Judge Advocate General and the Department of the Navy’s Office of the Judge Advocate General generally agreed on a concept plan for a new all -Services law of war manual that would be a resource for implementing the 16 1977 Additional Protocols to the 1949 Geneva Conventions. At the time, it was anticipated atify the Protocols, which has not occurred. that the United States would r The origin of this manual may be traced to work in the late 1980s to update Department 17 of the Army Field Manual 27- 10, The Law of Land Warfare. Then, in the mid- 1990s, work began on an all -Services law of war manual to reflect the views of all DoD components. It was envisioned that the manual would provide not only the black letter rules, but also discussion, examples of State practice, and references to past manuals, treatises, and other documents to provide explanation, clarification, and elaboration. The present manual has sought to realize that vision and thus it falls within the tradition of the 1914 War Department manual, as well as the 1989 and 1997 Commander’s Handbook on the Law of Naval Operations, w hich also adopted this general approach of an annotated manual. This manual is an institutional publication and reflects the views of the Department of Defense, rather than the views of any particular person or DoD component. An effort has been made to reflect in this manual sound legal positions based on relevant authoritative sources of the law, including as developed by the DoD or the U.S. Government under such sources, and to show in the cited sources the past practice of DoD or the United States in applying the law of war. This manual primarily has been prepared by the DoD Law of War Working Group, which is chaired by a representative of the DoD General Counsel and includes representatives of the 15 Germany, Federal Ministry of Defence, Joint Service Regulation (ZDv) 15/2, Law of Armed Conflict Manual Law of Armed Conflict (May 1, 2013); Australian Defence Force, Australian Defence Doctrine Publication 06.4, (May 11, 2006); Canada, Department of National Defence, Joint Doctrine Manual B -GJ -005- 104/FP -021, Law of Armed Conflict at the Operational and Tactical Levels (Aug. 13, 2001). 16 Captain Bruce A. Harlow, JAGC, U.S. Navy, Memorandum for Mr. Waldemar H. Solf (DAJA Preparation -IA), of New Law of War Manual (Dec. 28, 1976). 17 Customary Law and Additional Pr otocol I to the Geneva Conventions for Protection Remarks by W. Hays Parks, MERICAN S OCIETY OF , 81 A of War Victims: Future Directions in Light of the U.S. Decision Not to Ratify I NTERNATIONAL L AW P ROCEEDINGS 26 (Apr. 9, 1987) (“I have the job of writing the new U.S. Army Field Manual 10, The Law of Land Warfare, so this panel is of particular interest to me.”). 27- v

7 Judge Advocates General of the Army, Navy, and Air Force ; the Staff Judge Advocate to the Commandant of the Marine Corps; the offices of the General Counsels of the Military 18 Departments; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. This manual has been reviewed by principals of these of fices. The preparation of this manual has also benefited significantly from the participation of experts from the Department of State, Office of the Legal Adviser, and the Department of Justice, Office of Legal Counsel, although the views in this manual d o not necessarily reflect the views of those Departments or the U.S. Government as a whole. Comments and suggestions from users of the DoD Law of War Manual are invited. All such correspondence should be addressed by email to: -law osd.pentagon.ogc.mbx.ia -of-war -manual [email protected] . 18 Department of Defense Directive 2310.01E, DoD Law of War Program ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22, 2011) (providing for a “DoD Law of War Working Gr oup, consisting of representatives, at the election by each of the GC, DoD; the General Counsel of each Military Department; the Counsel to the Commandant of the Marine Corps; the Judge Advocate General of each Military Department; the Staff Judge Advocate to the Commandant of the Marine Corps; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. The DoD Law of War Working Group shall develop and coordinate law of war initiatives and issues; support the research, preparation, review, and upd ating of the DoD Law of War Manual; manage other law of war matters as they arise; and provide advice to the General Counsel on legal matters covered by this Directive.”). vi

8 TABLE OF CONTENTS ...ii Foreword Preface ...iii Table of Contents ...vii List of Abbreviations ...xvii ...1 I – General Background 1.1 Purpose and Scope of This Manual ...1 -References, and S ignals in This Manual 1.2 Use of Footnotes, Sources, Cross ...2 1.3 Definition of the Law of War ...7 1.4 Object and Nature of War ...15 1.5 “War” as a Legal Concept ...18 ...20 1.6 Law of War Distinguished From Certain Topics 1.7 Treaties ...27 1.8 Customary International Law ...29 1.9 Subsidiary Means of Determining International Law ...34 1.10 Legal Force of the Law of War ...36 1.11 Jus ad Bellum ...39 II – Principles ...50 2.1 Introduction ...50 2.2 Military Necessity ...52 ...58 2.3 Humanity 2.4 Proportionality ...60 2.5 Distinction ...62 ...66 2.6 Honor ...70 III – Application of the Law of War 3.1 Introduction ...70 3.2 Situations to Which the Law of War Applies ...73 3.3 Status of the Parties and the Law of War ...73 3.4 When Jus in Bello ...78 Rules Apply 3.5 Relationship Between and Jus ad Bellum ...86 Jus in Bello 3.6 Reciprocity and Law of War Rules ...89 3.7 Applying Rules by Analogy ...92 3.8 End of Hostilities and the Application of the Law of War ...94 3.9 Law of War Duties Also Applicable in Peace ...96 IV – Classes of Persons ...98 4.1 Introduction ...98 vii

9 4.2 The Armed Forces and the Civilian Population ...100 ...103 4.3 Lawful Combatants and Unprivileged Belligerents ...106 4.4 Rights, D uties, and Liabilities of Combatants 4.5 Armed Forces of a State ...112 4.6 Other Militia and Volunteer Corps ...118 Levée en Masse 4.7 ...125 4.8 Rights, Duties, and Liabilities of Civilians ...127 ...129 4.9 Military Medical and Religious Personnel ...133 4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel 4.11 Authorized Staff of Voluntary Aid Societies ...134 4.12 Staff of a Recognized Aid Society of a Neutral Country ...135 4.13 A uxiliary Medical Personnel ...136 ...138 4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property 4.15 Persons Authorized to Accompany the Armed Forces ...142 4.16 Crews of Merchant Marine Vessels or Civil Aircraft ...148 4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines ...150 4.18 Private Persons Who Engage in Hostilities ...157 4.19 Rights , Duties, and Liabilities of Unprivileged Belligerents ...162 4.20 Children...166 4.21 Mercenaries ...170 4.22 AP I Provisions on Civil Defense Personnel ...172 4.23 Law Enforcement Officers ...172 ...173 4.24 Journalists 4.25 Delegates or Representatives of the Protecting Powers ...175 4.26 ICRC and Other Impartial Humanitarian Organizat ions ...176 ...179 4.27 Determining the Status of Detainees in Cases of Doubt V – The Conduct of Hostilities ...183 ...183 5.1 Introduction 5.2 Principles for the Conduct of Hostilities ...185 5.3 Overview o f Rules for the Protection of Civilians ...185 5.4 Assessing Information Under the Law of War ...192 5.5 Rules on Conducting Assaults, Bombardments, and Other Attacks ...194 ...203 5.6 Discrimination in Conducting Attacks ...205 5.7 Military Objectives 5.8 Combatants ...216 5.9 Civilians Taking a Direct Part in Hostilities ...222 5.10 Pers ons Placed Hors de Combat ...232 5.11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to ...237 Protected Persons and Objects 5.12 Proportionality in Conducting Attacks ...241 5.13 Attacks on Facilities, Works, or Installations Containing Dangerous Forces ...247 5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack ...248 viii

10 5.15 Undefended Cities, Towns, and Villages ...253 5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military Operations ...258 ...261 on of Enemy Property 5.17 Seizure and Destructi 5.18 Protection of Cultural Property During Hostilities ...269 ...288 5.19 Sieges and Encircled Areas 5.20 Starvation ...291 ...294 5.21 Overview of Good Faith, Perfidy, and Ruses 5.22 Treachery or Perfidy Used to Kill or Wound...296 5.23 Use of Enemy Flags, Insignia, and Military Uniforms ...298 5.24 Improper Use of Certain Signs ...300 5.25 Ruses of War and Other Lawful Deceptions ...302 Forcible Means and Methods of Warfare 5.26 Non- ...307 5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed Against Their Own Country ...310 VI – Weapons ...312 6.1 Introduction ...312 6.2 DoD Policy of Reviewing the Legality of Weapons ...313 6.3 Other Practices to Help Implement Law of War Obligations With Respect to Weapons ...316 6.4 Prohibited Weapons ...317 6.5 Lawful Weapons ...318 6.6 Weapons Calculated to Cause Superfluous Injury ...334 pons 6.7 Inherently Indiscriminate Wea ...340 6.8 Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons ...343 6.9 Biological Weapons ...350 ...352 6.10 Certain Environmental Modification Techniques -Rays 6.11 Weapons Injuring by Fragments Not Detectable by X ...355 -Traps, and Other Devices 6.12 Landmines, Booby ...356 6.13 Cluster Munitions ...380 6.14 Ince ndiary Weapons ...382 6.15 Laser Weapons ...387 ...389 6.16 Riot Control Agents 6.17 Herbicides ...392 6.18 Nuclear Weapons ...393 6.19 Explosive Ordnance ...395 6.20 Explosive Remnants of War ...400 VII –Wounded, Sick, Shipwrecked, Dead, and the Medical Services ...410 7.1 Introduction ...410 7.2 Application of the Protections of the GWS and GWS -Sea...413 ...415 7.3 Respect and Protection of the Wounded, Sick, and S hipwrecked ix

11 7.4 Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, and Dead ...420 7.5 Humane Tre atment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power of a Party to the Conflict ...424 7.6 Accountability Information From the Enemy Military Wounded, Sick, and Dead ...428 Shipwrecked, ...430 7.7 Treatment and Handling of Enemy Military Dead ious Personnel 7.8 Respect and Protection of Categories of Medical and Relig ...435 ...438 7.9 Captured Medical and Religious Personnel ...444 7.10 Military Medical Units and Facilities 7.11 Ground Transports of the Wounded and Sick, or of Medical Equipment ...451 7.12 Hospital Ships, Sick -Bays in Warships, and Coastal Rescue Cr aft ...453 7.13 Chartered Medical Transport Ships ...465 ...466 7.14 Military Medical Aircraft 7.15 Display of the Distinctive Emblem to Facilitate Identification ...470 7.16 Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers ...477 7.17 Civilian Hospitals and Their Personnel ...478 7.18 Land and Sea Civilian Hospital Convoys ...481 7.19 Civilian Medical Aircraft ...482 7.20 AP I Provisions on the Wounded, Sick, and Shipwrecked ...483 VIII – Detention: Overview and Baseline Rules ...486 8.1 Introduction ...486 ...492 8.2 Humane Treatment of Detainees 8.3 Security Measures ...495 8.4 Interrogation ...496 ng ...497 8.5 Adequate Food, Drinking Water, and Clothi ...497 8.6 General Conditions of Detention Facilities ...498 8.7 Segregation of Detainees 8.8 Medical Attention ...499 8.9 Administration and Discipline in Detention Facilities ...500 8.10 Contacts With the Outside World ...500 8.11 Religious Exercise ...501 ...502 8.12 Intellectual, Physical, and Recreational Activities 8.13 Adequate Working Conditions ...503 8.14 Procedures for Detention ...503 8.15 National Accountability for Detention ...506 8.16 Criminal Procedure and Punishment ...508 IX – Prisoners of War (POWs) ...511 9.1 Introduction ...512 9.2 General Principles Applicable to the Treatment of POWs ...515 ...517 9.3 POW Status x

12 9.4 National -Level GPW Implementation Measures ...522 POWs 9.5 Humane Treatment and Basic Protections for ...524 9.6 Security Measures With Respect to POWs ...529 9.7 POW Effects and Articles of Personal Use ...530 ...532 9.8 Interrogation of POWs 9.9 Evacuation From Combat Areas ...534 ening Facilities 9.10 Transit or Scre ...536 9.11 General Conditions in POW Camps: Location, Safety, Hygiene, and Living Conditions ...538 9.12 Segregation of POWs ...544 9.13 Food, Water, Tobacco, and Clothing for POWs ...545 9.14 Medical Attention for Interned POWs ...548 ...550 9.15 Religious Exercise by POWs ...551 9.16 Intellectual, Physical, and Recreational Activities 9.17 Canteens for POWs ...553 9.18 Financial Resources of POWs ...555 9.19 POW Labor ...562 9.20 POW Correspondence and Relief Shipments ...569 9.21 Private Legal Matters of POWs ...577 9.22 Internal Discipline of POW Camps ...578 9.23 POW Requests, Complaints, and Reports About Conditions of Captivity ...582 ...584 9.24 POW Repr esentatives 9.25 POW Escapes ...591 ...595 9.26 General Principles Applicable to POW Discipline 9.27 Disciplinary Proceedings and Punishment ...598 9.28 Judicial Proceedings and Punishment ...603 9.29 Transfer of POWs From the POW Camp ...610 ...611 9.30 Transfer of POWs to the Custody of Another Detaining Power ...613 9.31 National Accounting of the Detention of POWs ...618 9.32 Role of the Protecting Power in the GPW 9.33 Access to POWs by the Protecting Powers, ...621 ICRC, and Relief Organizations 9.34 Death of POWs ...622 9.35 Exchanges and Other Release and Repatriation of POWs During Host ilities ...626 9.36 Direct Repatriation and Accommodation in Neutral Countries During Hostilities ...627 After Hostilities ...632 9.37 Release and Repatriation ...638 9.38 Procedure on Release and Repatriation After Hostilities 9.39 Code of Conduct for U.S. Armed Forc es ...640 X – Civilians in the Hands of a Party to the Conflict ...644 10.1 ...645 Introduction 10.2 National -Level GC Implementation Measures ...647 10.3 Protected Person Status ...648 10.4 Derogation for S ecurity Reasons ...654 ...655 10.5 Humane Treatment and Other Basic Protections for Protected Persons xi

13 10.6 Measures of Control and Sec urity ...659 ...662 10.7 General Treatment of Protected Persons in a Belligerent’s Home Territory 10.8 Expulsion From Areas Within a B elligerent’s Home Territory and Departure and Transfers of Protected Persons From a Belligerent’s Home Territory ...664 10.9 Internment ...667 ...671 10.10 Segregation of Internees ...672 10.11 Safety, Hygiene, and Living Conditions in Places of Internment ens for Internees ...675 10.12 Cante ...677 10.13 Food, Water, Tobacco, and Clothing for Internees 10.14 Medical Attention for Internees ...678 10.15 Religious Exercise by Internees ...680 10.16 Intellectual, Physical, and Recreational Activities ...682 ...683 10.17 Internee Labor 10.18 Internees’ Articles of Personal Use ...685 10.19 Financial Resour ces of Internees ...686 10.20 Administration of Places of Internment and Discipline ...689 10.21 Internee Petitions, Complaints, and R eports About Conditions of Internment ...690 10.22 Internee Committees ...692 10.23 Internee Correspondence and Relief Shipments ...696 10.24 Private Legal Matters of Internees ...703 10.25 Internees and Visits of Family and Friends ...705 10.26 Internee Escapes ...706 10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions Regarding Internees ...707 ...708 10.28 Disciplinary Proceedings and Punishment 10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory or ’s Home Territory ...713 Internees in a Belligerent ...717 10.30 Transfers of Internees From the Place of Internment 10.31 National Accounting for Protected Pers ...720 ons in Its Power ...725 10.32 Role of the Protecting Power in the GC 10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief Organizations ...727 10.34 Death of Internees ...729 10.35 Release, Return, Repatriation of Internees After the Close of Hostilities ...732 ...735 XI – Military Occupation ...735 11.1 Introduction 11.2 When Military Occupation Law Applies ...744 11.3 End of Occupation and Duration of GC Obligations ...750 11.4 Legal Position of the Occupying Power ...752 11.5 Duty of the Occupying Power to Ensure Public Order and Safety ...754 11.6 Protection of the Populati on of an Occupied Territory ...756 11.7 Authority of the Occupying Power Over Inhabitants ...758 ...761 tory 11.8 Administration of Occupied Terri xii

14 11.9 Local Law and Legislation...763 ...767 11.10 Ordinary Courts in Occupied Territory 11.11 Criminal Law in Occupied Territory ...769 11.12 Movement of Persons in Occupied Territory...777 11.13 Protection of Children in Occupied Territory ...780 ...781 11.14 Food and Medical Supplies for the Civilian Population Health and Hygiene 11.15 Public ...782 ...784 11.16 Spiritual Assistance ...785 11.17 Relief Efforts and Consignments 11.18 Enemy Property During Occupation ...788 11.19 Protection of Cultural Property During Occupation ...798 11.20 Labor of Protected Persons in Occupied Territory ...800 ...806 11.21 Judges and Other Public Officials 11.22 Public Fina ...807 nces and Taxes 11.23 Other Economic Regulation of Occupied Territory ...817 XII – Non -Hostile Relations Between Belligerents ...822 12.1 Introduction ...822 12.2 Principle of Good Faith in Non- Hostile Relations ...825 12.3 Methods for Communication Between Belligerents ...826 12.4 The White Flag of Truce to Initiate Negotiations ...827 12.5 Rules for Parlementaires ...829 12.6 Military Passports, Safe -Conducts, and Safeguards ...834 ...839 12.7 Cartels 12.8 Capitulations – Negotiated Instruments of Surrender ...839 12.9 Capitulations – Subjects Usually Addressed ...843 12.10 Capitulations – Violations and Denunciation ...845 -Fire Agreements 12.11 Armistices and Other Cease ...847 12.12 Armistices – Subjects Usually Addressed ...852 ...856 12.13 Armistices – Violations and Denunciation curity Council Cease- Fires ...858 12.14 U.N. Se XIII – Naval Warfare ...860 13.1 Introduction ...860 ...862 13.2 Legal Boundaries of the Oceans 13.3 Overview of Rules for Naval Engagements ...870 13.4 Enemy Warships ...873 13.5 Enemy Merchant Vessels ...874 13.6 Enemy Vessels Exempt From Capture or Destruction ...877 13.7 Submarine Warfare ...879 13.8 Belligerent Control of the Immediate Area of Naval Operations ...880 13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and Safety ...882 ...886 13.10 Blockade xiii

15 13.11 Naval Mines ...892 ...898 13.12 Torpedoes 13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags ...898 XIV – Air and Space Warfare ...900 ...900 14.1 Introduction 14.2 Legal Boundaries of Airspace ...904 14.3 Aircraft Status ...909 14.4 Status of Aircrew on Military Aircraft ...912 14.5 Measures Short of Attack: Interception, Diversion, and Capture ...914 14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities ...916 ...916 14.7 Airspace Zones 14.8 Attacks Against Military Objectives in the Air ...917 14.9 Air Attacks Against Military Objectives on the Ground ...920 14.10 International Law And Warfare in Outer Space ...922 XV – The Law of Neutralit y ...929 15.1 Introduction ...929 15.2 Application of the Law of Neutrality ...933 15.3 Overview of the Neutrality Law’s Framework of Reciprocal Rights and ...939 Duties 15.4 Remedies for Violations of Neutrality Law ...943 ...946 15.5 Prohibition on the Use of Neutral Territory as a Base of Operations 15.6 Neutral Persons ...950 15.7 Neut ...954 ral Waters 15.8 Passage of Belligerent Vessels and Aircraft Through International Straits and ...957 Archipelagic Sea Lanes 15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal ...959 Waters 15.10 Neutral Airspace ...964 15.11 Belligerent Right of Angary...965 15.12 Neutral Commerce and Carriage of Contraband ...967 15.13 Belligerent Right of Visit and Search of Mercha nt Vessels and Civil ...973 Aircraft 15.14 Acquisition of Enemy Character by Neutral -Flagged Merchant Vessels and Neutral -Marked Civil Aircraft ...977 15.15 Capture of Neutral Vessels and Aircraft ...979 15.16 Belligerent Forces Taking Refuge in Neutral Territory ...984 15.17 POWs or Internees Brought to, or Received by, a Neutral State ...989 15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral Territory ...991 ...994 XVI – Cyber Operations xiv

16 16.1 Introduction ...994 erations ...996 16.2 Application of the Law of War to Cyber Op ...998 Jus ad Bellum 16.3 Cyber Operations and 16.4 Cyber Operations and the Law of Neutrality ...1002 Jus in Bello ...1003 16.5 Cyber Operations and ...1008 16.6 Legal Review of Weapons That Employ Cyber Capabilities -International Armed Conflict (NIAC) ...1010 XVII – Non ...1010 17.1 Introduction 17.2 Application of International Law to NIACs ...1015 17.3 Special Agreements Between Parties to the Conflict ...1023 17.4 A State’s Use of Its Domestic Law an d NIAC ...1025 ...1029 17.5 Principle of Distinction in NIAC 17.6 Respect and Humane Treatment of Persons Taking No Active Part in tilities in NIAC ...1032 Hos 17.7 Rules on Conducting Attacks in NIAC ...1033 17.8 Impartial Humanitarian Organizations and Humanitarian A ctivities During NIAC ...1035 17.9 Protection of the Civilian Population in NIAC ...1035 17.10 Protection of Children in NIAC ...1037 17.11 Protection of Cultural Property in NIAC ...1038 17.12 Use of Captured or Surrendered Enemy Personnel in NIAC ...1039 ...1041 17.13 Weapons in NIAC 17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC ...1042 17.15 Protection of Medical and Religious Personnel and Medical Transports in NIAC ...1044 ...1045 17.16 Display of the Distinctive Emblem in NIAC 17.17 Detention in NIAC ...1046 Intervention and Neutral Duties in NIAC ...1047 17.18 Non- ...1052 XVIII – Implementation and Enforcement of the Law of War 18.1 Introduction ...1052 18.2 Prudential Reasons Supporting the Implementati on and Enforcement of the Law of War ...1055 ...1057 18.3 Duties of Individual Members of the Armed Forces 18.4 Commanders’ Duty to Im ...1059 plement and Enforce the Law of War 18.5 Role of Judge Advocates and Legal Advisers ...1061 18.6 Dissemination, Study, and Othe r Measures to Facilitate Understanding of Duties Under the Law of War ...1063 18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law of War ...1066 18.8 Considering Law of War Obligations in the Planning of Military Operations ...1069 18.9 States’ Obligations With Respect to Violations of the Law of War ...1070 ...1077 18.10 Methods for Responding to Violations of the Law of War by the Enemy xv

17 18.11 Protests and Demands to the Offending Party ...1078 ...1078 18.12 U.N. Security Council and Enforcement of the Law of War 18.13 National Investigations of Alleged Violations of the Law of War ...1082 18.14 International Mechanisms to Investigate Alleged Law of War Violations ...1084 r and Other Neutral Intermediaries ...1085 18.15 Protecting Powe 18.16 Compensation for Violations of the Law of War ...1089 ...1092 18.17 Retorsion 18.18 Reprisals ...1093 18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law of War ...1100 18.20 Prosecution in International and Hybrid Courts ...1108 18.21 Limits on the Punishment of Individuals Under the Law of War ...1113 18.22 Principles of Individual Criminal Responsibility for Crimes Under International Law ...1118 ...1122 18.23 Theories of Individual Criminal Liability XIX Documentary Appendix – Notes on Treaties and Other Relevant Documents ...1131 19.1 Introduction ...1131 19.2 Lists of Treaties and Other Documents ...1131 19.3 Lieber Code ...1138 19.4 1856 Paris Dec laration Respecting Maritime Law ...1139 ...1140 19.5 1864 GWS 19.6 1868 St. Petersburg Declaration ...1140 ...1141 19.7 1899 and 1907 Hague Declarations on Weapons 19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations Regarding Land Warfare ...1143 19.9 1907 Hague X ...1146 ...1146 19.10 1922 Washington Treaty on Submarines and Noxious Gases 19.11 1923 Hague Air and Radio Rules ...1147 ...1148 19.12 1925 Geneva Gas and Bacteriological Protocol 19.13 1929 Geneva Conventions ...1150 19.14 1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London Protocol ...1151 19.15 1935 Roerich Pact ...1151 19.16 1949 Geneva Conventions ...1152 19.17 1954 Hague Cultural Property Convention...1157 ...1159 19.18 Vienna Convention on the Law of Treaties 19.19 Biological Weapons Convention ...1159 19.20 1977 Additional Protocols to the 1949 Geneva Conventions ...1160 19.21 CCW, CCW Amended Article 1, and CCW Protocols ...1164 19.22 Chemical Weapons Convention ...1172 19.23 Rome Statute of the International Criminal Court ...1174 19.24 1999 U.N. Secretary General’s Bulletin for U.N. Forces ...1175 19.25 2005 ICRC Study on Customary International Humanitarian Law ...1175 19.26 AP III ...1176 xvi

18 LIST OF ABBREVIATIONS easier to read , the use of abbreviations has often been avoided, To make the manual especially in the main text. Nonetheless, the following abbreviations of the titles of documents e been used for frequently cited documents. hav Long Form Abbreviation 1899 Hague II Convention with Respect to the Laws and Customs of War on Land, Jul. 29, 1899, 32 Stat. 1803 1899 Hague II Reg. Regulations Respecting the Laws and Customs of War on annexed to Convention with Respect to the Laws and Land, Customs of War on Land, Jul. 29, 1899, 32 Stat. 1803, 1811 1909 Declaration of London Declaration Concerning the Laws of Maritime War, Feb. 26, 1909, reprinted in James Brown Scott, The Declaration of London, February 26, 1909: A Collection of Official Papers and Documents Relating to the International Naval February, Conference Held in London, December, 1908— 1909 (1919) 1914 Rules of Land Warfare War Department, Office of the Chief of Staff, Rules of L and Warfare (Apr. 25, 1914) 1925 Geneva Gas and Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Protocol Bacteriological Methods of Warfare, Jun. 17, 1925, 94 LNTS 65 1928 Pan American Mar itime Pan American Maritime Neutrality Convention, Feb. 20, Neutrality Convention 1928, 47 Stat. 1989 1929 GPW Geneva Convention Relative to the Treatment of Prisoners of War, Jul. 27, 1929, 47 Stat. 2021 Geneva Convention for the Amelioration o f the Condition 1929 GWS of the Wounded and Sick of Armies in the Field, Jul. 27, 1929, 47 Stat. 2074 War Department, Field Manual 27 - 1940 Rules of Land Warfare Rules of Land 10, Warfare (1940) 1944 Chicago Convention Convention on International Civil Aviation, D ec. 7, 1944, 61 Stat. 1180 1954 Hague Cultural Property Convention for the Protection of Cultural Property in the Convention 249 UNTS 240 Event of Armed Conflict, - 1955 NWIP 10 Department of the Navy, Office of the Chief of Naval 2 Operations, Naval Warfa re Information Publication 10- 2, Law of Naval Warfare (Sept. 1955), reprinted as Appendix in Robert W. Tucker, The Law of War and Neutrality at (U.S. Naval War College International Law Studies, Sea Volume 50, 1955) The Law of - 10 (Change No. 1 Depar tment of the Army Field Manual 27 - 10, 1956 FM 27 (Jul. 18, 1956 with Change 1, Jul. 15, 1976) 1976) Land Warfare xvii

19 Abbreviation Long Form United Kingdom War Office, 1958 UK Manual Manual of Military Law, Part (1958) III: The Law of War on Land Departmen - - 31, 1976 Air Force Pamphlet 110 31 t of the Air Force Pamphlet 110 International Law – The Conduct of Armed Conflict and (Nov. 19, 1976) Air Operations 1989 NWP 9 Department of the Navy, Office of the Judge Advocate General, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, NWP - 10 (1989) (Rev.A)/FMFM 1 1997 Multi - Service Detention 8 / Office of the Chief of Naval Army Regulation 190 - Regulation Operations Instruction 3461.6 / Air Force Joint Instruction 31- 304 / Marine Corps Order 3461.1, Enemy Prisoners o f War, Retained Personnel, Civilian Internees and Other (Oct. 1, 1997) Detainees U.S. Naval War College, Center for Naval Warfare Studies, 1997 NWP 9 Annotated Supplement Oceans Law and Policy Department, to the Commander’s Handbook on the Law of Naval erations Op (1997) 2001 Canadian Manual Canada, Department of National Defence, Joint Doctrine Manual B -GJ -005- 104/FP -021, Law of Armed Conflict at the Operational and Tactical Levels (Aug. 13, 2001) Service 2004 UK Manual United Kingdom Ministry of Defence, Joint Publication 383, The Joint Service Manual of the Law of Armed Conflict (2004) Australian Defence Force, Australian Defence Doctrine 2006 Australian Manual Publication 06.4, Law of Armed Conflict (May 11, 2006) - 2007 NWP 1 Department of the Nav y, Naval Warfare Publication 1 - 14M 14M / Marine Corps Warfighting Publication 5- 12.1 / Commandant Publication P5800.7A, The Commander’s Handbook on the Law of Naval Operations (Jul. 2007) Germany, Federal Ministry of Defence, Joint Service 2013 German Manual Law of Armed Conflict Manual Regulation (ZDv) 15/2, (May 1, 2013) AJIL American Journal of International Law AP I Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Confl icts, Jun. 8, 1977, 1125 UNTS 3 AP II Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non -International Armed Conflicts, Jun. 8, 1977, 1125 UNTS 609 iii xv

20 Abbreviation Long Form e Geneva Conventions of 12 AP III Protocol (III) Additional to th August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005, 2404 UNTS 1 Appendix to John W. Vessey, Jr., Chairman, Joint Chiefs of Appendix to 1985 CJCS Memo on AP I Staff, Review of the 1977 Fir st Additional Protocol to the Geneva Conventions of 1949 , May 3, 1985. Bevans Charles I. Bevans, Assistant Legal Adviser, Department of State, Treaties and Other International Agreements of the 1949 (13 Volumes, 1968- United States of America, 1776- 1976) Biological Weapons Convention Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 1015 UNTS 163 Bothe, Partsch, & Solf, New Rules Michael Bothe, Karl Josef Partsch, & Waldemar A. Solf, New Rules for Victims of Armed Conflicts (1982) CCW Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137 Amendment to Article I of the Convention on Prohibitions CCW Amended or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively riminate Effects, De Injurious or to Have Indisc c. 21, 2001, 2260 UNTS 82 CCW Amended Mines Protocol Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby -Traps and Other Devices, as Amended on May 3, 1996, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certa in Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, May 3, 1996, 2048 UNTS 93 CCW Protocol I Protocol (I) on Non - Detectable Fragments, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137 CCW Protocol III on Incendiary Protocol (III) on Prohibitions or Restrictions on the Use of Weapons Incendi ary Weapons, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 UNTS 137 xix

21 Abbreviation Long Form Protocol (IV) on Blinding Laser Weapons, Annexed to the CCW Protocol IV on Blinding Convention on Prohibitions or Restrictions on the Use of Laser Weapons Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 0 UNTS 163 Oct. 13, 1995, 138 Protocol (V) on Explosive Remnants of War, Annexed to CCW Protocol V on Explosive the Convention on Prohibitions or Restrictions on the Use Remnants of War of Certain Conventional Weapons Which May be Deemed ve Indiscriminate to be Excessively Injurious or to Ha Effects, Nov. 28, 2003, 2399 UNTS 100 Chairman’s Commentary to the The Copenhagen Process on the Handling of Detainees in Copenhagen Process: Principles Chairman’s Commentary International Military Operations, to the Cope nhagen Process: Principles and Guidelines and Guidelines (Denmark, Ministry of Foreign Affairs, Oct. 19, 2012) Convention on the Prohibition of the Development, Chemical Weapons Convention Production, Stockpiling and Use of Chemical Weapons and n. 13, 1993, 1974 UNTS 317 on Their Destruction, Ja The Copenhagen Process on the Handling of Detainees in Copenhagen Process: Principles and Guidelines International Military Operations, The Copenhagen Process: Principles and Guidelines (Denmark, Ministry of Foreign Affairs, Oc t. 19, 2012) Digest of United States Practice in Digest of United States Practice in International Law (Department of State, Office of the Legal Adviser) International Law ENMOD Convention Convention on the Prohibition of Military or Any Other Hostile Us e of Environmental Modification Techniques, Dec. 10, 1976, 1108 UNTS 151 Final Record of 1949 Geneva Diplomatic Conference of Geneva, Final Record of the Diplomatic Conference ( Switzerland, Diplomatic Conference of Geneva of 1949 ent, 1949) Federal Political Departm Final Report on the Persian Gulf Department of Defense, Conduct of the Persian Gulf War: War Final Report to Congress (1992) GC Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287 GC Co mmentary Jean S. Pictet, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary ( International Committee of the Red Cross, ) 1958 GPW Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U NTS 135 GPW Commentary Jean S. Pictet, Geneva Convention Relative to the Treatment of Prisoners of War: Commentary (International Committee of the Red Cross, 1960) Greenspan, Modern Law of Land Morris Greenspan, The Modern Law of Land Warfare 959) Warfare (1 xx

22 Abbreviation Long Form Hugo Grotius, De Jure Belli Grotius, Law of War & Peace The Law of War and Peace: W. Kelsey, 1925) ac Pacis Libri Tres (translated by Francis GWS Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 UNTS 31 GWS Commentary Jean S. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary (International Committee of the Red Cross, 1952 ) GWS - Geneva Con vention for the Amelioration of the Condition Sea of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 UNTS 85 GWS - Sea Commentary Jean S. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea: Commentary (International Committee of the Red Cross, 1960 ) Hague IV Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277 Hague IV Reg. and Customs of War on Regulations Respecting the Laws Land, Annex to Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907 36 Stat. 2295 , Hague IX Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351 Hague V tion (V) Respecting the Rights and Duties of Conven Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310 Convention (VIII) Relative to the Laying of Automatic Hague VIII Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332 Hague X Co nvention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, Oct. 18, 1907, 36 Stat. 2371 Convention (XI) Relative to Certain Restrictions with Hague XI Regard to the Exercise of the Right of Capture in Naval 8, 1907, 36 Stat. 2396 War, Oct. 1 Hague XIII Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415 ICJ Statute Statute of the International Court of Justice (Annex to the Charter of the United Nations), Jun. 26, 1945, 59 Stat. 1055 ICRC AP Commentary Jean S. Pictet et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 (International Committee of the Red Cross, August 1949 1987) xxi

23 Abbreviation Long Form International Criminal Tribunal for the Prosecution of ICTR Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of N eighbouring States, between 1 January 1994 and 31 December 1994 Statute of the ICTR, Annex to U.N. Security Council ICTR Statute Resolution 955 (1994), U.N. Doc. S/RES/955(1994) (Nov. 8, 1994). International Tribunal for the Prosecution of Persons ICTY Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Statute of the ICTY, ICTY Statute Report of the Secretary - Annex to General Pursuant to Paragraph 2 of Security Council olution 808 (1993) , U.N. Doc. S/25704 (May 3, 1993), Res adopted by U.N. Security Council Resolution 827 (1993), U.N. Doc. S/RES/827(1993) (May 25, 1993). , Law of Text s School U.S. A rmy, The Judge Advocate General’ J.A.G.S. Text No. 11 No. 11, Law of Belligerent Occupation ( Jun. 1, 1944, Belligerent Occupation eissued Jul. 2, 1945) r Lauterpacht, II Oppenheim’s Lassa Oppenheim, International Law, Volume II: Disputes, International Law War and Neutrality (edited by H. Lauterpacht, 7th ed., 1952) nts on POWs Howard S. Levie, Documents on Prisoners of War (U.S. Levie, Docume Naval War College International Law Studies, Volume 60, 1979) Howard Levie, Prisoners of War in International Armed Levie, POWs (U.S. Naval War College International Law Conflicts Volume 59, Studies, 1978) Lieber Code E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies of the United States in the Field , Apr. 24, 1863, reprinted in ed Instructions for the Government of Armies of the Unit States in the Field (Government Printing Office, 1898). LNTS League of Nations Treaty Series LOS Convention United Nations Convention on the Law of the Sea, Dec.10, 1982, 1833 UNTS 396. Message from the President resident of the United States Message from the P Transmitting AP II Transmitting the Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, Treaty Doc. 100- 2 ) (1987 xxii

24 Abbreviation Long Form Message from the President Message from the President of the United States Transmitting AP III, CCW transmitting Protocol Additional to the Geneva Amended Article 1, and CCW Conventions of 12 August 1949, and Rela ting to the Protocol V on Explosive Adoption of an Additional Distinctive Emblem (The Remnants of War “Geneva Protocol III”), Adopted at Geneva on December 8, 2005, and Signed by the United States on that date; The Amendment to Article 1 of the Convention on Prohibitions se of Certain Conventional or Restrictions on the U Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (“The CCW Amendment”); and The CCW Protocol Explosive Remnants of War (The “CCW Protocol V”), Treaty Doc. 109 - 10 (2006) Message from the P resident Message from the President of the United States Transmitting LOS Convention transmitting the United Nations Convention on the Law of the Sea, with Annexes, and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with Annex, Adopted at New York on July 28, 1994 and signed by the United States, Subject to Ratification on July 29, 1994, Treaty - 09 (1994) Doc. 103 Message from the President Message From the President of the United States Transmitting the 1925 Geneva Gas Transmitting The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of and Bacteriological Protocol Bacteriological Methods of Warfare, Signed at Geneva 0) June 17, 1925, Executive J (197 Message from the President Message from the President of the United States Transmitting the 1954 Hague Transmitting the Hague Convention for the Protection of Cultural Property Convention Cultural Property in the Event of Armed Conflict (the Convention) and, for Accession, the Hague Protocol, Concluded on May 14, 1954, and Entered into Force on August 7, 1956 with Accompanying Report from the Department of State on the Convention and the Hague 1 (1999) Protocol, Treaty Doc. 106 - xxiii

25 Abbreviation Long Form nt Message from the Preside the President of the United States Message From Transmitting the CCW Amended Transmitting Protocols to the 1980 Convention on he use of Certain Prohibitions or Restrictions on t Mines Protocol, Protocol III on Incendiary Weapons, and Protocol Conventional Weapons which may be deemed to be excessively injurious or to Have Indiscriminate effects: IV on Blinding Laser Weapons The Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby -traps or other devices (Protocol II or the Amended Mi nes Protocol); The Protocol On Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III or the Incendiary Weapons Protocol); and the Protocol on Blinding Laser Weapons (Protocol IV), Treaty Doc. 105 - 1 (1997) Message from the President Message from the President of the United States Transmitting the Chemical Transmitting the Convention on the Prohibition of Weapons Convention Development, Production, Stockpiling, and use of Chemical Weapons and on their Destruction, Opened for Signature and Signed by the United States at Paris on Jan. 13, 1993, Treaty Doc. 103 - 21 (1993) Message from the President Message from the President of the United States Transmitting the VCLT Transmitting the Vienna Convention on the Law of Treaties Signed for the U nited States on April 24, 1970, Executive L (1971) Moore’s Digest (8 John Bassett Moore, A Digest of International Law Volumes, 1906) Official Records of the Diplomatic Conference on the Official Records of the CDDH Reaffirmation and Development of Inte rnational Humanitarian Law Applicable in Armed Conflicts, Geneva - 1977 (16 Volumes, 1978) 1974 Treaty on Principles Governing the Activities of States in Outer Space Treaty the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodi es, Jan. 27, 1967, 610 UNTS 205 Public Papers of the Presidents of the United States Public Papers of the Presidents (National Archives and Records Administration, Office of the Federal Register) Regulations for the Execution of Regulations for the Execution of the Convention for the the 1954 Hague Cultural Property Protection of Cultural Property in the Event of Armed Convention Conflict, Annexed to the Hague Cultural Property Convention, May 14, 1954, 249 UNTS 270 Roerich Pact Treaty between the Unite d States of America and other American Republics on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, 49 Stat. 3267 Rome Statute of the International Criminal Court, July 17, Rome Statute 1998, 2187 UNTS 90 xxiv

26 Abbreviation Long Form ight, Air Power and War James Maloney Spaight, Air Power and War Rights (3rd Spa ed., 1947) Rights James Maloney Spaight, War Rights on Land Spaight, War Rights on Land (1911) Stat. United States Statutes at Large Technical Annex to CCW Technical Annex to Protocol (II) on Prohibitions or Amended Mines Protoc Restrictions on the Use of Mines, Booby -Traps and Other ol Devices, as Amended on May 3, 1996, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which Ma y be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, May 3, 1996, 2048 UNTS 144 Technical Annex to Protocol (V) on Explosive Remnants of Technical Annex to CCW Protocol V On Explosive Remnants of War War, Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Nov. 28, 2003, 2399 UNTS 132 Trial of the Major War Criminals Criminals Before the International Trial of the Major War Military Tribunal (42 Volumes, 1947 - 1949) Before the IMT Trials of War Criminals Before the Trials of War Criminals Before the Nuernberg Military NMT Tribunals Under Control Council Law No. 10 (15 Volumes, 1949 - 1953) Tucker, The Law of War and Robert W. Tucker, The Law of War and Neutrality at Sea (U.S. Naval War College International Law Studies, Neutrality at Sea Volume 50, 1955) U.N. Charter Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031 United Natio ns War Crimes Commission, Law Reports of U.N. Law Reports - the Trials of War Criminals (15 Volumes 1947 1949) John B. Bellinger, III, Legal Adviser, Department of State, U.S. Response to ICRC CIHL & William J. Haynes II, General Counsel, Department of Study Defense, Letter to Dr. Jacob Kellenberger, President, International Committee of the Red Cross, Regarding Customary International Humanitarian Law Study , Nov. 3, reprinted in 2006, 46 International Legal Materials 514 (2007). U.S.C. publication of this United States Code (as of the date of manual) UNTS United Nations Treaty Series Vattel, The Law of Nations Emer de Vattel, The Law of Nations, or the Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (translated by Charles Fenw ick, 1916) Vienna Convention on the Law of Treaties, May 23, 1969, VCLT 1155 UNTS 331 xxv

27 Long Form Abbreviation Von Glahn, The Occupation of Gerhard von Glahn, The Occupation of Enemy Territory Enemy Territory (1957) Marjorie M. Whiteman, Assistant Legal Advise r, Whiteman’s Digest Digest of International Law (15 Department of State, 1973) Volumes, 1963 - Winthrop, Military Law & William Winthrop, Military Law and Precedents (2nd. ed., 1920) Precedents xxvi

28 I – G eneral Background Chapter Contents 1.1 Purpose and Scope of This Manual 1.2 Use of Footnotes, Sources, Cross -References, and Signals in This Manual 1.3 Definition of the Law of War 1.4 Object and Nature of War 1.5 “War” as a Legal Concept 1.6 Law of War Distinguished From Certain Topics 1.7 Treaties 1.8 Customary International Law 1.9 Subsidiary Means of Determining International Law 1.10 Legal Force of the Law of War 1.11 Jus ad Bellum 1.1 P URPOSE AND S COPE OF T HIS M ANUAL Purpose . The purpose of this manual is to provide information on the law of war to 1.1.1 1 DoD personnel responsible for implementing the law of war and executing military operations. the Department of Defense. This manual does This manual represents the legal views of the Department from subsequently changing its interpretation of the law. not, however, preclude Although the preparation of this manual has benefited from the participation of lawyers from the Department of St ate and the Department of Justice, this manual does not necessarily reflect the views of any other department or agency of the U.S. Government or the views of the U.S. Government as a whole. This manual is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. Scope . This manual is not a definitive explanation of all law of war issues. This 1.1.2 manual focuses on – law relating to the conduct of hostilities and the protection of jus in bello war victims . This manual seeks to address the law of war that is applicable to the United States, including treaties to which the United States is a P arty, and applicable customary international law. It provides legal rules, principles, and discussion, particularly with respect to DoD practice. Although the views of other States may be referenced in this manual, it is not a purpose of this manual to describe the views of other States, which may differ from views expressed in this manual. 1 (Definition of the Law of War ). Refer to § 1.3 1

29 This manual is not a substitute for the careful practice of law. As specific legal issues arise, legal advisers should consider relevant legal and policy m ( e.g. , treaty provisions , aterials , past U.S. practice, regulations, and doctrine should apply the law to the judicial decisions ), and specific factual circumstances. a description of the law as of the date of the manual ’s This manual is intended to be pro . In this vein, much of this manual has been written in the past tense to help ensure mulgation that the text remains accurate, even after subsequent developments have occurred. Every effort has been made to ensure the accuracy of the manual, but it must be read in the light of later developments in the law . 1.2 U SE OF F OOTNOTES , S OURCES , C ROSS -R EFERENCES , AND S IGNALS IN T HIS M ANUAL Manual . This manual uses footnotes to provide sources or 1.2.1 Use of Footnotes in This cross -references to other sections of the manual in order to clarify, elaborat e on, or support the main text. An effort has been made to avoid introducing discussion in the footnotes that addresses different propositions than those discussed in the main text. Although providing tangential informatio n in footnotes is common in academic legal writing, this practice has been avoided to for principally two reasons. First, it was desirable that the extent possible this manual ’s main text convey as much information as possible without the reader needing t o read the footnotes. For example, it was desirable to avoid the possibility that a reader might misunderstand a legal rule addressed in the main text because a notable exception to that rule was addressed only in a . Second , tangential discussion on a given issue in footnotes accompanying the text footnote ’s treatment of that issue consistent would have made it much more difficult to keep the manual from section to section and to allow the reader to find all the relevant information about a single topic. Thus, tangential discussion in footnotes has been avoided, to the extent possible, in favor of cross topic in more -references to the appropriate section of the manual that addresses that detail . Use of Sources in This Manual . This sources i n the footnotes to 1.2.2 manual cites support or elaborate upon propositions in the main text. These sources are cited in the footnotes to help practi tioner s research particular topics discussed in the main text . Reviewing the cited source may provide additional context ual information , especially where sources s in their entirety are only partially quoted in the footnotes . 1.2.2.1 Selection of Sources . The s ources cited in the footnotes have been chosen for a variety of For example, a source may contain a particularly helpful explanation or reasons. illustration. A source may have been chosen to illustrate U.S. practice or legal interpretation. A source may have been selected because its author was a particularly influential and respected international lawyer. For example, th e 1956 Department of Army Field Manual 27- 10, The Law of Land Warfare, has been a source of legal guidance for the U.S. armed forces for more than 50 years, and was published in connection with the U.S. ratification of the 1949 Geneva Conventions. One of the persons who helped prepare the 1956 manual was Richard Baxter, a highly respected DoD lawyer, who later became a judge on the International Court of Justice. 2

30 Citation to a particular source should not be interpreted to mean that the cited source repres . For ents an official DoD position, or to be an endorsement of the source in its entirety source, such as an opinion by the International Court of Justice or a example, parts of a eflect the DoD commentary published by the International Committee of the Red Cross, may r legal interpretation, while other parts of the source may not . Similarly, the citation of the jurisprudence of the Inter -American Commission on Human Rights should not be understood to indicate that the United States has accepted the compet ence of the Inter -American Commission 2 on Human Rights to apply the law of war. Use of Older Sources . Older sources are sometimes cited : (1) because 1.2.2.2 that source is particularly influential; (2) to demonstrate the origin of or (3) a legal proposition; to illustrate that a particular rule or formulation has a long history. The citation of an older source should not necessarily be interpreted as an endorsement that every aspect of that source remains current law. For example, the Lieber Code is a canonic al law of war document for the United States, but parts of it no longer reflect current 3 law. a State does not necessarily reflect its current Moreover, an older document produced by legal views , although a particularly i nfluential law of war . For example, the 1958 UK Manual manual prepared by distinguished experts Hersch Lauterpacht and Gerald Draper, has been superseded by subsequent UK Manuals , which reflect more recent developments in the law for the United Kin gdom ( e.g. , its ratification of AP I ). . Quotes from sources are sometimes 1.2.2.3 Qu otes Provided From Sources given in parentheticals within footnotes. These parentheticals are provided to help practitioner s, such as by facilitating comparison between the main text of the manual and the language used in made to quote sources accurately. P the sources . Every effort has been ractitioners , however, should verify quotations using the original source. spaces have been Certain formatting rules have been followed for quoted material. Two . F ootnote numbers and carriage returns have been placed after each period ending a sentence . Otherwise, quotes have not omitted from quoted text been changed unless noted through the use of ellipses, brackets , or parentheticals after the quotes indicating the changes made. Citation of Policies and Regulations 1.2.2.4 olicies and regulations of the U.S. . P Government or particular DoD components are sometimes cited as examples of past practice. , however, seeks primarily to address t he law and not to address applicable This manual overnment or DoD policies or regulations. Many policies and regulations are not U.S. G addressed in this manual, and the discussion of some policies , where relevant , should not be understood to indicate that other pertinent policies or regulations do not exist. Moreover, 2 See, e.g. U.S. Additional Response to the Request for Precautionary Measures —Detention of Enemy Combatants , IGEST OF U NITED , Inter at Guantanamo Bay, Cuba -American Commission on Human Rights, Jul. 15, 2002, 2002 D S TATES P RACTICE IN I NTERNATIONAL L AW 1008, 1009 (“Put simply, the Commission’s jurisdiction does not include the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained during armed conf lict.”). 3 ). (Lieber Code Refer to § 19.3 3

31 policies and regulations are constantly updated, so practitioners are advised to ascertain whether have been issued more recent versions of cited policies and regulations . In some cases, cancelled issuances or superseded policies or re gulations are cited to show , at times , a series of issuances are cited to illustrate a continuity in practice. the past practice, and and the mere Policies and regulations often exceed the requirements of applicable law, citation of a policy or regulation in this manual should not be understood to reflect the view that the policy or regulation’s requirements have been promulgated out of a sense of legal obligation for the purposes of assessing customary international law or otherwise intending to reflect le gal requirements. 1.2.2.5 Citation Forms . An effort has been made to make citations forms consistent , and to provide enough information about each cited source to throughout the manual 4 reflect its significance and to enable r eader s to find it. This manual has not strictly adhered to an established system of citation. Although certain citation systems were consulted, modifications were made as deemed appropriate for this type of resource, to make the citation forms straightforward and simple and relatively eas y for readers to understand. In regard to abbreviations, for example, this manual generally does not abbreviate the names of academic journal s. Moreover, i t is hoped that the quotations from the cited sources that have been included in footnotes will help readers find the cited sources electronically. . This manual uses cross Use of Cross -References in This Manual -references in the 1.2.3 footnotes to point the reader to other sections of the manual containing relevant discussion of a particular topic. In part -references rather than to icular, an effort has been made to use cross citation of legal sources repeat discussion of a recurring issue or duplicate . In sections in which a law of war rule is only mentioned tangentially or as an example, a cross -reference is used to -depth discussion of that rule and direct the reader to the section of the manual in which a more in 5 supporting sources are provided. Cross -references are linked to enable the reader to access the referenced section quickly. 4 Cf. Richard A. Posner, The Bluebook Blues (reviewing Harvard Law Review Association, The Bluebook: A HE Y ALE L AW J OURNAL 850, 852 (2011) (“A system of citation Uniform System of Citation (19th ed., 2010)) , T forms has basically two functions: to provide enough information about a reference to give the reader a general idea of its significance and whether it’s worth looking up, and to enable the reader to find the reference if he decides that he does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such a system: ‘to spare the writer or editor from having to think about citation form,’ ‘to economize on space and the reader's time,’ ‘to provide information to the reader,’ and ‘to minimize distraction.’”). 5 is Manual ). Refer to § 1.2.1 (Use of Footnotes in Th 4

32 Use of Signals in T . This manual uses signals to introduce the sources 1.2.4 his Manual -references in the footnotes. The table below identifies the signals used in this and cross manual, describes their function, and provides examples of their use. Function and Examples o f Use Signal [no Directly states the proposition signal] levée en masse If a person joins a , he or she may be held as a POW even if he or she 1 actually took no part in fighting . 1 1958 UK M ¶100 ( “If it is shown that they joined the levée en masse , but took ANUAL no part in the defence, they may be held as prisoners of war.” ). Identifies the source of a quotation As the Supreme Court has explained: “Lawful combatants are subject to capture and 2 detention as prisoners of war by opposing military forces.” 2 Ex p arte Quirin, 317 U.S. 1, 31 (1942). Identifies an authority referred to in the text There are additional provisions of the CCW Amended Mines Protocol addressing 3 international exchanges of information and cooperation in this respect. 3 INES CCW A MENDED M ROTOCOL P art. 11. See Clearly supports the proposition but does not directly state it In addition, observers on military reconnaissance aircraft have not been regarded as 4 acting clandestinely or under false pretenses. 4 See H AGUE IV R EG “Pers ons sent in balloons for the purpose of carrying . art. 29 ( despatches and, generally, of maintaining communications between the different parts of ” are not considered spies.). an army or a territory See also Elaborates on the proposition This means that a combatan t’s “killing, wounding, or other warlike acts are not 5 individual crimes or offenses. ” 5 L IEBER C ODE art. 57. S ee also W INTHROP , M ILITARY L AW & P RECEDENTS 778 ( “The State is represented in active war by its contending army, and the laws of war justify th e killing or disabling of members of the one army by those of the other in battle or hostile . operations. ” ) 5

33 Signal f Use Function and Examples o Supports the proposition by analogy, , discusses a different proposition that is sufficiently Cf. i.e. similar to support the original proposition A person must engage in acts of espionage in the zone of operations of a belligerent to be considered a spy. “ Zone of operations ” has been construed broadly to include areas 6 supporting the war effort. 6 Ex parte Quirin, 317 U.S. 1, 37 (1942) ( “The l aw of war cannot rightly treat those Cf. agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our Armed Forces. ” ). Refer to Refers to another m anual section that supports or elaborates on the proposition Certain categories of persons are not members of the armed forces, but are nonetheless authorized to support the armed forces in the fighting: • persons authorized to accompany the armed forces, but who are not members 7 ; thereof 7 Refer to § 4. 15 (Persons Authorized to Accompany the Armed Forces). Compare Refers to another m anual section that is analogous to the pr oposition Persons authorized to accompany the armed forces who provide security against criminal elements generally would not be viewed as taking a direct part in hostilities (and do not 269 forfeit their protection from being made the object of attack). 269 § Compare 23 .1 (Police as Civilians). 4. Identifies a treaty that relates to the proposition but to which the United States is Consider a Party not ( , AP I) e.g. Under international law, every treaty in force is binding upon the Parties to it and must 10 be performed by them in good faith. 10 Consider VCLT art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”). For Illustrates the proposition with an example drawn from historical practi ce example , Adjusting the timing of an attack may reduce the risk of incidental harm. For example, attacking a military objective when civilians are less likely to be present may be 11 appropriate . 11 For example, F INAL R EPORT ON THE P ERSIAN G ULF W AR 100 (noting that during Operation D ESERT S TORM “ attacks on known dual (i.e., military and civilian) use facilities normally were scheduled at night, because fewer people would be inside or on ). the streets outside. ” 6

34 Signal Function and Examples o f Use , e ted authority is one of several authorities (some .g. Added to any of the other signals when the ci of which remain uncited) that stand for the same proposition International humanitarian law is an alternative term for the law of war that may be 12 . understood to have the same substantive meaning as the law of war 12 , Overview of the Amendment to the Convention on the Physical Protection of See, e.g. Nuclear Material , 6, Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, M RANSMITTING RESIDENT OF THE NITED S ESSAGE FROM THE T U A MENDMEN T P TATES C ONVENTION ON THE P HYSICAL P ROTECTION OF N UCLEAR M ATERIAL (T HE TO THE MENDMENT A “A C ONFERENCE OF S TATES P ARTIES TO THE C ONVENTION ON THE ”). HYSICAL DOPTED ON ROTECTION OF N UCLEAR M ATERIAL , A P O CTOBER 28, 1979, P AT T DOPTED THE MENDMENT ON J ULY 8, 2005, A HE I NTERNATIONAL A TOMIC E NERGY A A GENCY IN V IENNA , T REATY D OC . 110 -6, 6 (2007) (“(2) The United States of America understands that the term ‘international humanitarian law’ in Paragraph 5 of the Amendment (Article 2 of the Convention on the Physical Protecti on of Nuclear Material, . as amended) has the same substantive meaning as the law of war.”) EFINITION OF THE L W AR AW OF D 1.3 law of war is that part of international law that For the purposes of this manual, t he t of hostilities and the protection of war victims in ; the conduc regulates the resort to armed force both international and non- international armed conflict; belligerent occupation; and the 6 relationships between belligerent -belligerent States . , neutral , and non For the purposes of this manual, t aw of war comprises treaties and customary he l 7 applicable to the United States international law . Law of War – Notes on Terminology . 1.3.1 1.3.1.1 Different Definitions of the Law of War . The law of war may be defined slightly differently in other publications . For e xample, DoD issuances have defined the law of war more narrow ly than the definition discussed in this section ( e.g. , by omitting reference to 8 that part of international law that regulates the resort to armed force) . 6 Refer to § 3.2 (Situations to Which the Law of War Applies ). 7 § 1.7 (Treaties ); § 1.8 (Customary International Law ). Refer to 8 For example , D O D D IRECTIVE 2310.01E , DoD Detainee Program , 14 (Aug. 19, 2014) (“ law of war . The part of international law that regulates the conduct of hostilities and the protection of victims of armed conflict in both -international armed conflict and occupation, and that prescribes the rights and duties of international and non neutral, non -belligerent, and belligerent states. It is often called the ‘law of armed conflict’ or ‘international humanitarian law,’ and is specifically intended to address the circumstances of armed conflict. It encompasses all international law applicable to the conduct of militar y operations in armed conflicts that is binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party O D D IRECTIVE 2311.01E, (e.g., the Geneva Conventions of 1949), and applicable customary internat ional law.”); D Law of War . That part of DoD Law of War Program , ¶3.1 (May 9, 2006, Certified Current as of Feb. 22, 2011) (“ 7

35 1.3.1.2 versus International Humanit arian Law and Law of Armed Law of War The law of war law of armed conflict. Both terms can be found in Conflict. is often called the International humanitarian law directives and training materials. DoD is an alternative term for 9 the law of war that may be unders tood to have the same substantive meaning as the law of war. nternational humanitarian law is understood more narrowly than the law of war In other cases, i 10 ( e.g. , by understanding international humanitarian law not to include the law of neutrality) . The Law of War ’s Relationship to Other Bodies of Law ften 1.3.2 . An issue that o confronts law of war practitioner s is the relationship of the law of war to other bodies of law, ed in the especially when rules in those bodies of law may appear to conflict with rules reflect These apparent conflicts are often resolved by considering the principle that the law law of war. 11 of war is the lex specialis governing armed conflict. How a law of war rule relates to a particular rule that is not grounded in the law of war m ay depend on the specific legal rule in question. In general, the law of war may relate to other bodies of law through: (1) law of war rules superseding rules in other bodies of law with respect to armed conflict; (2) construing the rules in other bodies of law to avoid conflict with law of war rules ; (3) law of war rules informing the content of general standards in other bodies of law, should such standards be construed to apply international law that regulates the conduct of armed hostilities. It is often called the ‘law of armed con flict.’ The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and y international law.”). applicable customar 9 See, e.g. , Overview of the Amendment to the Convention on the Physical Protection of Nuclear Material , 6, ESSAGE FROM THE P RESIDENT OF THE U NITED Enclosure to Condoleezza Rice, Letter of Submittal , Jun. 11, 2007, M S TATES T RANSMIT TING A MENDMENT TO THE C ONVENTION ON THE P HYSICAL P ROTECTION OF N UCLEAR M ATERIAL S (T “A MENDMENT ”). A C ONFERENCE OF HE TATES P ARTIES TO THE C ONVENTION ON THE P HYSICAL P ROTECTION OF 28, N UCLEAR M ATERIAL , A DOPTED ON O CTOBER 1979, A DOPTED THE A MENDMENT ON J ULY 8, 2005, AT THE I NTERNATIONAL TOMIC E NERGY A GENCY IN V IENNA , T REATY D OC . 110- 6, 6 (2007) (“(2) The United States of A America understands that the term ‘international humanitarian law’ in Paragraph 5 of the Amendment (Article 2 of the Convention on the Phys ical Protection of Nuclear Material, as amended) has the same substantive meaning as RITS K ALSHOVEN & L IESBETH Z EGVELD , C ONSTRAINTS ON THE W N W AR : A AGING OF the law of war.”); F NTRODUCTION TO I NTERNATIONAL H I L AW 11 (International Committee of the Red Cross, 3rd ed., UMANITARIAN 2001) (“The law of war nowadays is often referred to by a phrase better suited to express its object and purpose, such as ‘international humanitarian law applicable in armed conflict’ or ‘humanitarian law’ – we shall be using these terms interchangeably, as we do with ‘war’ and ‘armed conflict’.”). 10 Christopher Greenwood, , in D IETER F LECK , T HE H ANDBOOK OF Historical Development and Legal Basis ONFLICTS UMANITARIAN AW IN A RMED C L 9 (¶102) (1999) (“The term ‘international humanitarian law’ is of H relatively recent origin and does not appear in the Geneva Conventions of 1949. ... International humanitarian law thus includes most of what used to be known as the laws of war, although strictly speaking some parts of those laws, such as the l aw of neutrality, are not included since their primary purpose is not humanitarian.”). 11 , Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the See, e.g. 28, 2014 2014 (noting that “the law of armed conflict is the U.N. Committee Against Torture, Nov. 3 – , Nov. 12, controlling body of law with respect to the conduct of hostilities and the protection of war victims,”); U.S. Delegation to U.N. General Assembly Third Committee, Statement Clarifying Legal Points of Imp ortance , 2004 IGEST OF 331 (“Third, with respect to [preambular paragraph NITED S TATES P RACTICE IN I NTERNATIONAL L AW U D (‘PP’)] 4 and PP6, references to human rights law during armed conflict by necessity refer only to those provisions, if any, that may be applicable. As may be well known, it is the position of the United States Government that the governing armed conflict.”) (amendment in original). Law of War is the lex specialis 8

36 to armed conflict; and (4) law of war treaties explicitly incorporating conc epts from other bodies of law. In some cases, it may be difficult to distinguish between these approaches, and different 12 entities may apply different approaches to achieve the same result. Although there are different approaches and although the ultimate resolution may depend on the specific rules and context, the law of war, as the lex specialis of armed conflict, is the controlling body of law with regard 13 to the conduct of hostilities and the protection of war victims. The Law of War as the Lex Special is Governing Armed Conflict . The 1.3.2.1 ogat le maxim means that “ [a]s a rule the special rule overrides the lex specialis der gi generali 14 .” The rule that is more specifically directed towards the action receives priority general law because it takes better account of the particular features of the context in which the law is to be applied, thus creating a more equitable result and better reflecting the intent of the authorities 15 . that have made the law The law of war n of the circumstances of has been developed with special consideratio , for example, the exigencies of war and the challenges inherent in its regulation by law. Thus 16 armed conflict cannot justify violating the law of war. Moreover , lawmakers sometimes have 12 Report of the International Law Commission, Fifty -4 J une and 5 July -6 August 2004) , U.N. -sixth session (3 May Doc. A/59/10 ¶304 (2004) (“In introducing the part of the study concerning the function and scope of the lex rule, the Chairman stressed several points. First, he emphasized that recourse to the lex specialis specialis rule was an aspect of legal reasoning that was closely linked to the idea of international law as a legal system. The lex specialis maxim sought to harmonize conflicting standards through interpretation or establishment of definite relationships of priority between them. In fact, he said, it was often difficult to distinguish between these two aspects of the functioning of the technique: the interpretation of a special law in the light of general law, and the setting aside of the general law in view of t he existence of a conflicting specific rule. ... The adoption of a systemic view was important precisely in order to avoid thinking of lex specialis in an overly formal or rigid manner. Its operation was always conditioned by its legal -systemic environment. ”). 13 Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9 , June 10, 2014, ¶20 (“While the United States acknowledges that difficult questions arise regarding the applicability of international h uman rights law in situations of armed conflict, the draft does not accord sufficient -established principle that international humanitarian law, as the lex specialis of armed conflict, is weight to the well nduct of hostilities and the protection of war victims.”). the controlling body of law with regard to the co 14 Colleanu v. German State, German -Rumanian Mixed Arbitral Tribunal, Jan. 12, 1929, reprinted in H. L AUTERPACHT , V I NTERNATIONAL L AW R EPORTS 438 (1929). See also G ROTIUS , L AW OF W AR & P EACE 428 (2.16.29.1) (“[A]mong agreements which are equal in respect to the qualities mentioned, that should be given preference which is most specific and approaches most nearly to the subject at hand; for special provisions are ordinarily more effective than those that are general”). 15 U.N. International Law Commission, Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law 2(7) (2006) (“ Rationale of the principle . That special law has priority over general law is justified by the fact that such special law, being more concrete, often takes better account of the particular features of the context in which it is to be applied than any applicable general la w. Its application may also often create a more equitable result and it may often better reflect the intent of the legal subjects.”). 16 ity and Law of War Rules ). Refer to § 2.2.2 (Military Necess 9

37 considered peacetime rules appropriate to apply during armed conflict , and in certain of these 17 cases, they have explicitly incorporated such concepts into the law of war. raditionally, the law of war has been described as the only “ authoritative rules of Thus, t action between hostile armies ,” or as superseding ordinary law in the actual theater of military 18 operations. Similarly, law of war treaties have been viewed as a clear example of a lex 19 etime norms concerning the same subjects. specialis in relation to treaties providing peac Construing O otential ith the Law of War . P 1.3.2.2 ther Laws to Avoid Conflict W such other law to conflicts between the law of war and other law may be resolved by construing avoid conflict with law of war rules . rmly established in customary Underlying this approach is the fact that the law of war is fi -developed body of law international law as a well that is separate from the principles of law 20 generally applicable in peace. Lawmakers have been understood not to amend that well - 21 In a similar developed body of law, absent affirmative evidence of an intention to do so. 17 Refer to § 1.3.2.4 (Explicit Incorporation of Concepts From Other Bodies of Law Into the Law of War ). 18 art. 40 (“There exi L IEBER C ODE See sts no law or body of authoritative rules of action between hostile armies, See also except that branch of the law of nature and nations which is called the law and usages of war on land.”). -74 (“By the term L INTHROP , M ILITARY L AW & P RECEDENTS 773 AW OF is intended that branch of W AR W International Law which prescribes the rights and obligations of belligerents, or more broadly — those principles — — —but and usages which, in time of war, define the status and relations not only of enemies whether or not in arms also of persons under military government or martial law and persons simply resident or being upon the theatre of war, and which authorizes their trial and punishment when offenders. Unlike Military Law Proper, the Law of War is not a form al written code, but consists mainly of general rules derived from International Law, in this country supplemented by acts and orders of the military power and a few legislative provisions. In general it is quite independent of the ordinary law. ‘On the actual theatre o f military operations,’ as is remarked by a learned judge, ‘the ordinary laws of the land are superseded by the laws of war. The jurisdiction of the civil magistrate is there suspended, and military authority and force are substituted.’ Finding indeed it s original authority in the war powers of Congress and the Executive, and thus constitutional in its source, the Law of War may, in its exercise, substantially supersede for the time even the Constitution itself – as will be hereinafter indicated.”). 19 C. Wilfred Jenks, The Conflict of Law -Making Treaties , 30 B RITISH Y EARBOOK OF I NTERNATIONAL L AW 401, 446 (1953) (“A clear illustration of [the lex specialis principle’s] applicability is afforded by instruments relating to the e of evidence of a contrary intention or other special circumstances, must clearly be laws of war which, in the absenc leges speciales in relation to instruments laying down peace -time norms concerning the same regarded as a subjects.”). 20 Edwin D. Williamson, Agent of the United States o f America, Preliminary Objections Submitted by the United States of America , Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 200- 01 (Mar. 4, 1991) (“The laws of armed conflict are firmly established in customary internat ional law as a well- developed body of law separate from the principles of law generally applicable in times of peace.”). 21 See, e.g. , Case Concerning Oil Platforms (Iran v. United States), Preliminary Objection, Judgment,1996 I.C.J. 874, 876 (Dissenting Opinion of Vice -President Schwebel) (“It is plain that this is a Treaty which is essentially concerned with encouraging mutually beneficial trade and investments and closer economic intercourse on the basis of reciprocal equality of treatment. There is no s uggestion of regulating the use of armed force by one party against the other. ... None of these core provisions of the Treaty suggests that attacks by armed forces of one party against what it treats as military objectives within the jurisdiction of the oth er party are within the reach of the Treaty. It is significant as well that the Treaty contains none of the treaty provisions which typically do bear on the international , 34, Jun. 20, 1995, I.C.J., use of force.”); Written Statement of the Government of the United States of America Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“No international environmental instrument is expressly applicable in armed conflict. No such 10

38 fashion, for comparison, the GC deliberately excludes from its application the nationals of certain States in order to avoid creating complications or inconsistencies in procedures should 22 . both the GC and the law applicable to normal diplomatic representation apply ’ rights under the In some cases, treaties explicitly clarify that they do not affect States 23 law of war. For example , the 1944 Chicago Convention on civil aviation explicitly provides 24 However, even that it do es not affect the freedom of action of States during armed conflict. when not explicitly stated, infringements on the law of war through international agreements that 25 situations other than armed conflict are not to be pres umed. pri marily address For example, the ’s rights during armed conflict, even LOS Convention has been interpreted not to impair a State 26 though this principle is not explicitly stated in the treaty. In addition, the International Convention for the Suppression of the Financing of Terrorism has been understood not to preclude any State Party to the Convention from conducting any legitimate activity against any 27 lawful target in accordance with the law of armed conflict. inst rument expressly prohibits or regulates the use of nuclear weapons. Consequently, such an international environmental instrument could be applicable only by inference. Such an inference is not warranted because none of these instruments was negotiated with the intention that it would be applicable in armed conflict or to any use of nuclear weapons. Further, such an implication is not warranted by the textual interpretation of these instruments.”); Edwin D. Williamson, Agent of the United States of Americ a, Preliminary Objections Submitted by the United States of America , Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 207 (Mar. 4, 1991) (“When, 14 years later, the ICAO Assembly drafted Article 3 bis ntion, discussed of the Chicago Conve above, it was careful to include in the Article a statement that it ‘should not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations;’ which included the inherent right of self- defense. The participants at the Montreal conference would have included a similar provision if they had intended the Montreal Convention to modify the laws of armed conflict, and particularly if they had intended to address actions by military fo rces in armed conflict. There is no such provision in the Montreal Convention.”). 22 Refer to § 10.3.3.3 (Nationals of a Neutral State or Co -Belligerent State While Norma l Diplomatic Representation Exists ). 23 , Convention on the Protection of Submarine Cables, art. 15, Mar. 14, 1884, 24 S TAT . 989, 997 (“It is See, e.g. understood that the stipulations of this Convention shall in no wise affect the liberty of action of belligerents.”). 24 Refer to § 14.1.1.1 ). (1944 Chicago Convention and Freedom of Action of States During Armed Conflict 25 Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the United States of America , Case Concerning the Aerial Incident of 3 July 1988, I.C.J., (Iran v. United States) 203 (Mar. 4, 1991) (“Infringements on the laws of armed conflict through international agreements primarily addressing situations other than armed conflict are not to be presumed. There is no indication that the drafters of the Montreal Convention intended it to apply to military forces acting in armed conflict. If they had so intended, they would h ave had to address a myriad of issues relating to acts by military forces.”); The S.S. Wimbledon, (United Kingdom, France, Japan v. Germany), Judgment (MM. Anzilotti and Huber, dissenting), 1923 P.C.I.J. (series A) 1, 35, 36 (¶3) (“In this respect, it must be remembered that international conventions and more particularly those relating to commerce and communications are generally concluded having regard to normal peace conditions. If, as the result of a war, a neutral or belligerent State is faced with th e necessity of taking extraordinary measures temporarily affecting the application of such conventions in order to protect its neutrality or for the purposes of national defence, it is entitled to do so even if no express reservations are made in the conve ntion. This right possessed by all nations, which is based on generally accepted usage, cannot lose its raison d’être simply because it may in some cases have been abused;”). 26 Refer to § 13.1.1 (The Law of the Sea During Armed Conflict ). 27 United States, Statement on Ratification of International Convention for the Suppression of the Financing , Jun. 26, 2002, 2185 UNTS 611, 612 (“(1) Exclusion of legitimate ac tivities against lawful targets. The Terrorism 11

39 In addition to treaties, domestic statu tes have also been construed not to violate 28 possible international law, including the law of war, if any other construction remains . Certain not to apply to situations addressed by the law of war domestic statutes have been interpreted 29 because such intention was ade clear and unequivocal. not m Using the Law of War to Determin e the Content of General Standards i 1.3.2.3 f Applied to Armed Conflict lex . Another way in which the law of war has been applied as is to determine the content of a more general standard wi the situation of specialis th respect to . For example, the law of war has been used to inform the content of general armed conflict 30 authorizations to conduct military operations. United States of America understands that nothing in the Convention precludes any State Party to the Convention from conducting any legitimate activity against any lawful target in accordance with the law of armed conf lict.”). 28 The Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.) (“It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be co nstrued to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country. These principles are believed to be correct, and they ought to be kept in view in construing the act now under c onsideration.”). 29 See, e.g. , Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down PINIONS OF THE O FFICE OF L EGAL C OUNSEL 148, 163- Civil Aircraft Involved in Drug Trafficking , Jul. 14, 1994, 18 O 64 (“Specifically, we believe that the section would not apply to the actions of United States military forces acting on behalf of the United States during a state of hostilities. As discussed above, § 32(b)(2) was intended to implement the United States’s obligations under the Montreal Convention. That Convention does not appear to apply to acts of armed forces that are otherwise governed by the laws of armed conflict. ... We do not think that § 32(b)(2) should be construed to have the surprising and almost certainly actions unintended effect of criminalizing the laws of armed conflict. We note specifically by military personnel that are lawful under international law and to acts of United States military personnel in a state of hostilities could readily lead that the application of § 32(b)(2) would not be able to to absurdities: for example, it could mean in some circumstances that military personnel themselves to the risk of criminal prosecution. Unless -defense without subjecting engage in reasonable self by a clear and Congress 32(b)(2) should be construed to avoid such unequivocal statement declares otherwise, § outcomes. such incidents as the downing on July 3, Thus, we do not think the statute, as written, should apply to ed States Navy cruiser Vincennes 1988 of Iran Air Flight 655 by the Unit France Biddle, Attorney General, .”); PINIONS OF THE Procurements by Commanding Generals in Foreign Theaters of Operations , Nov. 12, 1942, 40 O A TTORNEY G ENERAL 250, 253 (1949) (“The statutes in question do not expressly decl are that their provisions are inapplicable to foreign theaters of operations. But there are conclusive reasons for inferring that the Congress did not intend them to apply to such theaters. The Supreme Court has long recognized that the power to conduct military campaigns includes power to procure needed supplies in theaters of operations by whatever methods are dictated by military necessity. Property may be taken summarily, even from a citizen, if military exigencies make its seizure reasonably appear to be necessary. It is unthinkable that the Congress attempted, by statutory restrictions, to abrogate this rule of military necessity, to handicap commanding generals waging war on foreign soil, to limit or encroach upon the power of the President as Com mander in Chief to conduct, through his subordinates, military campaigns abroad.”) (internal citations omitted). 30 Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality) (“In light of these principles, it is of no moment that the AUMF does not use specifi c language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ Congress has clearly and unmistakably authorized detention i See n the narrow circumstances considered here.”). also In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay , Misc. No. 08 -442, 4 (D.D.C., Mar. 13, 2009) (“The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (‘AUMF’), Pub. L. 107 -40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily aws of war.”). informed by principles of the l 12

40 As another example, to the extent that the concept of “ due regard civil ” for the safety of aircraft may be deemed to apply during armed conflict, what regard is due would be understood 31 in terms of the requirements of the law of war. Similarly, to the extent that the concept of “due regard ” for the rights of other States under the law of the sea may be deemed to apply during armed conflict, what regard is due would be understood in terms of the requirements of the law 32 of war. Lastly, even where international courts or commissions have characterized human rights uring armed conflict, they generally have characterized the content of obligations as applicable d 33 those obligations as determined by standards and tests drawn from the law of war. 1.3.2.4 Other Bodies of Law Into the Explicit Incorporation of Concepts From . In some cases, la Law of War w of war treaties explicitly incorporate concepts from other bodies of law. For example, the peacetime property law concept of usufruct is made applicable to the 34 duties of the Occupying States. Similarly, the GC explicitly applies a peacetime rule with respect to the nationals of the Occupying Power who, before the outbreak of hostilities, have 35 sought refuge in the occupied territory. And as another example, Common Article 3 of the 1949 Geneva Conventions incorporates by reference those judicial guaran tees that are 36 recognized as indispensable by civilized peoples. Restrictive and Permissive Character of the Law of War . In certain respects , the law 1.3.3 of w , the law of war may be viewed as ar may be viewed as prohibitive; in other respects 37 permissive . Law of War as Prohibitive Law . The law of war that relates to the conduct 1.3.3.1 been viewed as “ prohibitive law, ” in the sense that it forbid s rather of hostilities has generally 38 s certain uses of force. than authorize For example, the lawfulness of the use of a type of 31 Refer to § 14.1.1.4 (Due Regard for the Safety of Navigation of Civil Aircraft ). 32 Refer to § 13.1.1 (The Law of the Sea During Armed Conflict ). 33 Refer to § 1.6.3.1 ). (Relationship Between Human Rights Treaties and the Law of War 34 (Public Real (Immovable) Property That Is Essentially of a Non -Military Nature ). Refer to § 11.18.5.2 35 Refer to 11.11.7.2 (Protection of Nationals of the Occupying Power Who, Before the Outbreak of Hostilities, § Have Sought Refuge in the Territory of the Occupied State). 36 Refer to § 8.16 (Criminal Procedure and Punishment ). 37 ON G LAHN , T HE O CCUPATION OF E NEMY T ERRITORY 5 (“Throughout the pages of this study a basic fact will V igerent occupation, are in part permissive appear repeatedly: the laws of war, including the rules applicable to bell —a fact that has been overlooked frequently in treatments of the subject.”). and in part prohibitive 38 See Richard R. Baxter, So- Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs , 28 B RITISH Y EAR B NTERNATIONAL L AW 323, 324 (1951) (“The law of war is, in the descriptive words of a war crimes OOK OF I tribunal, ‘prohibitive law’ in the sense that it forbids rather than authorizes certain manifestations of force.”) 1252); W AR C RIMINALS B EFORE THE NMT RIALS OF T (quoting United States v. List, et a l. (The Hostage Case), XI Gherebi v. Obama, 609 F. Supp. 2d 43, 65 (D.D.C. 2009) (rejecting as “exactly backwards” the “notion that the Geneva Conventions must specifically enable its signatories to act in a sp ecific manner for a signatory to have the 52 (1907) (“These rules are AW OHN W ESTLAKE , II I NTERNATIONAL L authority necessary to take such action.”); J always restrictive, never permissive in any other sense than that of the absence of prohibition, for law can give no positive sanction to any act of force of which it cannot secure the employment on the side of justice alone, even if 13

41 weapon does not depend on an absence of authorization, but, on the contrary, on whether the 39 weapon is prohibited. One rationale for this view is that the rules binding upon States in treaties and customary law reflect restrictions that they hav e accepted, and that States are otherwise independent entities 40 with freedom to act. Thus, the authority to take actions under the law of war would be viewed as emanating from the State ’s rights as a sovereign entity rather than from any particular instru ment of international law. the law of war that relates to the conduct of hostilities is also The prohibitive character of consistent with the view that jus in bello s and defender s alike. The fact that applies to aggressor jus in an aggressor complies with does not justify the legality of its military operations bello 41 under jus ad bellum . The lack of an express prohibition in treaty law , however, does not necessarily mean that an action is lawful under . When no specific rule applies, the principles of the law of jus in bello 42 war form the general guide for conduct during war. Law of War as Permissive 1.3.3.2 . Although t he law of war is generally Law viewed as “ prohibitive law ,” in some respects , especially in the context of domestic law, the law 43 of war may be vi permissive or even as a source of authority. ewed as For example, the principle of military necessity in the customary law of war may be 44 Similarly, under the law of belligerent or permitting certain acts. viewed as justifying the particular act be not one which the law would prohibit both to the just and to the unjust if it could. Whenever therefore i n speaking of the laws of war it is said that a belligerent may do this or that, it is always only the absence of prohibition that must be understood.”). 39 (Review of New Types of Weapons Refer to § 6.2.1 ). 40 The S.S. Lotus, (France v. Turkey) (Judgment), 1927 P.C.I.J. (series A) No. 10, at 18 (“International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co -existing independent communities or with a view to the achievement of common ai ms. Restrictions upon the independence of States cannot therefore be presumed.”). 41 § 3.5.2 Jus in Bello and Jus ad Bellum Generally Operate Independently of O ne Another ). Refer to ( 42 Refer to § 2.1.2.2 (Law of War Principles as a General Guide). 43 , Eric Holder, Attorney General, Remarks at Northwestern University School of L aw , Mar. 5, 2012, 2012 See, e.g. IGEST OF U 577, 581 (“It is preferable to capture suspected S TATES P RACTICE IN I NTERNATIONAL L AW NITED D terrorists where feasible —among other reasons, so that we can gather valuable intelligence from them —but we must at there are instances where our government has the clear authority —and, I would argue, the also recognize th —to defend the United States through the appropriate and lawful use of lethal force. This principle has responsibility long been established under both U.S. and int ernational law. In response to the attacks perpetrated —and the continuing threat posed —by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the Uni ted States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recog nizes the inherent right of national self -defense. None of this is changed by the fact that we are not in a conventional war.”). 44 ). as a Justification Refer to § 2.2.1 ( Military Necessity 14

42 occupation, the fact of occ upation is the basis for the Occupying Power to exercise authority over 45 the occupied territory. ’ In addition, law of war t reaties also sometimes recognize States 46 authorities in war. . The main purposes of the law of war are: 1.3.4 Purposes of the Law of War 47 protecting combatants, noncombatants, and civilians from unnecessary suffering; • providing certain fundamental protections for persons who fall into the hands of the • , and military wounded, sick, and enemy, particularly prisoners of war, civilians 48 ed; shipwreck 49 • facilitating the restoration of peace; • assisting military commander s in ensuring the disciplined and efficient use of military 50 and force; 51 . • preserving the professionalism and humanity of combatants 1.4 O N ATURE OF W AR BJECT AND and nature of war is important in understanding and applying Understanding the object 52 the law of war. 45 Refer to § 11.2.1 (Military Occupation as a Fact ). 46 , GPW art. 21 (recognizing that “[t]he Detaining Power may subject prisoners of war to internment.”); See, e.g. AGUE R EG . art. 24 (recognizing that “[r]uses of war and the employment of measures necessary for obtaining IV H information about the enemy and the country are considered permissible.”). 47 Refer to § 2.3 (Humanity ). 48 Refer to § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power of (Humane Treatment of Detainees a Party to the Conflict); § 8.2 ); § 9.5 (Humane Treatment and Basic Protections for POWs ); § (Humane Treatment and Other Basic Protections for Protected Persons ). 10.5 49 (Non -Hostile Relations to Facilitate the Restoration of Peace ). Refer to § 12.1.2.2 50 § 18.2.1 (Reinforcing Military Eff ectiveness ). Refer to 51 Refer to § 2.6 (Honor ). 52 EPARTMENT OF THE RMY P AMPHLET 27- 161- D A II International Law , 1 (Oct. 23, 1962) (“An understanding of 2, the laws of war necessi tates an understanding of ‘war’ itself. It is the phenomenon of war which these laws are attempting in some manner to control.”). See also Adam Roberts, Land Warfare: From Hague to Nuremberg , in M HE OWARD , G EORGE J. A NDREOPOULOUS , & H ARK A. S HULMAN , T ICHAEL L AWS OF W AR : C ONSTRAINTS ON M ORLD W T HE W ESTERN W ARFARE IN 117 (1994) (“The laws of war are strange not only in their subject matter, which to many people seems a contradiction in terms, but also in their methodology. There is little tradition of dis ciplined and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats have often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have been at asses sing the performance of existing accords or at generalizing about the circumstances in which they can or cannot work. In short, the study of law needs to be integrated with the study of history; if not, it is inadequate.”). 15

43 Object of War 1.4.1 . The object of war has been understood to be the submission of the 53 enemy as quickly and efficiently as possible. The military defeat of the enemy in war is 54 int ended to advance political objectives. Even where those political objectives are limited, the object of war is nonetheless to ensure the submission of the enemy as quickly and efficiently as 55 possible. and what uses of force may The object of war informs the principle of military necessity 56 be justified in war . Nevertheless, the law of war limits what uses of force the object of war 57 may justify . Nature of War 1.4.2 . Nature of War – Violence and Suffering . War has been described as 1.4.2.1 a 58 violent clash of inter ests characterized by the use of force. The fact that violence is an essential 53 See 1940 R ULES OF L AND W ARFAR E ¶22 (“The object of war is to bring about the complete submission of the ULES OF L AND W ARFARE ¶10 (same). R enemy as soon as possible by means of regulated violence.”); 1914 54 George H. Aldrich, Deputy Legal Adviser, Department of State, rmed Conflict: Development Human Rights in A EPARTMENT OF TATE B ULLETIN , 876, 880 (Jun. 18, 1973) (“What we have seen is S , Apr. 13, 1973, 68 D of the Law all too clearly a general acceptance of the view that modern war is aimed not merely at the enemy’s military forces but at the enemy’s willingness and ability to pursue its war aims. Thus, in the Second World War the enemy’s will to fight and his capacity to produce weapons were primary targets; and saturation bombing, blockade of food eapons such as the German V bombs, were all brought to bear on those targets. supplies, and indiscriminate terror w In Viet -Nam political, rather than military, objectives were even more dominant. Both sides had as their goal not the destruction of the other’s military forces but the destruc tion of the will to continue the struggle.”); United States 485 NMT EFORE THE (“War is the RIALS OF W AR C RIMINALS B T , XI (The High Command Case) et al. v. von Leeb, exerting of violence by one state or politically organized body against another. In other w ords, it is the AR ARL VON , O N W LAUSEWITZ 87 (1989) (“We see, C implementation of a political policy by means of violence.”); C therefore, that war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carri ed on with other means. What remains peculiar to war is simply the peculiar nature of its means. War in general, and the commander in any specific instance, is entitled to require that the trend and designs of policy means. That, of course, is no small demand; but however much it may affect shall not be inconsistent with these political aims in a given case, it will never do more than modify them. The political object is the goal, war is the lation from their purpose.”). means of reaching it, and means can never be considered in iso 55 For example , General Colin L. Powell, Chairman of the Joint Chiefs of Staff, U.S. Forces: Challenges Ahead , 71 OREIGN FFAIRS A 32, 37 (1992) (explaining that despite the limited political objectives of the 1991 Gulf War, th e F United States “did use overwhelming force quickly and decisively.”). 56 Refer to § 2.2.1 ( as a Justification ); § 2.2.3.1 (Consideration of the Broader Imperatives of Military Necessity Winning the War ). 57 Refer to § 2.2.2 ( Military Necessity and Law o f War Rules ). 58 D A RMY F IELD M ANUAL 3-24, EPARTMENT OF THE Counterinsurgency , 1-1 (¶1 -1) (Dec. 2006) (“Insurgency and counterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization, and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict; however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times. Warfare remains a violent clash of interests between organiz ed groups characterized by the use of force. Achieving victory still depends on a group’s ability to mobilize support for its political interests (often religiously or ethnically eans to achieve these goals are not based) and to generate enough violence to achieve political consequences. M 1, UBLICATION ARINE C ORPS D OCTRINAL P M states.”); limited to conventional forces employed by nation- Warfighting , 3 (Jun. 20, 1997 ) (explaining that war is “a violent clash of interests between or among organized groups characterized by the use of military force.”). 16

44 59 element of war has been viewed as important in understanding the nature of war. The violent nature of war has also meant that suffering has been an unfortunate and tragic, but unavoidable 60 consequence of war. Law of war treaties such as the Hague and Geneva Conventions have been negotiated 61 with the understanding . that suffering and destruction are unavoidably part of war B ut these 62 to reduce unnecessary suffering and destruction. seek treaties and the principle of humanity 1.4.2.2 and Unreliable Information – “ Fog of War ” . Nature of War – Limited 63 During war, information is often limited and The uncertainty of information in war unreliable. at and from the opposing sides results from the chaotic nature of comb ’ efforts to deceive one 64 another , which generally is not prohibited by the law of war . The limited and unreliable nature of information available during war has influenced the is development of the law of war. For example, it affects how the principle of military necessity 59 ARINE C ORPS D M P UBLICATION 1, Warfighting , 14 (Jun. 20, 1997) (“War is among the greatest horrors OCTRINAL known to humanity; it should never be romanticized. The means of war is force, applied in the form of organized violence. It is through the use of violence, or a credible threat of violence, that we compel our enemy to do our will. Violence is an essential element of war, and its immediate result is bloodshed, destruction, and suffering. While the magni tude of violence may vary with the object and means of war, the violent essence of war will never change. Any study of war that neglects this basic truth is misleading and incomplete.”). 60 For example , Friedrich II, Letter to Lord Marischal, Nov. 23, 1758 reprinted in T HOMAS C ARLYLE , V H ISTORY OF ALLED F RIEDERICH II OF P RUSSIA : C REDERICK THE F G REAT 386 (1865) (“Our Campaign is over; and there has nothing come of it on one side or the other, but the loss of a great many worthy people, the misery of a great many poor soldiers crippled forever, the ruin of some Provinces, the ravage, pillage and conflagration of some flourishing Towns. Exploits these, which make humanity shudder: ... .”). 61 Edward R. Cummings, Acting Assistant Legal Adviser for Politico -Military Affairs, Remarks at Symposium at I UMULATIVE D IGEST OF U NITED S TATES P RACTICE IN NTERNATIONAL , Sept. 25, 1982, III C Brooklyn Law School AW 88 3421, 3422 (“The Conventions referred to today, such as the Hague and Geneva Conventions, are L 1981- important o nes and are strongly supported by the United States. They have helped reduce the suffering caused by wars. But one should not ask the impossible of these agreements. They were not intended to make war ‘humane’ or lt to fight. They were modestly intended to reduce the inhumanity and to ban war, or to make wars more difficu barbarity of war when militarily possible. Anyone who has read the negotiating records of these old agreements will note that they were largely negotiated by the military. In fact, th e first agreement of this kind, the St. Petersburg Declaration, was agreed to by a military commission. Unrealistic provisions which just would not be accepted or respected in battle were not favored.”). 62 Refer to § 2.3 (Humanity ). 63 , United States v. List, et al. (The Hostage Case), XI T RIALS OF See, e.g. AR C RIMINALS B EFORE THE NMT 1297 W (“The course of a military operation by the enemy is loaded with uncertainties, s uch as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the N ARL VON C LAUSEWITZ , O 140 (1989) (“the general unreliability of all W AR uncertainty of his intentions.”); C information presents a special problem in war: all action takes place so to speak, in a kind of twilight, which like fog or moonlight, often tends to make things grotesque and larger than they really are.”). 64 ). (Ruses of War and Other Lawful Deceptions Refer to § 5.25 17

45 65 applied The limited and unreliable nature of information available during war also is . 66 ’s standards for how persons are to assess information recognized in the law of war . EGAL AR ” 1.5 L “W C ONCEPT AS A ” is sometimes used as a legal concept, i.e. , the application or operation of a legal “War rule may depend on the existence of a “war, ” or “ hostilities. ” As a legal ” “ armed conflict, war prosecuting its concept, “ ” has traditionally been viewed as a condition in which a State is However, the precise definition of “ war ” rights by military force, usually against another State. often depends on the specific legal context in which it is used. Traditional Conception of War Under International Law . As international l aw 1.5.1 began to regulate “ war, ” “hostilities, ” and “ armed conflict, ” it became necessary to determine 67 what “ war ” is for the purpose of triggering those legal obligations. usually been described as a condition or state that applies As a legal concept, war has more broadly than only the mere employment of force or the mere commission of acts of 68 violence . When treated as a legal concept, “ s use of force to war” has been associated with a State’ 69 vindicate its rights (principally, its inherent right of self -defens e) under international law. 65 Refer to § 2.2.3 (Applying Military Necessity ). 66 Refer to § 5.4 (Assessing Information Under the Law of War ). 67 See, e.g. , Arnold D. McNair, The Legal Meaning of War, and the Relation of War to Reprisals , 11 T RANSACTIONS US (“There exist many treaties and other international conventions under which G ROTI S OCIETY 29, 30 (1925) OF THE important obligations arise upon the occurrence of a state of ‘war,’ and as regards which, therefore, either because oting war, such as ‘neutrality,’ is used, it becomes essential to know whether the term ‘war’ or some other term conn or not a state of war exists at a given point of time. Thus most of the Hague Conventions only come into operation —for instance, those relating t o the Laws and Customs of War on Land, to the Rights once a state of war has arisen and Duties of Neutrals in Land and Maritime War respectively, to the Bombardment of Ports, Towns and Villages by Naval Forces, and to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.”) . 68 1956 FM 27- 10 (Change No. 1 1976) ¶8 (“While it is usually accompanied by the commission of acts of violence, OORE ’ S D IGEST 153 (“Much confusion a state of war may exist prior to or subsequent to the use of force.”); VII M nd the fact that by the term war is meant not the mere employment of force, but the may be avoided by bearing in mi ROTIUS , L AW OF G existence of the legal condition of things in which rights are or may be prosecuted by force.”); W & P EACE 33 (1.1.2.1) (“war is the condition of those contending by force”). AR 69 S PAIGHT , A IR P OWER AND W AR R IGHTS 2 (“War, after all, is only a means to an end. It is a way of settling an international difference which diplomacy has failed to adjust and which is not susceptible of treatment by the other f pacific settlement, such as inquiry commissions, arbitration, or submission to the Permanent Court of The means o Hague. When all else fails, there is no way in which a nation can assert its rights save by going to war. War is the means by which it vindicates a vital right threatened or infringed by the claim or act of another State. Its object is to cause the other State to desist from the action or abandon the claim which is the cause of offence. In other words, a war is fought in order to bring about a cha nge of mind in another State.”); The Prize Cases, 67 U.S. 635, 666 (1863) MERICH (“War has been well defined to be, ‘That state in which a nation prosecutes its right by force.’”) (quoting E . 30 (“Ever since the formation and art V ATTEL , D ROIT DE G ENS (L AW OF N ATIONS ) (1760)); L IEBER C ODE DE coexistence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against 18

46 Traditionally, war has often been described as a legal condition between two or more 70 States. international armed conflicts (such as However, certain law of war rules apply to non- 71 intrastate conflicts or conflicts between a St -State armed group). ate and a non Different Definitions of “ ” for Different Legal Purposes . T here is no single 1.5.2 War legal definition of “ ” “ hostilities, ” or “ armed conflict ,” and the definition of these terms has war, varied in both domestic and international law. In domestic law, “ war, ” “hostilities, ” and “ armed conflict ” have been interpreted 72 the specific legal context at issue . For example, under the differently depending on 73 Constitution ” , Congress has the power to “declare war. war Thus, “ ” might be interpreted to 74 war ” in this sense determine whether a military operation constitutes “ Similarly, the War . Powers Resolution states certain requirements that are triggered when U.S. forces are introduced wro ng; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.”). 70 1956 FM 27- 10 (Change No. 1 1976) ¶8a (“War m ay be defined as a legal condition of armed hostility between States. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to or subsequent to the use of force. The outbreak of war is usually accompanied b y a declaration of war (see par. 20). Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise of armed force pursuant to a recommendation, decision, or call by the United Nations, in the exercis e of the inherent right of individual or collective self -defense against armed attack, or in the performance of enforcement measures through a regional arrangement, or otherwise, in conformity with appropriate provisions of the United Nations AUTERPACHT 202 (§54) (“War is a contention between two or L , II O PPENHEIM ’ S I NTERNATIONAL L AW Charter.”); more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of IEBER ODE art. 20 (“Public war is a state of armed hostility between sovereign C peace as the victor pleases.”); L nations or governments. It is a law and requisite of civilized existence that men live in political, continuous s bear, enjoy, and suffer, advance and societies, forming organized units, called states or nations, whose constituent retrograde together, in peace and in war.”). 71 § 3.3.1 (International Armed Conflict and Non -International Armed Conflict). Refer to 72 See, e.g. , Fred K. Green, The Concept of “War” and the Concept of “Combatant” in Modern Conflicts , 10 267, 269 (1971) (“[I]n US municipal law, the existence of “war” and its ILITARY L AW AND L AW OF W AR R EVIEW M f objective fact determined for different purposes by different agencies of beginning and termination is a question o the sovereign. There has been no apparent effort to coordinate federal law so as to permit establishment of fixed criteria that would be identified and applicable for all purposes . The tremendous variations in result that this situation produces renders meaningless any attempt to generalize with respect to established criteria.”). 73 U.S. C ONSTITUTION art. I, § 8. 74 Caroline D. Krass, Principal Deputy Assistant Attorney General, Au thority to use Military Force in Libya , 8 (Apr. 1, 2011) (“[T]he historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates. In our view, determining whether a particular planned engagement constitutes a ‘war’ for constitutional purposes instead requires a fact -specific assessment of the ‘anticipated nature, scope, and duration’ of , 18 Op. O.L.C. at 179.”). the pla nned military operations. Haiti Deployment 19

47 75 into “ hostilities. Other statutes may require a determination that conduct has occurred ” 76 ” or during “ time of war. “[w]hen the United States is at war ” “war, ” “ hostilities, Under international law, “armed conflict ” may also be ” and 77 interpreted with different purposes in mind. war ” can aff ect what duties States that A state of “ 78 A state of “ war ” can affect are not participating in the conflict have under the law of neutrality. Most importantly for the whether peacetime treaties between two States continue to apply. the terms “ war ” and “armed conflict ” are used to describe when purposes of this manual, jus in 79 bello rules apply . 1.6 L AW OF D ISTINGUISHED F ROM C ERTAIN AR T OPICS W The law of war may be distinguished from the following topics: (1) operational law; (2) arms control; (3) human rights treaties; ( 4) the Just War Tradition; (5) rules of engagement; and (6) the Code of Conduct for U.S. Armed Forces. Operational Law . The law of war is an important part of , but not the entirety of , 1.6.1 operational law consists of that body of domestic, foreign , and international . Operational law law that specifically pertains to the activities of military forces across the entire conflict spectrum. O perational law includes diverse legal disciplines, such as military justice, administrative and civil law, legal assistanc e, claims, procurement law, national security law, 80 fiscal law, and the law of war. 75 See 50 U.S.C. § 1543(a)(1) (“In the absence of a declaration of war, in any case in which United States Armed Forces are introduced — ent involvement in hostilities is clearly (1) into hostilities or into situations where immin indicated by the circumstances; ... the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth ... .”). 76 See, e.g. 843(f) (“When the United States is at war, the running of any statute of limitations , 10 U.S.C. § applicable to [certain offenses]... is suspended until three years after the termination of hostilities as proclaimed by 906 (“Any person who in time of war is found the President or by a joint resolution of Congress.”); 10 U.S.C. § lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any any manufacturing or industrial plant, or any other place or of the armed forces, or in or about any shipyard, institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court -martial or by a military commission and on conviction shall be punished by death. This section does not apply to a military commission established under chapter 47A of this title.”). 77 J S TONE , L EGAL C ONTROLS OF I ULIUS C ONFLICT 312 (1954) (“[T]he question ‘War or No War?’ NTERNATIONAL may have to be answered diffe rently according to the purposes for which an answer is sought. One answer, for example, may be indicated for the purposes of the rules for the mitigation of suffering; another for those governing war supplies to belligerents from neutral governments, or governing blockade or contraband.”). 78 Refer to § 15.2.1 (Armed Conflict and the Application of the Law of Neutrality ). 79 Refer to § 3.4 (When Jus in Bello Rules Apply ). 80 T HE J UDGE A DVOCATE G ENERAL ’ S S CHOOL , U.S. A RMY , O PERATIONAL L AW H ANDBOOK JA 422 1- 1 (1997) (“[Operational law is] [t]hat body of domestic, foreign, and international law that impacts specifically upon the activities of U.S. Forces across the entire operational spectrum. Operational law is the essence of the military legal practice. It is a collection of diverse legal and military skills, focused on military operation s. It includes military justice, administrative and civil law, legal assistance, claims, procurement law, environmental law, national security law, fiscal law, international law, host nations law, and the law of war. In short, operational law is a unique blend of 20

48 Arms C . Arms control is a broad term that includes a variety of efforts to 1.6.2 ontrol r aspects of reduce the numbers, types, performance characteristics, proliferation, testing, or othe certain categories of weapons. Arms control usually proceeds through bilateral or multilateral treaties . Arms control can also include non- binding political commitments , as well as reciprocal unilateral statements of intention or policy. Th e overall goals of arms control are to reduce: (1) ; (2) the conse quences of war, should it occur ; and (3) the likelihood of war the costs of preparing for war. non- proliferation ” refers Arms control is closely related to other concepts. For example, “ cifically to efforts to restrict the spread of weapons (in particular, weapons of mass spe destruction). “ Disarmament ” refers to efforts to eliminate entirely, rather than to restrict, a particular category of weapon. And sometimes States accept “ confidence -building measures ” (or confidence, security, and transparency -building measures) that do not directly reduce the ’ certainty that ambiguous activities quantity or quality of armaments, but rather increase States by other States are not secret actions in violation of arms control obligations. overlap in treaties . For example, the CCW Arms control and the law of war frequently 81 on Blinding Laser Weapons has both arms control and law of war provisions . Protocol IV ohibit s, inter alia , the development and Similarly, the Chemical Weapons Convention pr stockpiling of chemical weapons, but it is also directly relevant to the law of war because it 82 prohibits the use of chemical weapons in all circumstances . 83 Human rights treaties Human R ights Treaties . address primarily the obligations 1.6.3 84 of governments with respect to the rights of individuals, including For their own nationals. every source of law that has application within the operational context. ... Because the definition of operational law is so broad, ample statutory and regulatory references serve to establish the substance of the practice.”). 81 Refer to (CCW Protocol IV on Blinding Laser Weapons ). § 19.21.5 82 Refer to § 6.8.3.2 ). (Prohibitions With Respect to Chemical Weapons 83 See, e.g. , This section focuses on human rights treaties and not other sources of international human rights law. Catherine Amirfar, Counselor for International Law, Department of State, Statement at 53rd Session of the U.N. Committee Against Torture, Nov. 3 – 28, 2014 , Nov. 12, 2014 (“For example, the prohibition against torture is customary international law binding on all nations everywhere, at all times.”); U.N. International Law Commission, State responsibility: Co mments and observations received from Governments , U.N. Doc. A/CN.4/488, 133 (Mar. 25, 1998) (“ Subparagraph (e) [which would reflect a prohibition against conduct by way United States of America of countermeasures in contravention of a peremptory norm of general international law] similarly does not provide useful guidance in determining whether a countermeasure would be permissible. Just as there is little agreement with respect to ‘basic’ human rights and political and economic ‘coercion’, the content o f peremptory norms is difficult to determine outside the areas of genocide, slavery and torture.”). 84 See, e.g. , Jimmy Carter, United Nations Remarks on Signing International Covenants on Human Rights , 1977- II enant on Civil and Political Rights concerns what governments P P APERS OF THE P RESIDENTS 1734 (“The Cov UBLIC must not do to their people, and the Covenant on Economic, Social and Cultural Rights concerns what governments must do for their people. By ratifying the Covenant on Civil and Political Rights , a government pledges, as a matter of law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading treatment. It recognizes the right of every person to freedom of thought, freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly, and the right to emigrate from that country.”). 21

49 example, governments must refrain from subjecting individuals to arbitrary detention, to 85 , inhuman, . arbitrary deprivation of life, or to cruel or degrading treatment or punishment uman rights treaties have been described as primarily As a general matter, h applicable to 86 the relationship between a State and individuals in peacetime. Some h uman rights treaties also 87 rom certain provisions in emergency situations. provide for derogation f chiefly concerned with the conditions Law of war treaties have been described as of the enemy particular to armed conflict and the relationship between a State and nationals 88 State . Law of war treaties rally do not provide for derogation because necessity is not a gene 89 basis for derogating from law of war rules . 1.6.3.1 Relationship Between Human Rights Treaties and the Law of War . In some circumstances , the eaties may appear rules in the law of war and the rules in human rights tr ; these apparent conflicts may be resolved by the principle lex to conflict that the law of war is the during situations of armed conflict specialis , and, as such, is the controlling body of law with 90 regard to the conduct of hostilities and the protection of war victims . 85 International Covenant on Civil and Political Rights, art. 9(1), Dec. 19, 1966, 999 UNTS 171, 175 (“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by la w.”); International Covenant on Civil and Political Rights, art. 6(1), Dec. 19, 1966, 999 UNTS 171, 174 (“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”); Interna tional Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 UNTS 171, 175 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”). 86 EAN See, e.g. , J , P ICTET H UMANITARIAN L AW AND THE P ROTECTION OF W AR V ICTIMS 15 (1975) (“Admittedly, human rights embody more general principles while the law of armed conflicts is of a specific and exceptional nat ure, coming as it does into operation at the very time when the exercise of human rights is prevented or restricted by war. But the two legal systems are fundamentally different, for humanitarian law is valid only in the case of an armed conflict while hu man rights are essentially applicable in peacetime, and contain derogation clauses in case of conflict. Moreover, human rights govern relations between the State and its own nationals, the law of war those between the State and enemy nationals.”). 87 See, e.g. , International Covenant on Civil and Political Rights, art. 4(1), Dec. 19, 1966, 999 UNTS 171, 174 (“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the pres ent Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under internationa l law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”). 88 Christopher Greenwood, Historical Development and Legal Basis , in D IETER F LECK , T HE H ANDBOOK OF ONFLICTS H AW IN A RMED C L 9 (¶102) (1999) (“Human rights law is designed to operate primarily in UMANITARIAN normal peacetime conditions, and within the framework of the legal relationship between a state and its citizens. International humanitarian law, by contrast, is chiefly concerned wit h the abnormal conditions of armed conflict and the relationship between a state and the citizens of its adversary, a relationship otherwise based upon power rather than law.”). 89 Refer to § 2.2.2 ( Military Necessity and Law of War Rules ). 90 ). (The Law of War’s Relationship to Other Bodies of Law Refer to § 1.3.2 22

50 For example, the right to challenge the lawfulness of an arrest before a court provided in Article 9 International Covenant on Civil and Political Rights ( ICCPR) would appear to of the under the law of war to detain certain persons without judicial process conflict with the authority 91 or criminal charge . However, the United States has understood Article 9 of the ICCPR not to affect a State’ s authorities under the law of war, including a State ’s authority in both international and non- international armed conflicts to detain enemy combatants until the end of 92 hostilities. S ome international courts or commissions have interpreted the rights conveyed by licable lex specialis , when human rights treaties in light of the rules of the law of war, as the app 93 assessing situations in armed conflict. On the other hand, during armed conflict, human rights treaties would clearly be controlling with respect to matters that are within their scope of application and that are not addressed by the law of war. For example, a time of war does not suspend the operation of the ICCPR with respect to matters within its scope of application . T herefore, as an illustration , m respecting and participation in a war would in no way excuse a State Party to the ICCPR fro 91 International Covenant on Civil and Political Rights, art. 9(4), Dec. 19, 1966, 999 UNTS 171, 176 (“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”). 92 Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9 , ¶22, Jun. 10, 2014 (“Given that international humanitarian law is the controlling body of law in armed conflict with regard to the conduct of hostilities and the protection of war victims, the United States does not interpret references to ‘detainees’ and ‘detention’ in several paragraphs to refer to government action in the context of and associated with an armed conflict. For example, paragraph 15 incorrectly implies that the detention of enemy -international armed conflict ‘would normally amount to arbitrary detention as combatants in the context of a non effective measures addressing the threat, including the criminal justice system, would be available.’ On the other contrary, in both international and non -international armed conflicts, a State may detain enemy combatants consistent with the law of armed conflict until the end of hostilities. Similarly, to the extent paragraphs 15 and 66 are intended to address law -of-war detention in situations of armed conflict, it would be incorrect to state that there is a ‘right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention’ in all cases. In addition, to the extent the discussion of an individual right to compensation under Article 9 in paragraphs 49- 52 is intended to extend to individuals detained in the cont ext of an armed conflict, as a matter of international law, the rules governing available remedies for unlawful detention in the context of an armed conflict would be drawn from international humanitarian law.”). 93 Coard, et al . v. United States , Inter -Ame rican Commission on Human Rights, Organization of American States, Case 10.951, Report 109/99, ¶ 42 (Sept. 29, 1999) (“[I]n a situation of armed conflict, the test for assessing the observance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from that applicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to the applicable lex specialis .”); Juan Carlos Abella v. Argentina, Inter -American Commission on Human Rig hts, Organization of American States, Case 11.137, OEA/Ser.L/V/II.98, ¶161 (Nov. 18, 1997) (“[T]he Commission must necessarily look to and apply definitional standards and relevant rules of humanitarian law as sources of authoritative guidance in its resolution of this and other kinds of claims alleging violations of the American Convention in combat situations.”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 240 (¶25) (“In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex onduct of hostilities.”). specialis , namely, the law applicable to armed conflict which is designed to regulate the c 23

51 ensuring the right and opportunity of every citizen to vote and to be elected at genuine periodic 94 elections. 1.6.3.2 Different Views on the Applicability of Human Rights Treaties . In conducting operations with coalition partners, it may be important to consider that s ome States may have different perspectives on the applicability of human rights treaties . Such differences arty to may result from different legal interpretations or from the fact that the other State is a P different human rights t reaties . For example, the European Court of than the United States uropean S Human Rights – as well as some E obligations under the tates – have construed certain European Convention on Human Rights (ECHR) as applicable to their military forces abroad 95 during occupation. 1.6.3.3 International Covenant on Civil and Political Right s (ICCPR) . The United States is a Party to the International Covenant on Civil and Political Rights (ICCPR). The ICCPR creates obligations for a State with respect to persons within its te rritory and 96 . The United States has long interpreted the ICCPR not to apply subject to its jurisdiction 97 . abroad The inclusion of the reference to “ within its territory ” in Article 2(1) of the ICCPR was adopted as a result of a proposal made by U.S. dele gate Eleanor Roosevelt – specifically to 94 Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights , Dec. 30, 2011, ¶506 (“With respect to the Concerning the International Covenant on Civil and Political Rights the Covenant and the international law of armed conflict (also referred to as international application of humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time of war.’ Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion o r belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.”). 95 Case of Al -Skeini and Others v. The United Kingdom, ECtHR, 55721/07, ¶149 (Jul. 7, 2011) (“It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the (ECHR).”). 96 International Covenant on Civil and Political Rights, art. 2(1), Dec. 19, 1966, 999 UNTS 171, 173 (“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subj ect to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”). 97 See, e.g. , U.N. Human Rights Committee, Summary Record of the 1405th Meeting, U.N. Doc. CCPR/C/SR.1405 6-7 (¶20) (Apr. 24, 1995) (“Klein had asked whether the United States took the view that the Covenant did not apply to government actions outside the United States. The Covenant was not regarded as having extraterritorial application. In general, where the scope of application of a treaty was not specified, it was presumed to apply only within a party’s territory. Article 2 of the Covenant expressly stated that each State party undertook to respect and ensure the rights recognized ‘to all individuals within its territory and subject to its jurisdiction’. That dual requirement restricted the scope of the Covenant to persons under United States jurisdiction and with in United States territory. During the negotiating history, the words ‘within its territory’ had been debated and were added by vote, with the clear understanding that such wording would limit the obligations to within a Party’s territory.”). 24

52 ensure that a State Party’s obligations would not apply to persons outside its territories, such as 98 in occupied territory and leased territory. Convention Against Torture . The United States is a Party to the 1.6.3.4 99 . and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention Against Torture was not intended to supersede the prohibitions against The Convention against Torture 1949 Geneva Conventions or its torture already contained in customary international law and the 100 Additional Protocols. The law of war is the controlling body of law with respect to the conduct of hostilities and the protection of war victims . Nevertheless, a time of war does not the Convention Against Torture. T he Convention Against Torture suspend operation of 101 continues to apply even when a State is engaged in armed conflict. For example, a state of 102 ’s torture of individuals during armed conflict. war could not justify a State In addition, w here the text of the Convention Against Torture provides that obligations “any territory under its jurisdiction, apply to a State Party in ” such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman, or degrading treatment or ain areas beyond the sovereign territory of the State Party, and more punishment, extend to cert 103 all places that the State Party controls as a governmental authority. ” specifically to “ Just War Tradition . The Just War Tradition describes customs, ethical codes, and 1.6.4 moral teachi ngs associated with warfare that military thinkers and philosophers have developed 104 over centuries to seek the moral justification of and the limitations to war . 98 Refer to § 11.1.2.6 ). (Occupation and the ICCPR and Other Human Rights Treaties 99 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10 , 1984, 1465 UNTS 85. 100 § 8.2.1 (Protection Against Violence, Torture, and Cruel Treatment Refer to ). 101 Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N. 28, 2014 , Nov. 12, 2014 (“Although the law of armed conflict is the Committee Against Torture, Nov. 3 – controlling body of law with respect to the conduct of hostilities and the protection of war victims, a time of war does not suspend operation of the Convention Against Torture, which continues to apply even when a State is engaged in armed conflict. The obligations to prevent torture and cruel, inhuman, and degrading treatment and punishment in the Convention remain applicable in times of armed conflict and are reinforced by complementary prohibitions in the law of armed conflict.”). 102 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10, 1984, 1465 UNTS 85, 114 (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”). 103 Mary McLeod, Acting Legal Adviser, Department of State, O pening Statement at 53rd Session of the U.N. Committee Against Torture, Nov. 3 – , Nov. 12, 2014 (“In brief, we understand that where the text of the 28, 2014 Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party, and more specifically to ‘all places that the State Party controls as a governmental authority.’ We have determined that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”). 104 -war tradition begins with the W ILLIA M O’B RIEN , T HE C ONDUCT OF J UST AND L IMITED W AR 4 (1981) (“The just efforts of St. Augustine to justify Christian participation in Roman wars. From this foundation, St. Thomas Aquinas 25

53 The Just War Tradition provides part of the philosophical foundation for the modern law of w jus ad bellum and jus in bello . The Just War Tradition developed ar and has considered both 105 jus ad bellum criteria or principles that have provided the foundation for modern rules. jus in bello rules, such as the 1949 Geneva Similarly, law of war treaties that provide also rooted in the Just War Tradition. The Just War Tradition remains relevant Conventions, are 106 for decisions to employ U.S. military forces and in warfighting. Rules of E t (ROE). Rules of engagement (ROE) have be en defined as 1.6.5 ngagemen irectives issued by competent military authority that delineate the circumstances and “[d] limitations under which United States forces will initiate and/or continue combat engagement 107 with other forces encountered.” ROE are used by States to tailor the ru les for the use of force 108 to the circumstances of a particular operation. ROE reflect legal, policy, and operational considerations , and are consistent with the 109 international law obligations of the United States, including the law of war. t ROE may restric and other Scholastic thinkers developed th e Scholastic just -war doctrine. This doctrine reached its mature form by the time of the writings of Vitoria and Suarez in the sixteenth and seventeenth centuries. Various Protestant -war issues during the Ref moralists and secular writers dealt with just - ormation, but by the eighteenth century just war doctrine was becoming a curiosity that was not taken seriously. It remained for the twentieth century reaction against total war to spark renewed studies in the just -war tradition.”). 105 Refer to § 1.11.1 ( Jus ad Bellum Criteria ). 106 UBLIC See, e.g. , Barack Obama, Remarks on Accepting the Nobel Peace Prize in Oslo , Dec. 10, 2009, 2009- II P P APERS OF THE P RESIDENTS 1799 (“And over time, as codes of law sought to control violence within groups, so did philosophers and clerics and statesmen seek to regulate the destructive power of war. The concept of a just war emerged, suggesting that war is justified only when certain conditi ons were met: if it is waged as a last resort or in self -defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.”); Remarks at the Annual Convention of the National Religious Broadcaste rs , Jan. 28, 1991, George H. W. Bush, despite P UBLIC P APERS OF THE P RESIDENTS 70 (“Nowhere is this more true than in the Persian Gulf where -- I 1991- it is not Iraq against the United States, it’s the regime of Saddam Hussein against protestations of Saddam Hussein -- the re st of the world. Saddam tried to cast this conflict as a religious war, but it has nothing to do with religion per se. It has, on the other hand, everything to do with what religion embodies: good versus evil, right versus wrong, om versus tyranny and oppression. The war in the Gulf is not a Christian war, a Jewish human dignity and freed war, or a Moslem war; it is a just war. And it is a war with which good will prevail.”). 107 OINT P UBLICATION 1-04, Legal Support to Military Operations , GL -3 (Aug. 17, J 2011) (“ rules of engagement. Directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered. Also called ”). ROE. 108 , Juan Carlos Gomez, Twenty -First -Century Challenges: The Use of Military Forces to Combat For example 86 (2012) (“There must be clear, understandable rules 279, 285- NTERNATIONAL L AW S TUDIES , 88 I Criminal Threats provided to military forces on the circumstances under which force may be used and the type and degree of that force. This is dependent on the mission assigned to the forces. In Colombia, two differently colored cards are used. A blue card is used when the military unit is engaged in a law enforcement mission. The rules on the blue card are based on HRL. They provide for the use of force only when no other option is available to accomplish the mission and in self -defense of the person and others. The red card is used in operations against military objectives. These cards are based on IHL and permit the offensive use of force, including lethal force if demanded by military necessity.”). 109 67 AJIL J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 124 (1973) (“With reference to your inquiry concerning the rules of engagement governing American military activity in Indochina, you are advised that rules of engagement are directives issued by competent military authority 26

54 actions that would be lawful under the law of war, but may not permit actions prohibited by the States have used ROE as part of the implemen law of war. tation of their law of war obligations 110 . during military operations Code of Conduct for U.S. Armed Fo rces 1.6.6 he Code of Conduct is a moral guide for . T to govern their conduct in resisting capture and their actions in the event they fall U.S. forces 111 The Code of Conduct was developed after the Korean War and was into hostile hands. 112 Order. promulgated by Executive The Code of Conduct is consistent with the law of war 113 obligations of the United States, including obligations in the GPW. T 1.7 REATIES Treaties are generally defined as international agreements concluded between States in 114 y international law . written form and governed b Under international law, a treaty is binding 115 upon States that are Parties to it. 116 For many years, t he The United States is a P aw of war treaties. arty to a number of l Department of State has d annually a listing of treaties and other international publishe agreements in force for the United States. This publication has provided helpful information about such treaties, including the date of U.S. ratification and a listing of other Parties to each treaty. Treaties – Notes on Terminology . Treaties may be titled or referred to by several 1.7.1 other terms in addition to “ treaty ” – including convention, protocol, or agreement. In the context “protocol of the law of war, s or update ” often refers to an agreement that supplement s an existing ag reement . ” U nder U.S. Constitutional Law . Under the Constitution, a 1.7.1.1 “Treaties “treat y” must receive the advice and consent of the Senate before U.S. ratification or accession. nternational agreements , such as Executive agreements, are not classi fied as “ treaties Certain i ” circumstances and limitations under which United States Forces will initiate and/or continue which delineate the combat engagement with the enemy. These rules are the subject of constant review and command emphasis. They are changed from time to time to conform to changing situations and the demands of military necessity. One critical and unchanging factor is their conformity to existing international law as reflected in the Hague Conventions of tomary international law of which 1907 and the Geneva Conventions of 1949, as well as with the principles of cus UNGA Resolution 2444 (XXIII) is deemed to be a correct restatement.”). 110 Refer to § 5.1.2 (Adherence to Law of War Obligations in the Co nduct of Hostilities During Military Operations ). 111 § 9.39 (Code of Conduct for U.S. Armed Forces ). Refer to 112 Refer to § 9.39.2 (Background on the U.S. Code of Conduct ). 113 Refer to § 9.39.1 (Text of the Code of Conduct and Discussion ). 114 Consider, e .g., VCLT art. 1(a) (“‘[T]reaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;”). 115 Refer to § 1.10.1.1 (Legal Force of Treaties Among States ). 116 ). (Law of War Treaties to Which the United States Is a Party Refer to § 19.2.1 27

55 for the purposes of this requirement, although they may be characterized as “ treaties ” for the 117 purposes of international law and impose obligations upon the United States. provisions of a treaty 1.7.2 . A State may limit the application of Reservations to Treaties long as the treaty does not prohibit such by reservation upon ratification of the treaty as 118 . reservations and the reservation is compatible with the object and purpose of the treaty For vation to certain provisions of CCW Protocol III on example, the United States has taken a reser 119 Incendiary Weapons. On the other hand, for example, the Chemical Weapons Convention expressly prohibits reservations to the Convention and prohibits reservations to the Convention’ s 120 Annexes ompatible with its object and purpose. that are inc Treaties . Under certain circumstances, States may withdraw 1.7.3 Withdrawal From 121 Some law of war and arms control treaties specify the conditions under which from treaties. 122 Parties may withdraw from them. Even upon denunciation of a treaty, States remain bound by 123 customary international law, including law of war principles. . Certain s Use of Certain Subsequent Practice in Treaty Interpretation 1.7.4 ubsequent State practice in the application of a treaty provision may be taken into account when 124 interpreting that provision. tate practice is important a Subsequent S s an element of 117 , Weinberger v. Rossi, 456 U.S. 25, 29- 30 (1982) (“The word ‘treaty’ has more than one meaning. See, e.g. Under principles of international law, the word ordinarily refers to an interna tional agreement concluded between sovereigns, regardless of the manner in which the agreement is brought into force. Under the United States Constitution, of course, the word ‘treaty’ has a far more restrictive meaning. Article II, §2, cl. 2, of that in strument provides that the President ‘shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.’”) (internal citation omitted). 118 Consider VCLT art. 19 (“A State may, when sign ing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing See under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.”). ESSAGE FROM THE P RESIDENT T RANSMITTING THE also William P. Rogers, , Oct. 18, 1971, M Letter of Submittal 2 (“Part 2 of Section II sets forth the rules on reservations to treaties (Articles 19 VCLT -23). The articles reflect flexible current treaty practice with regard to multilateral treaties as generally followed since World War II. The rule on reservations had been that in order for a State to become party to a multilateral treaty with earlier traditional a reservation the unanimous consent of the other parties was required. That rule has given way in practice to a more flexible approach particularly after the International Court of Justice in 1951 handed down its Advisory Opinion on Reservations to the Genocide Convention.”). 119 Refer to (U.S. Reservation to CC W Protocol III on Incendiary Weapons ). § 6.14.3.2 120 Refer to § 19.22 (Chemical Weapons Convention ). 121 VCLT art. 54 (“The termination of a treaty or the withdrawal of a party may take place: (a) in Consider conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.”). 122 See, e.g. CCW art. 9(1) (“Any High Contracting Party may denounce this Co nvention or any of its annexed , Protocols by so notifying the Depositary.”); GWS art. 63 (“Each of the High Contracting Parties shall be at liberty to denounce the present Convention.”). 123 Refer to § 19.8.3 (Martens Clause). 124 Consider VCLT art. 31(3) (“There shall be taken into account, together with the context: ( b ) Any subsequent practice in the application of the treaty which establishes the agreement of the parties r egarding its interpretation;”). 199 (§325(2)) (1987) (“Any TATES S NITED ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW OF THE U I R See also 28

56 interpretation when it constitutes objective eviden ce of the understanding of the P arties as to the 125 meaning of the treaty. For example, the subsequent practice of States in the application of the s requirements for hospital ships has clarified that States may use hospital ships with GWS -Sea’ 126 the capability to conduct encrypted communications. . Stat es may enact domestic 1.7.5 Treaties and Domestic Implementing Legislation legislation . Although such implementing legislation is not to implement treaty provisions 127 s interpretation of those provisions. international law, it may reflect a State’ A State ’s domestic implementing legislation, or lack of such legislation, however, does not justify that State ’s noncompliance with an international obligation as a matter of international 128 law. 1.8 C USTOMARY I NTERNATIONAL L AW Customary international law results from a general and consistent practice of States that 129 llowed by them from a sense of legal obligation ( ). Customary international is fo opinio juris law is an unwritten form of law in the sense that it is not created through a written agreement by States. subsequent agreement between the parties regarding the interpretation of the agreement, and subsequent practice between the parties in the application of the agreement, are to be taken into account in its interpretation.”); I 203 (§325, comment c) (1987) (This ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW OF THE U NITED S TATES R “conforms to United States modes of interpretation, affirming that subsequent practice of the parties can be taken into account in interpreting international agreements.”). 125 See II Y EARBOOK OF THE I NTERNATIONAL L AW C OMMISSION 221 (¶15) (1966) (“The importance of such ion of the treaty, as an element of interpretation, is obvious; for it constitutes subsequent practice in the applicat objective evidence of the understanding of the parties as to the meaning of the treaty. Recourse to it as a means of established in the jurisprudence of international tribunals.”). See also Case Concerning interpretation is well- 76 (¶49) (same); Russian Claim Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, 1999 I.C.J. 1045, 1075- , 433 (1912) Permanent for Interest on Indemnities (The Russian Indemnity Case), Russia/Turkey, 11 R.I.A.A. 421 Court of Arbitration Unofficial English Translation, 3 (“Whereas the fulfilment of obligations is, between States as between individuals, the surest commentary on the meaning of these obligations;”); Case Concerning The Temple of Pre ah Vihear (Cambodia v. Thailand), Merits, Judgment, 1962 I.C.J. 6, 34 (The map “was accepted by the Parties in 1908 and thereafter as constituting the result of the interpretation given by the two Governments to the delimitation which the Treaty itself req uired. In other words, the Parties at that time adopted an interpretation of the treaty settlement which caused the map line, in so far as it may have departed from the line of the watershed, to prevail over the relevant clause of the treaty.”). 126 Refer t o § 7.12.2.7 (Use of Secret Codes for Communication ). 127 United States v. Navarre, 173 U.S. 77, 79 (1899) (noting that “[i]f the meaning of the treaty was doubtful, i t See was competent for Congress to resolve the doubt” in its enactment of legislation). 128 Refer to § 1.10.1.4 (Force of International Law Notwithstanding a State’s Domestic Law ). 129 See I R ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW OF THE U NITED S TATES 24 (§102(2)) (1987) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”). 29

57 Customary international law is generally binding on all Sta tes, but States that have been persistent objectors to a customary international law rule during its development are not bound 130 by that rule. practice and opinio juris have resulted in a rule of customary Assessing whether State 131 may be a difficult inquiry. international law Relationship Between Treaties and Customary International Law 1.8.1 . Treaty provisions may inter alia : (1) not reflect customary international law; (2) reflect customary , sely reflect it. international law; or (3) be based on customary law, but not preci s do not reflect customary international law. For example, In most cases, treaty provision AP I ’s provisions changing which persons would be entitled to the privileges of combatant status were viewed as novel at the time of the adoption o f AP I and as not reflecting customary 132 international law. In some cases, a treaty provision may reflect customary international law. The rule reflected in the treaty would thus be understood to be binding, even if the treaty provision was 133 For , because the rule not applicable maintains a separate existence as a customary norm. example, provisions of Hague IV and the Hague IV Regulations have been found to reflect 134 customary international law. Law of war treaties have specified that customary law and 135 pri nciple s continue to apply even if the treaty is not applicable. A treaty provision may be based on an underlying principle that is an accepted part of customary law, but the precise language of the treaty provision may not reflect customary international law because there may be considerable disagreement as to the precise statement of 130 (Legal Force of Customary International Law Among States Refer to § 1.10.1.2 ). 131 Michael J. Matheson, Deputy Legal Adviser, Department of State, on on the Remarks on the United States Positi Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American Red Cross -Washington College of Law Conference on International Humanitarian Law 419, 421- MERICAN U NIV ERSITY J OURNAL OF I 22 (1987) L AW AND P OLICY NTERNATIONAL A (Jan. 22, 1987), 2 (“Having described the reasons why I believe that the topic of this Workshop is important and very relevant to decisions currently being taken with respect to Protocol I in the United States and other governments, it is of course much more difficult to say exactly which of the rules contained in the Protocol currently are in fact a part of customary law. As I am sure you all appreciate quite well, there is no clear line drawn in the dust for all to see between those principles that are now customary law and those which have not yet attained the degree of acceptance and observance that might make them customary law. Instead, there are degrees of acceptance and degrees of udgment as to what degree of each is sufficient for establishment as customary law is observance, and the j inherently subjective and hard to define precisely.”). 132 Refer to, e.g. (AP I and the GPW 4A(2) Conditions ). , § 4.6.1.2 133 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986 I.C.J. 14, 95 (¶178) (“[E]ven if two norms belonging to two sources of international law appear identi cal in content, and even if the States in question are bound by these rules both on the level of treaty- law and on that of customary international law, these norms retain a separate existence.”). 134 Refer to § 19. 8.2.1 (Hague IV and Customary International Law ). 135 (Martens Clause). Refer to § 19.8.3 30

58 136 that underlying principle . For example, the United States has expressed support for the customary principle on which Article 51(3) of AP I is based, but has noted that Arti cle 51(3) of 137 , as drafted, AP I does not reflect customary international law. determining whether a purported rule is customary State Practice. One part of 1.8.2 international law is to analyze whether there is a general and consistent practice of States that supports the purported rule . An analysis of State practice to determine whether a purported rule reflects the customary consideration of international law of war inter alia : (1) whether the State should include , extensive and virtually uni ; (2) actual operational practice; (3) the practice of practice is form specially affected States; and (4) contrary practice. Extensive and Virtually Uniform . State practice should be sufficiently 1.8.2.1 extensive and virtually uniform dense and consistent to meet the “ ” standar d generally required 138 for existence of a customary rule. Actual Operational Practice . An analysis of State practice should include 1.8.2.2 an analysis of actual operational practice by States during armed conflict. Although manuals or other official statements may provide important indications of State behavior, they cannot 139 replace a meaningful assessment of operational State practice. 136 Michael J. Matheson, Deputy Legal Ad viser, Department of State, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American Red Cross -Washington College of Law Conference on International Humanitarian Law MERICAN OLICY U 419, 422 (1987) (“In NIVERSITY J OURNAL OF I NTERNATIONAL L AW AND P A (Jan. 22, 1987), 2 addition, it may be possible in many cases to say that a general principle is an accepted part of customary law, but to have considerable disagreement as to the precise statement of that general principle.”). 137 Refer to (AP I, Article 51(3) Provision on Direct Participation in Hostilities ). § 5.9.1.2 138 See, e.g. , Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator Richard G. Lugar Libya and War Powers: Hearing Before the Committee on Foreign Relations , U.S. Senate , 112th , in Congress, First Session, 53, 57 (Jun. 28, 2011) (“Determining that a principle has become customary international law requires a rigorous legal analysis to determine whether such principle is supported by a general and consistent practice of states followed by them from a sense of leg al obligation. Although there is no precise formula to indicate how widespread a practice must be, one frequently used standard is that state practice must be extensive and virtually uniform, including among States particularly involved in the relevant ac tivity (i.e., specially affected States).”); North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 1969 I.C.J. 3, 43 (¶74) (“Although the passage of only a short period of time is not arily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was necess originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, Sta te practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”). 139 U.S. R ESPONSE TO ICRC CIHL S TUDY 515 (“Second, we are troubled by the type of practice on which the Study has, in too many places, relied. Our initial review of the State practice volumes suggests that the Study places too much emphasis on written materials, such as military manuals and other guidelines published by States, as opposed to actual operational practice by States during armed conflict. Although manuals may provide important indications opinio juris of St ate behavior and , they cannot be a replacement for a meaningful assessment of operational State practice in connection with actual military operations. We also are troubled by the extent to which the Study relies 31

59 1.8.2.3 . Th e practice of “States whose interests are Specially Affected States ,” , States with a distinctive h istory of participation in the relevant matter, specially affected e.g. 140 the purported rule. States that have had a wealth of experience, or that have must support otherwise had significant opportunities to develop a carefully considered military doctrine, may be expected to hav e contributed a greater quantity and quality of State practice relevant to the . law of war than States that have not specially affected States ” could include , depending upon the relevant For example, “ 141 , the nuclear powers, other major military powers , and occupying or occupied States. matter As a case in point , the United Kingdom has been viewed as a specially affected State with 142 respect to the law of the sea. contrary Contrary Practice . E 1.8.2.4 practice, i.e. , the practice of vidence of States that does not s upport the purported rule , must be considered in assessing whether that rule 143 exists as a rule of customary international law. on non -binding resolutions of the General Assembly, given that States may lend their support to a particular resolution, or determine not to break consensus in regard to such a resolution, for reasons having nothing to do with a belief that the propositions in it reflect customary international law.”). 140 See U.S. R ESPONSE TO ICRC CIHL S TUDY 517 endnote 3 (“Not every State that has participated in an armed conflict is ‘specially affected;’ such States do generate salient practice, but it is those States that have a distinctive history o Written Statement of the Government of f participation that merit being regarded as ‘specially affected.’”); , 28 -29, Jun. 20, 1995, I.C.J., Request by the United Nations General Assembly for an the United States of America Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“Evidence of a customary norm requires indication of ‘extensive and virtually uniform’ State practice, including States whose interests are ‘specially affected.’ ... With respect to the use of nuclear weapons, customary law could not be created over the objection of -weapon States, which are the States whose interests are most specially affected.”). the nuclear 141 Theodor Meron, , 90 AJIL The Continuing Role of Custom in the Formation of International Humanitarian Law 238, 249 (1996) (“A broader question, however, concerns the degree of weight to be assigned to the practice of various states in the formation of the international customary law of war. I find it difficult to accept the view, sometimes advanced, that all states, whatever their geographical situation, military power and interests, inter alia, have an equal role in this regard. Belligerency is only one factor here. The practice and opinion of Switzerland, for example, as a neutral state, surely have more to t each us about assessment of customary neutrality law than the practice of states that are not committed to the policy of neutrality and have not engaged in pertinent national practice. The practice of ‘specially affected states’ -such as nuclear powers, o ther major military powers, and occupying and occupied states -which have a track record of statements, practice and policy, remains particularly ates in telling. I do not mean to denigrate state equality, but simply to recognize the greater involvement of some st the development of the law of war, not only through operational practice but through policies expressed, for example, in military manuals.”). 142 The Paquete Habana, 175 U.S. 677, 719 (1900) (Fuller, J., dissenting) (noting that “[i]t is difficult to See, e g., conceive of a law of the sea of universal obligation to which Great Britain has not acceded.”). 143 For example , Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 311, 311- 12 (Dissenting Opinion of Vice -President Sc hwebel) (“One way of surmounting the antinomy between practice and principle would be to put aside practice. That is what those who maintain that the threat or use of nuclear weapons is unlawful in all circumstances do. ... State practice demonstrates that nuclear weapons have been manufactured and deployed by States for some 50 years; that in that deployment inheres a threat of possible use; and that the international community, by treaty and through action of the United Nations Security Council, has, far f rom proscribing the threat or use of nuclear weapons in all circumstances, recognized in effect or in terms that in certain circumstances nuclear weapons may be used or their use threatened.”). 32

60 In addition, t he persistent objection of States may be relevant after the formation of that object ed to that rule by preventing the application of that rule to States that have rule during its 144 . development Opinio Juris . In addition to analyzing S tate practice, one must determine whether 1.8.3 practice results from a sense of legal obligation ( opinio juris ) or merely reflect the State ’ s States policy or practical interests. Opinio juris cannot simply be inferred from consistent State 145 opinio juris. practice, which may exist for reasons other than For example, the fact that nuclear weapons have not been used to conduct attacks during armed conflict since 1945 does not reflect a prohibition in customary international law against their use because such lack of use 146 has not resulted from opinio juris . 1.8.3.1 Opinio Juri s. It may be difficult to find evidence of Potential Sources of is on opinio juris opinio jur , and care should be exercised in assessing whether a source reflects 147 the part of a State. For example, t opinio juris . reaty provisions do not necessarily reflect Similarly, r ather than indicating a position expressed out of a sense of a customary legal obligation, a State ’s military manual often recites requirements applicable to that State under treaties to which it is a P arty, or provides guidance to its military forces for reasons of national 148 policy. 144 Refer to § 1.8.4 (Objection During Development ). 145 U.S. R ESPONSE TO ICRC CIHL S 515 (“Although the same action may serve as evidence both of State TUDY practice and opinio juris, we do not agree that opinio juris simply can be inf erred from practice. Both elements instead must be assessed separately in order to determine the presence of a norm of customary international law.”). 146 54 (¶¶65- 67) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 253- See (“States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non -utilization of nuclear opinio juris on the part of 945 and they would see in that practice the expression of an weapons by States since 1 those who possess such weapons. Some other States, which assert the legality of the threat and use of nuclear weapons in certain circumstances, invoked the doctrine a nd practice of deterrence in support of their argument. They recall that they have always, in concert with certain other States, reserved the right to use those weapons in the -defence against an armed attack threatening their exercise of the right to self vital security interests. In their view, if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen. The Court does no t intend to pronounce here upon the practice known as the ‘policy of deterrence.’ It notes that it is a fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the f the international community are profoundly divided on the matter of whether non -recourse to nuclear members o weapons over the past 50 years constitutes the expression of an opinio juris . Under these circumstances the Court does not consider itself able to find t hat there is such an opinio juris .”). 147 U.S. R ESPONSE TO ICRC CIHL S 515 (“One therefore must be cautious in drawing conclusions as to opinio TUDY juris from the practice of States that are parties to conventions, since their actions often are taken pursuan t to their treaty obligations, particularly inter se , and not in contemplation of independently binding customary international law norms.”). 148 R ESPONSE TO ICRC CIHL U.S. S TUDY 516 (“We are troubled by the Study’s heavy reliance on military manuals. We do not agree that opinio juris has been established when the evidence of a State’s sense of legal obligation consists predominately of military manuals. Rather than indicating a position expressed out of a sense of a pertinent to customary international law, a State’s military manual often customary legal obligation, in the sense (properly) will recite requirements applicable to that State under treaties to which it is a party. Reliance on 33

61 Objection During Development otherwise reflects customary 1.8.4 . Even if a rule international law, the rule is not binding upon a State that has persistently objected to that rule 149 . during its development This principle is an accepted application of the traditional principle 150 that interna tional law essentially depends on the consent of States. S UBSIDIARY M EANS OF 1.9 ETERMINING I NTERNATIONAL L AW D As a subsidiary means, it may be helpful to consult judicial decisions and the teachings of the most highly qualified publicists of various nations in determining the applicable rules of international law . These means are subsidiary in the sense that they do not, in themselves, constitute sources of treaty or customary international law. Discretion must be exercised in weighing sources, however, because sources var y . For example, the United States has said that it is not in a significantly in their probative value position to accept without further analysis the conclusions in a study on customary international 151 humanitarian law published by the ICRC . ecisions . Judicial decisions have sometimes been used as a subsidiary 1.9.1 Judicial D 152 means of determining the rules of international law. Judicial decisions are generally consulted as only persuasive authority because a judgment rendered by an international generally binds only the parties to the case in respect court provisions of military manuals designed to implement treaty rules pr ovides only weak evidence that those treaty rules apply as a matter of customary international law in non -treaty contexts.”). 149 See Fisheries Case, (United Kingdom v. Norway), Judgment, 1951 I.C.J. 116, 131 (“In these circumstances the Court deems it neces sary to point out that although the ten- mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten -mile rule has not acquired the -mile rule would appear to be inapplicable as authority of a general rule of international law. In any event the ten against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”); Asylum 78 (“The Court cannot therefore find that the Colombian Government Case (Colombia v. Peru), 1950 I.C.J. 266, 277- has proved the existence of such a custom. But even if it could be supposed that such a custom exi sted between -American States only, it could not be invoked against Peru which, far from having by its attitude certain Latin adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic TUDY 529 endnote 38 (“We note that the Study raises doubts R ESPONSE TO ICRC CIHL S See also asylum.”). U.S. about the continued validity of the ‘persisten t objector’ doctrine. Study, Vol. I, p. xxxix. The U.S. Government believes that the doctrine remains valid.”). 150 I R ESTATEMENT (T HIRD ) OF THE F OREIGN R ELATIONS L AW OF THE U NITED S TATES 32 (§102, Reporters’ Note 2) (1987) (“That a rule of customary law i s not binding on any state indicating its dissent during the development of the rule (Comment d ) is an accepted application of the traditional principle that international law essentially depends on the consent of states.”). 151 Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law ). 152 ICJ S TATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law such disputes a s are submitted to it, shall apply: ... d. subject to the provisions of Article 59, judicial decisions ... as subsidiary means for the determination of rules of law.”). 34

62 153 of that particular case. he legal reasoning underlying the decisions of the International Court T 154 is not binding on States of Justice . decisions of the International Criminal Similarly, the Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda cannot, 155 , “bind” as a strictly legal matter other courts. stare decisis does not generally apply between international The legal principle of , i.e. , customary i tribunals that one international tribunal follow nternational law does not require 156 the judicial precedent of another tribunal in dealing with questions of international law . Moreover, depending on the international tribunal, a tribunal may not be bound by its r prio , however, may adhere to their own prior decisions in decisions. Some international courts 157 . resolving a case absent a sufficiently persuasive reason to reconsider the point of law 153 See, e.g. , ICJ S TATUTE art. 59 (“The decision of the Court has no binding force except between the parties and in respect of that particular case.”). 154 RACTICE IN U NITED S TATES John B. Bellinger, III, Department of State Legal Adviser, 2006 D IGEST OF P I NTERNATIONAL L AW 1024 (“We believe that these concerns were largely borne out in the adviso ry opinion rendered by the Court. In practice, the opinion has made little meaningful contribution to efforts to resolve issues between the Israelis and Palestinians. Also, the Court’s opinion is open to criticism on its treatment of both factual al issues, in some cases due more to process than to any fault on the part of the Court. For example, the fact and leg that the General Assembly had already declared itself on many of the issues, risks creating the impression that the Court was being used to adva nce a particular set of political claims. Also of concern are efforts in some quarters to suggest that aspects of the Court’s advisory opinion, such as that relating to the extraterritorial application of the International Covenant on Civil and Political Rights, have binding force on member states in contexts that go beyond those addressed in the advisory opinion. This of course, is not the case. Under the ICJ statute, states are bound only by the decisions — and not by the Court’s reasoning underlying tho se decisions —in contentious cases to which they are parties, and advisory opinions have no binding force at all, but rather serve to provide guidance on legal questions to the UN organ or specialized agency requesting them.”). 155 Harold Hongju Koh, Legal Ad viser, Department of State, Remarks on international criminal justice at the Vera IGEST OF NITED S TATES U Institute of Justice in New York and at Leiden University, Campus The Hague , 2012 D I RACTICE IN L AW 61, 67 (“The ICTY and ICTR began devel oping a modern jurisprudence of P NTERNATIONAL criminal liability that was based on existing law as applied to a modern ethnic conflict. One of the ICTY’s early -level offender who -- had he been accomplishments was the Dusko Tadic case, which involved a relatively low would have been referred to Bosnia for domestic prosecution. The Tadic decision caught only a few years later -- provided a reasoned basis for the seminal conclusions that (1) the UN Security Council had the authority to set up a criminal court under Chapt er VII of the UN Charter; (2) the tribunal’s jurisdiction extended to war crimes committed in the course of a non -international armed conflict; and (3) Tadic could be convicted for his association with a small group of offenders, articulating the concept o f joint criminal enterprise (“JCE”) that later became a central feature of the ICTY’s work. ... The post -WWII tribunals had largely ignored sexual violence, but the ICTY and ICTR situated the issue within the existing law of war crimes, crimes against humani ty, and genocide. Although these decisions cannot, as a strictly legal matter ‘bind’ other courts, there is no doubt that the jurisprudence of the ICTY and ICTR has been influential in the broader development of international criminal law.”). 156 I R ESTATEM ENT (T HIRD ) OF F OREIGN R ELATIONS L AW OF THE U NITED S TATES 36- 37 (§103, comment b) (1987) (“That provision [Article 59 of the Statute of the ICJ] reflects the traditional view that there is no in stare decisis international law.”). 157 See, e.g. , Prosecutor v . Aleksovski, ICTY Appeals Chamber, IT -95- 14/1- A, Judgment , ¶¶107- 109 (Mar. 24, 2000) (“[I]in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice. ... It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful co nsideration has been given to it, both as to the law, including the authorities cited, and the facts.”). 35

63 Legal Writing “of the mos t highly 1.9.2 s of Highly Qualified Publicist s. The writings ” have sometimes been used as a subsidiary means of determining the rules of qualified publicists 158 international law. For example, classical publicists, such as Hugo Grotius and Emmerich de Vattel, and recognized scholars, such as Francis Lieber and Hersch Lauterpacht, have been widely cited and relied upon as practitioners have sought to interpret and apply the law of war. The standard for whose writings should be relied upon is high , and writings are only as hich they are based . The writings should only be relied authoritative as the evidence upon w , rather than the author ’s views about what upon to the degree they accurately reflect existing law 159 . the law should be L EGAL F L 1.10 AW OF W AR ORCE OF THE This section addresses the technical legal force o f the law of war under international and U.S. domestic law. As a matter of policy, DoD personnel may be required to adhere to law of 160 war rules, even where the rules do not technically apply as a matter of law. Legal Force of the Law of War Under ional Law . The technical force of a 1.10.1 Internat law of war rule depends on whether it takes the form of a treaty or customary international law. 1.10.1.1 . Under international law, every Legal Force of Treaties Among States 161 treaty in force upon the P arties to it and must be performed by them in good faith. is binding A treaty enters into force for a State after , inter alia , it has provided its consent to be bound by 162 In some cases , the terms of a treaty may cause it to expire, and in other cases, the treaty. 158 ICJ TATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law such S disputes as are submitted to it, shall appl y: ... d. subject to the provisions of Article 59, ... the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”). 159 See The Paquete Habana, 175 U.S. 677, 700 (1900) (“For this pur pose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”). 160 Refer to 3.1.1 (DoD Practice of Applying Law of War Rules Even When Not Technically Applicable). § 161 Consider VCLT ar t. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”). 162 VCLT art. 24 (“1. A treaty enters into force in such manner and upon such date as it may provide or as Consider ee. 2. Failing any such provision or agreement, a treaty enters into force as soon as the negotiating States may agr consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry RMY A ARTMENT OF THE EP D into force of the treaty apply from the time of the adoption of its text.”). See also P AMPHLET 27- 161- 1, I International Law: Law of Peace , ¶8 -12 (Sept. 1, 1979) (“An international agreement is basically a contract between states, and elements of obligation akin to those found in municipal contract law are present. How ever, as discussed in Part I, a treaty is not a contract in the common law sense of an agreement that obligates the parties.”). requiring consideration. It is the assent to be bound and not reciprocity or quid pro quo 36

64 163 States may w . ithdraw In some cases, a reservation may also modify the from a treaty 164 obligations imposed by a treaty on that State. 165 A treaty does not create either obligations or rights for a third State without its consent. Thus, a treaty generally non- Parties to the treaty or create rights or would not be binding on -Party to the treaty with respect to a Party to the treaty . Instead, a treaty obligations for a non 166 only creates law ( i.e. , rights that may be invoked) as between the States that are Parties to it. 1.10.1.2 Legal Force of Customary International Law Among States . T he generally binds all States. customary law of war ed to a However, States that have object 167 customary international law rule during its development are not bound by that rule . 1.10.1.3 Predominately Inter -State Nature of International Obligations . International obligations are generally viewed as running to other States, although individuals may have responsibility under international law. tates, although over time Traditionally, international law has governed relations between S it has increasingly regulated the relationships between States and persons. Under the traditional view, a State’ s international law obligations run to other State s, even when the obligations relate ( e.g. to an individual ecting that individual), such that individuals ’ “ place in international , by prot 168 life depends largely on their status as nationals of states.” For example, the 1949 Geneva Conventions and the customary law of war do not provide a private right for individuals to claim compensation directly from a State for violations of the law of war; rather, such claims are made 169 by other States. International law has long prescribed certain rules regulating the conduct of 170 U nder international law, there may be responsibility for individuals, apart from individuals. 163 Refer to § 1.7.3 (Withdrawal From Treaties ). 164 Refer to § 1.7.2 (Reservations to Treaties ). 165 VCLT art. 34 ( “A treaty does not create either obligations or rights for a third State without its Consider consent.”). 166 Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland) 1925 P.C.I.J. (series A) No. 7, at 29 (“A treaty only creates l aw as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States.”). 167 Refer to § 1.8.4 (Objection During De velopment ). 168 I R ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW OF THE U NITED S TATES 71 (1987). See also II L ESTATEMENT HIRD ) OF F OREIGN R ELATIONS (T AW OF THE U NITED S TATES 217 (§713, comment a) (1987) R (explaining that in principle, state responsibility fo r injury to the nationals of other states “is to the state of the alien’s nationality and gives that state a claim against the offending state. The claim derives from injury to an individual, but once espoused it is the state’s claim, and can be waived by the state.”). 169 Refer to § 18.16.4 (No Private Right to Compensation Under Customary International Law or the 1949 Geneva Conventions ). 170 See Sosa v. Alvarez- Machain, 5 42 U.S. 692, 715 (2004) (noting that international law has included “a body of judge -made law regulating the conduct of individuals situated outside domestic boundaries” and “rules binding individuals for the benefit of other individuals [that] overlapped with the norms of state relationships”). 37

65 171 State responsibility . Force of International Law Notwithstanding a State . A 1.10.1.4 ’s Domestic Law that State n international obligation ’s domestic law does not justify ’s noncompliance with a State 172 ional law as a matter of internat . s domestic law does not Similarly, the fact that a State’ provide for a penalty with respect to a violation of international law does not relieve a person 173 from responsibility for that act under international law. Force of the Law of War Domestic Law . The specific legal force of a 1.10.2 Under U.S. a law of war rule under U.S. domestic law may depend on whether that rule takes the form of -executing treaty, non -self -executing treaty, o r customary international law. self Longstanding DoD policy has bee n to require DoD personnel to comply with the law of 174 war obligations of the United States. rule is not directly punishable under U.S. law , a variety of tools in Even if a violation of a U.S. domestic law may be used to enforce a law of war o he United States. For bligation of t example, a violation of a law of war obligation may be made punishable through implementation 175 of the obligation in military instructions, regulations, and procedures. 1.10.2.1 Force of Self -Executing and Non- Self -Executing Treatie s Under U.S. Domestic Law are part of . Under domestic law, treaties to which the United States is a Party 176 U.S. law . The terms “ self -executing ” and “ non- self -executing ” may be used to explain how a treaty treaty may be c is to take effect in U.S. domestic law. A lassified as a self -executing treaty that “operates of itself, without the aid of any legislative provision ,” or as -self -executing treaty a non “that the Legislature must execute the contract before it can become a rule for that would require 177 the Court.” 171 § 18.22.1 (Individual Criminal Responsibility for Acts Constituting Crimes Under International Law ). Refer to 172 tate Bayard, Instruction to Mr. Connery, charge to Mexico, Nov. 1, 1887, II M OORE Secretary of S S D IGEST 235 ’ (“[A] government can not appeal to its municipal regulations as an answer to demands for the fulfillment of ceed or fall short of the requirements of international law, and in international duties. Such regulations may either ex either case that law furnishes the test of the nation’s liability and not its own municipal rules.”). Consider VCLT art. 27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”). 173 Refer to § 18.22.2 (Absence of Penalty Under Domestic Law Does Not Relieve a Person of Responsibility ). 174 § 18.1.1 (DoD Policy on Implementing and Enforcing the Law of War ). Refer to 175 Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War ). 176 See U.S. C ONSTITUTION art. VI (“This Constitution, and the laws of the United States which shall be made in pursuanc e 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 contrar y notwithstanding.”). 177 Foster & Elam v. Neilson 27 U.S. 253, 314 (1829) (Marshall, C.J.). See also Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“A treaty is primarily a contract between two or more independent nations, and is so regarded by public law. For the infraction of its provisions a remedy must be sought by the injured party through writers on 38

66 1.10.2.2 he Force of Customary International Law Under U.S. Domestic Law . T customary law of war is part of U.S. law insofar as it is not inconsistent with any treaty to which 178 the United States is a Party, or a controlling executive or legislative act. 1.11 J EL US AD B LUM jus ad bellum ( law concerning the resort to The law of war has been categorized into 179 jus in bello ( law concerning conduct during war ). force Although jus ad bellum is an ) and ether to resort to military essential part of the law of war to consider in the political process of wh 180 jus in bello . force, this manual focuses on jus in bello rules generally operate Although jus ad bellum in the resort to force , parts of independently of whether a side has comported with 181 are relevant to jus in bello . jus ad bellum This section provides a brief overview of some basic aspects jus ad bellum . Jus ad of issues might raise questions of national policy that, in the Executive Branch, would be bellum In U.S. practice, legal advice provided to national -level principal decided by the President. generally would need to be addressed through interagency discussions officials on such issues coordinated by the legal adviser t o the National Security Council, including consultation and coordinat ion among senior counsel of rel evant U.S. departments and a gencies . Jus ad Bellum Criteria . Certain jus ad bellum criteria have, at their philosophical 1.11.1 182 roots, drawn from principles that have been developed as part of the Just War Tradition. These principles have included: reclamations upon the other. When the stipulations are not self -executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self -executing, that is, require no legislation to make them operative, to that extent the y have the force and effect of a legislative enactment.”); Medellin v. Texas, 552 U.S. 491, 525- 26 (2008) (“The responsibility for transforming an international obligation arising from a non -self -executing treaty into domestic law falls to Congress.”). 178 The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, ... where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations,”). 179 See, e.g. , W ILLIAM O‘B RIEN , T HE C ONDUCT OF J UST AND L IMITED AR 9 (1981) (defining jus ad bellum as the W ICHAEL as “the just conduct of war”); M “doctrines concerning permissible recourse to war” and jus in bello W ALZER UST AND W NJUST , J ARS 21 (1977) (“War is always judged twice, first with reference to the reasons states U have for fighting, secondly with reference to the means they adopt. The first kind of judgment is adjectival in character: we say that a particular war is just or unjust. The second is adverbial: we say that a war is being fought justly or unjustly. Medieval writers made the difference a matter of prepositions, distinguishing jus ad bellum , the justice of war, from jus in bello But see Robert Kolb, Origin of the twin terms jus ad bellum/jus in , justice in war.”). R NTERNATIONAL I -Oct. 1997) (“The august solemnity of Latin confers R EVIEW OF THE ED C ROSS 553 (Sept. bello , 37 on the terms jus ad bellum and jus in bello the misleading appearance of being centuries old. In fact, these expression s were only coined at the time of the League of Nations and were rarely used in doctrine or practice until after the Second World War, in the late 1940s to be precise.”). 180 Refer to § 1.1.2 (Scope ). 181 Refer to § 3.5 (Relationship Between Jus in Bello and Jus ad Bellum ). 182 ). (Just War Tradition Refer to § 1.6.4 39

67 • a competen t authority to order the war for a public purpose; a just cause (such as self • -defense) ; ; the means must be proportionate to the just cause • • all peaceful alternatives must have been exhausted; and 183 . • a right intention on the part of the just belligerent may be rules. For example, the Charter These principles reflected in modern law of war tates to use force in individual or s the inherent right of S of the United Nations recognize 184 collective self a just cause for military action . -defense— 185 These principles hav e also been incorporated into military doctrine. 1.11.1.1 Competent Authority (Right Authority) to Wage War for a Public . One longstanding criterion for a just war is that war must be ordered by a competent Purpose . This jus ad be principle (sometimes called right authority ) llum authority for a public purpose 186 . acknowledges that the resort to military force is a prerogative of the State that war must be ordered by a competent authority for a public purpose is The criterion groups must belong to a State to receive the privileges of reflected in the requirement that armed 187 This criterion is also reflected in the general denial to private persons of the combatant status. 188 entitlement to the privileges of combatant status . This criterion is also reflected in the 183 W ILLIAM O’B RIEN , T HE C ONDUCT OF J UST AND L IMITED W AR 16 (1981) (“The decision to invoke the to order the exceptional rights of war must be based on the following criteria: there must be competent authority war for a public purpose; there must be a just cause (it may be self -defense or the protection of rights by offensive war) and the means must be proportionate to the just cause and all peaceful alternatives must have been exhausted; and there must be right intention on the part of the just belligerent.”). 184 Refer to § (Use of Force in Self -Defense ). 1.11.4.1 185 ARINE C ORPS D OCTRINAL P UBLICATION M Strategy , 93, 95 (1997) (“[T]he just war criteria provide objective 1-1, measures from which to judge our motives. The effective strategist must be prepared to demonstrate to all sides use does not. If a legitimate why the defended cause meets the criteria of just war theory and why the enemy’s ca and effective argument on this basis cannot be assembled, then it is likely that both the cause and the strategy are fatally flawed.”). 186 See 61 (1795) (Iredell, J., concurring) (“[N]o hostil ities of any kind, except in Talbot v. Janson, 3 U.S. 133, 160- necessary self -defence, can lawfully be practised by one individual of a nation, against an individual of any other nation at enmity with it, but in virtue of some public authority. War can alone be entered into by national au thority; it is instituted for national purposes, and directed to national objects; and each individual on both sides is engaged in ATTEL , it as a member of the society to which he belongs, not from motives of personal malignity and ill will.”); V HE AW OF N T 235 L (3.1.4) (“It is the sovereign power alone, therefore, which has the right to make war .”); ATIONS G ROTIUS , L AW OF W AR & P EACE 97 (1.3.4.2) (“But because the whole state is endangered by war, provision has been made by the laws of almost every state th at war may be waged only under the authority of him who holds the sovereign power in the state.”). 187 Refer to § 4.6.2 (Belonging to a Party to the Conflict). 188 ). Lack of the Privileges of Combatant Status Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – 40

68 condemnation under international law of certain types of private acts of hostility (such as piracy or terrorism) outside the context of patriotic resistance against an enemy State during 189 international armed conflict. ust Cause (Proportionality – The Means Must Be Proportionate to the J 1.11.1.2 Jus ad Bellum) . involves a weighing of the contemplated actions with the Proportionality 190 he proportionality of the measures taken in self justification for taking action. - For example, t 191 defense is to be judged according to t he nature of the threat being addressed. Force may be used in self -defense, but only to the extent that it is required to repel the armed attack and to 192 restore the security of the party attacked. As an illustration , assessing the p roportionality of -defense may involve considerations of whether an actual or imminent measures taken in self attack is part of an ongoing pattern of attacks or what force is reasonably necessary to discourage 193 future armed attacks or threats thereof . The criterio n of proportionality is different from the jus in bello rule of jus ad bellum 194 These concepts should not be confused with proportionality in conducting attacks. one 195 another. 189 § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War ). Refer to 190 Refer to § 2.4 (Proportionality ). 191 Defense and the Oil Platforms Decision William H. Taft IV, Legal Adviser, Department of State, Self- , 29 Y ALE J OURNAL OF NTERNATIONAL L AW 295, 305- 06 (2004) (“There is no requirement in international law that a State I -defense must use the same degree or type exercising its right of self of force used by the attacking State in its most recent attack. Rather, the proportionality of the measures taken in self -defense is to be judged according to the nature of the threat being addressed... . A proper assessment of the proportionality of a de fensive use of force would require looking not only at the immediately preceding armed attack, but also at whether it was part of an ongoing series of attacks, what steps were already taken to deter future attacks, and what force could reasonably be judged to be needed to successfully deter future attacks.”). 192 Counter -memorial and Counter -claim Submitted by the United States of America, International Court of Justice, Case Concerning Oil Platforms (Iran v. United States) 141 (¶4.31) (Jun. 23, 1997) (“Actio ns in self -defense must be proportionate. Force can be used in self -defense, but only to the extent that it is required to repel the armed attack and to restore the security of the party attacked.”). 193 Herbert S. Okun, Letter Dated 14 April 1986 from the Acting Permanent Representative of the United States of , U.N. Doc. S/17990 (Apr. 14, America to the United Nations Addressed to the President of the Security Council stile policy of international 1986) (“The United States objective was to destroy facilities used to carry out Libya’s ho terrorism and to discourage Libyan terrorist attacks in the future. These facilities constituted essential elements which have enabled Libyan agents to carry out deadly missions against U.S. installations and innocent uals.”); Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the United individ States of America to the United Nations Addressed to the President of the Security Council , U.N. Doc. S/26003 (Jun. 26, 1993) (“Accordingly, as a last re sort, the United States has decided that it is necessary to respond to the attempted attack and the threat of further attacks by striking at an Iraqi military and intelligence target that is involved in such attacks. ... It is the sincere hope of the United States Government that such limited and proportionate action may frustrate future unlawful actions on the part of the Government of Iraq and discourage or preempt such activities.”). 194 Refer to § 5.12 (Proportionality in Conducting Attacks ). 195 Jus ad Bellum ). Refer to § 3.5.1 (General Distinction Between Jus in Bello and 41

69 1.11.1.3 eaceful A lternatives M ust H ave B een E xhauste d (Necessity – Jus a d All P . The condition of necessity requires that no reasonable alternative means Bellum) jus ad bellum 196 of redress are available. For example, in exercising the right of self -defense, diplomatic armed attack o r means must be exhausted or provide no reasonable prospect of stopping the 197 . threat thereof jus ad bellum criterion of necessity is different from the jus in bello The concept of 198 military necessity . U.N. Charter Framework and the U.N. Security Council . The Charter of the 1.11.2 United Nations provides the modern treaty framework f or jus ad bellum . Under the Charter of the United Nations, the U.N. Security Council has primary responsibility for the maintenance of 199 international peace and security . The U.N. Security Council may determine the existence of any threat to the peace, br he peace, or act of aggression, and may decide what measures each of t 200 shall be taken under the Charter to maintain or restore international peace and security. For he U.N. Security Council may recognize that a State is acting lawfully in self -defense example, t 201 or that another State is the aggressor in an armed conflict. In addition, the U.N. Security 202 Council may authorize the use of military force. 196 William H. Ta ft IV, Legal Adviser, Department of State, Self- Defense and the Oil Platforms Decision , 29 Y ALE J OURNAL OF I NTERNATIONAL L AW 295, 304 (2004) (“The condition of ‘necessity,’ rather, requires that no reasonable alternative means of redress are available.”). 197 Letter Dated 26 June 1993 from the Permanent Representative of the United For example , Madeleine Albright, States of America to the United Nations Addressed to the President of the Security Council , U.N. Doc. S/26003 (Jun. n of the Government of Iraq’s behavior, including the disregard for international law 26, 1993) (“Based on the patter and Security Council resolutions, the United States has concluded that there is no reasonable prospect that new diplomatic initiatives or economic measures can influence the current Government of Iraq to cease planning future attacks against the United States. Accordingly, as a last resort, the United States has decided that it is necessary to respond to the attempted attack and the threat of further attacks by striking a t an Iraqi military and intelligence target that is involved in such attacks.”); Thomas R. Pickering, Letter Dated 20 December 1989 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Se curity , U.N. Doc. S/21035 (Dec. 20, 1989) (“The United States has exhausted every available diplomatic means to Council resolve peacefully disputes with Mr. Noriega, who has rejected all such efforts. Action by the United States was taken after Mr. Norieg a declared on 15 December that a state of war existed with the United States, and following brutal attacks by forces of Mr. Noriega on lawfully present American personnel, murdering one American and injuring and threatening others.”). 198 § 2.2 (Military Necessity ). Refer to 199 C HARTER art. 24(1) (“In order to ensure prompt and effective action by the United Nations, its Members U.N. sponsibility for the maintenance of international peace and security, and confer on the Security Council primary re agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”). 200 HARTER C U.N. art. 39 (“The Security Council shall determine the existe nce of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”). 201 For exampl e , U.N. S ECURITY C OUNCIL R ESOLUTION 661, U.N. Doc. S/RES/661 (1990) (“ Affirming the inherent right of individual or collective self -defence, in response to the armed attack of Iraq against Kuwait, in accordance 1368, U.N. Doc. S/RES/1368 (2001) S ECUR ITY C OUNCIL R ESOLUTION with Article 51 of the Charter,”); U.N. (“ Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self -defence in accordance with th e Charter, 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, 42

70 1.11.2.1 With Respect to U.N. Security Council U.N. Member State Obligations s . Members of the United Na Decision tions have agreed to give the United Nations every assistance in any action it takes in accordance with the Charter and to refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement 203 action. Members of the United Nations have agreed to accept and carry out the decisions of the 204 U.N. Security Council in accordance with the Charter. agreed to join in They have also affording mutual assistance in carrying out the measures decided upon by the U.N. Security 205 Council. Moreover, in the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, 206 their obligations under the Charter prevail. Prohibition on Certain Use s of Force . Under Article 2(4) of the Charter of the 1.11.3 United Nations, “ [a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other 207 manner inconsistent with the Purposes of the United Nations. Numerous other treaties also 208 reflect these prohibitions on the threat or use of force. Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;”). 202 Refer to § 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the Charter of the United Nations ). 203 C U.N. HARTER art. 2(5) (“All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking p reventive or enforcement action.”). 204 U.N. C HARTER art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”). 205 C U.N. art. 49 (“The Members of the United Nations shall join in affording mutual assistance in carrying HARTER out the measures decided upon by the Security Council.”). 206 U.N. C HARTER art. 103 (“In the event of a conflict between the obligations of the Members of the United Nations under the present Cha rter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”). 207 U.N. C HARTER art. 2(4). 208 See, e.g. , Inter -American Treaty of Reciprocal Assistance, art. 1, Sept. 2, 1947, 62 S TAT . 1681, 1700 (“The High Contracting Parties formally condemn war and undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of this Treaty.”); Treaty Providing for the Renunciation of War as an Instrument of National Policy, art. 1, Aug. 27, 1928, TAT . 2343, 2345- 46 (“The High Contracting Parties solemnly declare in the names of their respective peoples 46 S that they condemn recourse to war fo r the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.”). 43

71 The resort to force must have a legal basis i n order not to violate these prohibitions. The ity of the use of force must be assessed in light of the particular facts and circumstances at legal 209 issue. Aggression . Aggression is the most serious and dangerous form of the 1.11.3.1 210 Not every act of illegal use of force prohibited by Article 2(4) of the illegal use of force. 211 Initiating a war of aggression is a serious international Charter constitutes aggression. 212 crime. General Assembly Resolution 3314 suggested considerations that the Security U.N. 213 Council should bear in mind in determining whether an act of aggression had occurred. Although this resolution states basic principles as guidance for such determinations, it recognizes that whether an act of aggression has been committed must be considered in light of all the 214 e. circumstances of each particular cas 209 See, e.g. , William H. Taft IV, Legal Adviser, Department of State, & Todd F. Buchwald, Assistant Legal Adviser Military Affairs, Department of State, Preemption, Iraq, and International Law , 97 AJIL 557 (2003) for Political- (“In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have made judged not on abstract concepts, but on the particular events that gave rise to it.”); it necessary. Each should be ANIEL W EBSTER FFICIAL HE D IPLOMATIC AND O , T D Daniel Webster, Letter to Mr. Fox , Apr. 24, 1841, reprinted in - P D ANIEL W EBSTER , W HILE S ECRETARY OF S TATE 105 (1848) (“It is admitted that a just right of self APERS OF defense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. ular case;”). But the extent of this right is a question to be judged of by the circumstances of each partic 210 Definition of Aggression , preamble ¶5, Annex to U.N. 3314 (XXIX), G ENERAL A SSEMBLY R ESOLUTION Definition of Aggression , U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (“ Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its present stage.”). catastrophic consequences, aggression should be defined at the 211 Report of the Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Special Committee on the Question of Defining Aggression , Annex 1: Views expressed by members of the Special Committee at the conc luding stage of the Special Committee’s session , U.N. General Assembly Official Records: Twenty 23 (Mar. 11- Apr. 12, 1974) (“ Mr. -Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22- ROSENSTOCK (United States of America) ... The fifth preambular paragraph, while recognizing the dangers which would flow from an illegal use of force amounting to aggression, correctly stated the view that not every act of force in violation of the Charter constituted aggression.”). 212 United States, et al . v. Göring, et al ., Jud gment , I T RIAL OF THE M AJOR W AR C RIMINALS B EFORE THE IMT 421 (“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”). 213 Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of the Special Committee on the Question of Defining Aggression , Annex 1: Views expressed by members of the Special tee at the concluding stage of the Special Committee’s session , U.N. General Assembly Official Records: Commit Twenty 23 (Mar. 11- Apr. 12, 1974) (“ Mr. -Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22- ROSENSTOCK (United States of America) ... The text that had been produced was a recommendation of the General Assembly for use by the Security Council. ... In article 2, the definition suggested the considerations which the Security Council should bear in mind in determining whether an act of aggression had occurred .”). 214 R Definition of Aggression , preamble ¶10, Annex to U.N. G ENERAL A SSEMBLY ESOLUTION 3314 (XXIX), Definition of Aggression , U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (“ Believing that, although the question whether an act of aggression has been commit ted must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination,”). 44

72 The United States has expressed the view that t he definition of the act of aggression in 215 the Kampala amendments to the Rome Statute does not reflect customary international law. Rationales for the Resort to Force . 1.11.4 Use of Force in Self -Defense . The right to use force in self 1.11.4.1 -defense is an 216 inherent right of States . 1.11.4.2 Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the Charter of the United Nations . Chapter VII of the Charter of the United Nations provides that the U.N. Security Council may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace or security, including 217 . demonstrations, blockade, and other military operations 1.11.4.3 Use of Force With the Consent of the Te rritorial State . Military action in ’s prohibition against the use of the territory of another State is not a violation of Article 2(4) 218 force against that State where it consents to such military action. 1.11.4.4 Humanitarian Intervention . Violations of law of war treaties applicable to non- not been understood to provide an international armed conflict generally have 219 independent basis for intervening in a State. Although the United Kingdom and certain other States have argued that intervention for humanitarian reasons may be a legal basis for the resort to force, the United States has not 215 § 18.20.3.4 Refer to (ICC and the Crime of Aggression ). 216 (Use of Force in Self -Defense ). Refer to § 1.11.5 217 U.N. art. 42 (“Should the Security Council consider that measures provided for in Article 41 would be HARTER C inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary y include demonstrations, blockade, and to maintain or restore international peace and security. Such action ma other operations by air, sea, or land forces of Members of the United Nations.”). 218 For example Letter to Professor Edward Gordon, , Davis R. Robinson, Department of State Legal Adviser, Chairman of the Committee on G renada Section on International Law and Practice American Bar Association on (Feb. 10, 1984), reprinted in 18 The Legal Position of the United States on the Action taken in Grenada NTERNATIONAL L AWYERS 381 (1984) (“In the case of the action taken in Grena da, the legal position of the United I States was based upon the application of a combination of three well established principles of international law... (1) the lawful governmental authorities of a State may invite the assistance in its territory of military forces of other states or collective organizations in dealing with internal disorder as well as external threats.”); Statement of the U.S. Government, attached to Adlai E. Stevenson, Letter Dated 24 November 1964 From the Permanent Representative of the U U.N. Doc. nited States of America Addressed to the President of the Security Council, S/6062, Nov. 24, 1964 (“The United States Government has just received confirmation that a short time ago - early morning of 24 November in the Congo - a unit of Belgian paratroopers, carried by United States military transport planes, landed at Stanleyville in the Congo. This landing has been made (1) with the authorization of the Government of the Congo, (2) in conformity with our adherence to the Geneva Conventions, an d (3) in exercise of our clear responsibility to protect United States citizens under the circumstances existing in the Stanleyville area.”). 219 -State Armed § 17.18.1 (Duty o f Non -Belligerent States to Refrain From Supporting Hostilities by Non Refer to ). Groups Against Other States 45

73 220 adopted this legal rationale. Consistent with this view, the United States did not adopt this s military action to address the humanitarian catastrophe in theory as a legal rationale for NATO’ Kosovo in 1999, but rather expressed the view that such action w as justified on the basis of a 221 number of factors. Military action for humanitarian reasons may , however, be authorized by the U.N. 222 Security Council. Use of Force in Self -De fense. Article 51 of the Charter of the United Nations 1.11.5 provides that “ [n]othing in the present Charter shall impair the inherent right of individual or -defence if an armed attack occurs against a Member of the United Nations, until collective self the Security Council has taken measures necessary to maintain international peace and 223 security. ” 220 William H. Taft IV, Legal Adviser, Department of State, Role and Significance of International Law Governing the Use of Force in the New Glo bal Context Confronting the United States After 9/11: remarks regarding the use of (Oct. 27, 2004) (“Of particular note, the idea that humanitarian catastrophes must be force under international law avoided has been asserted as a reason for rethinking wha t actions international law permits in a number of situations. NATO’s intervention in Kosovo in 1999 is a case to consider in this connection. In defending the legality of NATO’s actions, the United Kingdom and several other allies asserted a doctrine of humanitarian intervention, under which states have a right to use force if it is necessary to prevent genocide, a major loss of civilian life, or a large scale forced movement of a population, which would destabilize other states and threaten international peace and security. In this view, the humanitarian intervention doctrine is often presented as a necessary extension of humanitarian law as it has evolved since 1945. Significantly, the doctrine was invoked in the absence of authorization by the UN Sec urity Council. The United States did not, however, adopt this theory as a basis for the NATO intervention in Kosovo, and instead pointed to a range of other factors to justify its participation in the Kosovo campaign.”). 221 David Andrews, Legal Adviser, De partment of State, Oral Proceedings, May 11, 1999, Legality of Use of Force (Yugoslavia v. United States) I.C.J. 10 (¶1.7) (“As you have already heard, the actions of the Members of the NATO Alliance find their justification in a number of factors. These include: - The humanitarian catastrophe that has engulfed the people of Kosovo as a brutal and unlawful campaign of ethnic cleansing has forced many hundreds of thousands to flee their homes and has severely endangered their lives and well -being; - The acute threat of the actions of the Federal Republic of Yugoslavia to the security of neighbouring States, including threat posed by The serious violation of international extremely heavy flows of refugees and armed incursions into their territories; - tarian law and human rights obligations by forces under the control of the Federal Republic of Yugoslavia, humani including widespread murder, disappearances, rape, theft and destruction of property; and, finally - The resolutions of the Security Council, which h ave determined that the actions of the Federal Republic of Yugoslavia constitute a threat to peace and security in the region and, pursuant to Chapter VII of the Charter, demanded a halt to such actions.”). 222 C S ECURITY , U.N. OUNCIL R ESOLUTION 1973, U.N. Doc. S/RES/1973, ¶4 (Mar. 17, 2011) (“[This For example Resolution] [a]uthorizes Member States that have notified the Secretary -General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary -General , to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory ... .”). 223 art. 51. U.N. C HARTER 46

74 The Charter of the United Nations was not intended to supersede a State ’s inherent right 224 -defense in customary international law. of individual or collective self -defense under customary international law, it is generally To constitute legitimate self 225 ’s actions must be necessary. understood that the defending State For example, reasonably 226 eaceful alternatives must be exhausted. s taken in self - available p In addition, the measure 227 defense must be proportionate to the nature of the threat being addressed. Responding to an Imminent Thr 1.11.5.1 . The text of Article 51 eat of an Attack of the Charter of the United Nations refers to -defense “if an armed attack occurs the right of self 228 ” against a Member of the United Nations. customar y international law, States had, and Under 229 continue to have, the right to take measures in response to imminent attacks. 1.11.5.2 Use of Force V ersus Armed Attack . The United States has long taken the position that the inherent right of self -defense potentially applies against any illegal use of 230 , however, would be inclined to draw more of a distinction between “armed Others force. 231 ” and uses of force that do not give rise to the right to use for -defense. attacks ce in self 224 Abraham D. Sofaer, , 126 M ILITARY L AW R EVIEW 89, 94 (1989) Terrorism, the Law, and the National Defense (“The United States rejects the notion that the U.N. Charter supersedes cust omary international law on the right of self -defense. Article 51 characterizes that right as ‘inherent’ in order to prevent its limitation based on any provision in the Charter. We have always construed the phrase ‘armed attack’ in a reasonable manner, consistent with a customary practice that enables any State effectively to protect itself and its citizens from every illegal use of force aimed at the State.”). 225 William H. Taft IV, Legal Adviser, Department of State, Self- Defense and the Oil Platforms De cision , 29 Y ALE J OURNAL OF I NTERNATIONAL L AW 295, 304 (2004) (“To constitute legitimate self -defense under customary international law, it is generally understood that the defending State’s actions must be both ‘necessary’ and ‘proportional.’”). 226 (All Peaceful Alternatives Must Have Been Exhausted (Necessity – Jus ad Bellum) ). Refer to § 1.11.1.3 227 Refer to (The Means Must Be Proportionate to the Just Cause (Proportionality – Jus ad Bellum) ). § 1.11.1.2 228 U.N. C HARTER art. 51. 229 Lord Peter Henry Goldsmith, Attorney General, United Kingdom, , Apr. 21, 2004, Oral Answers to Questions §§ ARD 660 H OUSE OF C OMMONS D EBATES ANS 370 -71 (“It is argued by some that the language of Article 51 H provides for a right of self -defence only in response to an actual armed attack. However, it has been the consistent position of successive United Kingdom Go vernments over many years that the right of self -defence under international law includes the right to use force where an armed attack is imminent. It is clear that the language of Article 51 was not intended to create a new right of self -defence. Articl e 51 recognises the inherent right of self - defence that states enjoy under international law. ... It is not a new invention. The charter did not therefore affect the scope of the right of self hich included the right to -defence existing at that time in customary international law, w use force in anticipation of an imminent armed attack.”). 230 See Abraham D. Sofaer, Terrorism, the Law, and the National Defense , 126 M ILITARY AW R EVIEW 89, 92- 93 L (1989) (“The United States has long assumed that the inherent right of self defense potentially applies against any illegal use of force, and that it extends to any group or State that can properly be regarded as responsible for such activities. These assumptions are supported in customary practice.”). See also William H. Taft IV, Legal Adviser, L ALE J OURNAL OF I NTERNATIONAL AW 295, Defense and the Oil Platforms Decision Self- , 29 Y Department of State, 300- 01 (2004) (“A requirement that an attack reach a certain level of gravity before triggering a right of self -defense would make the use of force more rather than less likely, because it would encourage States to engage in a series of small -scale military attacks, in the hope that they could do so without being subject to defensive responses. Moreover, if States were req uired to wait until attacks reached a high level of gravity before responding with force, 47

75 1.11.5.3 . A State ’s right to use force in Use of Force to Protect Nationals Abroad 232 -defense may be understood to include the right to use force to protect its nationals abroad. self s abroad when the government of the The United States has taken action to protect U.S. national 233 territory in which they are located was unwilling or unable to protect them. A State need not if an attack against them is await actual violence against its nationals before taking such action 234 imminent. Right of Self 1.11.5.4 State Actors . The inherent right of -Defense Against Non- self Article 51 of the Charter of the United Nations , applies in response to -defense, recognized in 235 “armed attack, any cks that originate with States. ” not just atta As with any other exercise of their eventual response would likely be much greater, making it more difficult to prevent disputes from escalating into full -scale military conflicts.”). 231 , Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, See, e.g. Judgment, 1986 I.C.J. 14, 101 (¶191) (“As regards certain particular aspects of the principle in question, it will be necessary to distinguish the most gra ve forms of the use of force (those constituting an armed attack) from other less id. at 126- 27 (¶247) (“So far as regards the allegations of supply of arms by Nicaragua to the armed grave forms.”); hile the concept of an armed attack includes the despatch by opposition in El Salvador, the Court has indicated that w one State of armed bands into the territory of another State, the supply of arms and other support to such bands cannot be equated with armed attack. Nevertheless, such activities may well const itute a breach of the principle of the non- use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly wrongful, but is of lesser gravity than an armed attack.”). 232 Ambassador William Scranton, U.S. Re presentative to the United Nations, Statement in the U.N. Security RACTICE IN P IGEST OF U NITED S TATES regarding Israeli action at Entebbe, Jul. 12, 1976, 1976 D Council 150 (“[T]here is a well I NTERNATIONAL L AW -established right to use limited force for the protection of one’s own nationals from an imminent threat of injury or death in a situation where the State in whose territory they are located either is unwilling or unable to protect them. The right, flowing from the right of self defense, is limited to such use of force as is necessary and appropriate to protect threatened nationals from injury.”). 233 Letter to Thomas P. O’Neal, Jr., Speaker of the House of Representatives, and , Jimmy Carter, For example Warren G. Magnuson, President pro tempore of the Senate regarding the rescue attempt for American hostages in UBLIC APERS OF THE P RESIDENTS 779 (“In carrying out this operation [to rescue the P Iran , Apr. 26, 1980, 1980- I P y within its right, in American hostages in the U.S. embassy in Tehran] the United States was acting wholl accordance with Article 51 of the United Nations Charter, to protect and rescue its citizens where the government of the territory in which they are located is unwilling or unable to protect them.”). 234 Kenneth W. Dam, Deputy Secretar y of State, Statement before the House Committee on Foreign Affairs , Nov. 2, reprinted in 78 AJIL 200, 203- 04 (1984) (“U.S. actions have been based on three legal grounds: ... Third, 1983, land was undertaken in accordance with well - U.S. action to secure and evacuate endangered U.S. citizens on the is established principles of international law regarding the protection of one’s nationals. That the circumstances warranted this action has been amply documented by the returning students themselves. There is abs olutely no requirement of international law that compelled the United States to await further deterioration of the situation that would have jeopardized a successful operation. Nor was the United States required to await actual violence against ens before rescuing them from the anarchic and threatening conditions the students have described.”). U.S. citiz 235 See, e.g. , In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantan amo Bay , Misc. No. 08 -442, 4 (D.D.C., Mar. 13, 2009) (“Under international law, nations lawfully can use military force in an armed conflict against irregular terrorist groups such as al ent right of states to use force in self -Qaida. The United Nations Charter, for example, recognizes the inher defense in response to any ‘armed attack,’ not just attacks that originate with states. United Nations Charter, art. 51.”); U.S. Additional Response to the Request for Precautionary Measures —Detention of Enemy Combatants at IGEST OF U NITED Guantanamo Bay, Cuba , Inter -American Commission on Human Rights, Jul. 15, 2002, 2002 D 12 (“The terrorist attacks of September 11 were not ordinary S TATES P RACTICE IN I NTERNATIONAL L AW 1008, 1011- criminal acts. ... The international community has clearly recognized the right of the United States and allied forces 48

76 the right of self -defense, -defense against non- State actors must comply with actions taken in self 236 applicable international law. 1.11.5.5 Right of Collective Self- Defense . Article 51 of the Charter of the United e in collective self -defense with a State that can Nations also recognizes a right of States to engag legitimately invoke its own right of national self -defense of a State must -defense. Collective self ’s consent , although this consent need not necessarily be proceed with that State expressed in the 237 form o f an explicit request . Some treaties include commitments by States to assist one another in collective self - 238 defense. 1.11.5.6 Reporting to the U.N. Security Council . Measures taken in the exercise 239 -defense shall be immediately reporte d to the U.N. Security Council. of national self to resort to armed force in self -defense in response to these attacks. For instance, the United Nations explicitly recognized the ‘inherent right of individual and collectiv e self -defence’ immediately following September 11. It is in this context that NATO and others recognized that the September 11 attacks constituted an ‘armed attack,’ a conclusion inherent in the UN Security Council’s recognition of the right of self -defe nse.”). 236 Refer to § 17.18.2 (Duty of Belligerent States to Respect the Sovereignty of Other States ). 237 B RUNO S IMMA , T HE C HARTER OF THE U See also N ATIONS : A C OMME NTARY 675 (1994) (“Art. 51 of the NITED Charter allows not only individual, but also collective self -defence. The latter is not, as the wording might suggest, restricted to a common, co -ordinated exercise of the right to individual self -defence by a number of s tates. ... It is not required for the exercise of the right of collective self -defence that the state invoking the right be under an obligation resulting from a treaty of assistance. Rather, it is sufficient, but also necessary, that the support be given with the consent of the attacked state. But this consent does not, as the ICJ states for the right of self -defence under customary law, need to be declared in the form of an explicit ‘request’.”). 238 For example , The North Atlantic Treaty, Washington, D.C., Apr. 4, 1949, art. 5 (“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self -defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it dee ms necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”). 239 U.N. C HARTER art. 51 (“Measures taken by Members in the exercise of this right of self -defence shall be immediately reported to the Securi ty Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”). 49

77 II – Principles Chapter Contents 2.1 Introduction 2.2 Military Necessity 2.3 Humanity 2.4 Proportionality 2.5 Distinction 2.6 Honor 2.1 I NTRODUCTION dependent Three inter military necessity , humanity , and honor – provide the principles – foundation for other l proportionality and distinction , and most of aw of war principles, such as the treaty and customary rules of the law of war . This C hapter briefly addresses certain specific rules to illustrate these foundational principles . For more information about a sp - ecific rule, practitioners should refer to the cross 1 that rule . section referenced that addresses . General principles of law common to 2.1.1 Legal Principles as Part of International Law 2 the major legal systems of the world are a recognized part of internatio nal law. Law of war 3 understood to be included in principles have been this category of international law. 1 Refer to § 1.2.3 (Use of Cross- References in This Manual ). 2 See ICJ S TATUTE art. 38(1)(c) (providing that “the general principles of law recognized by civilized nations” are a AW OF THE NITED ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L U source of applicable law for the court); I R S 24 (§102(1)(c)(4)) (1987) (including “general principles common to the major legal systems of the world,” TATES hirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815) (Marshall, C.J.) among sources of international law); T (ascertaining international law includes “resort to the great principles of reason and justice”). 3 See B OTHE , P ARTSCH , & S OLF N EW R ULES 44 (AP I art. 1, ¶2.10) (“Following the or iginal clause in the preamble , of the 1899 IV. Hague Convention on Land Warfare (para. 9) and para. 4 of the denunciation clause in the Conventions (63/62/142/158) these principles are stated in the present text to be part of international law. They are ‘general principles of law’ in the sense of Art. 38 of the Statute of the ICJ.”); Speech by Baron Descamps on the Rules of Law to be applied , Annex No. 1 to 14th Meeting (Private), held at the Peace Palace, the Hague, on July ERBAUX -V ROCÈS ERMANENT C OURT OF I NTERNATIONAL J USTICE , A DVISORY C OMMITTEE OF J URISTS , P P 2nd, 1920 , 24 (1920) (“The P ROCEEDINGS OF THE C OMMITTEE : J UNE 16 TH – J ULY 24 TH 1920 WITH A NNEXES 322, 323- OF THE how to make unerring rules for the judge’s guidance. ... I allow hi m to take into consideration only question is, -- the legal conscience of civilised nations, which is illustrated so strikingly on certain occasions. ... [L]isten to this solemn declaration of the Powers, placed at the beginning of the Convention dealing with laws and customs of war on land: ‘Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, populations and belligerents remain under the protectio n and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.’ ... I am convinced that the assembly of all the States does not and cannot intend, in dealing with the state of peace, to abjure principles which are clearly intended to be applied in war.”). 50

78 Use Law of War Principles . Law of war principles provide the foundation for 2.1.2 s of Legal principles , however, t as specific as rules , and thus the specific law of war rules. are no interpretations of how principles apply to a given situation may vary. Law of war principles cific treaty or : (1) help practitioners interpret and apply spe customary rules ; (2) provide a general guide for conduct during war when no specific rule ; and (3) work as interdependent and reinforcing parts of a coherent system . applies 2.1.2.1 w of War Principles as an Aid in Interpreting and Applying Law of War La . Understanding law of war principles helps practitioner and apply specific law Rules s interpret military necessity has been incorporated into specific of war rules. For example, the principle of 4 Similarly, the principle of humanity can assist in the proper interpretation and law of war rules. 5 that are based on humanitarian considerations . application of law of war rules 2.1.2.2 . When no specific rule Law of War Principles as a General Guide applies, the principles of the law of war form the general guide for conduct during war. States have reflected this idea in certain treaty provisions , including the “ Martens which make clear that situations not covered by the treaty remain governed by Clause,” 6 . principles of international law The considerable progress States have made in developing specific law of war rules , 7 the need to rely solely on these principles to guide conduct during war . however, has les sened 2.1.2.3 Law of War Principles as a Coherent System . Law of war principles work as interdependent and reinforci ng parts of a coherent system. Military necessity justifies certain act ions necessary to defeat the enemy as quickly and 8 Conversely, humanity forbids actions unnecessary to achieve that efficiently as possible. 9 object. Proportionality actions may be justified by requires that even when military necessity , 10 such actions not be unreasonable or excessive Distinction underpins the parties ’ responsibility . military necessity , , and proportionality by requiring to comport their behavior with humanity to a conflict certain legal categories , principally the distin ction between the parties to apply 4 Refer to (Incorporation of Mi litary Necessity Into Law of War Rules ). § 2.2.2.2 5 § 2.3.2 (Humanity and Law of War Rules ). Refer to 6 Refer to § 19.8.3 (Martens Clause). 7 EUTRALITY AT T T HE L AW OF W AR AND N , S EA 46- 47 (“Where the general principles of the law of war have UCKER received —through the agreement of states —detailed application in the form of specific rules, the qu estion of the proper interpretation of these general principles can only be answered by an examination of the former. Hence, to the extent that the conduct of war is increasingly subjected to such regulation resort to the general principles of the law of war must become, in turn, correspondingly less frequent. The reason for this is simply that the essential function of these general principles is to provide a guide for determining the legal status of weapons and methods of warfare where no more specific rule is applicable .”). 8 Refer to § 2.2 (Military Necessity ). 9 Refer to § 2.3 (Hum anity ). 10 ). (Proportionality Refer to § 2.4 51

79 11 armed forces Lastly, honor supports the entire system and gives and the civilian population. 12 . parties confidence in it ILITARY N ECESSITY M 2.2 tifies the use of all measures Military necessity may be defined as the principle that jus the enemy as quickly and efficiently as possible that are not prohibited by the needed to defeat 13 14 law of war . Military necessity has been defined in military publications, judicial decisions , 15 . and scholarly works . Milita ry necessity justifies actions, such as 2.2.1 Military Necessity as a Justification 16 destroying and seizing persons and property. Thus, underlies law of war military necessity 11 Refer to § 2.5 (Distinction ). 12 Ref er to § 2.6 (Honor ). 13 L IEBER C ODE art. 14 (“Military necessity, as understood by modern civilized nations, consists in the necessity See ispensable for securing the ends of the war, and which are lawful according to the of those measures which are ind ULES OF L AND W ARFARE -11 (“a belligerent is justified in applying any ¶¶9 modern law and usages of war.”); 1914 R amount and any kind of force which is necessary for the purpose of the war; that is, the complete submission of the enemy at the earliest possible moment with the least expenditure of men and money. ... Military necessity justifies a resort to all measures which are indispensable for securing this object and which are not forbidden by the modern ¶4a (“a belligerent is justified in applying any amount ULES OF L AND W ARFARE laws and customs of war.”); 1940 R and any kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”); 1956 FM 27- 10 (Change No. 1 1976) ¶3 (“that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon “a belligerent is justified in applying compulsion and force of any kind, to the UK M ANUAL ¶3 ( as possible.”); 1958 extent necessary for the realization of the purpose of war, that is, the complete submission of the enemy at the ANUAL UK M f men, resources, and money.”); 2004 earliest possible moment with the least possible expenditure o ¶2.2 (“Military necessity is now defined as ‘the principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war.’ Put another way, a state engaged in an armed conflict may use that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.”); NATO, Glossary of Terms and Definitions, AAP -6 at 2 -M-6 (2009) (defining nciple whereby a belligerent has the right to apply any measures which are required to military necessity as “the pri not forbidden by the laws of war.”). bring about the successful conclusion of a military operation and which are 14 See United States v. List, et al. (The Hostage Case), XI T RIALS OF W AR C RIMINALS B EFORE THE 1253 NMT (“Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.”). 15 See G REENSPAN , M L AW OF L AND W ARFARE 313- 14 (military necessity is “the right to apply that amount ODERN and kind of force which is necessary to compel the submission of the enemy with the least possible expenditure of PPLIED A HARLES H ENRY H YDE , II I NTERNATIONAL L AW : C HIEFLY AS I NTERPRETED AND C time, life, and money); U S TATES 299- 300 (1922) (“Military necessity, as understood by the United States, justifies a resort to NITED BY THE all measures which are indispensable to bring about the compl ete submission of the enemy by means of regulated ILLIAM E DWARD H ALL , A violence and which are not forbidden by the modern laws and customs of war.”); W T REATISE ON I NTERNATIONAL L AW 63 (§17) (A. Pearce Higgins, ed., 7th ed., 1917) (“When violence is permit ted at all, the amount which is permissible is that which is necessary to attain the object proposed. The measure of the violence which is permitted in war is therefore that which is required to reduce the enemy to terms.”). 16 See L IEBER C ODE art. 15 (“Mi litary necessity admits of all destruction of life or limb of armed enemies, ... it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of pr operty, and obstruction of the ways and channels of 52

80 concepts that explain when persons and property may be the object of attack, e.g. , the concepts 17 18 hostilities taking a direct part in ” of “ ” and “ military objective. may justify not only violence and destruction, but also alternative Military necessity 19 means of subduing the enemy . the capture of For example, military necessity may justify 21 20 -gathering. enemy persons, or non- forcible measures, such as propaganda and intelligence certain incidental also justifies that inevitably result from the Military necessity harms 22 . actions it justifies military necessity justifies such harms is addressed by The extent to which 23 the principle of proportionality . Military N ecessity and Law of War Rules . 2.2.2 Military 2.2.2.1 Necessity Does Not Justify Actions Prohibited by the Law of War . Military necessity does not justify actions that are prohibited by the law of war. ry through World War II, Germany asserted that military From the late 19th Centu Kriegsra riegsmanier – could override specific law of war rules ( necessity eson geht vor K 24 25 P ost - This view was strongly criticized. ”). “necessity in war overrules the manner of warfare 26 World War II w ar crimes tribunals rejected it as well. traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the y of the army, and of appropriation of whatever an enemy’s country affords necessary for the subsistence and safet such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist.”); United States v. List, et al. (The 1253- RIALS OF W 54 (“In general, [military necessity] C RIMINALS B EFORE THE NMT AR se), XI T Hostage Ca sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations. It permits the destruction of life o f armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar danger ... . It is lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy. Private homes and churches even may be destroyed if necessary for military operations.”). 17 Refer to § 5.9 (Civilians Taking a Direct Part in Hostilities ). 18 § 5.7 (Military Objective ). Refer to 19 . 1268 reprinted in 12 S TAT , Abraham Lincoln, The Emancipation Proclamation, Jan. 1, 1863, For example (justifying emancipation of slaves held in rebellious states as “warranted by the Constitution, upon military necessity”). 20 Refer to § 8.1.3.1 (Detention A ). uthority 21 Refer to (Non -Forcible Means and Methods of Warfare). § 5.26 22 L IEBER C ODE art. 15 (“Military necessity admits of all destruction of life or limb of ... persons whose See destruction is incidentally unavoidable in the armed contests of the war;”); United States v. List, et al. (The Hostage RIALS OF AR C RIMINALS B EFORE THE NMT 1253 -54 (military necessity “permits the destruction of life W Case), XI T whose destruction is incidentally unavoidable by the armed conflicts of the war;”). of ... persons 23 Refer to § 2.4 (Proportionality ). 24 See L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW 231- 32 (§69) (“In accordance with the German proverb, Kriegsraeson geht vor Kriegsmanier ( necessity in war overrules the manner of warfare ), many German authors before the First World War were maintaining that the laws of war lose their binding force in case of extreme B EFORE THE RIMINALS C AR W AJOR M RIAL OF THE T , I Judgment ., et al . v. Göring, et al necessity.”); United States, 53

81 Military necessity cannot justify departures from the law of war because States have 27 ’s exigencies in mind. crafted the law of war specifically with war In devising law of war rules, 28 military r Thus, prohibitions on conduct in the law of war may equirements. States considered per se . ’ determinations that such conduct is militarily unnecessary be understood to reflect States 227 (“The truth remains that War Crimes were committed on a vast scale, never before seen in the history of IMT war. ... There can be no doubt that the majority of them arose from the Nazi conception of ‘total war’, with which the aggressive wars were waged. For in this conception of ‘total war’, the moral ideas underlying the conventions onger regarded as having force or validity. Everything is made which seek to make war more humane are no l subordinate to the overmastering dictates of war. Rules, regulations, assurances, and treaties all alike are of no moment; and so, freed from the restraining influence of international law, t he aggressive war is conducted by the Nazi leaders in the most barbaric way. Accordingly, War Crimes were committed when and wherever the Führer and his close associates thought them to be advantageous.”). 25 See, e.g. , Elihu Root, Opening Address , 15 P ROC EEDINGS OF THE A MERICAN S OCIETY OF I NTERNATIONAL L AW 1, 2 (1921) (“More important still is a fact which threatens the foundation of all international law. The doctrine of kriegsraison nning of the war when he has not been destroyed. It was asserted by Bethman Hollweg at the begi sought to justify the plain and acknowledged violation of international law in the invasion of Belgium upon the ground of military necessity. The doctrine practically is that if a belligerent deems it necessary for the success of its military operations to violate a rule of international law, the violation is permissible. As the belligerent is to be the sole judge of the necessity, the doctrine really is that a belligerent may violate the law or repudiate it or ignore it that is deemed to be for its military advantage. The alleged necessity in the case of the German invasion whenever of Belgium was simply that Belgium was deemed to be the most advantageous avenue through which to attack e maintained, there is no more international law, for the doctrine cannot be France. Of course, if that doctrine is to b confined to the laws specifically relating to war on land and sea. With a nation at liberty to declare war, there are few rules of peaceful intercourse, the violation of which ma y not be alleged to have some possible bearing upon a military advantage, and a law which may rightfully be set aside by those whom it is intended to restrain is no law at all.”). 26 1255- See, e.g. , United States v. List, et al. (The Hostage Case), XI T RIALS OF AR C RIMINALS B EFORE THE NMT W 56 (“It is apparent from the evidence of these defendants that they considered military necessity, a matter to be determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules.”); RIMINALS RIALS OF W AR C B EFORE THE NMT 1340 (rejecting defense counsel , IX United States v. Krupp, T et al. gue IV and Hague IV Reg. rules did not apply in cases of “total war”). See also Trial of Gunther argument that Ha AW EPORTS 58- 59 (U.S. Military Commission, Augsberg, Germany, Jun. 13, R Thiele and Georg Steinert, III U.N. L RIALS 1945) (rejecting military necessity as a defense to the murder of a prisoner of war); United States v. Milch, II T W AR C RIMINALS 50 (Musmanno, J., concurring) (rejecting defense counsel argument that EFORE THE NMT 849- B OF “total warfare” allowed suspension or abrogation of law of war rules). 27 1956 -10 (Change No. 1 1976) ¶3a (“Military necessity has been generally rejected as a defense for acts FM 27 forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed AR W RIALS OF T with consideration for the concept of mili et al. tary necessity.”); United States v. Krupp, , IX C B EFORE THE NMT 1347 (“In short these rules and customs of warfare are designed specifically for all RIMINALS phases of war. They comprise the law for such emergency.”); Treaty of Amity a nd Commerce between His Majesty . 641, 647 (declaring that TAT the King of Prussia and the United States of America, art. 24, Sept. 10, 1785, 18 S “neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and next preceding article; but on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations .”). 28 See, e.g. , H AGUE IV preamble ¶5 (“these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct their mutual relations and in their relations with the inhabitants.”) (emphasis added). for the belligerents in 54

82 The fact that law of war rules are formulated specifically with military requirements in mind has played lex specialis an important part in the doctrine that the law of war is the 29 conflict. governing armed Incorporation of Military . Although 2.2.2.2 Necessity Into Law of War Rules military necessity cannot justify actions that have been prohibited by the law of war, some law of s expressly incorporate military necessity . war rule For example, certain law of war rules specify that departures from what would otherwise military utely or imperatively be the rule are permissible when . In these cases, absol necessary 30 necessity must not be conflated with mere convenience. Examples of rules incorporating the concept of absolute or imperative necessity include the following: • The activities of the representatives or delegates of the Protecting Powers shall only be restricted as an exceptional and temporary measure when this is rendered necessary by 31 imperative military necessities . • The internment or placing in assigned residence of protected persons may be ordered 32 only if the security of the Detaining Powe r makes it absolutely necessary . • If the Occupying Power considers it necessary, for imperative reasons of security , to take safety measures concerning protected persons, it may, at the most, subject them to 33 assigned residence or to internment. • The seizure or destruction of enemy property must be imperatively demanded by the 34 . necessities of war Certain l aw of war rules may direct that persons comply with an obligation, but only to . Examples of the extent feasible or consistent with military necessity rules incorporating the concept of feasibility necessity include the following: or 29 Refer to § 1.3.2.1 (The Law of War as the Lex Specialis Governing Armed Conflict ). 30 See United States v. List, et al. (The Hostage Case), XI T RIALS OF AR C RIMINALS B EFORE THE NMT 1252 W (rejecting defendants’ “plea of military necessity, a term which they confuse with convenience and strategical interests.”); General Dwight D. Eisen hower, Commander -in-Chief, U.S. Army, Memorandum Regarding the 438 (§13) (explaining that IGEST D W HITEMAN ’ S X , Dec. 29, 1943, Protection of Historical Monuments in Italy thful to speak of military although “the phrase ‘military necessity’ is sometimes used where it would be more tru military necessity should not “cloak slackness or indifference” to convenience or even personal convenience,” discerning whether law of war obligations, such as the protection of cultural property, may be fulfilled without any detriment to operational needs). 31 Refer to § 4.25.3 (Restrictions on Representatives of the Protecting Powers ). 32 Refer to § 10.9.2.1 (Internment or Assigned Residence Only if Absolutely Necessary ). 33 Refer to § 10.9.3.1 (Internment or Assigned Residenc e for Imperative Reasons of Security ). 34 (Seizure or Destruction of Property Refer to § 5.17.2 (Enemy Property – Military Necessity Standard ); § 11.18.2 ). Application of the Military Necessity Standard During Occupation – 55

83 • Certain affirmative duties to take feasible precautions to reduce the risk of harm to the 35 civilian population and other protected persons and objects. Military medical and religious personnel, if their retention is not indispensable , are to be • arty to the conflict to which they belong as soon as a road is open for returned to the p 36 their return and military requirements permit. Whenever military considerations permit • camps shall be indicated in the day time , POW 37 by the letters PW or PG, placed so as to be clearly visible from the air. Should military necessity • require the quantity of relief shipments to civilian internees to be limited, due notice thereof shall be given to the Protecting Power and to the International Committee of the Red Cross, or to any other organization giving assistance 38 to the internees and responsible for the forwarding of such shipments. Applying Military Necessity . Military necessity is a diff icult concept to define and 2.2.3 39 apply. may depend closely on the specific facts and circumstances of What is necessary in war a given situation , and different people often assess military necessity differently. T he limited and on available during war compounds this difficulty in evaluating unreliable nature of informati 40 This difficulty runs throughout the law of war, since military necessity is what is necessary . itself important and is an element of many other principles and rules . The law of war seeks to ameliorate these difficulties in applying military necessity by: (1) permitting consideration of the broader imperatives of winning the war as quickly and efficiently as possible ; (2) recogniz ing that certain types of actions are, as a general matter, that persons must assess the inherently militarily necessary ; and (3) recognizing military necessity of an action in good faith based on the information available to them at the relevant and that they cannot be judged based on information that subsequent ly comes to light. time Consideration of the Broader Imperatives of Winning the War . I n 2.2.3.1 military necessity , one may consider the broader imperatives of winning the war as evaluating quickly and efficiently as possible and is not restricted to considering only the demands of the ion. specific situat military necessity This is the case because justifies those measures necessary to achieve , and the object of war is not simply to prevail, but to prevail as quickly and the object of war 35 Refer to § 5.3.3 ve Duties to Take Feasible Precautions for the Protection of Civilians and Other (Affirmati Protected Persons and Objects ). 36 Refer to § 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable ). 37 § 9.11.4.3 (Marking of POW Camps ). Refer to 38 Refer to § 10.23.3 (Receipt of Individual and Collective Relief Shipments for Internees ). 39 See S PAIGHT , W AR R IGHTS ON L AND 113 (“There is no conception in International Law more elusive, protean, wholly unsatisfactory, than that of war necessity.”). 40 “Fog of War”). Refer to § 1.4.2.2 (Nature of War – Limited and Unreliable Information – 56

84 41 efficiently as possible Th us, military necessity may consider the broader imperatives of . winning the war and not only the demands of the immediate situation. For example, in assessing the military adv may consider the entire war strategy rather antage of attacking an object, one 42 than only the potential tactical gains from attacking that object. An interpretation of military necessity that only permitted consideration of the immediate situation c ould prolong the fighting 43 . and increase the overall suffering caused by the war ommentators have argued that Some c should be interpreted so as to military necessity , such as by requiring permit only what is actually necessary in the prevailing circumstances , if possible, to seek to capture or wound enemy combatants rather than to make commanders 44 them the object of attack. This interpretation, however, does not reflect customary 45 international law or treaty law applicable to DoD personnel. For example, the law of war does not require that enemy combatants be warned before being made the ob ject of attack , nor does the law of war require that enemy combatants be given an opportunity to surrender before being 41 § 1.4.1 (Object of War ). Refer to 42 Refer to (Definite Military Advantage ); § 5.12.5 (“Concrete and Direct Military Advantage Expected to § 5.7.7.3 Be Gained”). 43 See, e.g. , Department of Defense, National Military Strategy of the United States , 10 (Jan. 1992) (“Once a decision for military action has been made, half jectives extract a severe price in the form -measures and confused ob of a protracted conflict which can cause needless waste of human lives and material resources, a divided nation at home, and defeat. Therefore, one of the essential elements of our national military strategy is the ability to rapidly -- the concept of applying decisive force to overwhelm our adversaries and assemble the forces needed to win IEBER C ODE art. 29 (“The more vigorously wars thereby terminate conflicts swiftly with a minimum loss of life.”); L are pursu ed, the better it is for humanity. Sharp wars are brief.”); Count von Moltke, letter to Professor Bluntschli, ALLECK 19 footnote 1 (1908) (“The AW L S HERSTON B AKER , II H ’ S I NTERNATIONAL G. reprinted in Dec. 11, 1880, greatest kindness in war is to bring it to a speedy conclusion.”). 44 , Nils Melzer, Legal Adviser, International Committee of the Red Cross, See, e.g. Interpretive Guidance on the (“In (May 2009) , 79 Notion of Direct Participation in Hostilities Under International Humanitarian Law conjunction, t he principles of military necessity and of humanity reduce the sum total of permissible military action from that which IHL does not expressly prohibit to that which is actually necessary for the accomplishment of a iling circumstances .”) (emphasis added legitimate military purpose in the preva J EAN P ICTET , D EVELOPMENT AND ); P I NTERNATIONAL H RINCIPLES OF L AW 75- 76 (1985) (“If we can put a soldier out of action by UMANITARIAN capturing him, we should not wound him; if we can obtain the same result by wounding him, we must not kill him.”). 45 , W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of See, e.g. S NITED C TATES D IGEST OF U UMULATIVE , Nov. 2, 1989, III Executive Order 12333 and Assassination the Army, P RACTICE IN I NTERNATIONAL L AW 1981- 1988 3411, 3419 (“In the employment of military forces, the phrase ‘capture or kill’ carries the same meaning or connotation in peacetime as it does in wartime. There is no obligation nemy. In some cases, it may be preferable to utilize ground forces in to attempt capture rather than attack of an e order to capture, e.g. , a known terrorist. However, where the risk to U.S. forces is deemed too great, if the President has determined that the individual[s] in question pose such a threat to U.S. citizens or the national security interests of the United States as to require the use of military force, it would be legally permissible to employ, e.g. , an airstrike against that individual or group rather than attempt his, her, or their cap ture, and would not violate the prohibition on assassination.”). 57

85 46 made the object of attack . Moreover, the law of war may justify the use of overwhelming force 47 . against enemy military objectives gnizing Certain Types of Actions as Generally Inherently Militarily 2.2.3.2 Reco . The law of war recognizes that certain types of actions are, as a general matter, Necessary 48 . ily necessary enemy combatants is generally inherently militar For example, attacking 49 50 l. S uch rules may be lawfu Similarly, the internment of enemy POWs is generally lawful. , when specific rules are applicable, there is less need to resort to viewed as an example of how 51 principles as a general guide for conduct during w ar. fundamental law of war Good Faith Evaluation of Military Necessity Based on the Available 2.2.3.3 Information In what is sometimes called the “ Rendulic Rule,” the law of war recognizes that . must assess the military necessity of an action based on the information availabl e to persons 52 ; they cannot be judged based on information that subsequently comes to light. them at that time UMANITY H 2.3 Humanity may be defined as the principle that forbids the infliction of suffering, injury, 53 . or destruction unnecessary to accomplish a legitimate military purpose Humanity as a Prohibition. Although military necessity justifies certain actions 2.3.1 military necessity cannot necessary to defeat the enemy as quickly and efficiently as possible, 46 Refer to § 5.5.6.1 (Surprise Attacks 5.5.6.2 (Attacks on Retreating Forces ). ); § 47 Refer to § 5.5.6 (Force That May Be Applied Against Military Objectives ). 48 L See V ATTEL , T HE AW OF N ATIONS 295 (3.9.173) (explaining that the law of war seeks to avoid contentious disputes between belligerents about whether actions are militarily necessary by establishing “general rules independent of circumstances and of certain and easy application” and thus “permits or tolerates every act which in its essential nature is adapted to attaining the end of war; and it does not stop to consider whether the act was unnecessary, useless, or superfluous in a given case unless there is the clearest evidence that an exception should be made in that instance”). 49 § 5.6.1 (Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack ). Refer to 50 § 9.11.1 (Internment in POW Camps ). Refe r to 51 Refer to 2.1.2.2 (Law of War Principle s as a General Guide). § 52 Refer to § 5.4 (Assessing Information Under the Law of War ). 53 , 2001 C ANADIAN M ANUAL ¶202(6) (humanity “forbids the infliction of suf See, e.g. fering, injury or destruction UK M ANUAL ¶2.4 not actually necessary for the accomplishment of legitimate military purposes.”); 2004 (“Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishment “forbids the REENSPAN , M ODERN L AW OF L AND W ARFARE 315 (humanity timate military purposes.”); G of legi 1958 UK employment of all such kinds and degrees of violence as are not necessary for the purpose of the war”); M ANUAL ¶3 (humanity is the principle “according to which kinds and degrees of violence which are not necessary AW L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L for the purpose of war are not permitted to a belligerent;”); (§67) (Humanity “postulates that all such kinds and degrees of violence as are not necessary for the 227 ULES OF AND W ARFARE ¶4b L overpowering of the opponent should not be permitted to a belligerent.”); 1940 R (defining the principle of humanity as “prohibiting employment of any such kind or degree of violence as is not L R ULES OF AND W ARFARE ¶9 (The principle of humanity actually necessary fo r the purpose of the war”); 1914 “says that all such kinds and degrees of violence as are not necessary for the purpose of war are not permitted to a belligerent.”). 58

86 54 h as cruelty or wanton violence. justify actions not necessary to achieve this purpose, suc Moreover, once a military purpose has been achieved, inflicting more suffering is unnecessary hors de combat and should be avoided. For example, if an enemy combatant has been placed , incapacitated by being severel ), no military purpose is served by e.g. ( y wounded or captured 55 continuing to attack him or her . humanity forbids making enemy Thus , the principle of 56 the object of attack. Similarly, the principle combatants who have been placed hors de combat has humanity civilian population’ s immunity from being of been viewed as the source of the attack because their inoffensive and harmless character means that there is no made the object of 57 military purpose served by attacking them . 2.3.1.1 Humanity and Military Necessity Relationship Between the Principles of y is related to , and these principles logically complement . Humanit military necessity one another . If Humanity may be viewed as the logical inverse of the principle of military necessity. certain necessary actions are justified, then certain unnecessary actions are prohibited. The principle of humanity is an example of how the concept of necessity can function as a limitation .58 as well as a justification he principle of humanity is Because humanity forbids those actions that are unnecessary, t not in tension with military effectiveness, but instead reinforces military effectiveness .59 Humanity and Law of War Rules Humanity animates certain law of war rules, 2.3.2 . including: 60 he hands of the enemy; fundamental safeguards for persons who fall into t • 54 54 et al. ostage Case), XI T RIALS OF W AR C RIMINALS B EFORE THE NMT United States v. List, (The H 1253- (“[Military necessity] does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction ict or the willful infliction of suffering upon its of a lust to kill. ... It does not admit the wanton devastation of a distr IEBER C ODE -- art. 16 (“Military necessity does not admit to cruelty inhabitants for the sake of suffering alone.”); L that is, the infliction of suffering for the sake of suffering or for revenge, ... .”). 55 See 2004 UK M ANUAL ¶2.4.1 (“The principle of humanity is based on the notion that once a military purpose has been achieved, the further infliction of suffering is unnecessary. Thus, if an enemy combatant has been put out of action by being wounded or c aptured, there is no military purpose to be achieved by continuing to attack him. For the same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objects from attack because civilians and civilian objects make no contribution to military action.”). 56 Refer to (Persons Placed Hors de Combat ). § 5.10 57 Refer to § 4.2.1 (Development of the Distinction Between the Armed Forces and the Civilian Population ). 58 Cf. Ex parte Milligan, 71 U.S. 2, 127 (1866) (“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and s ociety, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration , for, if this government is continued after the courts are reinst ated, it is a gross usurpation of power.”) (emphasis added). 59 (Reinforcing Military Effectiveness ). Refer to § 18.2.1 59

87 61 • civilian population and civilian objects ; protections for the 62 , and transport s; protections for military • medical personnel, units 63 on weapons that are calculated to cause superfluous injury; and • prohibitions 64 prohibitions on wea pons that are inherently indiscriminate. • The principle of may help interpret or apply these and other law of war rules. humanity s be interned only in premises located on land has been For example, the requirement that POW understood not to prohibit POW detention aboard ships pending the establishment of suitable facilities on land , if detention aboard ships provides the most appropriate living conditions for 65 POWs. makes Similarly, the U.S. reservation to CCW Protocol III on Incendiary Weapons clear that U.S. forces may use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or 66 less collateral damage than alternative weapons. 2.4 ROPORTIONALITY P y may be defined as the principle that even where one is justified in acting, Proportionalit 67 one must not act in way that is unreasonable or excessive. Proportionality has also been viewed as a legal restatement of the military concept of 68 economy of force. 60 Refer to § 8.2 (Humane Treatment of Detainees ); § 9.5 (Humane Treatment and Basic Protections for POWs ); § 10.5 ). (Humane Treatment and Other Basic Protections for Protected Persons 61 Refer to § 5.3 (Overview of R ules for the Protection of Civilians ). 62 Refer to § 7.8 (Respect and Protection of Categories of Medical and Religious Personnel ); § 7.10 (Military ); § Medical Units and Facilities ); § 7.11 (Ground Transport 7.12 (Hospital Ships, Sick -Bays in Warships, and Coastal Rescue Craft ); § (Military Medical Aircraft ). 7.14 63 (Weapons Calculated to Cause Superfluous Injury ). Refer to § 6.6 64 Refer to (Inherently Ind ). iscriminate Weapons § 6.7 65 Refer to § 9.11.3.1 (Location on Land ). 66 Refer to (U.S. Reservation to CCW Protocol III on Incendiary Weapons ). § 6.14.3.2 67 ANIEL Daniel Webster, Letter to Mr. Fox reprinted in D See W EBSTER , T HE D IPLOMATIC AND , Apr. 24, 1841, O FFICIAL P APERS OF D ANIEL W EBSTER , W HILE S ECRETARY OF S TATE 110 (1848) (explaining th at even actions taken in self -defense should not be “unreasonable or excessive” since such actions “justified by the necessity of self - W AW OF ROTIUS , L EACE AR & P G defense, must be limited by that necessity and kept clearly within it”). See also 601 (3.1.4.2) (“we must also beware of what happens, and what we foresee may happen, beyond our purpose, unless the good which our action has in view is much greater than the evil which is feared, or, greater than the fear of the L 279 (3.8.137) (explaining that a Sovereign has “the right to make war upon ATTEL , T HE ATIONS AW OF N evil.”); V his fellow -men as a matter of necessity, and as a remedy,” but the Sovereign should not “push the remedy beyond its just limits,” and should “be careful not to make it more severe o r more disastrous to mankind than the care of his own safety and the defense of his rights require.”). 60

88 as a Limit . 2.4.1 Proportionality on the Exercise of a Right Justification in Acting 2.4.1.1 addresses cases in which one is . Proportionality military necessity , the justification at issue generally is justified in acting. In . So, for jus in bello an attack on enemy soldiers that incidentally damages civilian property would trigger example, for acting, such where there is no justification proportionality considerations. On the other hand, population, proportionality as unlawful attack s would not s directed against the civilian concern . be reached Unreasonable or Excessiv . Proportionality generally weighs the 2.4.1.2 e justification for acting against the expected harms to determine whether the latter are in comparison to the former . In war, incidental damage to the civilian disproportionate 69 and tragic, but inevitable. population and civilian objects is unfortunate Thus, applying the rule in conducting attacks does not require that no incidental damage result from proportionality this rule attacks. Rather, where the expected harm obliges persons to refr ain from attacking incidental to such attacks would be excessive in relation to the military advantage anticipated to 70 be gained. often involve difficult and subjective Under the law of war, judgments of proportionality 71 Recognizing these difficulties, States have declined to use the term comparisons. “proportionality ” in law of war treaties because it could incorrectly imply an equilibrium 72 between considerations or suggest that a precise comparison between them is possible. Propor tionality and the Law of War . The principle of proportionality is reflected in 2.4.2 areas in the law o f war. many most often refers to the jus in bello Proportionality applicable to persons standard 73 conducting attacks . Proportionality considerations, howeve r, may also be understood to apply to the party subject to attack, which must take feasible precautions to reduce the risk of 68 General George S. Brown, Chairman of the Joint Chiefs of Staff, , Oct. Address: Duke University School of Law HAIRMAN DDRESSES AND S TAT EMENTS BY G ENERAL G EORGE S. B ROWN , USAF, C OINT , J A reprinted in 10, 1974, HIEF OF TAFF 1974- 1978 (1978) (“We recognize that wanton destruction and unnecessary suffering are both C S l military goals of the violations of these military developed legal principles and counterproductive to the politica Nation. The law of ‘proportionality’ is simply a legal restatement of the time honored military concept of ‘economy of force.’”). 69 Refer to § 1.4.2 (Nature of War ). 70 Refer to (Proportionality in Conducting Attacks ). § 5.12 71 Compare § (“Excessive” ). Refer to § 2.2.3 (Applying Military Necessity ). 5.12.4 72 See, e.g. , B OTHE , P ARTSCH , & S OLF , N EW R ULES 309- 10 (AP I art. 51, ¶2.6.2) (describing how some government delegations in the 1974- 1977 Diplomatic Conference opposed incorporation of the term “proportionality” or acknowledgement of a law of war “rule” of proportionality in AP I and AP II). 73 ). (Proportionality in Conducting Attacks Refer to § 5.12 61

89 74 incidental harm. Proportionality also plays a role in assessing whether weapons are prohibited 75 because they are calculated to cause unnecessary suffering. jus ad bellum , proportionality requires that the State ’s means in resorting to force be In 76 , such as the threat that the proportionate to its just cause in using force State seeks to address. Proportionality is also a requirem ent for reprisals, which must respond in a proportionate manner 77 . to the preceding illegal act by the party against which they are taken D 2.5 ISTINCTION , sometimes called discrimination , obliges parties to a conflict to distinguish Distinction betw een the armed forces and the civilian population, and between unprotected and principally 78 protected objects. Distinction may be understood as encompassing two sets of reinforcing duties. Parties to bjects by: (1) discriminating a conflict must apply a framework of legal classes for persons and o in conducting attacks ; and (2) distinguishing a party ’s own persons and against the enemy objects. Distinction as a Framewor k of Legal Classes . Distinction requires parties to a 2.5.1 conflict to apply classes for persons and objects, each class characterized a framework of legal by different rights, duties, and liabilities. 79 , distinction seeks to separate the armed forces and the civilian population . Principally There are, however, certain special cases and religious personnel, who , such as military medical may be treated like a combatant for one purpose ( e.g. a civilian for another , detention) but like 74 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Pr otected Persons and Objects by the Party Subject to Attack ). 75 Refer to § 6.6.3.3 (Clearly Disproportionate ). 76 § 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality – Jus ad Bellum) ). Refer to 77 § 18.18.2.4 (Proporti onality in Reprisal). Refer to 78 See, e.g. , J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals certain general s including the following: ... (c). That a distinction must be made at all times between persons taking part principle in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible. These general principles w ere recognized in a resolution unanimously adopted by the United Nations General Assembly in its Resolution dated 13 January 1969 (Resolution 2444 (XXIII)). We regard them as declaratory of existing customary international law.”); Ex parte Quirin, 317 U.S . 1, 30 (1942) (“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nemy’s armed ¶2.5 (“Since military operations are to be conducted only against the e UK M ANUAL 2004 nations,”); forces and military objectives, there must be a clear distinction between the armed forces and civilians, or between combatants and non- combatants, and between objects that might legitimately be attacked and those that are protected from attac k.”). Consider AP I art. 48 (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian obj ects and military objectives and accordingly shall direct their operations only against military objectives.”). 79 (The Armed Forces and the Civilian Population ). Refer to § 4.2 62

90 80 purpose ( However, for any particular legal purpose, , not being made the object of attack). e.g. tinct rights afforded to both combatants and civilians at the same a person may not claim the dis 81 time. Conducting Attacks Against the Enemy Distinction requires 2.5.2 Discriminating in . 82 against the enemy . parties to a conflict to discriminate On the one hand, in conducting attacks stent with , parties may make enemy combatants and other military consi military necessity 83 the object of attack. objectives On the other hand, c onsistent with humanity , parties may not 84 population and other protected persons and objects the obj ect of attack. make the civilian Moreover, persons using force must discriminate between legitimate and illegitimate objects of 85 in good faith based on the information available to them at the time attack . Distinguishing a Party ’s Own Persons and Objects Distinction e njoins the party 2.5.3 . 86 controlling the population to use its best efforts to distinguish or separate its military forces and war -making activities from members of the civilian population to the maximum extent feasible so that civilian casualties and damage to c ivilian objects incidental to attacks on military 87 objectives will be minimized as much as possible . Parties to a conflict must: (1) take certain measures to help ensure that military forces and civilians can be visually distinguished from one another ; (2 ) physically separate, as feasible, their military objectives from the civilian population and other protected persons and objects ; and (3) refrain from the misuse of protected persons and objects to shield military objectives. 2.5.3.1 Military Forces and Civilians Are Visually Measures to Help Ensure That From . Parties to a conflict must take certain measures, in offense Distinguishable One Another or defense , to help ensure that military forces and civilians can be visually distinguished from one another. 80 Refer to § 4.2.3 (Mixed Cases ). 81 § 4.2.2 (No Person May Claim t he Distinct Rights Afforded to Both Combatants and Civilians at the Refer to ). Same Time 82 Refer to § 5.6 (Discrimination in Conducting Attacks ). 83 Refer to § 5.6.1 (Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack ). 84 § 5.6.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack ). Refer to 85 § 5.4 (Assessing Information Under the Law of Wa r). Refer to 86 Refer to § 5.3.1 (Responsibility of the Party Controlling Civilian Persons and Objects ). 87 J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Ken nedy, Sept. 22, 1972, reprinted in 67 See AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals certain general principles including the following: ... (c). That a distinction must be made at all times between persons taking p art in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible. ... The principle in (c) addresses primarily the Party exercising control over members of the civilian population. This principle r ecognizes the interdependence of the civilian community with the overall war effort of a modern society. But its application enjoins the party controlling the population to use its best efforts to distinguish or separate its military forces and war making activities from members of the civilian population to the maximum extent feasible so that civilian casualties and damage to civilian objects incidental to attacks on military objectives, will be minimized as much as possible.”). 63

91 First , parties to a conflict must not disguise their armed forces as civilians or other as 88 of persons protected categories in order to kill or wound opposing forces. Second , other rules obligate parties to mark protected persons and objects to help ensure the y receive the protections 89 of that status. Third certain persons and , certain rules encourage parties to a conflict to identify objects as unprotected. For example, during international armed conflict, m embers of organized , resistance movements must r alia , wear fixed distinctive signs visible at a distance and carry inte arms openly population in order for members of their to distinguish themselves from the civilian 90 . group to receive POW status 2.5.3.2 Feasible Measures to Separate Physically a Party ’s Own Military Objectives From the Civilian Population and Other Protected Persons and Objects . D istinction also creates obligations for parties to a conflict to take feasible measures to separate physically n and other protected persons and their own military objectives from the civilian populatio 91 . objects 92 For example, it may be appropriate to evacuat Similarly, e civilians from danger areas. if feasible, military commanders should avoid placing military objectives in densely populated 93 areas. In addition, it m ay be appropriate to establish zones where civilians and other protected 94 persons may seek refuge. 2.5.3.3 Refrain From the Misuse of Protected Persons and Objects to Shield Military Objectives . Parties to a conflict must refrain from the misuse of civilians and other 95 protected persons and objects to shield their own military objectives . For example, it is prohibited to take hostages or otherwise to endanger deliberately protected persons or objects for the purpose of deterring enemy military operations. Misusi ng protected persons and objects to shield military objectives also offends honor because it constitutes a breach of trust with the enemy and thus undermines respect for the law of 96 war . bout Distinction . Misconceptions A seeks to ensure that protected and 2.5.4 Distinction unprotected categories are distinct from one another, not distinct in the abstract. For example, distinction because foliage is not a protected category and using camouflage is consistent with 88 Refer to (Treachery or Perfidy Used to Kill or Wound ). § 5.22 89 § 5.14.4 (Using Distinctive and Vi sible Signs to Identify Protected Persons and Objects as Such ). Refer to 90 Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance); § 4.6.5 (Carrying Arms Openly). 91 § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Prot ected Persons and Objects by the Party Refer to ). Subject to Attack 92 Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives ). 93 Ref er to § 5.14.1 (Refraining From Placing Military Objectives in Densely Populated Areas ). 94 Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected ). 95 Refer to § 5.16 (Prohibition on Using Protected Persons and Objec ts to Shield, Favor, or Impede Military Operations ). 96 (Certain Amount of Fairness in Offense and Defense). Refer to § 2.6.2 64

92 97 because civilians generally do not wear camoufla Similarly, U.S. forces have worn non - ge. s to blend with local forces while remaining distinct from the civilian standard uniform 98 population. addresses the different rights, duties, and liabilities of the categories Distinction ; it does not require that a particular person or object fall within a particular category. For example, the distinction does not prohibit a n otherwise civilian object from being principle of d for military use 99 . purposes , thereby turning it into a military objective ch an object were seized However, if su imperatively demanded by the necessities from the enemy, such seizure would have to have been 100 of war. Similarly, persons with medical training or who provide medical care on the 101 rsonnel and need not be identified as such. battlefield are not necessarily military medical pe reserve the ability to use these persons as combatants Rather, a State may by refraining from designating them as exclusively engaged in medical activities . Reinforcing Duties – Discriminating in Conducting Att 2.5.5 acks and Distinguishing a Party ’s Own Persons and Objects . Discriminating in conducting attacks against the enemy and distinguishing a party ’s own persons and objects reinforce one another. A party is not relieved of its obligations to discriminate in conducting attacks by the failures of its adversary to distinguish its military objectives from protected persons and 102 Nonetheless, the practical ability of a party to a conflict to discriminate in conducting objects. attacks often depend s on the degree t o which its enemy has distinguished its military objectives from its protected persons and objects . For example, if enemy forces intermingle with civilian s, then a party may be less able to avoid incidentally harming the civilian population. In addition, t he degree to which an enemy force in fact discriminates in conducting attacks may affect whether a party distinguishes its protected persons and objects from its military objectives. For example, if enemy forces do not respect the red cross emblem , but persons wearing it receiving these attacks is less likely attack , then the party instead specifically 103 Similarly, if insurgents seek to attack and transports to distinguish its medical personnel . civilians in a non- ng military forces near the civilian international armed conflict, positioni 104 population may be essential to protecting the civilian population. 97 Refer to (Examples of Ruses ), footnote 700 and accompanying text. § 5.25.2 98 Refer to § 5.25.2.1 (Mimicking Other Friendly Forces ). 99 § 5.16.1 (Protected Persons and Objects ). Refer to 100 § 5.17.2.2 (Seizure or Destruction of Enemy Property to Support Military Operations ). Refer to 101 Refer to § 4.9.2 (Requirements for Militar y Medical and Religious Status ). 102 § 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to Refer to Discriminate in Cond ucting Attacks ). 103 Refer to § 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem ). 104 Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect Them ). 65

93 2.6 H ONOR s a certain amount of fairness in offense and defense and a certain mutual demand Honor 105 respect between opposing forces. Notes on Terminology . Honor has been vital to the 2.6.1 Honor – Background and 106 Honor honor . , which was preceded by w ’ codes of development of the law of war arriors continues to be vital to giving the law of war effect today. is also called chivalry . Chivalry is often associated with a specific historical Honor —a code of behavior for knights in Europe during the Middle Ages. may be more Honor context readily unde rstood as incorporating warrior s’ codes from a variety of cultures and time periods . Certain A mount of F airnes s in Offens e and Defense. Honor requires a certain 2.6.2 irness in offense and defense. H onor forbids resort to means, expedients, or conduct amount of fa 107 trust with the enemy . that would constitute a breach of 2.6.2.1 hat Belligerent Rights Are Not Unlimited . In Acceptance T requiring a honor reflects the principle that parties to a certain amount of fairness in offense and defense, ir ability to conduct hostilities . For example, conflict must accept that certain limits exist on the right of belligerents to adopt means of injuring the parties to the conflict must accept that the 108 enemy is not unlimited . Here, honor does not address what those limi ts are so much as 109 . require s that parties accept that there are legal limits that govern their conduct of hostilities 105 See, e.g. , L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW 227 (§67) (chivalry “arose in the Middle Ages UK and introduced a certain amount of fairness in offence and defence, and a certain mutual respect”); 1958 M ANUAL ¶3 (“The development of the law of war has been determined by three principles: ... and thirdly, the principle of chivalry, which demands a certain amount of fai rness in offence and defence, and a certain mutual ULES OF ¶9 (“The development of the laws and L AND W ARFARE respect between the opposing forces.”); 1914 R usages of war is determined by three principles. ... the principle of chivalry, which demands a certain amount Third, NITED INGDOM W AR K of fairness in offense and defense and a certain mutual respect between opposing forces.”); U FFICE , M ANUAL OF M ILITARY L AW , Chapter XIV, O , 234 (¶3) (1914) (“The The Laws and Usages of War on Land development of the laws and usages of war is determined by three principles. ... And there is, thirdly, the principle of chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutual respect between the opposing forces.”). 106 See, e.g. , L ESLIE C. G RE EN , T HE C ONTEMPORARY L AW OF A RMED C ONFLICT 20- 23 (2000) (describing references to warrior codes from ancient Israel, China, India, Greece, Rome, and Islam). 107 1940 ULES OF L AND W ARFARE ¶4(c) (chivalry “denounces and forbids resort to dishonorable means, R ¶202(7) (“An armed conflict is rarely a polite contest. ANADIAN M ANUAL C expedients, or conduct”); 2001 Nevertheless, the concept of chivalry is reflected in specific prohibitions such as those against dishonourable or treacherous conduct and against misuse of enemy flags or flags of truce.”). 108 See, e.g. , 1899 H AGUE II R EG . art. 22 (“The right of belligerents to adopt means of injuring the enemy is not art. 22 (same); CCW preamble (noting “the principle of international law that the right H AGUE IV R EG . unlimited.”) ; of the parties to an armed conflict to choose methods or means of warfare is not unlimited”). AP I art. Consider 35(1) (“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.”). 109 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 583, 585 (¶11) (Dissenting Opinion of Judge Higgins) (“The legal principle by which parties to an armed conflict do not have an unlimited choice of weapons or of methods of wa rfare... [is intended] to ensure that weapons, both in the context of their use, and in the methods of warfare, must comply with the other substantive rules.”). 66

94 This acceptan ce is a prerequisite for the existence and operation of the law of war in the way that (treaties are binding on parties and must be performed by the principle of pacta sunt servanda foundation for treaties to exist and operate as them in good faith) provides a necessary 110 . instruments that are legally binding on States Thus foundation for obligations that help enforce , honor may be understood to provide a or special agreements between belligerents during armed and implement the law of war 111 conflict. mple, may be understood to provide the foundation for the requirement For exa honor 112 in good faith. , POWs are bound to adhere for persons to comply with the law of war Similarly 113 to paroles on their personal honor. Prohibition on Conduct That Breaches Trust With the Enemy . In 2.6.2.2 honor requiring a certain amount of fairness in offense and defense, also forbids resort to means, In particular, expedients, or conduct that would constitute a breach of trust with the enemy. require s a party to a conflict to refrai ’s adherence honor n from taking advantage of its opponent . ’s protections to the law by falsely claiming the law Honor conduct because it may: (1) undermine the protections afforded by forbids such the law of war; (2) impair non- hostile relations between opposin g belligerents; and (3) damage the basis for the restoration of peace short of complete annihilation of one belligerent by 114 another . must hostile deal with one another in good faith in their non- For example, enemies 115 And even in the conduct of hostilities relations. : (1) killing or wounding , good faith prohibits enemy persons by resort to perfidy; (2) misusing certain signs; (3) fighting in the enemy ’s uniform; (4) feigning non -hostile relations in order to seek a military advantage; and (5) compelling na tionals of a hostile party to take part in the operations of war directed against their 116 Honor , however, does not forbid parties from using ruses and other lawful own country. 117 deceptions against which the enemy ought to take measures to protect itself. 2.6.3 Certain M . Honor demands a certain espect Between Opposing Forces utual R mutual respect between opposing forces. Opposing military forces should respect one another outside of the fighting because they and they share a profession ir respective State s and not out of fight one another on behalf of the 110 Refer to § 1.10.1.1 (Legal Force of Treaties Among States ). 111 Refer to § 18.1.2 (National Obligations to Implement and Enforce the Law of War ). 112 § 18.3 (Duties of Individual Members of the Armed Forces ). Refer to 113 Refer to § 9.11.2 (Parole of POWs ). 114 Refer to § 5.21.1 (Harms From Breaches of Good Faith ). 115 ). Refer to § 12.2 (Principle of G ood Faith in Non- Hostile Relations 116 Refer to § 5.21 (Overview of Good Faith, Perfidy, and Ruses ). 117 ). (Ruses of War and Other Lawful Deceptions Refer to § 5.25 67

95 118 personal hostility. his principle is reflected in the rule that P OWs are legally in For example, t 119 individuals or military units who the hands of the enemy State and not the have captured them. Captivity . In demanding a certain mutual 2.6.3.1 Honor and Rules for POW respect between opposing forces, rules that relate to the treatment of POWs . For honor animates 120 is one of the foundations for the humane treatment of POWs. example, honor The principle of honor lso reflected in rules that require POWs and their captors to treat one another with is a 121 . For example, respect POWs must be treated with respect for their honor and person. As l officers of another example, POWs, with the exception of officers, must salute and show to al the Detaining Power the external marks of respect provided for by the regulations applying in 122 . their own forces In addition, capitulations agreed upon between belligerents must take into 123 account the rules of military honor. 2.6.3.2 Honor and the Class of Combatants . In demanding a certain mutual respect between opposing forces, honor also reflects the premise that combatants are a common 124 class of professionals who have undertaken to comport themselves honorably. thus animates the rules t hat determine who qualifies for privileges of combatant Honor status inter alia , be organized under a responsible . For example, an armed group must, 118 See J EAN -J ACQUES R OUSSEAU , T HE S OCIAL C ONTRACT & D ISCOURSES 12 (1920) (“The object of war being the destruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but as soon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become once more merely men, whose life no one has any right to take.”). 119 Refer to 9.2.2 (Responsibility of the Detaining Power ). § 120 Chivalry , 113 Proceedings Magazine, Jan. 1987 (“During World War II, the Japanese See, e.g. , Samuel Falle, were portrayed as brutal, subhuman savages —the hordes of Attila or Genghis Khan. Certainly they did terrible things, but I was fortunate enough to see something different. It is called ‘chivalry,’ which the Oxford Dictionary defines as a ‘medieval knightly system, with its religious, mora l, and social code; ideal knight’s characteristics.’ I et al . v. Göring, et al ., Judgment , I see it as compassion and magnanimity toward a beaten enemy.”); United States, 289 (“When, on 8 September 1941, OKW RIAL OF THE AJOR W AR C RIMINALS B EFORE THE IMT issued its M T ruthless regulations for Soviet POW’s, Canaris wrote to [the defendant] Keitel that under international law the SD should have nothing to do with this matter. On this memorandum, in Keitel’s handwriting, dated 23 September and initialed by him , is the statement: ‘The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures.’”). 121 Refer to § 9.5.1 (Respect for Their Persons and Honor ). 122 § 9.22.3 (Saluting Between POWs and Officers of the Detaining Power ). Refer to 123 Refer to § 12.8.3 (Rules of Military Honor ). 124 S PAIGHT , A IR P OWER AND W AR R IGHTS 109- 10 (“Chivalry is difficult to define but it means broadly, the waging of war in accordance with cert -recognised formalities and courtesies. It is an influence quite distinct from ain well the humanitarian one; indeed, it prevailed in its full vigour at a time in which humanitarian interests were otherwise entirely disregarded: witness the cruelty of the Black Prince to the people of Limoges. It is against free from any necessary connection with Christianity; Saladin was a chivalrous as Coeur -de-Lion. It is, indeed, the spirit pure and simple, of knighthood. It expresses in effect the feeling of the co mbatants that they belong to a caste, that their encounter in arms is a high ceremonial, that an opponent is entitled to all honour and respect, that your enemy, though he is your enemy, is at the same time a brother in the same noble family of knights -at-arms. Until gunpowder came to democratise war, chivalry and chivalry alone was an influence making for moderation in war. It was the first motive power for the creation of a restrictive law of war.”). 68

96 command and conduct its operations in accordance with the law of war in order for its members 125 to be entitled to POW status during international armed conflict. On the other hand, private persons are generally denied the privileges of combatant status because they do not belong to this 126 . class of combatants The principle that combatants share a common class has als o been a foundation for the 127 . For example, the GPW expresses a trial of enemy combatants by military tribunals 128 preference for POWs to be tried by military courts rather than civilian courts. 125 Refer to § 4.6.1 (GPW 4A(2) Conditions in General ). 126 Lack of the Privi Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – ). leges of Combatant Status 127 General Douglas MacArthur, , Feb. 7, 1946, United States v. Yamashita (U.S. Action of the Confirming Authority S EVIE D 298 (“It is not easy for me to pass penal POW , OCUMENTS ON Military Commission, Manila, Dec. 7, 1945), L judg ment upon a defeated adversary in a major military campaign. I have reviewed the proceedings in vain search for some mitigating circumstance on his behalf. I can find none. Rarely has so cruel and wanton a record been spread to public gaze. Revolting a s this may be in itself, it pales before the sinister and far reaching implication thereby attached to the profession of arms. The soldier, be he friend or foe, is charged with the protection of the his being. When he violates this sacred trust, he not only weak and unarmed. It is the very essence and reason for profanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are long and honorable. They are based upon the noblest of human traits, - sacrif ice. This officer, of proven field merit, entrusted with high command involving authority adequate to responsibility, has failed this irrevocable standard; has failed his duty to his troops, to his country, to his enemy, to mankind; has failed utterly his soldier faith. The transgressions resulting therefrom as revealed by the trial are a blot upon the military profession, a stain upon civilization and constitute a memory of shame and dishonor that can never be forgotten. Peculiarly callous and purposele ss was the sack of the ancient city of Manila, with its Christian population and its countless historic shrines and monuments of culture and civilization, which with campaign conditions reversed had previously been spared.”). 128 (Trial by Military Courts ). Refer to § 9.26.3 69

97 III – Application of the Law of War Chapter Contents 3.1 Introduction 3.2 Situations to Which the Law of War Applies 3.3 Status of the Parties and the Law of War Rules Apply 3.4 When Jus in Bello and Jus ad Bellum Jus in Bello 3.5 Relationship Between 3.6 Reciprocity and Law of War Rules 3.7 Applying Rules by Analogy 3.8 End of Hostilities and the Application of the Law of War 3.9 Law of War Duties Also Applicable in Peace NTRODUCTION 3.1 I Whether a particular law of war rule applies to a situati on may depend on a variety of 1 ” “hostilities, ” or “ issues, such as (1) whether a state of “ ” exists ; war, (2) whether armed conflict 2 or (3) whether an enemy State has accepted a party is recognized as a belligerent or as a State ; 3 . hapter addresses Th is C that law of war rule these and other broad issues underlying the chapters address issues in applying specific rules application of law of war rules. Later , including considerations specific to those rules . For example, whether a specific provision of the GPW applies to a particular person may depend on whether that person is entitled to POW status 4 under the GPW. Many of the legal issues underlying the application of law of war rules may be confusing because they are complex and may appear to result in contradictory legal positions. For 5 ” for some purposes, but not for other purposes. he legal T example, a State may be at “ war character of U.S. military operations may change rapidly. For example, some operations may begin as military operations other than war and later evolve into war , or an international armed international armed conflict. conflict may change into a non- Although this C hapter addresses how rules apply as a matter of law practice has , DoD often been to act consistently with law of war rules, even in certain cases where these rules might not technically be applicable as a matter of law . 1 § 3.4 (When Jus in Bello Rules Apply ). Refer to 2 Refer to § 3.3 (Status of the Parties and the Law of War ). 3 § 3.6.1 (Treaty Provision s That Provide for Reciprocity in the Scope of Application of the Treaty ). Refer to 4 Refer to § 9.3 (POW Status ). 5 (“War” as a Legal Concept ). Refer to § 1.5 70

98 DoD Practice Law of War Rules Even When Not Technically 3.1.1 of Applying . DoD policy and doctrine make clear the importance of compliance with, Applicable 6 implementation of, and enforcement of the law of war. In addition, DoD practice has often been to act consistently with law of war rules, even in might not technically be applicable as a matter of law . This certain cases where these rules DoD practice has often been to act consistently with a particular law of means, for example, that war treaty rule , even if that rule might not apply as a matter of treaty law. Moreover , DoD practice has sometimes been to adhere to the standards in the law of war, even in situations that do not constitute “ war ” or “ armed conflict ,” because these standards in the law of war reflect legal standards that must be adhered to in all circumstances ( , whether there is a state of i.e. ). armed conflict or not 3.1.1.1 for Acting Consistent With a Treaty Rule, Even Though the Reasons Treaty Does Not Apply . DoD practice has often been to act consistently with a treaty rule, even if that rule might not apply as a matter of treaty law. First, it may be appropriate to act consistently with the as applied in dealings with a non- Party to a treaty) terms of a treaty (even because the general principles of the treaty have been determined to be declaratory of customary 7 international law. In such cases, practice that is consistent with the treaty ’s terms with regard to a particular matter likewise would be in compliance with applicable customary international law. In addition, it may be important to act consistently with the terms of the treaty because the treaty represents “ modern international public opinion” as to how military operations should 8 efficacious training standards or close Other policy considerations, including be conducted. relations with coalition partners, may lead to a policy decision that DoD practice should be consistent with a particular law of war , even if that rule does not apply to U.S. forces treaty rule as a matter of law . Applying Law of War Standards as Reflecting Minimum Legal Standards . 3.1.1.2 standards in the law of war, even in situations DoD practice also has been to adhere to certain war ” or “armed conflict ,” because these law of war rules reflect standards that do not constitute “ that must be adhered to in all circumstances. Applying these standards provides assurance that 6 Refer to 18.1.1 (DoD Policy on Implementing and Enforcing the Law of War ). § 7 1956 FM 27- nge No. 1 1976) Foreword (“Moreover, even though States may not be parties to, or strictly 10 (Cha bound by, the 1907 Hague Conventions and the 1929 Geneva Convention relative to the Treatment of Prisoners of War, the general principles of these conventions have b een held declaratory of the customary law of war to which all States are subject. For this reason, the United States has adopted the policy of observing and enforcing the terms of these conventions in so far as they have not been superseded by the 1949 Ge neva Conventions which necessarily govern the relations between the parties to the latter (see pars. 6 and 7 of the text).”). 8 1956 FM 27- 10 (Change No. 1 1976) ¶7a (“These treaty provisions are in large part but formal and specific applications of genera l principles of the unwritten law. While solemnly obligatory only as between the parties thereto, they may be said also to represent modern international public opinion as to how belligerents and neutrals should conduct themselves in the particulars indic ated. For these reasons, the treaty provisions quoted herein will be strictly observed and enforced by United States forces without regard to whether they are legally binding upon this country. Military commanders will be instructed which, if any, of the written rules herein quoted are not legally binding as between the United States and each of the States immediately concerned, and which, if any, for that reason are not for the time being to be observed or enforced.”). 71

99 the standards adhered to equal or exceed those required. This practice has been reflected in DoD policies to comply with the law of war, or to comply with the spirit and principles of the law of 9 war, during military operations outside the context of armed conflict. in the law of war that reflect customary Certain prohibitions and certain ot her rules 10 international law have been described as reflecting “ .” elementary considerations of humanity elementary considerations of humanity These “ “ even more exacting ” have been understood to be 11 in peace than in war. ” hese legal standards Thus, t , at a minimum, must be adhered to in all circumstances. In particular , Common Article 3 of the 1949 Geneva Conventions reflects a minimum yardstick of humane treatment protections for all persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de 12 by sickness, wounds, detention, or any other cause. combat he standards in C ommon A T rticle 3 of the 1949 Geneva Conventions may be understood to reflec t minimum humane treatment standards for detainees in any military operation, including those during international or non- international armed conflict or occupation, and those military operations that are not addressed by the law of war. depending on the particular context. For example, Additional rules will apply the United States has supported adherence to the guarantees in Article 75 of AP I during 13 international armed conflict . 9 O See D D D IRECTIVE 2311.01E, DoD L aw of War Program , ¶4.1 (May 9, 2006, Certified Current as of Feb. 22, 2011) (“Members of the DoD Components comply with the law of war during all armed conflicts, however such D D IREC TIVE 5100.77, DoD Law of War O conflicts are characterized, and in all other military operations.”); D , ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: 5.3.1. Ensure that the members of their Program DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, with the principles and spirit of the law of war during all other operations.”). Refer to § 18.1.1 (DoD Policy on and Implementing and Enforcing the Law of War ). 10 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶79) (“It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary con siderations of humanity’ as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed b y all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.”). 11 Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 ( “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to w hich the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well -recognized principles, namely: elementary considerations of humanity, even mor e exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”). 12 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions ). 13 ). vant AP II Provisions Refer to § 8.1.4.2 (Article 75 of AP I and Rele 72

100 3.2 ITUATIONS TO W HICH THE L AW OF W AR A PPLIES S only understood Although the law of war is comm as applying to the conduct of hostilities , the law of war addresses other situations as well . The law of and the protection of war victims : war establishes 14 rules governing the resort to force jus ad bellum ); • ( rules between enemies for t he conduct of hostilities and the protection of war victims in • 15 international armed conflict ; international and non- 16 s; • rules between belligerents and neutral 17 • rules for military occupation ; and 18 time that help implement the above rules. • duties during peace In addition, these rules in the law of war can sometimes be applied by analogy to other 19 . contexts L 3.3 S TATUS OF THE P ARTIES AND THE AW OF W AR The law of war distinguishes between : (1) international armed conflicts, i.e. , conflicts between States ; and her armed conflicts , typically called non- international armed conflicts . (2) ot —unrecognized governments, recognition of belligerency, and national Three situations —merit further discussion because they may affect whether law of war liberation movements rules r elating to international armed conflict apply . International A rmed C onflict and Non- International Armed Conflict. The law of 3.3.1 war treats situations of “ war ” or “ armed conflict ” differently based on the legal ,” “hostilities, status of parties to the conflict. If two or more States oppose one another, then this type of armed conflict is known as an “ because it takes place between international armed conflict” 20 States. However, a state of war can exist when States are not on opposite sides of the conflict. 14 Refer to ( Jus ad Bellum ). § 1.11 15 Chapter V addresses the conduct of hostilities. 16 Chapter XV addresses the law of neutrality. 17 Refer to § 11.2 (When Military Occupation Law Applies ). 18 Refer to § 3.9 (Law of War Duties A lso Applicable in Peace). 19 Refer to § 3.7 (Applying Rules by Analogy ). 20 See, e.g. , Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (noting that an armed conflict described in Common Article 3 of the 1949 Geneva Conventions “does not involve a clash between nations.”); The Prize Cases, 67 U.S. 635, 666 (1863) (“it is not necessary to constitute war, that both parties should be acknowledged as independent nations or soverei gn States. A war may exist where one of the belligerents, claims sovereign rights as against the other.”). 73

101 “not of an international character These other types of conflict are described as “non- ” or 21 ” international armed conflict. For example, two non- State armed groups warring against one another or States warring against non- “non- international State armed groups may ed as be describ 22 ” even if international borders are crossed in the fighting. armed conflict, The law of war rules applicable to non -international armed conflict are addressed in 23 I. VI he law applicable to Chapter X There are a number of important differences between t 24 . international armed conflict international armed conflict and the law applicable to non- 3.3.1.1 Application of Jus in Bello Rules Does Not Necessarily Affect the Legal . Although the legal status of an opponent affects the Status of Parties character of the conflict and what rules apply as a matter of law, the application of rules does not necessarily jus in bello affect the legal status of parties to a conflict. For example, a belligerent may, as a policy matter, afford a person POW protections and treatment without affording that person legal status as a 25 POW . Similarly, the application of , such as those reflected in Common humanitarian rules Article 3 of the 1949 Geneva Conventions, towards enemy non- State armed groups does not eir legal status ( e.g. , such application does not amount to recogniz affect th the group as lawful ing 26 belligerents or as the legitimate government of a State) . 3.3.1.2 State Armed Groups . Mixed Conflicts Between Opposing States and Non- Rather than viewing a situation as either an international armed conflict or a non -international armed conflict, it may be possible to characterize parts of a conflict as international in character, 27 -international in character. while other parts of that armed conflict may be regarded as non For example, under this view, during a situation involving conflict between a variety of States and non- State armed groups, as between the States, the rules of international armed conflict would 21 , Hamdan v. Rumsfeld, 415 F.3d 33, 44 (D.C. Cir. 2005) (Williams, J., concurring) (“Non -state actors See, e.g. Nor is such an actor even a ‘Power’ that would be eligible under Article 2 (P3) cannot sign an international treaty. to secure protection by complying with the Convention’s requirements. Common Article 3 fills the gap, providing some minimal protection for such non- eligibles in an ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.’ The gap being filled is the non -eligible party’s failure to be a ood to refer to a conflict between a nation. Thus the words ‘not of an international character’ are sensibly underst signatory nation and a non -state actor. The most obvious form of such a conflict is a civil war. But given the ivation of the Convention’s structure, the logical reading of ‘international character’ is one that matches the basic der word ‘international,’ i.e., between nations. Thus, I think the context compels the view that a conflict between a signatory and a non- state actor is a conflict ‘not of an international character.’”). 22 Refer to § 17.1.1.2 (NIAC and Internal Armed Conflict ). 23 Refer to § 17.1 (Introduction ). 24 § 17.1.3 (Important Differences Between the Law Applicable to International Armed Conflict and the Refer to -International Armed Conflict). Law Applicable to Non 25 Refer to § 9.3.1 (POW Status Versus POW Protections ). 26 Refer to § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict). 27 International Humanitarian Law and the Tadic Case , 7 E UROPEAN J OURNAL OF Christopher Greenwood, I NTERNATIONAL L AW 265, 271 (1996) (“[T]here is nothing intrinsically illogical or novel in characterizing some aspects of a particular set of hostilities as an international armed conflict while others possess an internal character. Conflicts have been treated as having such a dual aspect where a Government is simultaneously engaged in ement and with another State which backs that movement.”). hostilities with a rebel mov 74

102 apply, while as between the States and non- State armed grou international ps, the rules of non- 28 armed conflicts would apply. . Even if a State does not recognize an opponent as the 3.3.2 Unrecognized Governments legitimate government of a State, under certain circumstances, rules of international armed . For conflict may appl y to a conflict between a State and a government that it does not recognize example, members of the regular armed forces who profess allegiance to a government or atus if authority not recognized by the Detaining Power nonetheless would be entitled to POW st 29 they fall into the power of the enemy during international armed conflict. . In certain cases, States have 3.3.3 State Recognition of Armed Groups as Belligerents as belligerent s for certain legal purposes. recognized armed groups For the purpose of applying humanitarian rules, recognition of the armed group as having 30 belligerent rights is neither a prerequisite for nor a result of applying humanitarian rules . 3.3.3.1 Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War . In the past, in cases of a major civil war in a State have recognize d the , other States faction as a belligerent with the effect of treat rebel ing the rebels as though they were a State 31 with belligerent rights under the law of neutrality. 28 See, e.g. , Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986 I.C.J. 14, 114 (¶219) (“The conflict between the forces and those of the Government of contras’ Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the acti ons of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to non -international conflicts are identical, there is no need to address the quest ion whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict.”); Prosecutor v. Thomas Lubanga Dyilo, ICC Trial Chamber I, ICC -01/04- 01/06, Judgment 258 (¶563) (Mar. 14, 2012) (“Simi larly, although there is evidence of direct intervention on the part of Uganda, this intervention would only have internationalised the conflict between the two states concerned (viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubanga’ s militia] was a party was not ‘a difference arising between two states’ but rather protracted violence carried out by multiple non -state armed groups, it remained a non -international conflict notwithstanding any concurrent international armed conflict bet ween Uganda and the DRC.”). 29 Refer to (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not § 4.5.3 Recognized by the Detaining Power ). 30 Ref § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict). er to 31 For example , S TEFAN T ALMON , R ECOGNITION OF G OVERNMENTS IN I NTER NATIONAL L AW 309 (1998) (“Prior to its installation in Nicaraguan territory the PJNR [Provisional Junta of National Reconstruction] was recognized as Rica the Government of Nicaragua by the following States: Panama (22 June 1979), Grenada (23 June 1979), Costa (18 July 1969). In a rare case of recognition of belligerency in modern history, the members of the Andean Group (Bolivia, Colombia, Ecuador, Peru, and Venezuela) declared on 17 June 1979 that they had recognized both sides in the Nicaraguan conflict as ‘belligerents’.”); B.F. Butler, Attorney General, Piracy Upon the High Seas , May 17, 120, 122 (1852) (“The existence of a civil war between the people of PINIONS OF THE A TTORNEY G ENERAL 1836, 3 O Texas and the authorities and people of the other Mexica n States, was recognised by the President of the United States at an early day in the month of November last. Official notice of this fact, and of the President’s intention to preserve the neutrality of the United States, was soon after given to the Mexic an government.”); The Santissima Trinidad, 20 U.S. 283, 337 (1822) (“The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and t o allow 75

103 Historically, certain c onditions had to be satisfied before outside States could recognize a State armed group as a belligerent: non- • a general state of armed conflict within a territory; • the armed group occupies and administers a significant portion of national territory; the armed • group acts under responsible chain of command and respects the laws of war; and circumstances exist that make it necessary for outside States to define their attitude • 32 . toward the conflict This doctrine has not been invoked often, especially after the adoption of the Charter of the United Nations , and the unwarranted recognition of an insurgent group likely would, at least, 33 be considered an unfriendly act against a State engaged in hostilities against that group . 3.3.3.2 a Non- Assertion of War Powers by a State Engaged in Hostilities Against State Armed Group . Occasionally, a State that has been en gaged in hostilities against a non- State armed group has taken actions that have recognized the belligerency of the non- State armed group, at least for certain purposes. For example, President Lincoln ’s proclamation of a blockade during the U.S. Civil War was viewed as recognizing the existence of a state of war, at least for the purposes of imposing the blockade on foreign vessels seeking to trade with the 34 Confederacy. to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those right s.”). 32 H ERSCH AUTERPACHT , R ECOGNITION IN I NTERNATIONAL L AW 175- 76 (1947) (“There is general agreement as to L the nature of the conditions which impose the duty of recognition of belligerency—or which, according to others, justify recognition of belligeren cy. These conditions are as follows: first, there must exist within the State an armed conflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy and administer a substantial portion of national territory ; thirdly, they must conduct the hostilities in accordance with the rules of war and through organized armed forces acting under a responsible authority; fourthly, there must exist titude by means of recognition of circumstances which make it necessary for outside States to define their at belligerency.”). 33 See, e.g. , H ERSCH L AUTERPACHT , R ECOGNITION IN I NTERNATIONAL L AW 239 (1947) (“If a distant continental State in no way directly concerned with the hostilities at sea were to recognize the insurgents as belligerents, it would lay itself open to the charge of a gratuitous gesture unfriendly to the lawful government and merely calculated to encourage the rebellion.”). 34 The Prize Cases, 67 U.S. 635, 670 (1862) (“Whether the President, in fulfilling his duties as Commander -in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this C ourt must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. ‘He must determine what degree of force the crisis demands.’ The proclamation of blockade is itself official and conclusive e vidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case.”). 76

104 3.3.3.3 Recognition of Friendly Armed Groups as Lawful Belligerents . In some 35 cases, a State has recognize One d an armed group that fights alongside it as a belligerent. reason for such recognition might be to seek to persuade other States that have not recognized State, to grant the privileges of combatant the armed group as a belligerent, such as an enemy 36 . status to members of those armed groups An armed group that has been recognized in this rganized resistance movement that way by a friendly State may be viewed as analogous to an o 37 . belongs to a State that is a party to a conflict 3.3.4 AP I Provision on National Liberation Movements . AP I treats as international armed conflicts in which peoples are fighting against colonial domination and armed conflicts “ 38 ” alien occupation and against racist regimes in the exercise of their right of self -determination. The United States has strongly objected to this provision as making the applicability of the rules of international armed conflict turn on subjective and politicized criteria that would 39 . eliminate the distinction between international and non -international conflicts The United 40 international armed conflicts. States has underst ood these types of conflicts to be non- 35 , Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v . Poland) For example P.C.I.J. (series A) No. 7, at 28 (“At the time of the conclusion of those two Conventions, Poland was not recognized as a belligerent by Germany; it is, however, only on the basis of such recognition that an armistice could have been concluded be tween those two Powers. The Principal Allied Powers had, it is true, recognized the Polish armed -belligerent (or belligerent) army. This army was placed under the supreme forces as an autonomous, allied and co political authority of the Polish National C ommittee with headquarters in Paris.”); Statement of the Secretary of reprinted in State, September 1918, The Recognition of the Czecho- Slovaks as Belligerents , 13 Charles Henry Hyde, 93- 95 (1919) (“The Government of the United States recognizes that a state of belligerency exists between the AJIL Czecho -Slovaks thus organized and the German and Austro -Hungarian Empires. It also recognizes the Czecho - Slovak National Council as a de facto belligerent government, clothed with proper authority to direct the m ilitary and political affairs of the Czecho -Slovaks.”) . 36 For example Declaration Concerning Czechoslovak Army , Sept. 7, 1944, 11 D EPARTMENT OF S TATE B ULLETIN , (Sept. 10, 1944) (“The United States Government therefore declares: ... (3) In these circumstances reprisals by 263 the German military authorities against the soldiers of the Czechoslovak Army violate the rules of war by which Germany is bound. The United States Government, therefore, solemnly warns all Germans who take part in or are in any way resp onsible for such violations that they do so at their peril and will be held answerable for their crimes.”). 37 § 4.6.2 (Belonging to a Party to the Conflict). Compare 38 i.e. AP I art. 1(4) (“The situations referred to in the preceding paragraph [ , the situations referred to in Article 2 common to those Conventions] include armed conflicts in which peoples are fighting against colonial domination -determination, as enshrined in and alien occupation and against racist regimes in the exercise of their right of self the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co -operation among States in accordance wit h the Charter of the United Nations.”). 39 RANSMITTING Ronald Reagan, Letter of Transmittal , Jan. 29, 1987, M ESSAGE FROM THE P RESIDENT T AP II III - See IV (“But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermin e humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so - -called ‘war of national liberation.’ Whether such wars are international or non international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international an d non- international conflicts. It would give special status to ‘wars of national liberation,’ an ill -defined concept expressed in vague, subjective, politicized terminology.”) . 40 Detailed Analysis of Provisions , Attachment 1 to George P. Shultz, Letter of Submittal , Dec. 13, 1986, M ESSAGE II 1-2 (“This Article technically excludes four types of situations from the AP P RESIDENT T RANSMITTING FROM THE 77

105 41 Moreover, t he United States has not accepted this provision in the context of the CCW. The United States has expressed the view that it would not be appropriate to treat this provision of 42 AP I as customary international law. 3.4 W B ELLO HEN ULES A PPL Y J US IN R Jus in bello “declared war or of any treaties often provide that they apply in cases of 43 This standard has other armed conflict ,” even if the state of war is not recognized by them. 44 also been understood to result in the application of the customary law of war. or any other armed conflict ” for the purpose of determining A case of “ declared war rules may be understood as arising in two ways: jus in bello whether parties must comply with to conduct hostilities ; or (2) when parties are actually conducting (1) when a party intends hostilities . ,” “ hostilities, ” and ” may be defined differently for other legal “War “armed conflict 45 . purposes discussion in this section is for the purpose of It must be emphasized that the jus in bello and not necessarily for ot her purposes . For assessing whether restrictions apply example, the fact that restrictions apply is not determinative of whether a State ’s jus in bello 46 . actions are lawful under Similarly , the fact that jus ad bellum restrictions apply is jus in bello scope of the Protocol: ... (2) the so- called wars of ‘national liberation’ defined as international armed confl icts by Article 1(4) of Protocol I Additional to the 1949 Geneva Conventions; ... However, the exclusion of the second and third categories is inappropriate. The second category --so-called ‘liberation wars’ defined in Protocol I --are often in -inter fact non national conflicts, and are distinguished by Protocol I from other non -international conflicts only on the basis of highly politicized and undesirable criteria which detract from the integrity of international humanitarian law; the United States should the refore reject this distinction.”). 41 (U.S. Reservation to Article 7(4)(b) of the CCW ). Refer to § 19.21.1.2 42 UMULATIVE D IGEST Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III C U NITED S TATES P RACTICE IN 88 3436, 3441 (“The new provisions on wars of NTERNATIONAL L AW 1981- I OF national liberation and prisoners of war in Protocol I clearly do not reflect the practice of states. Indeed, they were adopted precisely because states did not accord prisoner -of-war status in such conflicts. It is most unlikely that states will in the future choose to accord prisoner -of-war status in conflicts described as wars of national liberation. gly, it is the view of the United States that it would be inappropriate to treat these provisions as part of Accordin customary international law under any circumstances.”). 43 See, e.g. , GWS art. 2 (The convention applies “to all cases of declared war or of any oth er armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by C ROPERTY EA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 H AGUE P ULTURAL GWS -S them.”); C ONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one or more of them.”); CCW art. 1 (“This Conventi on and its annexed Protocols shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,”). 44 1956 FM 27- 10 (Change No. 1 1976) ¶8b (“The customary law of war applies to all c ases of declared war or any other armed conflict which may arise between the United States and other nations, even if the state of war is not recognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory b y the exercise of armed force, even if the occupation meets with no armed resistance.”). 45 Refer to § 1.5.2 (Different Definitions of “War” for Different Legal Purposes ). 46 Generally Operate Independently of One Another ). Refer to § 3.5.2 ( Jus in Bello and Jus ad Bellum 78

106 not determinative of whether the permi ssions that are sometimes viewed as inherent in jus in 47 rules may be relied upon by a State or non- bello State actor. Jus in bello Test for Applying Jus in Bello . -Based rules apply when a 3.4.1 Intent Rules intends to conduct hostilities . party If a State ch ooses to go to war, then it is bound by rules for the conduct of jus in bello 48 those hostilities. For example, if a State considers it necessary to respond to attacks with 49 military force, then those military operations must comply with jus in bello rules. The fact that the intention to conduct hostilities gives rise to obligations to comply with the law of war is important because law of war obligations must be taken into account even 50 before the fighting actually begins , such as in the planning of militar y operations. Similarly, certain obligations under the GPW and the GC are triggered by the onset of hostilities , and it 51 may be necessary to implement the se obligations even before the fighting actually begins . As another example, the party that is subj is often in a position to take feasible ect to attack 52 . precautions for the protection of the civilian population even before the fighting begins 3.4.1.1 Declarations of War or Other Official Recognition by States of a State of Hostilities . The application of th e 1949 Geneva Conventions and other law of war treaties to cases of “declared war ” is a n example of how jus in bello restrictions apply when a party intends 53 Traditionally, a State could create a state of hostilities with another S tate to conduct hostilities . 47 Refer to § 1.3.3.2 (Law of War as Permissive Law ). 48 , L. O PPENHEIM II I NTERNATIONAL L AW 66 ( 2nd ed., 1912) (“But if [States] choose to go to war they have to comply with the rules laid down by International Law regarding the conduct o f war and the relations between belligerents and neutral States.”). 49 , Patrick F. Philbin, Deputy Assistant Attorney General, For example Legality of the Use of Military Commissions PINIONS OF THE O FFICE OF 238, 276 (“In addition, the United EGAL C OUNSE L L , Nov. 6, 2001, 25 O to Try Terrorists States has determined that it is necessary to respond to the attacks with military force. That decision is significant -state actor ris because one element often cited for determining whether a situation involving a non es to the level of an “armed conflict” (for example, for purposes of common Article 3 of the Geneva Conventions) is whether a state responds with its regular military forces. The United States has urged this position. See 3 U.S. Practice § 2, at 3443; se e also G.I.A.D. Draper, The Red Cross Conventions 15 -16 (1958) (under common Article 3, “armed conflict” exists when the government is “obliged to have recourse to its regular military forces”). Here, this criterion is overwhelmingly satisfied. As outlin ed above, the United States has found it necessary to respond with a massive use of military force. The current operations in Afghanistan and continuing preparations for a sustained campaign easily establish that the situation here involves an armed confl ict for purposes of international law.”). 50 Refer to § 18.8 (Considering Law of War Obligations in the Planning of Military Operations ). 51 § 9.4 (National- Level GPW Implementation Measures ); § 10.2 (National- Level GC Implementation Refer to Measures ). 52 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack ). 53 See, e.g. , GWS art. 2 (The convention applies “to all cases of declared war ... between two or more of the High EA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 H AGUE C ULTURAL Contracting Parties”); GWS -S P ROPERTY C ONVENTION art. 18 (“the present Convention shall apply in the even t of declared war ... between two or more of the High Contracting Parties”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,”). 79

107 simply by providing objective evidence of its decision to resort to force through formal 54 . declarations that hostilities exist between them generally no longer file formal declarations of war with one another, Although States ic statements that are like offic ials may make publ declarations of war in that they provide notice 55 . of a state of hostilities For example, States may make statements that indicate their view that they are engaged in armed conflict in the context of reporting measures taken in the exercise of 56 their inherent right of self -defense to the U.N. Security Council. Similarly, the authorization by Congress of the use of military force has been interpreted as triggering the application of 57 certain parts of the law of war. These types of s tatements concerning jus ad bellum may be probative of the applicability of jus in bello restrictions. For example, a statement by a State indicating that it had suffered a wrongful attack under would also indicate that the State viewed jus in bello jus ad bellum restrictions as applicable to its adversary ’s operations against it and its own military operations 58 against its adversary. Similarly, s tatements by States that justify the legality of their actions or assert authority under jus in bello rule s may also provide evidence that States have the intention of conducting 54 See, e.g. , Convention (III) Relative to the Opening of Hostilities, art. 1, Oct. 18, 1907, 36 S TAT . 2259, 2271 (“The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warnin g, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of ODSON 244, 247 (Mar. 9, 1813) (a declaration of war “proves the existence of war.”); Eliza Ann and others, 1 D actual hostilities on one side at least, and puts the other party also into a state of war, though he may, perhaps, think proper to act on the defensive only.”). 55 See, e.g. , Navios Corp. v. The Ulysses II, 161 F. Supp. 932, 943 (D. Md. 1958) (concluding that a speech by t “of November 1, confirmed by the statement of November 3, constituted a declaration of President Nasser of Egyp war even under the technical requirements of international law.”), , 260 F.2d 959 (4th Cir. 1958). affirmed 56 Refer to § 1.1 1.5.6 ). (Reporting to the U.N. Security Council 57 Talbot v. Seeman, 5 U.S. 1, 28 (1801) (Marshall, C.J.) (“It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.”). 58 For example , John O. Brennan, Assistant to the Preside nt for Homeland Security and Counterterrorism, Remarks at Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws , Sept. 16, 2011 (“First, our definition of the conflict. As the President has said many times, we are at war with al -Qa’ida. In an indisputable -Qa’ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded act of aggression, al -Qa’ida seeks to attack us again. Our ongoing armed conflict with al -Qa’ida stems from o ur just last weekend, al right —to self defense. An area in which there is some disagreement is the —recognized under international law geographic scope of the conflict. The United States does not view our authority to use military force against al - Qa’ida as being restricted so lely to ‘hot’ battlefields like Afghanistan. Because we are engaged in an armed conflict with al -Qa’ida, the United States takes the legal position that —in accordance with international law — we have the authority to take action against al ssociated forces without doing a separate self -defense analysis -Qa’ida and its a each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary a ctions themselves. That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilat erally —and on the —in foreign territories.”). way in which we can use force 80

108 hostilities and that restrictions apply jus in bello to the activities that will effectuate those 59 intentions . State Arme d Groups With the Intention of Conducting Hostilities . A 3.4.1.2 Non- 60 Non - also intend to conduct hostilities. non- State armed group, such as a rebel group, might State armed groups are similarly bound by the restrictions in the law of war for the conduct of 61 n contrast to States, non- State hostilities when they intend to conduct hostilities. However, i 62 competent authority . armed groups lack Thus, there would not be a basis for non- State armed 63 groups to claim the permissions that may be viewed as inherent in parts of or the law of war. F s domestic -State group may be subject to prosecution under a State’ example, members of a non 64 law against it. for their participation in hostilities Act -Based Jus in Bello Rules . Jus in bello rules apply when 3.4.2 Test for Applying , even if the war is not declared or if the state of war is conducting hostilities parties are actually 59 Legal and Practical Consequences of a Blockade of Cuba , Oct. 19, 1962, 1 S UPPLEMENTAL PINIONS OF THE O O L EGAL C OUNSEL 486, 488- 89 (2013) (“The declaration of a state of wa r was helpful in ascertaining the FFICE OF rights and obligations of neutrals in a given situation. Apart from this, however, it served little function. War itself, whatever its reason, was legal self -help, and so were lesser measures if such could be said to exi st. Whether or not a nation declared a state of war it would be found by others to exist if that state were claiming rights, such as blockade, normally associated with war.”). For example , National Defense Authorization Act for Fiscal Year 2012 § 1021 (“ Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107 –40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.”); Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy Personnel D C UMULAT IVE IGEST OF U NITED , DAJA Captured During URGENT FURY -IA 1983/7031 (Nov. 4, 1983), III TATES P RACTICE IN I NTERNATIONAL L AW 1981- 1988 S 3452, 3454 (considering, inter alia , the fact that “[t]he Department of State, in a press release on 4 November 9 [1984], cited the GPW as authority for U.S. detention of litary personnel” in concluding that “ hostilities existed on Grenada and that the Geneva Cuban Grenadan mi de facto Conventions do apply.”) (insertion reflect in the Digest). 60 For example , Hamdan v. Rumsfeld, 548 U.S. 557, 687 (2006) (Thomas, J., dissenting) (“According to the State Department, al Qaeda declared war on the United States as early as August 1996. In February 1998, al Qaeda leadership issued another statement ordering the indiscriminate—and, even under the laws of war as applied to legitimate nation lainly illegal— killing of American civilians and military personnel alike. This was not -states, p mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in New York City in 1993, the bombing of the Khobar Tower s in Saudi Arabia in 1996, the bombing of the U. S. Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000.”) (internal See also citations omitted). all, C.J.) United States v. Burr, 25 F. Cas. 201, 203 (C.C.D. Va. 1807) (Marsh (explaining in the context of a prosecution of rebels for treason that “war might be levied without a battle, or the actual application of force to the object on which it was designed to act; that a body of men assembled for the purpose of war, and being in a posture of war, do levy war; and from that opinion I have certainly felt no disposition to recede. But the intention is an indispensable ingredient in the composition of the fact; and if war may be levied without striking the blow, the inte ntion to strike must be plainly proved.”). 61 Refer to § 17.2.4 (Binding Force of the Law of War on Insurgents and Other Non -State Armed Groups ). 62 Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose ). 63 Refer to § 1.3.3.2 (Law of War as Permissive Law ). 64 ). -State Armed Groups Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non 81

109 65 not recognized by them The de facto existence of an armed conflict is sufficient to trigger . 66 . obligations for the conduct of hostilities armed conflict the 1949 ” in Common Article 2 of The United States has interpreted “ Geneva Conventions to include “ any situation in which there is hostile action between the armed 67 forces of two parties, regardless of the duration, intensity or scope of the fighting.” Reasons for States to Seek to Deny the Existence of Hostilities . States 3.4.2.1 have specified that jus in bello rules apply even if a state of hostilities is not recognized by them war. ” And, in some cases, this denial has because States have frequently denied that they are at “ 68 n bello obligations. jus i resulted in a refusal to comply with 65 See, e.g. , GWS art. 2 (The convention applies “to all cases of declared war or of any other armed conflict which .”) may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them (emphasis added); GWS EA art. 2 (same); GPW art. 2 ( same); GC art. 2 (same); 1954 H AGUE C ULTURAL -S P ROPERTY C ONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not .”) (emphasis added); CCW art. 1 (“This Convention and its annexed Protocols recognized by one or more of them shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Victims,”). Protection of War 66 C OMMENTARY 22- 23 (“There is no need for a formal declaration of war, or for the recognition of the GPW de facto existence of a state of war, as preliminaries to the application of the Convention. The occurrence of ”). For example , Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy hostilities is sufficient. C UMULATIVE D IGEST OF , DAJA -IA 1983/7031 (Nov. 4, 1983), III Personnel Captured During URGENT FURY 1981- U S TATES P RACTICE IN I NTERNATIONAL L AW NITED 1988 3452, 3454 (conclu ding “that de facto hostilities existed on Grenada and that the Geneva Conventions do apply” despite the fact that “[n]o party to the hostilities in Grenada has suggested that a state of war exists; officials of Cuba and the United States publicly have ann ounced they are not at war.”); George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State, Nam to Treatment as Prisoners of War Under the Entitlement of American Military Personnel Held by North Viet- ’ S D HITEMAN IGEST , Jul. 13, 1966, X W Geneva Convention of 1949 Relative to the Treatment of Prisoners of War 231- 32 (§7) (“Although there have been no declarations of war, the present conflict in Vietnam is indisputably an ‘armed conflict’ between parties to the Geneva Conventions of 19 49. In one aspect of the war, American aircraft are operating against military targets in North Vietnam, and North Vietnamese forces have engaged these aircraft. Under these circumstances, the Convention applies in its entirety to this conflict. ... In thi s case, the state of war (under international law) is not disputed; it is merely undeclared.”). 67 C UMULATIVE Department of State, Telegram 348126 to American Embassy at Damascus, Dec. 8, 1983, III IGEST OF U NITED S TATES P RACTICE IN I NTERNATIONAL L AW 1981- 1988 3456, 3457 (“The Third Geneva D -of-war’ status to members of the armed forces who are captured during ‘armed Convention accords ‘prisoner conflict’ between two or more parties to the Convention. ‘Armed conflict’ includes any situation in which there is hostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fighting Bas v. Tingy, 4 U.S. 37, 40 (1800) . and irrespective of whether a state of war exists between the two parties.”). Cf (Washington, J., concurring) (“every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”). 68 et al , United States, et al For example ., Majority Judgment , Internation al Military Tribunal for the Far . v. Araki, ILITARY M NTERNATIONAL EIL B OISTER & R OBERT C RYER , D OCUMENTS ON THE T OKYO I N East, 49,602, reprinted in T RIBUNAL : C HARTER , I NDICTMENT AND J UDGMENTS 535 (2008) (“Since the Government of Japan officially classified the China W ar as an ‘Incident’ and considered Chinese soldiers in Manchuria as ‘bandits’ the Army refused to accord to captives taken in the fighting the status and the rights of prisoners of war. MUTO says that it was officially decided in 1938 to continue to call the war in China an ‘Incident’ and to continue for that reason to refuse to apply the rules of war to the conflict. TOJO told us the same.”). 82

110 There are a variety of reasons why States might deny that they are at “ war .” For officials may deny that a n armed : (1) to avoid an escalation example, government conflict exists n; (2) for reasons of domestic law to facilitate a diplomatic resolutio ; (3) to avoid in fighting and ) to avoid economic costs (such as discouraging commerce and foreign investment); or (4 . appearing to acknowledge the military effectiveness of an opposing force In particular, States have often been reluctan t to acknowledge that operations by non- triggered State armed groups have application of C ommon Article 3 of the 1949 Geneva the 69 Conventions . This reluctance often stems from an unwillingness to take any action that could 70 enhance the perceived status of rebels or give any appearance of legitimacy to their actions. Nonetheless, the application of the humanitarian rules does not affect the legal status of parties to 71 a conflict. 3.4.2.2 Distinguishing Armed Conflict From Internal Disturbances and Tensions . In a ssessing whether hostilities exist for the purpose of applying jus in bello restrictions , de facto situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of 72 , and other acts of a similar nature do not amount to armed conflict. violence 69 See, e.g. , George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: B EPARTMENT OF S TATE ULLETIN , 876, 878 (Jun. 18, 1973) (“I would opment of the Law , Apr. 13, 1973, 68 D Devel note that Pakistan in Bangladesh and the United Kingdom in Northern Ireland have refused to acknowledge the applicability of article 3 common to the four Geneva Conventions concerning noninternational armed conflicts.”). 70 See, e.g. , George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: S TATE B ULLETIN , 876, 879 (Jun. 18, 1973) (“In the EPARTMENT OF Development of the Law , Apr. 13, 1973, 68 D first place there is a general concern of governments that the acceptance of international standards for a civil war connotes international recognition of the insurgents. This concern results from the historical development of the law; in customary law the international laws of war become applicable to a civil war upon international recognition of the rebels as belligerents. This concern persists despite an explicit provision in common article 3 that its application shall not affe ct the legal status of the parties to the conflict. Personally, I deplore the fact that this concern so often effectively prevents official admission that an internal armed conflict is one to which article 3 applies, but we cannot ignore that political re ality. Governments will predictably remain unwilling to do anything that could enhance the perceived status of rebels or give any appearance of legitimacy to their actions.”). 71 § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict). Refer to 72 , CCW A MENDED art. 1 (2) (“This Convention and its annexed Protocols shall not apply to situations of See, e.g. internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of similar art. 1(2) (“This Protocol shall not apply A MENDED M INES P ROTOCOL nature, as not being armed conflicts.”); CCW to situations of internal disturbances and tensions, su ch as riots, isolated and sporadic acts of violence and other acts Statement on Ratification of the International of a similar nature, as not being armed conflicts.”); United States, Convention for the Suppression of the Financing of Terrorism , Jun. 26, 20 02, 2185 UNTS 611, 612 (“(2) Meaning of the term armed conflict. The United States of America understands that the term ‘armed conflict’ in Article 2 (1) (b) of the Convention does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.”). Consider AP II art. 1(2) (“This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a sim ilar S TATUTE art. 8(2)(d) (“Paragraph 2(c) applies to armed conflicts not OME nature, as not being armed conflicts.”); R of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, OME S TATUTE art. 8(2)(f) (“Paragraph isolated and s poradic acts of violence or other acts of a similar nature.”); R 2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal s, isolated and sporadic acts of violence or other acts of a similar nature.”). disturbances and tensions, such as riot 83

111 Any hostile action between the armed forces of different States ( i.e. , international armed However, it has “internal disturbance or tension.” conflict) may readily be distinguished from an ” from been more difficult to distinguish “ t not of an international character armed conflic “internal disturbances or tensions.” ” for the purpose of applying the “Armed conflict not of an international character obligations in Common Article 3 of the 1949 Geneva Conventions was not specifically defined 73 in those conventions. There has been a range of views on what constitutes an “ armed conflict 74 The intensity of the conflict and the ” for this purpose. not of an international character to di stinguish between non - organization of the parties are criteria that have been assessed 75 international armed conflict and “ internal disturbances and tensions.” A variety of factors have been considered in assessing these criteria and in seeking to distinguish between armed conflict 76 and internal disturbances and tensions . 73 C OMMENTARY 49 (“What is meant by ‘armed conflict not of an international character’? That was the GWS burning question which arose again and again at the Diplomatic Conference. The expression was so general, so —any vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms ise in rebellion form of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to r against the State and attack a police station, would that suffice to bring into being an armed conflict within the meaning of the Article? In order to reply to questions of this sort, it was suggested that the term ‘conflict’ should be defined or, which would come to the same thing, that a certain number of conditions for the application of the wisely, we think.”). Convention should be enumerated. The idea was finally abandoned— 74 1-A, See, e.g. , Prosecutor v. Tadić, ICTY Appeals Chamber, IT -94- Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction , ¶70 (Oct. 2, 1995) (“On the basis of the foregoing, we find that an armed orce between States or protracted armed violence between conflict exists whenever there is a resort to armed f governmental authorities and organized armed groups or between such groups within a State.”); Juan Carlos Abella es, Case 11.137, v. Argentina, Inter -American Commission on Human Rights, Organization of American Stat OEA/Ser.L/V/II.98, ¶152 (Nov. 18, 1997) (“Common Article 3 is generally understood to apply to low intensity and open armed confrontations between relatively organized armed forces or groups that take place within the territory ular State.”). of a partic 75 , Prosecutor v. Tadić, ICTY Trial Chamber, IT -94- 1-A, Judgment , ¶562 (May 7, 1997) (“In an armed See, e.g. conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distingu ishing an armed conflict from banditry, unorganized and short -lived insurrections, or terrorist activities, which are not subject to international humanitarian law.”); Prosecutor v. Akayesu, ICTR Trial Chamber, ICTR- 96- 4-T, Judgment , ¶625 (Sept. 2, 1998) ( “The concept of armed conflict has already been discussed in the previous section pertaining to Common Article 3. It suffices to recall that an armed conflict is distinguished from internal disturbances by the level of intensity of the conflict and the de gree of organization of the parties to the conflict.”). 76 See, e.g. , GPW C OMMENTARY 35- 36 (collecting conditions that States negotiating the 1949 Geneva Conventions viewed as indicative factors); Prosecutor v. Boskoski, ICTY Trial Chamber II, IT -04- 82- T, Judgment , ¶177 (Jul. 10, 2008) (“Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of the conflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, the spre ad of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the the quantity of troops and units extent of destruction and the number of casualties caused by shelling or fighting; deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and 84

112 A helpful rule of thumb may be that where parties are, in fact, engaged in activities that the law of war contemplates ( , detention of enemy military personnel without criminal e.g. 77 ect to the law of war. charge, bombardment of military objectives), those activities are subj 3.4.2.3 Responding to Ordinary Crimes, Including Acts of Terrorism . States are not required to apply law of war rules when using domestic law enforcement tools to respond to 78 For example, S tates may apply their domestic law ordinary crimes, including acts of terrorism. 79 State armed groups. and prosecute acts of terrorism by non- States, however, have at times decided to resort to military force to counter a terrorist or similar threat that is beyond the 80 capabilities of ordinary law enfo rcement to address. If States intend to conduct hostilities , then agreements, and the attempt of representatives from international organisations to broker and enforce cease fire -04- , ¶1526 (Feb. 23, 2011) T, Judgment agreements.”); Prosecutor v. Dordevic, ICTY Trial Chamber II, IT 82- (“Trial Chambers have taken into account a number of factors when assessing the organization of an armed group. These fall into five broad groups. First, are the factors signalling the presence of a command structure. Secondly, are factors indicating that an armed group could carry out operations in an organised manner. Thirdly, are factors indicating a level of logistics have been taken into account. Fourthly, are factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3. A fifth group includes factors indicating that the armed group was able to speak with one voice.”). 77 -American Commission on Human Rights, Organization of American Juan Carlos Abella v. Argentina, Inter States, Case 11.137, OEA/Ser.L/V/II.98, ¶155 (Nov. 18, 1997) (“What differentiates the events at the La Tablada base from these situations [of internal disturbances] are the concerted nature of the hostile acts undertaken by the attackers, the direct involvement of government al armed forces, and the nature and level of the violence attending the events in question. More particularly, the attackers involved carefully planned, coordinated and executed an armed attack, i.e., a military operation, against a quintessential militar y objective - a military base.”); GPW C OMMENTARY 23 (“It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversari es falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.”). 78 United Kingdom, Statement on Ratification of AP I , Jan. 28, 1998, 2020 UNTS 75, 76 (“It is the understanding of the United Kingdom that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is e commission of ordinary crimes including acts of terrorism whether concerted or in not constituted by th isolation.”). 79 Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non -State Armed Groups ). 80 , William J. Clinton, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan For example 1460, 1461 (“America has battled terrorism P APERS OF THE P RESIDENTS UBLIC and Sudan , Aug. 20, 1998, 1998- II P for ma ny years. Where possible, we’ve used law enforcement and diplomatic tools to wage the fight. ... But there have been and will be times when law enforcement and diplomatic tools are simply not enough, when our very national security is challenged, and when w e must take extraordinary steps to protect the safety of our citizens. With compelling evidence that the bin Ladin network of terrorist groups was planning to mount further attacks against Americans and other freedom -loving people, I decided America must act. And so this morning, based on the unanimous recommendation of my national security team, I ordered our armed forces to take action to counter an immediate threat from the bin Ladin network. Earlier today, the United States carried out simultaneous s trikes against terrorist facilities and infrastructure in Afghanistan.”); Public Committee against Torture in Israel, et al. v. Government of Israel, et al. , HCJ 769/02, Israel Supreme Court Sitting as the High Court of Justice, ¶21 (Dec. 11, 2005) (“Indee d, in today’s reality, a terrorist organization is likely to have considerable military capabilities. At times they have military capabilities that exceed those of states. Confrontation with those dangers cannot be al law.”). restricted within the state and its pen 85

113 81 they are also bound by the applicable jus in bello restrictions in the law of war. 82 Acts of terrorism during armed conflict are prohibited by the law of war. R ELATIONSHIP B ETWEEN J US IN B ELLO AND J US AD B ELLUM 3.5 General Distinction Between and Jus ad Bellum . As a general matter, 3.5.1 Jus in Bello 83 and address different legal issues and should not be conflated. jus in bello jus ad bellum Conflating and jus ad bellum risks misunder standing and misapplying these jus in bello concepts . For example, in jus ad bellum , proportionality refers to the principle that the overall goal of the State in resorting to war should not be outweighed by the harm that the war is 84 expected to produce . portionality in generally refers to the standard However, pro jus in bello expected incidental harm to the civilian population and civilian objects should not be that the 85 military advantage from an attack. Therefore, a lthough a jus disproportionate to the anticipated ad bellum proportionality analysis might consider the harm suffered by enemy military forces in the fighting, a proportionality analysis would not. jus in bello Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another . 3.5.2 One important attribute of rules for conduct during war ( jus in bello ) is that, in general, they operate independently from rules regarding the res ort to force ( jus ad bellum ). With 3.5.2.1 Compliance Jus in Bello I s Required Regardless of Compliance With Jus ad B ellum. Stat es fighting against one another must adhere to rules relating to the conduct of ( jus in bello whether a State may be considered the aggressor or hostilities ), regardless of jus ad bellum he 1949 Geneva whether the initial resort to force was lawful under . For example, t Conventions require States to undertake to respect and to ensure respect for the conventions in 86 The phrase “ in all circumstances ” has been interpreted to mean that a all circumstances . Party ’s obligations to respect and to ensure respect f or the 1949 Geneva Conventions applies - regardless of whether a Party to the Convention is the aggressor or lawfully using force in self 87 defense. Similarly, once an occupation exists in fact, the law of occupation applies, regardless 88 of whether the invasi jus ad bellum . on was lawful under 81 § 3.4.1 (Intent -Based Test for Applying Jus in Bello Rules ). Refer to 82 Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism ); § 17.6.5 (Prohibition on Acts of Terrorism ). 83 § 1.11 ( Jus ad Bellum ). Refer to 84 § 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportio nality – Jus ad Bellum) ). Refer to 85 Refer to § 5.12 (Proportionality in Conducting Attacks ). 86 ect for the present Convention GWS art. 1 (“The High Contracting Parties undertake to respect and to ensure resp in all circumstances.”). 87 GWS C OMMENTARY 27 (“The words ‘in all circumstances’ mean in short that the application of the Convention does not depend on the character of the conflict. Whether a war is ‘just’ or ‘unjust’, whet her it is a war of aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way affected.”). Consider AP I preamble (“the provisions of the Geneva Conventions of 12 August 1949 and of this ully applied in all circumstances to all persons who are protected by those instruments, without Protocol must be f 86

114 3.5.2.2 Jus ad Bellum Is Required Regardless of Compliance Compliance With Jus in Bello . Compliance with is required regardless of compliance with jus With jus ad bellum 89 . ju s in bello rules may nonetheless commit in bello For example, a State that complies with 90 . aggression under jus ad bellum treaties applicable to non In addition, violations of law of war - international armed conflict generally have not been understood to provide a basis in 91 international law for a non- in that conflict. ligerent State to intervene against the State bel Rationales for the Independent Operation of Jus in Bello and Jus ad 3.5.2.3 Bellum. The principle that jus in bello rules operate independently of jus ad bellum rules is based on principle s of sove reignty and humanity, as well as practical considerations. If the law of war only protected parties justly resorting to force, then both sides, believing their opponent ould consider themselves free to depart from jus in bello ’s cause to be unjust, c 92 rules . As a consequence, b oth sides c ould deny protections to their opponent , and no one 93 ’s humanitarian protections . Moreover, there might not be a would benefit from the law of war 94 for competent procedure d to force . deciding which, if any, State has unlawfully resorte any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict,”). 88 Ref er to § 11.2.1 (Military Occupation as a Fact ). 89 Consider AP I preamble (“nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as le gitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations,”). 90 § 1.11.3.1 (Aggression). Refer to 91 § 17.18.1 -Belligerent States to Refrain From Supporting Hostilities by Non -State Armed Refer to (Duty of Non ). Groups Against Other States 92 ATIONS ATTEL T HE L AW OF N , 305 (3.12.190) (“Moreover, since each Nation claims to have justice on its side, it V will arrogate to itself all the rights of war and claim that its enemy has none, that his hostilities are but deeds of robbery, acts in violation of the Law of Nations, and deserving of punishment by all Nations. The decision of the rights at issue will not be advanced thereby, and the context will become more cruel, more disastrous in its effects, and more difficult of termination.”). 93 V ATTEL , T HE L AW OF N ATIONS 305 (3.12.190) (“The first rule of that law [of nations], with respect to the subject under consideration, is that . This principle, regular war, as regards its effects, must be accounted just on both sides as we have just shown, is absolutely necessary if any law or order is to be introduced into a method of redress as violent as that of war, if any bounds are to be set to the disasters it occasions, and if a door is to be left at all times open for the return of peace. Moreover, any other rule would be impractical as between Nation and Nation, since they recognize no common judge.”). 94 L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW 218 (§61) (“Unless war is to degenerate into a savage contest of physical forces freed from all restraints of compassion, chivalry and respect for human life and dignity, it is essential that the accepted rules of war should continue to be observed. This is so in particular in view of the fact that in the present state of international judicial and political organisation there may be no me ans by which an authoritative judgment can be arrived at on the question as to which State is the aggressor. (It will be noted, for instance, that nothing short of an unanimous vote of the permanent members of the Security Council is sufficient for the de termination that a particular State has resorted to war in violation of its obligations under the Charter.) Accordingly it must be held that during the war all belligerents are bound to respect and are entitled to insist as nce of rules of war as generally recognised.”). among themselves on the observa 87

115 The principle that jus in bello jus ad bellum rules is also rules operate independently of based on jus influenced by the fact that it would be unjust to punish individual military members n whether their State has resorted to ad bellum considerations when they have no influence o 95 force . lawfully under applicable international law Jus in B ello and Jus ad Bellum Are Sometimes Related 3.5.3 . Although as a general matter parties must comport with rules, regardless of jus ad bellum conside rations , jus in bello jus ad bellum issues can affect how jus in bello rules operate. sometimes For example, the jus ad bellum principle of competent authority (also called right 96 authority ) acknowledges that the resort to military force is a prerogative of the State. Competent authority - is reflected in the distinction between international armed conflict and non international armed conflict; military operations against another State are fundamentally different 97 as a matter of law than military operations against a no n- State armed group. Competent authority also is reflected in jus in bello rules relating to who is entitled to receive the privileges of combatant status. Private persons captured after engaging in hostilities generally are not entitled to receive the privileges of POW status under the law of war because they lack 98 competent authority . As another example, the jus ad bellum issue of whether a disputed territory belongs to a State affects whether the law of belligerent occupation applies to that territory because the law of 99 belligerent occupation only applies to territory that belongs to an enemy State . Decisi U.N. Security Council . The Charter of the United ons and Jus in Bello 3.5.4 Nations provides jus ad bellum , and assigns important the modern treaty framework for 100 responsibilities to the U.N. Security Council . In theory, decisions by the Security Council, acting under Chapter VII of the Charter of , could create obligations that conflict with , obligations in the United Nations , and prevail over 101 treaties or customary international law. law of war In practice, however, the U.N. Security Council frequently has affirmed the obligations of States and parties to conflicts to comply with 95 B . (Justice Case), III T RIALS OF W AR C RIMINALS United States v. Josef Altstoetter, EFORE THE NMT 1027 (“If et al we should adopt the view that by reason of the fact that the war was a criminal war of aggress ion every act which would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and a murderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality.”). 96 § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose ). Refer to 97 § 3.3.1 (International Armed Conflict and Non -Internationa l Armed Conflict). Refer to 98 Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status ). 99 Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory ). 100 Refer to § 1.11.2 (U.N. Charter Framework and the U.N. Security Council ). 101 ). (U.N. Member State Obligations With Respect to U.N. Security Council Decisions Refer to § 1.11.2.1 88

116 the law of war, including military forces operating pursuant to U.N. Secur ity Council 102 decisions. The U.N. Security Council also has certain authorities to respond to situations involving violations of the law of war , including establishing commissions of inquiry or authorizing the use 103 of force . Decisions of the Security Council, however, may alter the obligations of member States 104 of the United Nations under the law of neutrality. In addition, a U.N. Security Council authorization may provide additional authority for an Occupying Power to govern occupied 105 territory. AR ECIPROC ITY AND L AW OF 3.6 R R ULES W “Reciprocity ” sometimes refers to the idea that whether a law of war rule applies to a party to a conflict depends on whether its opponent has accepted and complies with that same rule or a corresponding rule omply with many law of war rules (such as the . The requirement to c obligation to treat detainees humanely) does not depend on whether the enemy complies with that rule. Nonetheless, in the law of war, r : (1) whether a rule eciprocity may play a role in applies or (3) how a rule operates . ; (2) enforcing a rule; Treaty Provisions That Provide for Reciprocity in the Scope of Application of the 3.6.1 Treaty i.e. , the degree of confidence as to whether an adversary . Considerations of reciprocity – will, in fact, abide by a certain ru le – may be a critical factor in the willingness of States to enter into treaty obligations. Similarly, various treaty provisions also reflect, to varying degrees , the principle that whether a rule is legally binding on a party depends on whether its opponent has accepted and applied that same rule. For example, some law o f war treaties have a “ general participation – clause” , a clause specifying that the treaty i.e. only applies to an armed conflict if all the parties 106 A number of treaties on the law of to the armed conflict are also Parties to the treaty. 102 For exampl e , U.N. S ECURITY C OUNCIL R ESOLUTION 2011(2011), U.N. Doc. S/RES/2011 (2011) (Oct. 12, 2011) Expressing (“ its serious concern with the increased high number of civilian casualties in Afghanistan, in particular large majority of which are caused by Taliban, Al women and children casualties, the increasingly -Qaida and other reaffirming that all parties to armed conflict must take all feasible steps to ensure the violent and extremist groups, laced persons, calling for all parties to comply protection of affected civilians, especially women, children and disp with their obligations under international humanitarian and human rights law and for all appropriate measures to be taken to ensure the protection of civilians, and recognizing the importance of the ongoing monitoring and reporting to the United Nations Security Council, including by ISAF, of the situation of civilians and in particular civilian casualties, and noting in this regard the work of the ISAF Civilian Casualties Tracking Cell,”). 103 § 18.12 (U.N. Security Council and Enforcement of the Law of War ). Refer to 104 Refer to § 15.2.3 (The Law of Neutrality Under the Charter of the United Nations ). 105 Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions ). 106 art. 2 For example , H AGUE IV (“The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are AGUE V art. 20 (“The prov isions of the present Convention do not apply except parties to the Convention.”); H art. 8 IX AGUE between Contracting Powers, and then only if all the belligerents are parties to the Convention.”); H 89

117 107 neutrality have such a clause. Other treaties specify that if both Parties and non -Parties to a , then Parties to the treaty remain bound by the treaty in their are in an armed conflict treaty 108 elations, but not in relation to States that are not Parties to the treaty . mutual r Treaties have also provide , but it accepts and d that if a State in an armed conflict is not a Party to the treaty ’s provisions, then the Parties to the treaty are bound by the treaty in relation to applies the treaty 109 that State . These provisions, however, only determine the application of the treaty as matter of treaty law and not as customary international law. For example, although not all parties to World arties to Hague IV (thus failing to satisfy the requirements of Hague IV ’s general War II were P ), Hague IV ’s humanitarian protections were deemed applicable as a matter participation clause 110 . of customary international law . Reciprocity may be reflected in 3.6.2 Reciprocity in the Enforcement of the Law of War the enforcement of the law of war. For example, the principle of reciprocity is reflected in the concept of , which under very limited circumstances permits a belligerent to take action reprisal 111 that would otherwise be unlaw enemy ’s breach of the law. However, ful in order to remedy an the prohibitions on reprisal in the law of war also may be understood to reflect important 112 limitations on the principle of reciprocity in enforcing the law of war. (“The provisions of the present Convention do not apply except between Contracting Powe rs, and then only if all the art. 28 (“The provisions of the present Convention do not H AGUE XIII belligerents are parties to the Convention.”); apply except to the Contracting Powers, and then only if all the belligerents are parties to the Convention.”); 1929 GPW art. 82 (“The provisions of the present Convention must be respected by the High Contracting Parties under all circumstances. In case, in time of war, one of the belligerents is not a party to the Convention, its provisions shall nevertheless re main in force as between the belligerents who are parties thereto.”); 1929 GWS art. 25 (“The provisions of the present Convention shall be respected by the High Contracting Parties under all circumstances. If, in time of war, a belligerent is not a party to the Convention, its provisions shall nevertheless remain in force as between all the belligerents who are parties to the Convention.”). 107 Refer to (Applicatio n of Treaties on Neutrality and Customary International Law § 15.1.4 ). 108 See, e.g. , GPW art. 2 (“Although one of the Powers in conflict may not be a party to the present Convention, the EA art. 2 (same); GPW GWS -S Powers who are parties thereto shall remain bound by it in their mutual relati ons.”); art. 2 (same); GC art. 2 (same); CCW art. 7(1) (“When one of the parties to a conflict is not bound by an annexed Protocol, the parties bound by this Convention and that annexed Protocol shall remain bound by them in thei r mutual relations.”). 109 CCW art. 7(2) (“Any High Contracting Party shall be bound by this Convention and any Protocol annexed See thereto which is in force for it, in any situation contemplated by Article 1, in relation to any State which is not a party t o this Convention or bound by the relevant annexed Protocol, if the latter accepts and applies this Convention or the relevant Protocol, and so notifies the Depositary.”); GWS art. 2 (“Although one of the Powers in conflict may not be a party to the presen t Convention, the Powers who are parties thereto ... shall furthermore be bound by the art. 2 EA -S Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”); GWS (same); GPW art. 2 (same); GC art. 2 (same). 110 to § 19.8.2.1 (Hague IV and Customary International Law ). Refer 111 Refer to § 18.18 (Repri sals ). 112 Consider Refer to § 18.18.3 (Treaty Prohibitions on Reprisals ). also VCLT art. 60(5) (“Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”). 90

118 Reciprocity is also reflect tu ’s ed in the principle of quoque , which may limit a State that State has chosen ability to deem unlawful and punish certain conduct by its adversary when 113 to allow its forces to engage in that same conduct . does not depend on reciprocity as a matter of Even if the application of a law of war rule law, reciprocity may be important as a practical way of encouraging compliance by the adversary 114 with the law of war. . Apart from affecting whether 3.6.3 Law of War Rules May Incorporate Reciprocity ciprocity may In be incorporated into the operation of particular law of war rules. , re rules apply an opponent ’s behavior . other words, a law of war rule may operate differently depending upon . A principle of r Reciprocity – “ Golden Rul e” eciprocity may be 3.6.3.1 115 rules that reflect the golden rule. understood to be reflected in law of war For example, the treatment of POWs has been based on the principle that POWs should be treated as the Detaining 116 Power would want its forces held by the enemy to be treated. ring the process of Similarly, du ’s conduct with respect to releasing and repatriating POWs, it is proper to expect that each Party the repatriation of POWs will be reasonable and broadly commensurate with the conduct of the 117 . other Benefits -Burdens Principle in Law of War Rules . In some cases, the law 3.6.3.2 of war requires that those seeking to obtain certain benefits under the law of war also accept 118 certain burdens as a condition for receiving those benefits. For example, militia and volunteer ges of combatant status during international armed conflict must meet corps that seek the privile e.g. , conducting their operations in accordance with the laws and customs of certain conditions ( 119 raft must In addition, hospital ships and coastal rescue c war) before receiving such privileges. 113 Refer to § 18.21.2 (Tu Quoque ). 114 § 18.2.2 (Encouraging Reciprocal Adherence by the Adversary ). Refer to 115 C J. Pictet, The Principles of International H umanitarian Law , 6 I NTERNATIONAL R R ED See ROSS EVIEW OF THE 455, 462 (Sept. 1966) (“Humanitarian law receives its impulse from moral science all of which can be summed up in one sentence, ‘do to others what you would have done to yourself’. This crystallizes the wisdom of nations and is the secret of happiness, or at least, of the best order of society. This fundamental precept can be found, in an almost identical form, in all the great religions, Brahmin, Buddhist, Christian, Confucian, Islamic, Jewish and Taoist. It is also the main prop of the positivists who do not base themselves on precepts of any given religion, but on social facts, considered objectively, through their own reasoning alone.”). 116 Refer to § 9.2.5 (Reciprocity in the Treatment of POWs ). 117 § 9.37.1 (Agreements on POW Release and Repatriation ). Refer to 118 , Al Warafi v. Obama, 716 F.3d 627, 631- 32 (D.C. Cir. 2013) (“The Geneva Conventions and their See, e.g. commentary provide a roadmap for the establishment of protected status. As the district court found, Al Warafi was serving as part of the Taliban. The Taliban has not followed the roadmap set forth in the Conventions, and it has not carried Al Warafi to the destination. ... Without compliance with the requirements of the Geneva Conventions, the Taliban’s personnel are not entitled to the protection of the Convention. ”); Jack L. Goldsmith III, Assistant Attorney General, , Mar. 18, 2004, 28 “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention 57 (explaining “the Geneva Conventions’ fundamental PINIONS OF THE O FFICE OF L EGAL C OUNSEL 35, 53- O princ iple that warring entities must accept the Conventions’ burdens in order to claim their benefits.”). 119 (Other Militia and Volunteer Corps ). Refer to § 4.6 91

119 not be used for military purposes in order to receive their protection from capture and from being 120 ack. made the object of att Similarly, cultural property must not be used for military purposes 121 in order to receive special protection. As anothe r example, the rights and duties of belligerents and neutrals under the law of neutrality may be understood as correlative or reciprocal. For example, a neutral ’s valid 122 al duties. its rights may depend on whether it has fulfilled its corresponding neutr assertion of re Reinforced by Corresponding Duties for the Law of War Duties That A 3.6.3.3 . Similarly, the ability of a party to comply with a particular duty may be affected by Enemy . For example, the ability of a whether its opponent has complied with a corresponding duty party to discriminate in conducting attacks may be affected by whether its adversary has properly distinguished its military objectives from the civilian population and other protected persons and 123 . objects NALOGY PPLYING R ULES BY A A 3.7 In some cases, a rule developed specifically for one situation may be a useful and appropriate standard to apply in a different situation. This is sometimes called an appli cation of a rule by analogy. In some cases, there is a treaty requirement to apply rules by analogy ; in other cases, it may be appropriate to apply law of war rules by analogy without a treaty -based requirement to do so. Treaty Requirement to Apply Rules by Analogy . The application of law of war 3.7.1 rules by analogy is sometimes required by a treaty provision. For example, under the 1949 Geneva Conventions, neutral or non- belligerent States must apply by analogy the rules relating to the treatment of the wounded and sick and of POWs when 124 interning such persons under their duties of neutrality. Si milarly, the GC rules for penal procedures for protected persons in occupied territory apply by analogy to proceedings against 125 internees who are in the national territory of the Detaining Power. Examples of Law of War Rules and Areas in Which Such Rules H ave Been 3.7.2 Applied by Analogy . There are other situations in which it may be appropriate to apply law of war rules by analogy, even though there is no treaty requirement to do so. For example, it may 120 Refer to (Conditions for the Granting of Special Protection – No Use for Military Purposes ). § 5.18.8.2 121 Refer to § 7.12.2.2 (No Use for Military Purposes ). 122 § 15.3.3 (Correlative or Reciprocal Nature of Rights and Duties Under the Law of Neutrality ). Refer to 123 Refer to § 2.5.5 (Reinforcing Duties – Discriminating in Conducting Attacks and Distinguishing a Party’s Own Persons and Objects ). 124 ). Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS -Sea by Analogy 125 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a ). Belligerent’s Home Territory 92

120 be appropriate to apply the GWS and GWS -Sea rules for t he respectful treatment and handling of 126 enemy military dead to all persons. Other examples of law of war rules and situations in include: applying jus in bello s by analogy which it may be appropriate to apply those rule (1) -belligerent States; (2) rules in certain situations involving neutral or non applying law of war rules with a humanitarian purpose in situations outside the context of armed conflict ; (3) applying occupation law provisions for the protection of the civilian population in situations not constituting belligerent occupation; and (4) applying certain international armed conflict rules in international armed conflict. situations of non- Rules and Situations Involving Neutral or Non- Belligerent 3.7.2.1 Jus in Bello . Although States develope d jus in bello States , some rules to address relations between enemies jus in bello rules may be applied by analogy to other situations , such as relations between a belligerent and a neutral or between co-belligerents . For example, a belligerent might take feasi ble precautions to protect the civilian population of a neutral or co -belligerent State from its 127 military operations, might not be required by the law of war . even though such actions In addition, although the GC excludes certain persons from the definit ion of protected person based on their nationality, it may be appropriate to afford such persons the standards of treatment for 128 . protected persons 3.7.2.2 Law of War Rules and Military Operations Outside the Context of Armed Conflict . B ecause law of war rules often reflect elementary considerations of humanity, it may be appropriate to apply such standards to military operations occurring outside the context of 129 . armed conflict 3.7.2.3 Occupation Law and Situations Not Constituting Belligerent Occupation . Occupation law may also provide a useful framework for certain situations to which it may not 130 be strictly applicable . For example, it may be appropriate for a State that liberates its ally ’s 126 § 7.7 Refer to (Treatment and Handling of E nemy Military Dead ). 127 , D EPARTMENT OF THE A IR F ORCE , H EADQUARTERS P ACIFIC A IR F ORCES , D For example IRECTORATE OF O A NALYSIS , Project CHECO [Contemporary Historical Examination of Current Operations] Report, PERATIONS R ONGRESSIONAL ECORD C Sept ember 1972 (Mar. 1, 1973), Rules of engagement, November 1969- reprinted in S3011, S3014 (Mar. 18, 1985) (“The Cambodian incursion plan was a closely held secret timed to coincide with the President’s announcement. It was not until 27 April [1970] that 7AF was told to s tart definitive planning. Thus, there was no time to coordinate a new set of ROE for [neutral] Cambodia. Instead 7AF instructed its pilots to follow the normal rules for South Vietnam and to exercise extreme vigilance to avoid dropping ordnance on the INSTON C HURCHILL , W noncombatant populace.”); Franklin Roosevelt, message to Winston Churchill, reprinted in C LOSING THE ING 467- 68 (1985) (“I share fully with you your distress at the loss of life among the French R for ‘Overlord’. I share also with you a satisfaction that every possible population incident to our air preparations care is being and will be taken to minimise civilian casualties. No possibility of alleviating adverse French opinion should be overlooked, always provided that there is no reducti on of our effectiveness against the enemy at this crucial time. However regrettable the attendant loss of civilian lives is, I am not prepared to impose from this distance any restriction on military action by the responsible commanders that in their opin ion might militate against the success of ‘Overlord’ or cause additional loss of life to our Allied forces of invasion.”). 128 Refer to § 10.3.3 (Categories of Nationals Sp ecifically Excluded From the Definition of Protected Person Under the GC ). 129 Refer to § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards ). 130 ). (Application of Occupation Law to Situations Not Constituting Belligerent Occupation Refer to § 11.1.3 93

121 territory from enemy control to apply by analogy rules from t he law of belligerent occupation to 131 . the administration of such territory, pending an agreement with the allied government International International Armed Conflict Rules and Situations of Non- 3.7.2.4 Armed Conflict . Legal rules applicable to international armed conflict may sometimes be applied 132 -international armed conflict. by analogy to non 3.8 E ND OF H OSTILITIE S AND THE A PPLICATION OF THE L AW OF W AR In general, law of war rules for the conduct of hostilities cease to apply when hostilities have ended . However, certain dut ies that have arisen during hostilities may continue after hostilities have ended . at the end of hostilities , and certain new duties arise General Cessation of the Application of the Law of War at the End of Hostilities . 3.8.1 rties decide to end hostilities and actually do so , i.e. , when Hostilities end when opposing pa 133 -based nor act -based tests for when hostilities exist are met. neither the intent Of course, if the for the existence of hostilities continues to be met, then hostilities cannot be deemed to have test 134 For example, hostilities may be terminated by: ceased. • an agreement to end hostilities, normally in the form of a treaty of peace; • unilateral declaration of one of the parties to end the war, provided the other party does s or otherwise decline to recognize the act of its enemy; not continue hostilitie • the complete subjugation of an enemy State and its allies; or 135 • a simple cessation of hostilities. 131 § 11.1.3 .2 (Liberation of Friendly Territory ). Refer to 132 Refer to (Application of IAC Rules by Analogy ). § 17.2.2.3 133 Refer to § 3.4 (When Jus in Bello ). Rules Apply 134 David Kris, Assistant Attorney General, Response to Questions Submitted by Members Post Hearing, Questions Submitted by Mr. Skelton, Reforming the Military Commissions Act of 2006 and Detainee Policy : Hearing Before the Committee on Armed Services, U.S. House of Representatives , 111th Congress, 1st Session, 77 (Jul. 24, 2009) --and deten --as (“At a minimum, we believe active hostilities will continue tion of enemy forces will be authorized long as the United States is involved in active combat operations against such forces. In reaching the determination that active hostilities have ceased, we would likely consider factors that have been recognized in international law as relevant to the existence of an armed conflict, including the frequency and level of intensity of any continuing violence generated by enemy forces; the degree to which they maintain an organizational structure and operate accordi ng to a plan; the enemy’s capacity to procure, transport and distribute arms; and the enemy’s intent to inflict violence.”). 135 1956 FM 27- 10 (Change No. 1 1976) ¶10 (“The law of land warfare generally ceases to be applicable upon: a . The termination of a b . The termination of a war by war by agreement, normally in the form of a treaty of peace; or unilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise decline to recognize the act of its enemy; or ; . The complete subjugation of an enemy State and its allies, if prior to a or b c . The termination of a declared war or armed conflict by simple cessation of hostilities.”). or d 94

122 3.8.1.1 . Parties to a conflict often have negotiate d Agreements to End Hostilities 136 to end hostilities fires A rmistice agreements , i.e. , temporary cease- peace treaties , are . 137 In addition, the U.N. Security Council may require certain negotiated to suspend hostilities. 138 steps leading to the end of hostilities. cessation of hostilities, it is important to In drafting and interpreting agreements for the understand the rules normally applicable to the cessation of hostilities. These agreements may refer to provisions in the Geneva Conventions or other law of war instruments. These agreements may modify or supplement the rules normally applicable to the cessation of hostilities , e.g. , by specifying precisely when a legal obligation is triggered or satisfied . 3.8.1.2 . Although States often have End of Hostilities Absent Written Agreement conclude d agreements to end hos tilities, it is possible for hostilities to cease absent a written or For example, an armed conflict may end when a party is fully subjugated . formal agreement. It may be difficult to determine when an armed conflict has ceased, as opposed, for example, t o a lull in hostilities during which opposing forces may simply be reconstituting 139 themselves. Hostilities generally would not be deemed to have ceased without an agreement , unless the conditions clearly indicate that they are not be resumed or there has been a lapse of 140 time indicating the improbability of resumption. Duties Continuing After Hostilities . Under the law of war, certain duties that have 3.8.2 arisen during hostilities may continue after hostilities have ended. For example, POWs a re protected from the moment they fall into the power of the enemy until their final by the GPW 141 release and Similarly, protected persons whose release, repatriation , or re - repatriation. e to benefit establishment may take place after the general close of military operations continu 136 For example , Agreement on Ending the War and Restoring Peace in Viet Nam sig ned between the Government of the Democratic Republic of Viet Nam and the Government of the United States, and the Protocols to this Agreement, Jan. 27, 1973, T.I.A.S. 7542, 935 UNTS 2, 6; General Agreement for Peace in Bosnia and Herzegovina, .-Croat. -F.R.Y, December 14, 1995, 35 I.L.M. 75 (also known as the Dayton Accords). Bosn. & Herz 137 Refer to 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treat y). § 138 Refer to § 12.14 (U.N. Security Council Cease -Fires ). 139 Mr. Seward, Secretary of State, to Mr. Goni, Spanish Minister, Jul. 22, 1868, VII M ’ S D IGEST 336 (“It is OORE certain that a condition of war can be raised without an authoritative declaration of war, and, on the other hand, the situation of peace may be restored by the long suspension of hostilities without a treaty of peace being made. History is full of suc h occurrences. What period of suspension of war is necessary to justify the presumption of the restoration of peace has never yet been settled, and must in every case be determined with reference to collateral facts and circumstances.”). 140 Manley O. Hudso n, The Duration of the War Between the United States and Germany , 39 H ARVARD L AW R EVIEW 1020, 1029- 30 (1926) (“If a war may be ended by a mere cessation of hostilities, the cessation of hostilities must either be under such conditions that it is clear that they are not to be resumed or there must be a lapse of time indicating the improbability of resumption.”). 141 (Commencement and Duration of POW Status and Treatment ). Refer to § 9.3.6 95

123 142 from the protection of the GC. In addition, duties under occupation law may continue after 143 . hostilities have ended Duties Arising at the End of Hostilities . Certain obligations are triggered by the 3.8.3 end of hostilities. For example, the end of hostilities trigger s obligations regarding the marking 144 and clearance of unexploded ordnance. of minefields, demining, In addition, POWs and protected persons , in general, must be released and returned to the p arty to the conflict to which 145 ng. they belo L AW OF W AR D UTIES A LSO A PPLICABLE IN P EACE 3.9 aw of war obligations also apply in peace Some l i.e. , even when a State is not engaged in , . For example, States must: an armed conflict 146 disseminate information regarding the law of war; • 147 forces in accordance with the law of war; • train their armed issue instructions and regulations for their armed forces in conformity with the law of • 148 war; 149 • review the legality of new weapons; 150 take appropriate measures to prepare for the safeguarding of cultural property; • a nd • take other appropriate measures to ensure the implementation and enforcement of law of 151 war treaties . States that are at peace have obligations under the law of neutrality in relation to States 142 (Commencement and Duration of Protected Person Status ). Refer to § 10.3.4 143 § 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory ). Refer to 144 Refer to § 6.12.12.2 (Clearance of Minefields, Mined Areas, Mines, Booby -Tr aps, and Other Devices After Hostilities 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered ); § ilities by the Cessation of Active Host ). 145 Refer to (Release and Repatriation After Hostilities ); § 10.35 (Release, Return, Repatriation of Internees § 9.37 After the Close of Hostilities ); § 11.11.8 (Disposition of Accused and Convicted Protected Persons Upon the Close of Occupati on). 146 § 18.6.1 (General Dissemination and Study of Treaties ). Refer to 147 Refer to § 18.6.2 (Special Instruction or Training ). 148 Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War ). 149 Refer to § 6.2 (DoD Policy of Reviewing the Legality of Weapons ). 150 Refer to § 5.18.2.1 (Peacetime O bligations to Prepare for the Safeguarding of Cultural Property ). 151 (National Obligations to Implement and Enforce the Law of War ). Refer to § 18.1.2 96

124 152 that are at war. 152 ). (Matters Addressed by the Law of Neutrality Refer to § 15.1.1 97

125 IV – Classes of Persons Chapter Contents 4.1 Introduction 4.2 The Armed Forces and the Civilian Population 4.3 Lawful Combatants and Unprivileged Belligerents 4.4 Rights, Duties, and Liabilities of Combatants 4.5 Armed Forces of a State 4.6 Other Militia and Volunteer Corps 4.7 Levée en Masse 4.8 Rights, Duties, and Liabilities of Civilians 4.9 Military Medical and Religious Personnel 4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel 4.11 Authorized Staff of Voluntary Aid Societies 4.12 Staff of a Recognized Aid Society of a Neutral Country 4.13 Auxiliary Medical P ersonnel 4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property 4.15 Persons Authorized to Accompany the Armed Forces 4.16 Crews of Merchant Marine Vessels or Civil Aircraft 4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines 4.18 Private Persons Who Engage in Hostilities 4.19 Rights, Duties, and Liabilities of Unprivileged Belligerents 4.20 Children 4.21 Mercenaries 4.22 AP I Provisions on Civil Defense Personnel 4.23 Law Enforcement Officers 4.24 Journalists 4.25 Delegates or Representatives of the Protecting Powers 4.26 ICRC and Other Impartial Humanitarian Organizations 4.27 Determining the Status of Detainees in Cases of Doubt 4.1 I NTRODUCTION This C hapter addresses different classes of persons under the law of war. The law of war has created a classes of persons to help confine the fighting between opposing framework of 1 military forces and thereby to help protect the civilian population from the effects of war . This C hapter addresses issues relating to various classes of people under the law of war including: (1) who is included in the various classes, such as “ combatant ” and “ civilian ”; (2) the rights, duties, and liabilities of the persons in each class; and (3) how certain factual categories of persons, such as journalists, police officers , or child soldiers, fall within various classes and are treated under the law of war. 1 ). (Distinction as a Framework of Legal Classes Refer to § 2.5.1 98

126 This C hapter briefly addresses specific rules that relate to the rights, duties, and liabilities to illustrate and provide an overview . For more of persons in the various classes of that class section s that -referenced information about specific rules, practitioners should refer to the cross 2 those specific rule s. addresses General Notes on Terminolog y for Persons in the Law of War . The terms in the 4.1.1 cribe different classes of law of war that des are often used in confusing and contradictory people ways. Although striving to use terms consistently within DoD reduces confusion, understanding the substantive standards that apply to a person in the applicable circumstances is more important than using a particular label or a particular system of classification. The Same Term Used With Different Meanings . Sometimes different 4.1.1.1 the same term. For example, someone might be considered a “combatant ” meanings are given to in th e sense that the person may be made the object of attack, but the person would not 3 combatant in hostilities. necessarily be a “ ” in the sense that the person is privileged to engage Similarly, one source might use the term “ noncombatant ” to mean all persons who are 4 not combatants . , including persons placed Alternatively, another and civilians hors de combat ” to refer specifically to persons who are members of noncombatant source might use the term “ 5 In the pa st, some commentators have used the armed forces, but who are not combatants. ” of the armed forces to refer to all members of the armed forces serving in “noncombatants 6 In contemporary parlance, however, the term combat service support or sustainment roles. 7 “noncombatant generally be used to mean military medical and religious personnel, but ” should 8 those combatants hors de combat . also can include placed 2 Refer to § 1.2.3 (Use of Cross- References in This Manual ). 3 § Refer to – Notes on Terminology 4.3.2 (Combatant ). 4 , L.C. G REEN , T HE C ONTEMPORARY L AW OF A RMED C ONFLICT 88 (2nd ed., 2000) (“Nationals of the See, e.g. -combatants, with the latter including some members of adverse party are normally classified as combatants and non IEBER C ODE art. 19 (“Commanders, chaplains, medical personnel and those hors de combat .”); L the armed forces – whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences.”). 5 EG See, e.g. AGUE IV R , H . art. 3 (“The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have the rig ht to be treated as prisoners of war.”). 6 See, e.g. , G REENSPAN , M ODERN L AW OF L AND W ARFARE 56 (“The distinction between combatants and noncombatants within the armed forces must be taken to correspond to the distinction between fighting troops and troops in service units. The fighting troops of an army carry out the actual military operations, whereas the service troops minister to the needs of the former and supply their various requirements. The Hague Regulations do not define the elements in the two classes, but combatants would include infantry, cavalry, armored troops, and the like, whose function it is to engage with the enemy; as well as artillery, engineers, signals, and others, whose duty it is to support such action. Noncombatants would include inter alia ) personnel of the various ‘services’ comprising ( medical, chaplains, veterinary, graves, pay, postal, labor, supply, transport, ordnance, provost, legal, and military - 223 footnote 4 (“In correct terminology, however, ‘armed forces’ include OMMENTARY C GWS government units.”); ‘combatants’ ( i.e. soldiers bearing arms) and ‘non -combatants’ (who comprise not only medical personnel but also various other army services not called upon to carry arms).”). 7 Refer to § 4.9 (Military Medical and Religious Personnel ). 8 ). Hors de Combat Refer to § 5.10 (Persons Placed 99

127 4.1.1.2 . D ifferent legal Different Terms Used to Describe the Same Concept of people under t he law of war. For sources may use different terms to refer to the same class ,” where combatant ” to belligerent example, one source might use “ as another source might use “ 9 refer to the same class of people under the law of war. Classes and Categories Are Only the Starting Point for Legal Analysis . W hen 4.1.2 ing a person ’s right s, duties, and liabilities under the law of war, it is important to analyze analyz the specific question in light of the applicable , facts. Determining what class a person falls into combatant ” or “ unprivileged belligere nt,” may be only the first step in a such as “ ,” “ civilian, For example, w hether a person may be the object of attack legal analysis. , may be detained, is entitled to POW status , or may be punished for their actions are all different questions . Although these questions are oft en related to one another and associated with the general classes of “combatant ” and “ civilian, ” each question require s its own specific analysis. This specific analysis should be done in each case, applying the legal rules to the facts, rather than deriving an 10 conclusory labeling of a person .” answer based on a as, for example, an “enemy combatant , some persons might, for some purposes, be treated like Indeed ” but for other “combatants, 11 purposes be treated like “ civilians. ” 4.2 T HE A RMED F ORCES AND THE C IV ILIAN P OPULATION The law of war has recognized that the population of a State is generally divided n enemy into two classes : the armed forces and the civilian population, also sometimes called, respectively, “combatants ” and “ civilians .” This division res ults from the principle of 12 distinction. Development of the Distinction Between the Armed Forces and the Civilian 4.2.1 of a State that is a party to a conflict, as one of the constituents Population. A citizen or national of a S tate engaged in hostili ties , may be subjected to the hardships of war by an enemy that is 13 . State However, because the ordinary members of the civilian population make no resistance, 14 . Thus, m the object of attack it has long been recognized that there is no right to make the 9 4.3.2 (Combatant – Notes on Terminology ). Refer to § 10 Refer to (Private Persons Who Engage in Hostilities – Notes on Terminology ). § 4.18.1 11 § 4.2.3 (Mixed Cases ). Refer to 12 Refer to § 2.5 ). (Distinction 13 See, e.g. , Johnson v. Eisentrager, 339 U.S. 763, 772- 73 (1950) (“The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him C ODE IEBER from commission of hostile acts imputed as his intention because they are a duty to his sovereign.”); L ative of a hostile country is thus an enemy, as one of the constituents of the hostile state or art. 21 (“The citizen or n nation, and as such is subjected to the hardships of the war.”). 14 See L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW 204 (§57) (“Those private subjects of the belligerents who do not directly or indirectly belong to the armed forces do not take part in it; they do not attack and defend; and I S HERSTON B AKER , II H ALLECK ’ S 16 NTERNATIONAL L AW 15- no attack ought therefore to be made upon them.”); G. (20.3) (1908) (“F eeble old men, women, and children, and sick persons, come under the general description of enemies, and we have certain rights over them as members of the community with which we are at war; but, as they are enemies who make no resistance, we have no righ t to maltreat their persons, or to use any violence toward them, unarmed citizen,” arts. 22, 23, 25 (explaining that protection of the “ IEBER C ODE much less to take their lives.”); L 100

128 States ha ve departed from ancient and medieval practices of war between entire peoples, and , as much as possible, have treated war as a contention between the professional military instead 15 . of warring States forces This separation of the armed forces and the civi lian population has 16 . greatly mitigated the evils of war No Person May Claim the Distinct Rights Afforded to Both Combatan ts and 4.2.2 . The classes of combatants and civilians Civilians at the Same Time have distinct rights, duties, 17 o person may claim the distinct rights afforded both classes at the same time. and liabilities ; n claim the combatant while also For example, a person may not ’s right to attack enemy forces 18 ’s right not to be made the object of attack. claiming the civilian Mixed Cases . Certain classes of persons do not fit neatly within the dichotomy of 4.2.3 the armed forces and the civilian population, i.e. , combatants and civilians . Each of these the “ individual,” or the “ inoffensive citizen of the hostile c ountry” is the rule) (emphasis added); inoffensive N ATTEL T V L AW OF , ATIONS 282 (3.8.145) (“Women, children, feeble old men, and the sick ... these are enemies HE who make no resistance, and consequently the belligerent has no right to maltreat or otherwise offer violence to them, much less to put them to death.”). 15 See, e.g. , L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW 204 (§57) (“During antiquity, and the greater part of the Middle Ages, war was a contention between the whole populations of the belligerent States. I n time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminating practice g rew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or indirectly belong to their armed forces, and, with certain exceptions, their private property, are protected by art. 22 (“Nevertheless, as civilization has advanced during the last centuries, so ODE IEBER C L International Law.”); has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.”). 16 S PAIGHT , W R IGHTS ON L AND 37 (“The separation of armies and peaceful inhabitants into two distinct See AR classes is perhaps the greatest triumph of International Law. Its effect in mitigating the evils of war has been 20- S HERSTON 22 (20.3) (1908) (“But afterwards in AKER , II H ALLECK ’ S I NTERNATIONAL L AW B G. incalculable.”); Italy, and more particularly during the lawless confusion of the feudal ages, hostilities were carried on by all classes of persons, and everyone capable of being a soldier was regarded as such, and all the rights of war attached to his person. But as war s are now carried on by regular troops, or, at least, by forces regularly organised, the peasants, merchants, manufacturers, agriculturists, and, generally, all public and private persons, who are engaged in the ordinary pursuits of life, and take no part in military operations, have nothing to fear from the sword of the enemy. So long as they refrain from all hostilities, pay the military contributions which may be imposed on them and quietly submit to the authority of the belligerent who may happen to be in the military possession of their country, they are allowed to continue in the enjoyment of their property, and in the pursuit of their ordinary avocations. This system has greatly mitigated the evils of war, ... .”). 17 , 1956 FM 27- 10 (Change N o. 1 1976) ¶60 (dividing into “prisoners of war” and “the civilian See, e.g. population,” and noting that “[p]ersons in each of the foregoing categories have distinct rights, duties, and AND R ULES OF L d in war into two general W ARFARE ¶8 (“The enemy population is divide 1940 disabilities.”); classes, known as, the armed forces and the peaceful population. Both classes have distinct rights, duties, and R ULES OF L AND W ARFARE disabilities, and no person can belong to both classes at one and the same time.”); 1934 ¶29 (same). ARFARE R ULES OF L AND W 1914 ¶8 (sa me); 18 See 1958 UK M ANUAL ¶86 (“It is one of the purposes of the law of war to ensure that an individual who belongs to one class or the other shall not be permitted to enjoy the privileges of both. Thus he must not be allowed to kill or wound members of the army of the opposing belligerent and subsequently, if captured, to claim that he is a peaceful citizen.”). 101

129 particular es has some attributes of combatant lian status; in class status and some attributes of civi certain respects persons in these classes are treated like combatants, but in other respects they are into three groups These classes may be classified : (1) certain personnel treated like civilians. engaged in humanitarian duties ; (2) certain authorized s upporters of the armed forces; and (3) . unprivileged belligerents Certain Personnel Engaged Humanitarian Duties . C ertain categories of 4.2.3.1 them to personnel have humanitarian duties that involve them in hostilities but also entitle : special protections 19 ; • military medical and religious personnel 20 authorized staff of voluntary aid societies; • 21 staff of a recognized aid society of a neutral country; • 22 and auxiliary medical personnel • ; 23 personnel engaged in the protection of cultural property. • Certain Authorized Supporters of the Armed Forces . C ertain categories of 4.2.3.2 , but persons are not members of the armed forces authorized to support the are nonetheless armed forces in the fighting: 24 ; • persons authorized to accompany the armed forces, but who are not members thereof and 25 members of the crews of merchant marine vessels or civil aircraft of a belligerent • . 4.2.3.3 Unprivileged Belligerents . Unprivileged bel ligerents generally are subject 26 to the liabilities of both co : mbatant and civilian status , and include 27 s engaging in spying, sabotage, and similar acts behind enemy lines ; and person • 28 private persons engaging in hostilities • . 19 Refer to litary Medical and Religious Personnel (Mi ). § 4.9 20 Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies ). 21 Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country ). 22 § 4.13 (Auxiliary Medical Personnel ). Refer to 23 Refer to § 4.14.1 (Personnel Engaged in the Protection of Cultural Property ). 24 Refer to § 4.15 (Per sons Authorized to Accompany the Armed Forces ). 25 Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft ). 26 Refer to § 4.3.4 (Types of Unprivileged Belligerents ). 27 Acts Behind Enemy Lines ). Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar 102

130 4.3 AWFUL C OMBATANTS AND U NPRIVILEGED B ELLIGERENTS L population, the In addition to distinguishing between the armed forces and the civilian “privileged ” and “ unprivileged,” or “lawful ” and law of war also distinguishes between ” combatants “unlawful . As the Supreme Court has explained: Lawful combatants are subject to capture and detention as prisoners of war by Unlawful combat ants are likewise subject to capture opposing military forces. and detention, but in addition they are subject to trial and punishment by military 29 tribunals for acts which render their belligerency unlawful. “Unlawful combatants ” or “ unprivileged belligerents ” are persons who, by engaging in hostilities , have incur red one or more of the corresponding liabilities of combatant status ( e.g. , being made the object of attack and subject to detention) , but who are not entitled to any of the 30 e.g. of combatant status status ). distinct privileges ( , combatant immunity and POW “Unprivileged Belligerents ” as a Category in Treaty Law . States have, in a few 4.3.1 cases, explicitly recognized in treaties certain categories of unprivileged belligerents, such as 31 spies and saboteurs. However, States h ave generally refrained from explicitly recognizing unprivileged bell igerents as a class in treaties in the way that classes of lawful combatants have 32 been defined. Law of war treaties have been understood to reflect restrictions on the conduct of 33 and States have been reluctant to conclude treaties to afford unprivileged hosti lities by States, enemy belligerents the distinct privileges of POW status or the full protections afforded 34 civilians. 28 Refer to § 4.18 ). (Private Persons Who Engage in Hostilities 29 See also Hamdi v. Rumsfeld, 542 U.S Ex parte Quirin, 317 U.S. 1, 31 (1942). . 507, 518 (2004) (plurality) (“The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war.’”) (quoting Ex parte Quirin at 28, 30). 30 Refer to § 4.19 ). (Rights, Duties, and Liabilities of Unprivileged Belligerents 31 See, e.g. H AGUE , R EG . arts. 29 -31 (defining the category of spy and regulating the treatment of captured spies); IV GC art. 5 (regulating the treatment of certain protected persons “detained as a spy or saboteur, or as a person under “It 5 ( OMMENTARY C GC See also definite suspicion of activity hostile to the security of the Occupying Power”). may, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had been possible, but the terms espionage, sabotage, terrorism , banditry and intelligence with the enemy, have so often been used lightly, and applied to such trivial offences, that it was not advisable to leave the accused at the mercy of those detaining them.”). 32 See, e.g. , GWS art. 13; GWS -S EA art. 13; GPW art. 4 . 33 § 1.3.3.1 (Law of War as Prohibitive Law ). Refer to 34 See, e.g. , IIA F INAL 433 (ICRC representative EPORT OF THE D IPLOMATIC C ONFERENCE OF G ENEVA OF 1949 R that “[t]he present Conference was engaged in framing a Convention to protect members of armed forces explaining and similar categories of persons, such as members of organized resistance movements, and another convention to 103

131 Although seldom explicitly recognized as a class in law of w ar treaties, the category of classes of unprivileged belligerent may be understood as an implicit consequence of creating the 35 lawful combatants and peaceful civilians. , i.e. he concept of unprivileged belligerency T , the set of legal liabilities associated with unprivileged belligerents , may be understood in opposition to the rights, duties, and liabilities of lawful combatants and peaceful civilians. Unprivileged lawful combatants who have forfeited the privileges of combata nt status belligerents include by engaging in spying or , and private person s who have forfeited one or more of the sabotage 36 . protections of civilian status by engaging in hostilities Combatant – Notes on Terminology . 4.3.2 4.3.2.1 “Combatant ” and “Belligerent ” . “ Combatant ” and “ belligerent ” ha ve sometimes been used interchangeably and, in this usage, they generally describe individuals who civilians. are not “ ” “Belligerent ,” however, has also sometimes used to describe States and to contrast such 37 ” or States with “ belligerent” State s. neutral “ Belligerent ” has also been used to contrast “non- armed groups that have “ belligerent rights ” with armed groups that lack such righ ts, such as 38 “insurgent s.” 4.3.2.2 “Lawful, ” “ Privileged, ” and “ Qualified ” . The distinction between “lawful ” and “ unlawful ” combatants has sometimes been called a distinction between protect civilians. Although the two Conve ntions might appear to cover all the categories concerned, irregular id . at 612 (Swiss representative taking the view that “[i]n regard to the belligerents were not actually protected.”); legal status of those who violated the laws of war, the [Civilians] Convention could not of course cover criminals or id. at 621 (UK representative rejecting a draft which “would mean that persons who were not entitled saboteurs.”); to protection under the Prisoners of War Convention would receive exactly the same protecti on by virtue of the Civilians Convention, so that all persons participating in hostilities would be protected, whether they conformed to the laws of war or not. ... The whole conception of the Civilians Convention was the protection of civilian victims of w ar and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of war to which they did not conform. Such persons should no doubt be accorded certain standards of treatment, but should not be entitled to all th e benefits of the Convention.”). 35 See, e.g. , 10 U.S.C. § 948a (“The term ‘unprivileged enemy belligerent’ means an individual (other than a privileged belligerent) who” engages in certain conduct); Ex parte Quirin, 317 U.S. 1, 35 (1942) (“Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed and distinctive emblem s.’”). 36 Refer to § 4.3.4 (Types of Unprivileged Belligerents ). 37 Refer to § 15.1.2 (Classification of States as Belligerent, Neutral, or Non -Belligerent ). 38 See, e.g. , Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III RACTICE IN 88 3436, 3448 (“The concept of U NITED S TATES P IGEST OF I NTERNATIONAL L AW 1981- D UMULATIVE C ‘insurgency’ was traditionally used to describe a conflict that did not meet the rigid standards of customary international law for recognition of belligerency.”); Anthony Eden, Secretary of State for Foreign Affairs, United ANSARD 330 H (“His C OMMONS D EBATES § 357 OUSE OF , Dec. 8, 1937, H Kingdom, Or al Answers to Questions Majesty’s Ambassador at Hendaye has been instructed to inform the Salamanca authorities that as belligerent rights have not been recognised to either party in the Spani sh conflict. His Majesty’s Government are not prepared to admit their right to declare any such blockade.”). Refer to § 3.3.3 (State Recognition of Armed Groups as ). Belligerents 104

132 “privileged” unprivileged” , distinguishing between persons who are and “ belligerents, i.e. 39 , and those who are not. entitled to the privileges of combatant or belligerent status This ” and “ unqualified” distinction has also sometimes been called a distinction between “qualified who have met the qualifications to receive the i.e. belligerents, , distinguishing between persons 40 privileges of combatant status and those who have not. “Combatant ” Used Without Modification . “ Combatant ” and 4.3.2.3 lawful “unlawful ,” or “ privileged” ” or “belligerent ,” when used without modification (such as “ 41 refer red implicitly to lawful or privileged combatants. or “ unprivileged ”), have often ” or “ belligerent , “ combatant However, in some cases ” has been used to refer to all persons who in hostilities, without taking a position as to whether they are entitled to receive the engage privileges of combatant status. General Usage of “ ” in This Manual . This manual generally Combatant 4.3.2.4 uses “ combatant ” to refer implicitly to lawful or privileged combatants. ” (instead of, This manual generally uses the term “ , unprivileged belligerent e.g. “ unlawful belligerent, ” “ unprivileged combatant,” etc.) to refer to persons “unlawful combatant,” who are subject to one or more of the liabilities of combatant status, but are not entitled to receive its distinct privileges. Types of Lawful Combatants . T hree class es of persons qualify as “ lawful ” or 4.3.3 combatants : “privileged” • members of the armed forces of a State that is a party to a conflict , aside from certain 42 categories of medical and religious personnel; under certain conditions , m embers of militia or volunteer corps that are not part of the • 43 to a State ; armed forces of a State, but belong and • inhabita nts of an area who participate in a kind of popular uprising to defend against 44 foreign invaders e . , known as a levée en mass 39 , 1958 UK See, e.g. ANUAL ¶96 (“Should regular combatants fail to comply with these four conditions, they may M in certain cases become unprivileged belligerents. This would mean that they would not be entitled to the status of r upon their capture.”); Richard R. Baxter, So- Called ‘Unprivileged Belligerency’: Spies, Guerillas, prisoners of wa L AW EAR B OOK OF I NTERNATIONAL Y RITISH 323 (1951); L IEBER C ODE art. 49 (describing who , 28 B and Saboteurs is “exposed to the inconveniences as well as entitled to the privileges of a prisoner of war”). 40 See, e.g. , J AMES M. S PAIGHT , A IRCRAFT IN W AR 51 (1914) (referring to “that outlaw of war law —the unqualified AGUE 1-3 R EG . arts. IV (describing who meets “[t]he Qualifications of Belligerents ”). belligerent”); H 41 , AP I art. 43(2) (describing “combatants” as those who “have the right to participate directly in See, e.g. hostilities.”). 42 Refer to § 4.5 (Armed Forces of a Stat e). 43 Refer to § 4.6 (Other Militia and Volunteer Corps ). 44 ée en Masse ). Refer to § 4.7 ( Lev 105

133 Types of Unprivileged Belligerents nprivileged belligerents may generally be 4.3.4 . U to two categories that may be uished from one another by the presence or classified in disting : absence of State authorization • qualified as combatant s ( i.e. , by falling into one of the three persons who have initially , but who have acted so as to forfeit the privileges of categories mentioned above) 45 by combatant status ; or sabotage engaging in spying and persons who never meet the qualifications to be entitled to the privileges of combatant • , but who have , by engaging in hostilities, incurred the corresponding liabilities of status 46 ( i.e. , fo rfeited one or more of the protections of civilian status) . combatant status 47 These two categories of receive the same treatment . unprivileged belligerents generally that the first category has State authorization, while the second category However, the distinction and create different legal results . For example, the combatant who does not, may be important regains the entitlement to the privileges of combatant status upon returning to friendly spies cannot regain a status to which the person was never lines, but the private person who spies 48 entitled . Similarly, acts of unprivileged belligerency on the high seas may constitute piracy, a crime under inte rnational law, although similar acts by persons acting under State authority , even 49 if they were not members of the arme c ould not constitute piracy. d forces, 4.4 R IGHTS , D UTIES , AND L IABILITIES O F C OMBATANTS i.e., Combatants have a special legal status, certain ri ghts, duties, and liabilities. As discussed below, c ombatants may in hostilities and are liable to being m ade the object of engage . Combatants must conduct their operations in accordance with the attack by enemy combatants law of war. They have the right to POW status if they fall into the power of the enemy during international armed conflict al immunity from domestic law for acts done . Combatants have leg under military authority and in accordance with the law of war. of Hostilities . In general, combatants may engage in 4.4.1 Combatants – Conduct 50 However, combatants may be made the object of attack by enemy combatants. hostilities and 51 must not be made the object of attack. placed hors de combat Combatants must conduct their operations in accordance with the law of war. For ish themselves from the civilian example, combatants must take certain measures to distingu 52 53 population. Combatants also may not kill or wound the enemy by resort to perfidy . 45 Refer to (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines ). § 4.17 46 § 4.18 (Private Persons Who Engage in Hostilities ). Refer to 47 § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligere nts ). Refer to 48 Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status ). 49 Refer to § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War ). 50 Refer to § 5.8 (Combatants ). 51 Refer to § 5.10 (Persons Placed Hors de Combat ). 52 ). ves When Conducting Attacks Refer to § 5.5.8 (Obligation of Combatants to Distinguish Themsel 106

134 54 Combatants must only direct their attacks against military objectives. Combatants must take 55 in conducting attacks population. to reduce the risk of harm to the c feasible precautions ivilian the rules that combatants must follow in the conduct of hostilities Chapter V addresses in detail . – POW Status During Detention . Combatants 4.4.2 Combatants are liable to capture and entitled to POW status when they fall into the power of detention by enemy combatants, but are , like all detained individuals, must be the enemy during international armed conflict. POWs 56 . treated humanely in In addition, POWs are afforded a variety of privileges in detention , such a s camp canteens, advances of pay, and permission to wear their accordance with the GPW 57 . badges of rank, nationality, or decorations POWs also have duties , such as in detention 58 identifying themselves to their captors , and they are subject to the laws, regulations, and orders 59 . n detail the treatment of POWs Chapter IX addresses i of the Detaining Power and their duties . In general, POWs shall be released and repatriated without delay after the cessation of 60 . active hostilities However, seriously wounded, injured, or sick POWs s hould be returned 61 before the end of hostilities. In addition, after the hostilities have ended , certain POWs may be 62 held in connection with criminal proceedings. combatants retain their right to POW status and treatment, even if they are In general, 63 For example, all eged to have POWs are entitled to a variety committed crimes before capture. 64 In addition, POWs serving of rights in relation to judicial proceedings against them. disciplinary punishment xcept insofar as shall continue to receive the benefits of the GPW, e 65 these benefits are necessarily rendered inapplicable by the mere fact that the POW is confined . Combatants captured while engaged in spying or sabotage forfeit their entitlement to 66 In cases of doubt as to whether a detainee is entitled to POW status, that person POW status . 53 § 5.22 Refer to (Treachery or Perfidy Used to Kill or Wound ). 54 § 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks ). Refer to 55 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Refer to § 5.11 ). Objects 56 Refer to § 9.5 (Humane Treatment and Basic Protections for POWs ). 57 (Rank and Age of POWs Refer to (Canteens for POWs ); § 9.18.3 (Advance of Pay ); § 9.22.4 § ). 9.17 58 Refer to § 9.8 (Interrogation of POWs ). 59 Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the Detaining Power ). 60 § 9.37 (Release and R epatriation After Hostilities ). Refer to 61 Refer to (Direct Repatriation of Seriously Wounded, Injured, or Sick POWs ). § 9.36.1 62 Refer to § 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense ). 63 § 9.26.4 (Retention of Benefits o f the GPW Even if Prosecuted for Pre- Capture Acts ). Refer to 64 Refer to § 9.28 (Judicial Proceedings and Punishment ). 65 Refer to § 9.27.6.2 (Retention of the Benefits of the GPW While Undergoing Disciplinary Punishment ). 66 ). – Forfeiture of the Privileges of Combatant Status Refer to § 4.17.5 (Spying and Sabotage 107

135 should be afforded the protections of POW status until their status has been determined by a 67 competent tribunal. a Foreign State ’s Domestic Law . International 4.4.3 Combatants From - Legal Immunity a special legal immunity from the domestic law of the enemy State for law affords combatants 68 their actions done in accordance with the law of war. This legal immunity is sometimes called ” or “ ’s privilege ” This means that a combatant ’s “ killing, combatant the “ combatant immunity. 69 ” wounding, or other warlike acts are not individual crimes or offenses, if they are done under 70 Similarly, a ’s warlike military authority and are not prohibited by the law of war. combatant acts done under military authority and in accordance with t he law of war also do not create civil 71 liability. from an enemy State’ s domestic law for acts that are Combatants lack legal immunity 72 prohibited by the law of war. Also, combatants lack legal immunity from an enemy State’ s 73 or . n spying domestic law while engaging i Combatants, however, must receive a fair sabotage 74 before any punishment and regular trial . 67 (POW Protections for Certain Persons Until Status Has Been Determined ). Refer to § 4.27.2 68 would also be applicable with respect to neutral States to the extent they sought to exercise This legal immunity jurisdiction over the conduct of belligerents. Traditionally, however, neutral States generally did not assert gerents. Refer to § 18.21.1 (Jurisdiction Over War Crimes ). jurisdiction over conduct committed between belli 69 L C ODE art. 57. See also Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting) IEBER (explaining that “legitimate ‘acts of warfare,’ however murderous, do not justify criminal conviction” and that “it is & , M ILITARY L AW INTHROP P RECEDENTS 778 (“The State is represented in active no ‘crime’ to be a soldier.”); W war by its contending army, and the laws of war justify the killing or disabling of members of the one army by those of the other in battle or hostile operations.”); Arce v. State, 202 S.W. 951 (Texas Court of Criminal Appeals 1918) (reversing homicide conviction of Mexican soldiers pro secuted in connection with hostilities between the United States and Mexico). Consider AP I art. 43(2) (“combatants ... have the right to participate directly in hostilities.”). 70 United States v. List, et al. (The Hostage Case), XI T RIALS OF W AR C RIM INALS B EFORE THE NMT 1236 (“acts See done in time of war under the military authority of an enemy cannot involve criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war.”); Daniel Webs ter, IPLOMATIC D HE reprinted in , Mar. 15, 1841, Letter to John G. Crittenden, Attorney General Department of State, T O FFICIAL P APERS OF D ANIEL W EBSTER (1848) (explaining “[t]hat an W HILE S ECRETARY OF S TATE 134- 35 , AND individual forming part of a public fo rce, and acting under the authority of his Government, is not to be held answerable, as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations”). 71 Freeland v. Williams, 131 U.S. 405, 416 (1889) (“Ever since the case of Dow v. Johnson, 100 U.S. 158, the See doctrine has been settled in the courts that in our late civil war, each party was entitled to the benefit of belligerent dance with the usages of civilized warfare, rights, as in the case of public war, and that, for an act done in accor under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under such authority.”); Dow v. Johnson, 100 U.S. 158, 165 (1879) (“There would be something sing ularly absurd in permitting an officer or soldier of an invading army to be tried by his enemy, whose country it had invaded. The same reasons for his exemption from criminal prosecution apply to civil proceedings.”). 72 See United States, et al . v. Göring, et al ., Judgment , I T RIAL OF THE M AJOR W AR C RIMINALS B EFORE THE IMT 223 (“He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state international law.”). if the state in authorizing action moves outside its competence under 73 Refer to § 4.17.3 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status ). 74 (Rights of Defense and Trial Procedure). Refer to § 9.28.4 108

136 4.4.3.1 Immunity and POW Status . The “ combatant ’s Combatant s - Legal 75 . In that ” from liability under domestic law has been associated with POW status privilege from provisions of the GPW the combatant ’s privilege vein, U.S. c ourts have inferred against 76 . being prosecuted by capturing States However, the legal immunity that combatants may be afforded is not the same as POW status. For example, a combatant ’s conduct may be protected by legal immunities even when that person is not in the power of the enemy and thus is not a , the GPW POW. As another example of how POW status and legal immunity may differ POWs identified in Article 4. However, not generally affords the same treatment to all classes of all the categories of POWs identified in Article 4 of the GPW, such as persons authorized to accompany the armed forces, receive the general license to commit belligerent acts that is 77 afforded members of the arm . ed forces Combatant s – Legal Immunity and Sovereignty . In addition to being 4.4.3.2 governing the treatment of POWs , the combatant ’s associated with humanitarian principles privilege has also been viewed as an application of the immunity that international law affords 78 ’s jurisdiction. States from each other In this view, “ the act of the soldier who conforms to the law of war and does not engage in private acts of warfare is an act of s tate depriving the enemy 75 See, e.g. , Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III - UMULATIVE D IGEST OF U NITED S TATES P RACTICE IN I NTERNATIONAL L AW 1981- 88 3436, 3451 (“It is well C accepted that individuals who enjoy the status of prisoner of war are generally immune from prosecution for LLAN R OSAS , T HE L EGAL S TATUS OF P RISONERS OF W AR : legitimate acts of war in international armed conflicts.”); A S A TUDY IN I NTERNATIONAL H UMANITARIAN L AW A PPLICABLE IN A RMED C ONFLICTS 305 (1976) (“there has traditionally been a close relationship between the concept of prisoners of war and that of lawful combatants.”) ; IEBER ODE art. 56 (“A prisoner of war is su bject to no punishment for being a public enemy, nor is any revenge L C wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.”). 76 See United States v. L indh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (memorandum opinion) (interpreting articles 87 and 99 of GPW to “make clear that a belligerent in a war cannot prosecute the soldiers of its foes for the 717 F.Supp.2d. 1215, 1222 footnote 7 (USCMCR 2007) soldiers’ lawful acts of war”); United States v. Khadr, (same); United States v. Pineda, 2006 U.S. Dist. LEXIS 17509, 6- 8 (D.D.C. Mar. 23, 2006) (D.D.C. 2006) (same). See also United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990) (“As is evident from its text and construed as a whole, the essential purpose of the Geneva Convention Relative to the Treatment of Prisoners of War is to protect prisoners of war from prosecution for conduct which is customary in armed conflict.”). 77 A LLAN R OSAS , T HE L EG AL S TATUS OF P RISONERS OF W AR : A S TUDY IN I NTERNATIONAL H UMANITARIAN L AW A PPLICABLE IN RMED C ONFLICTS 305 (1976) (“The relationship between the concepts of lawful combatants and A prisoners of war has been said to arise from the fact that lawful combatants -of-war are always entitled to prisoner status, while the reverse is not necessarily true, as there are categories of persons entitled to the status of prisoners of war who as civilians enjoy no general license to commit belligerent acts.”). 78 Cf. United S tates v. Thierichens, 243 F. 419, 420 (E.D. Pa. 1917) (“The well -settled rule that, under the comity existing between nations, the public armed ship of a friendly nation, acting under the immediate and direct command of the sovereign power, is not to be in terfered with by the courts of a foreign state, is based upon the principle that, if the courts did attempt to assume jurisdiction over such vessel, it would require the sovereign of the nation to which the vessel belongs to be impleaded in the court from which the process issued, and, by common consent of nations, such situations could not arise without interference with the power and dignity of the foreign sovereign. Therefore the courts will not assume jurisdiction over such vessel or its officers, while acting as such, but leave controversies arising out of the acts of the vessel, and its officers, while acting in their official character, for settlement through diplomatic channels.”). 109

137 79 state of jurisdiction ant ’s privilege requires that combatants act .” This view of the combat 80 under the commission of a belligerent State. This view also reflects the principle that only 81 States may authorize the resort to force. s. 4.4.4 Nationality and Combatant Statu y Forces . Members of enemy armed 4.4.4.1 Nationals of Neutral States in Enem . For example, the U.S. armed forces may include nationals of neutral or non -belligerent States forces include many foreign nationals, and the United States could be engaged in hostilities when ’ ho . Nationals of a neutral or non- belligerent State who those foreign nationals me States are not treated like other members of State should be are members of the armed forces of a belligerent 82 ’s armed forces. that State For example, such nationals are entitled to POW status if th ey fall 83 ng international armed conflict. into the power of the enemy duri Nationals of a State Who Join Enemy Forces . The special privileges that 4.4.4.2 between a national international law affords combatants generally do not apply and his or her 84 . For example, of nationality State provisions of the GPW assume that POWs are not nationals 85 of the Detaining Power. Thus, i nternational law does not prevent a State from punishing its 79 Richard Baxter, diction over War Crimes , 28 B RITISH Y EAR The Municipal and International Law Basis of Juris 382, 385 (1951). OOK OF NTERNATIONAL L AW B See also Hans Kelsen, Collective and Individual Responsibility in I AW ALIFORNIA L R EVIEW 530, , 31 C International Law with Particular Regard to the Punishment of War Criminals 549 (1943) (“That a State violates international law if it punishes as a criminal, according to its national law, a member of the armed forces of the enemy for an act of legitimate warfare, can be explained only by the fact that the es an individual responsible for an act of another State. According to international law, the act State by so doing mak in question must be imputed to the enemy State and not to the individual who in the service of his State has performed the act. It cannot be considered as a crime of the individual because it must not be considered as his act art. 41 (“All municipal law of the ground on which the armies stand, or of the countries to C ODE IEBER at all.”); L ld.”). which they belong, is silent and of no effect between armies in the fie 80 See Wharton, , § 221, VII M OORE ’ S D IGEST 175 (“It is necessary in order to place the members of Com. Am. Law an army under the protection of the law of nations, that it should be commissioned by a state. ... Hence, all civilized nations have agreed i n the position that war to be a defence to an indictment for homicide or other wrong, must be conducted by a belligerent state, and that it can not avail voluntary combatants not acting under the commission of a belligerent.”). 81 Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose ). 82 § 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State). Refer to 83 S L POW EVIE 74-75 (“Normally, the nationality of the individual falling within one of the categories enumerated , in Article 4 is that of the belligerent Power for which he is fighting. However, he may have the nationality of a neutral, or of an ally of the belligerent in whose armed forces he is serving at the time that he falls into the power of the enemy-- or even of the adverse Party, or one of its allies. Does this aff ect his entitlement to prisoner -of-war status? Apparently there is no dispute with respect to the entitlement to prisoner -of-war status of an individual who is a national of a neutral State or of a State which is an ally of the belligerent in whose armed forces he is serving.”). 84 Compare § 10.3.3.1 (A State’s Own Nationals ). 85 See, e.g. , GPW art. 87 (“When fixing the penalty, the courts or authorities of the Detaining P ower shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his ). ences own will.”). Refer to § 9.26.6 (Prohibited Penalties ); § 9.28.6 (Death Sent 110

138 86 national s whom it may capture among the ranks of enemy forces This rule is sign ificant in . international armed conflicts in which a State is fighting a rebel group non- composed of its own 87 citizens . Although, as a matter of international law, nationals may not assert the privileges of combatant status against their own State, they may be subject to the liabilities of combatant under that State ’s domestic law status in relation to their own State . For example, under U.S. law, U.S. nationals who join enemy subject to the liabilities of combatant forces have been 88 status lly being made the object of attack or detained . , such as potentia 4.4.4.3 Nationals of Allied or Co -Belligerent States . Nationals of an allied or co - belligerent State who are serving with enemy forces are in a position that is similar to the are serving with enemy forces. position of nationals of a State who If the nationals of an allied or co -belligerent State who are serving with enemy forces are captured by a State, t hey may be transferre i.e. , the co -belligerent or allied State) , which is not d to their State of nationality ( 89 required to afford them POW status. . practice as the Detaining Power in this However, U.S 90 situation has been to afford POW treatment to such individuals if they claim such protection. 86 See Public Prosecutor v. Oie Hee Koi and Associated Appeals (UK Privy Council, Dec. 4 1967), L EVIE , AUTERPACHT D OCUMENTS ON POW S 737, 741 (quoting L , II O PPENHEIM ’ S I NTERNATIONAL L AW ) (“‘The privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. The same applies to traitorous subjects of a belligerent who, without ha ving been members of his armed forces, fight in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished.’ This edition was published in 1951 after Aug. 12, 1949, the da te of the Geneva Conventions, and in their lordships’ opinion correctly states the relevant law.”). 87 Refer to § 17.12 (Use of Captured or Surrendered Enemy Personnel in NIAC ). 88 , Hamdi v. Rumsfeld 542 U.S. 507, 519 (2004) (plurality) (“There is no bar to this Nation’s holding one See, e.g. of its own citizens as an enemy combatant.”); Ex parte Quirin, 317 U.S. 1, 37 (1942) (“Citizenship in the United States of an enemy b elligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.”); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946) (rejecting the argument of petitioner, an Italian army draftee, that he could not be subject to the liabilities of combatant status and detained because he was a U.S. citizen). 89 For example , D EPARTMENT OF THE A RMY P AMPHLET 20- 213, History of Prisoner Of War Utilization By The 198 (Jun. 24, 1955) (“During the [Second World] war many soldiers of a state of United States Army, 1776- 1945 , origin other than Germany were found in German uniform among German prisoners of war. Therefore when Allied forces captured these prisoners they segregated them by nationalities. The individual PW was then interrogated by representatives of his country’s government in exile. If acceptable to that government and if he was willing, the PW was sent to Great Britain for service in an army unit of his national government. If the PW was rejected, he was treated in all respects as a German prisoner of war.”). 90 For example , Announcement Concerning Soviet Allegations on Allied Prisoners of War , May 3, 1945, 12 864 (May 6, 1945) (“In as much as the American Government has alwa S TATE B ULLETIN EPARTMENT OF ys D insisted that all wearers of the American uniform, whether American citizens or not, are, as American soldiers, entitled to full protection of the [1929] Geneva convention and has so informed the enemy, these German prisoners of war of apparent Soviet n ationality claiming such protection are being held as German prisoners of war in order to protect American soldiers in enemy hands.”). 111

139 4.5 RMED F ORCES OF A S TATE A cluding members of all groups that are part of Members of the armed forces of a State, in 91 the armed forces of a State, but excluding certain medical and religious personnel, receive 92 ( , its rights, duties, and liabilities) by virtue of that membership. s tatus combatant i.e. This section addresses various classes of persons within the armed forces of a State. Components of Armed Forces . The armed forces of a 4.5.1 State may include a variety 93 of components , such as militia or volunteer corps that form part of those armed forces . The U.S. armed forces in clude members of the active duty military, the reserve forces, and the National Guard. U.S. armed forces also include the Coast Guard , which normally 94 operates under the Department of Homeland Security . The U.S. he Commissio ned Corps of the U.S. Public armed forces may also include t 95 . Health Service, which normally operates under the Department of Health and Human Services Similarly, members of t he Commiss ioned Corps of the National Oceanic and Atmospheric Administration , which normally operates und er the Department of Commerce , may also become 96 Members of these and other organizations assigned to , and part of the U.S. armed forces . 97 , the U.S. armed forces may be subject to the Uniform Code of Military Justice . serving with 91 § 4.9 Refer to (Military Medical and Religious Personnel ). 92 See GPW art. 4A(1) (defining “prisoners of war, in the sense of the present Convention,” to include “(1) AGUE IV [m]embers of the armed forces of a Party to the conflict” who have fallen into the power of the enemy); H EG . art. 1 (“The laws, rights, and duties of war apply ... to armies”); R IEBER C ODE art. 57 (“So soon as a man is L Cf. sources cited in armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent;”). 150 footnote 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State ). in § 93 GPW art. 4A(1) (defining “prisoners of war, in the se nse of the present Convention,” to include “members of See AGUE militias or volunteer corps forming part of such armed forces” who have fallen into the power of the enemy); H IV R EG . art. 1 (“In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army.’”). 94 10 U.S.C. § 101(a)(4) (explaining that, for the purposes of U.S. domestic law, “the term ‘armed forces’ means See the Army, Navy, Air Force, Marine Corps, and Coast Guard.”); 14 U.S.C. § 1 (“The Coast Guard as established January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times. The ervice in the Coast Guard shall be a service in the Department of Homeland Security, except when operating as a s Navy.”). 95 42 U.S.C. § 217 (“In time of war, or of emergency involving the national defense proclaimed by the President, he may by Executive order declare the commissioned corps of the [Public Health] Service to be a military service.”). 96 U.S.C. § 3061 (“The President may, whenever in the judgment of the President a sufficient national emergency 33 exists, transfer to the service and jurisdiction of a military department such vessels, equipment, stations, and officers of the Administration as the President considers to be in the best interest of the country. ... An officer of the Administration transferred under this section, shall, while under the jurisdiction of a military department, have proper military status and shall be subject to the law s, regulations, and orders for the government of the Army, Navy, or Air Force, as the case may be, insofar as the same may be applicable to persons whose retention permanently in the military service of the United States is not contemplated by law.”). 97 10 U.S.C. § 802(a)(8) (“Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces,” are subject to the Uniform Code of Military Justice). 112

140 The U.S. armed forces may also include the volunteer auxiliary of the Air Force when the 98 services of the Civil Air Patrol are use d in certain missions . differentiate s Reserve Armed Forces 4.5.1.1 . Although domestic law sometimes active components of entitlement to reserve and between the of the armed forces for the purpose benefits and other matters, international law treats members of the reserve forces that are part of the same as other members of the armed forces. the armed forces of a State ude In the United States, reserve armed forces incl the reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army National Guard of the 99 . United States and the Air National Guard of the United States Classes of Persons W ithin the Armed Forces . 4.5.2 Special Operati ons Forces . Special operations forces may be described as 4.5.2.1 military forces specially organized, trained, and equipped to achieve military, political, economic, and psychological objectives by unconventional military means in hostile, denied, or 100 As members of the armed forces, special operations forces have the politicall y sensitive areas. 101 same rights, duties, and liabilities as other members of the armed forces. Nonetheless, in the past, some States have illegitimately questioned whether special operati ons forces are entitled to the privileges of combatant status . For example, during World War II, Hitler directed that German forces summarily execute captured Allied special operations 102 Post was not a legitimate -World War II war crimes tribunals found that this order forces. 98 See 10 U.S.C. § 9442(b)(1) (“The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfill the noncombat programs and missions of the Department of the Air Force.”). 99 10 U.S.C. § 10101 (“The reserve components of the armed forces are: (1) The Army National Guard of the United States. (2) The Army Reserve. (3) The Navy Reserve. (4) The Marine Corps Reserve. (5) The Air National Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.”). 100 J UBLICATION 3-05, Special Operations , ix (Jul. 16, 2014) (“Special operations require unique modes of P OINT employment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, or politically and/or diplomatically sensitive environments, and are characterized by one or more of the following: time -sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greater requirements for regional orientation and cultural expertise, and a higher degree of risk. Special operations provide joint force commanders (JFCs) and chiefs of mission with discrete, precise, and scalable options that can be synchronized with activities of other interagency partners to achieve United States Government (USG) objectives.”). 101 fer to § 4.4 (Rights, Duties, and Liabilities of Combatants ). Re 102 Adolf Hitler, Commando Order, reprinted in Trial of Generaloberst Nickolaus von Falkenhorst , XI U.N. L AW R EPORTS 18, 20- 21 (British Military Court, Brunswick, Jul. 29 -Aug. 2, 1946); also reprinted in United States v. von RIMINALS T RIALS OF W AR C B EFORE THE NMT 525- 27; also reprinted in (The High Command Case) , XI Leeb, et al. L AW R EPORTS 22, 33- 34 (U.S. Military Commission, The Dostler Case, Trial of General Anton Dostler , I U.N. -12, 1945). Rome, Oct. 8 113

141 reprisal, violated the prohibition against executions without a fair trial, and improperly denied 103 POW status to soldiers wearing a uniform behind enemy lines. Special operations forces personnel, like other m embers of the armed force s, remain entitled to the privileges of combatant status, unless they temporarily forfeit such privileges by 104 engaging in spying or sabotage. In some cases, military personnel who do not wear the standard uniform of their armed forces may nonetheless rema in entitled to the privileges of combatant status of such uniforms does not constitute the element of “ acting because the wear ing 105 clandestinely or under false pretenses .” For example, special operations forces have 106 sometimes dressed like friendly forces. Special operations forces personnel remain entitled to the privileges of combatant status even when operating detached from the main body of forces 107 behind enemy lines. 4.5.2.2 M edical P ersonnel, but N ot A ttached to the Medical Members Trained as Service . Mem bers of the ar med forces might have medical training but not be designated as military medical personnel have . For example, before joining the armed forces, a person might , and after joining the armed forces might not be designated been trained as a nurse or physician as part of the medical corps. Because such personnel have not been designated as military medical personnel, they are 108 However, if they fall into the power are combatants, like other members of the armed forces. of the enemy during internati onal armed conflict, such personnel may be required to tend to fellow POWs, in l ight of their previous training. In particular, P OWs who, though not attached to the medical service of their armed forces, are physicians, surgeons, dentists, nurses, or medi cal orderlies may be required by the Detaining Power to exercise their medical functions in the 103 See Trial of Generaloberst Nickolaus von Falkenhorst , XI U.N. L AW R EPORTS 18, 28 (British Military Court, Brunswick, Jul. 29 -Aug. 2, 1946) (reporter noting t hat Hitler’s commando order was clearly illegal because it provided “that there should be no military courts, for even a war traitor is entitled to a trial,” and because the “commando order was to apply to troops engaged on commando operations whether in uniform or not”); The L 33 (U.S. Military Commission, Rome, 22, 27- R AW EPORTS , I U.N. Dostler Case, Trial of General Anton Dostler -12, 1945) (conviction of a German General for the murder of 15 U.S. Army personnel and rejection of his Oct. 8 Trial of Karl Adam Golkel and defense that the commando order was a valid and applicable superior order); AW EPORTS 45- 53 (British Military Court, Wuppertal, Germany, May 15 -21, 1946) (trial R L , V U.N. Thirteen Others tish Special Air Service); United States v. von Leeb, et al. of German soldiers for killing eight members of the Bri RIMINALS B RIALS OF W AR C T EFORE THE NMT 527 (“This order was criminal on its , XI (The High Command Case) face. It simply directed the slaughter of these ‘sabotage’ troops.”). 104 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines ). 105 § 4.17.2.1 (Acting Clandestinely or Under False Pretenses ). Refer to 106 § 5.25.2.1 (Mimicking Other Friendly Forces ). Refer to 107 See Trial of Generaloberst Nickolaus von Falkenhorst , XI U.N. L AW R EPORTS 18, 28 (British Military Court, Brunswick, Jul. 29 -Aug. 2, 1946) (reporter noting that “[i]t is not possible to say that troops who engage in acts of sabotage behind the enemy lines are bandits, as Hitler declared them. T hey carry out a legitimate act of war, IEBER C ODE provided the objective relates directly to the war effort and provided they carry it out in uniform.”); L art. 81 (“Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.”). 108 (Designated by Their Armed Forces ). Refer to § 4.9.2.2 114

142 109 interests of POWs dependent on the same Power. In that case, they shall continue to be sonnel retained by the POWs, but shall receive the same treatment as corresponding medical per 110 Detaining Power. They shall be exempted from any other work under Article 49 of the 111 GPW. Who A 4.5.2.3 Members re Ministers of Religion Without Having Officiated as embers of the armed forces might be mini sters of religion, . M Chaplains to Their Own Forces 112 Because such personnel have not religious personnel. but might not be designated as military been designated as military religious personnel, they are combatants, like other members of the 113 armed forces. However, if they fall into the power of the enemy during international armed . In particular, P OWs who are ministers of conflict, such personnel may minister to fellow POWs without having officiated as chaplains to their own forces, shall be at liberty, whatever religion, 114 their denomination, to minister freely to the members of their community. For this purpose, 115 they shall receive the same treatment as chaplains retained by the Detaining Power. They 116 shall not be obliged to do any other work. Draftees . Some States require military service for categories of their 4.5.2.4 volunteer armed forces, although it has drafted its nationals. The United States employs all- nationals into military service in prior conflicts. i.e. , a person who has been compelled to join a State ’s Under international law, a draftee, 117 s of the armed forces. armed forces, is to be treated the same as other member 4.5.2.5 Deserters . A deserter from the armed forces of a belligerent who falls into 118 . the power of the enemy in international armed conflict Similarly, a dese rter who is is a POW 119 The deserter ’s relationship with interned by a neutral State would also be treated as a POW. 109 GPW art. 32 (“Prisoners of war who, though not attached to the medical service of their armed forces, are ay be required by the Detaining Power to exercise their physicians, surgeons, dentists, nurses or medical orderlies, m medical functions in the interests of prisoners of war dependent on the same Power.”). 110 GPW art. 32 (“In that case they shall continue to be prisoners of war, but shall receive the same treatment as corresponding medical personnel retained by the Detaining Power.”). 111 GPW art. 32 (“They shall be exempted from any other work under Article 49.”). 112 Refer to § 4.9.2 (Re quirements for Military Medical and Religious Status ). 113 § 4.9.2.2 (Designated by Their Armed Forces ). Refer to 114 GPW art. 36 (“Prisoners of war who are ministers of re ligion, without having officiated as chaplains to their own forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community.”). 115 aplains retained by the Detaining GPW art. 36 (“For this purpose, they shall receive the same treatment as the ch Power.”). 116 GPW art. 36 (“They shall not be obliged to do any other work.”). 117 1958 UK M See ¶ 89(i) (noting that “[t]he members, male and female, of the land, sea and air forces are ANUAL entitled to recognition as bellige rent forces whether they have joined voluntarily or have been compelled to do so by their own law”). 118 See G REENSPAN , M ODERN L AW OF L AND W ARFARE 99 (“Deserters from the enemy do not thereby lose their right to be treated as prisoners of war if they fall in to the hands of the opposing side.”). 119 (Belligerent Forces Taking Refuge in Neutral Territory ). Refer to § 15.16 115

143 or her his s domestic law and not international law. armed forces is a question of that State’ and generally regard States generally forbid members of their armed forces from desertion members of the armed forces who desert as continuing to be members of their armed forces. are Deserters who are subsequently captured by their not POW own armed forces s because they are not in the power of the enemy and because the privileges of combatant status s and are generally understood not to apply, as a matter of international law, between national 120 their State of nationality. Defectors . Defectors 4.5.2.6 persons from one side ’s armed forces who are . They are generally not regarded as POWs voluntarily join the armed forces of the opposing side 121 while serving in their new armed force. Defector s serving in the forces of the enemy who are captured by the State to which they be entitled to POW status originally owed an allegiance generally would not because the privileges of combatant status are generally understood not to apply, as a matter of international 122 s and their State of nationality. law, between national States may not compel POWs, retained personnel, or protected persons in their power to 123 defect and serve in their armed forces. Regular Armed Forces Who Profess Allegiance to a Government or an Authority 4.5.3 . During international armed conflict, members of Not Recognized by the Detaining Power profess allegiance to a Government or an authority not recognized by regular armed forces who 124 Under Article the Detaining Power are treated as members of the armed forces of a State. 4A(3) of the GPW, they receive POW status, and they should also receive the rights, duties, and 125 liabilities of combatants . Article 4A(3) of the GPW was developed to address situations like those that had occurred during World War II, when members of a military force continue d fighting after their 126 d been occupied . State ha For example, military for ces might continue to fight for a 120 § 4.4.4 (Nationality and Combatant Status ). Refer to 121 Refer to § 9.3.4.1 (Having Fallen). 122 Refer to (Nationals of a State Who Join Enemy Forces ). § 4.4.4.2 123 Refer to 9.19.2.3 (Labor Assignments That May Be Compell ed); § 10.7.3 (Compulsory Work for Protected § Persons in a Belligerent’s Home Territory ); § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces ). 124 GPW art. 4A(3) (defining “prisoners of war, in the sense of the present Convention,” to include “[m]embers of overnment or an authority not recognized by the Detaining regular armed forces who profess allegiance to a g Power” who have fallen into the power of the enemy). 125 Refer to § 4.4 (Rights, Duties, and Liabilities of Combatants ). 126 See I NTERNATIONAL C OMMITTEE OF THE R ED C ROSS , Report on the Work of the Conference of Government Exports for the Study of the Convention for the Protection of War Victims , 106 (Geneva, Apr. 14- 26, 1947) (“In its report, the ICRC stressed that cer tain States [during World War II] had denied the status of belligerents to combatant units subject to a Government or authority which these States did not recognise; this despite the fact that these units e Gaulle) fulfilled all the conditions required for the granting of (e.g. the French forces constituted under General d 116

144 127 government Such a government would -in-exile or for a government that had ceased to exist. right authority for its regular armed forces and to provide the to participate in the ongoing war 128 . receive POW status upon capture by the enemy Members of those forces were sometimes s recognized the group to which denied POW status by an enemy State, even though other State 129 they belonged as a co-belligerent force . . aving Belonged , to the Armed F orces of an O ccupied State elonging, or H 4.5.4 Persons B Under Article 4B (1) of the GPW, persons belonging , or having belonged, to the armed forces of an occupied State should be treated as POWs if , while hostilities are continuing outside occupied territory, the Occupying Power considers it nece ssary , by reason of their allegiance to the armed 130 force s, to intern them. Article 4B(1) of the GPW seeks to address the proper status of an army demobilized by while a portion of those same armed forces continue the struggle. W the Occupying Power hen the forces are demobilized, they are treated as civilians, but when recalled for internment based 131 , they are treated as POWs on their prior service . In particular, States developed this provision to address Germany ’s practice during World War II of arresting demobilized military personnel 132 . These personnel were often interned and sought to esca from occupied States pe to join the ongoing fighting. This provision was promulgated to ensure that individuals in similar PW status. The Commission approved the ICRC’s proposal that these armed forces should enjoy PW status, irrespective of the Government or authority under whose orders they might claim to b e.”). 127 1949 II- A F INAL R ECORD OF THE D IPLOMATIC C ONFERENCE OF G ENEVA OF 415 (“Mr. Lamarle (France) realized that cases might arise where combatants claiming allegiance to an authority which was not recognized by the Detaining Power might be deprived of th e benefit of the Convention; but he thought the word ‘authority’ afforded sufficient safeguards to such combatants. After an exchange of views on the subject, the Committee agreed that the word ‘authority’ afforded sufficient safeguards to combatants clai ming allegiance to Governments which had ceased to exist.”). 128 Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose ). 129 § 3.3.3.3 (Recognition of Friendly Armed Groups as Lawful Belligerents ). Refer to 130 country, if the GPW art. 4B(1) (“(1) Persons belonging, or having belonged, to the armed forces of the occupied occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or made where they fail to comply with a summons made to them with a view to internment.”). 131 C OMMENTARY GPW pointed out, the question relates to the proper 69 (“In fact, as one delegate to the Conference status of an army demobilized by the Occupying Power, while a portion of those same armed forces continue the struggle. It is logical to treat its members as civilians until such time as they are recalled in order to be interned; but from that moment, it is equally logical to treat them as prisoners of war.”). 132 See GPW C OMMENTARY 68 (“During the Second World War, the Occupying Power, for security reasons, frequently arrested demobilized military personnel i n occupied territory, especially officers. These men were -of-war status but usually only after repeated representations by the International Committee of the granted prisoner Red Cross and the Governments concerned. In the report which the International Committee prepared for the Government Experts, it therefore proposed that the entitlement of such persons to prisoner -of-war status should be EVIE , L explicitly mentioned and the Conference supported this suggestion.”). For further historical background see POW S 66-67, II-A F INAL R ECORD OF THE D IPLOMATIC C ONFERENCE OF G ENEVA OF 1949 431- 32, and the note NTERNATIONAL L AW appended to In re Siebers, Special Court of Cassation, Feb. 20, 1950, The Hague, in 1950 I 400. R EPORTS , 399- 117

145 circumstances would receive POW . For example, the rules for treatment i f they were interned 133 . of POWs would apply to them the parole Similarly, the rules relating to POW escape would 134 also apply to them . So, a demobilized person who disobeyed an internment order and his or her armed force would, like a POW , be subject , at most, to attempted to escape to rejoin 135 disciplinary punishment in respect of the act of escape. Persons belonging, or having belonged, to the armed forces of an occupied State would 136 . only be entitled to receive POW treatment whi le an international armed conflict continues For example, this provision would not apply to a situation like the occupation of Japan after 137 World War II because all hostilities had ended. 4.6 O THER M ILITIA AND OLUNTEER C ORPS V Under certain conditions , membe rs of militia and volunteer corps that are not part of the armed forces o f a State qualify as combatants and receive the rights, duties, and liabilities of 138 combatant status. More specifically, Article 4(A)(2) of the GPW defines prisoners of war to include: Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; nce; (b) that of having a fixed distinctive sign recognizable at a dista (c) that of carrying arms openly; 133 § 9.11.2 (Parole of POWs ). Refer to 134 Refer to § 9.25 ). (POW Escapes 135 Refer to § 9.25.2.2 (Only Disciplinary Punishments in Respect of an Act of Escape ). 136 See L EVIE , POW S 67- 68 (“It is important to bear in mind that the foregoing provisions explicitly contemplate that the gover nment of the unoccupied part of the territory of the State the members of whose armed forces are in question, or that State’s allies if it has been completely occupied, are continuing the hostilities. The mere existence of a government -in-exile after the complete cessation of hostilities would not suffice to make the provision applicable. In other words, this provision was not intended to apply to the situation which arises when the capitulation of a State is followed by the complete termination of armed hostilities.”). 137 See L EVIE , POW S 68 and footnote 261 (“[T]his provision was not intended to apply to the situation which arises when the capitulation of a State is followed by the complete termination of armed hostilities” and “would, therefore, not apply in a situation such as that which existed upon the capitulation of Japan in 1945.”). 138 (Rights, Duties, and Liabilities of Combatants ). Refer to § 4.4 118

146 (d) that of conducting their operations in accordance with the laws and customs of 139 war. se conditions , members of these armed groups may , which Under the are discussed below , even if this territory is occupied. By operate as combatants in or outside their own territory contrast, a may only be formed on the approach of the enemy to non- occupied levée en masse 140 territory . . The conditions set forth in Article 4A(2) of the 4.6.1 GPW 4A(2) Conditions in General GPW were derived from conditions found in the Regulation s annexed to the 1899 Hague II and 141 IV the 1907 Hague . forces the attributes common to regular armed These conditions reflect of 142 disciplined, law a State. - By seeking to ensure that participants in hostilities are sufficiently population, t hese conditions help protect the abiding , and distinguishable from the civilian civilian population from the hardships of war. In addition, these conditions contribute to the 143 . military effectiveness of the force that satisfie s the conditions These conditions may be understood to reflect a burdens i.e. , the -benefits principle, e.g. , privileges of combatant status) requires the receipt of certain benefits in the law of war ( 144 assumption of certain obligations . GPW 4A(2) Conditi ons Required on a Group Basis 4.6.1.1 group, as . The armed , must fulfill these conditions for its members to be entitled to the privileges of a whole armed group met combatant status. For example, if a member of an these requirements, but the armed would not be entitled to the privileges of combatant status group did not, that member 139 ). See also H AGUE GPW art. 4(A)(2 R EG . art. 1 (“The laws, rights, and duties of war apply not only to armies, IV but also to militia and volunteer corps fulfilling the following conditions: -- 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms H AGUE II R EG . openly; and 4. To conduct their operations in accordance with the laws and customs of war.”); 1899 art. 1 (“The laws, rights, and duties of war apply not only to armies, bu t also to militia and volunteer corps, fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.”). 140 to § 4.7.1.3 Occupied Territory ). Refer (Approach of the Enemy to Non- 141 See GPW C OMMENTARY (“[ T]here was unanimous agreement [at the 1949 Diplomatic Conference] that the 49 categories of persons to whom the Convention is applicable must be defined, in harmony with the Hague .”). Regulations 142 See GPW C OMMENTARY 58 (explaining that an organization satisfying t he conditions of GPW art. 4A(2) “must have the principal characteristics generally found in armed forces throughout the world, particularly in regard to discipline, hierarchy, responsibility and honour.”). 143 T AMES B ROWN S COTT , T HE P ROCEEDINGS OF THE H AGUE P EACE C ONFERENCES : J HE C ONFERENCE OF 1899 549 RESIDENT and his (“General , while fully endorsing the considerations set forth by the P den Beer Poortugael , wishes to add a few words. ... But from a military standpoint also it must be EERNAERT Excellency Mr. B recognized that it is to the benefit of the populations to impose on them the conditions contained in Articles 9 and 10 [predecessors to GPW art. 4A(2) and 4A(6) and], which they must satisfy if they wish to take up arms. For it is an undeniable fact that to lead undisciplined and unorganized troops into the fire is to lead them to butchery.”). 144 -Burdens Principle in Law of War Rules ). Refer to § 3.6.3.2 (Benefits 119

147 145 because the armed Similarly, isolated departures from a . group failed to satisfy the conditions e.g. a failure to comply with the condit ions by a group ( , condition by a member of the armed group that was not directed by the armed member of the ’s leader ) would not armed group group from satisfying the se conditions . prevent the armed AP I and the GPW 4A(2) Conditions . AP I changed, for its Parties, the 4.6.1.2 ’s armed forces may qualify for conditions under which armed groups that are not part of a State 146 status. combatant The United States has objected to the way these changes relaxed the requirements for obtaining the privileges of combatant status , and did not ratify AP I, in large 147 par t, because of them. A chief concern has been the extent to which these changes would 148 undermine the protection of the civilian population. The United States has expressed the view 149 that it would not be appropriate to treat this provision of AP I as customary international law. 145 B See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare , 45 RITISH Y EAR B OOK 173, 197 (1971) (“the fate of the individual irregular is essentially linked with that of the I NTERNATIONAL L AW OF up’s members, as a majority, always meet the legal conditions, the individual group in which he operates. If the gro will answer only for his own misdoings, and then as a prisoner of war who had the right to participate in the combat. If, however, the individual were punctilious in a group in which the majority did not observe the conditions on any one occasion, he would not acquire combatant status or prisoner -of-war status upon capture, and will answer in law as an individual who participated in combat with no legal right to do so, i.e. answe rable in municipal law or occupation law, or the law of war.”). 146 See AP I, arts. 1(4), 43, 44. 147 Ronald Reagan, See Letter of Transmittal , Jan. 29, 1987, M ESSAGE FROM THE P RESIDENT T RANSMITTING AP II IV (“Another status to irregular forces even if they do not satisfy the provision [of AP I] would grant combatant traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.”) . 148 See, e.g. , John B. Bellinger, III, Lawyers and Wars: A Symposium in Honor of Edward R. Cummings , Sept. 30, IGEST OF U NITED S TATES P RACTICE IN I 953, 955 (“More problematic from the L AW NTERNATIONAL 2005, 2005 D erspective —is how law deals with the kind of situation where a lawyer’s p —or at least this lawyer’s perspective would -be terrorist seeks to cloak his actions in the garb of legitimate combatant. This second factor working against civilian protection is fueled in par t by Article 44 of Additional Protocol I, which suggests that combatants do not need to distinguish themselves from the civilian population except prior to and during an attack. To be fair, there is no doubt that a terrorist would not meet the combatancy definition of any instrument of international humanitarian law. But the very fact that Additional Protocol I allows greater flexibility in distinction undermines this fundamental protection. The principle of distinction, among the foundational principles of humanitarian law, exists for the purposes of civilian protection, to ensure that fighters can identify the combatant from the bystander. Article 44, pressed so strongly for largely political reasons in the 1970s, undermines it. And as a result, one h as to lament that the process of negotiating international humanitarian law instruments has not always inured to the civilian population’s benefit.”). 149 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III C UMULATIVE D IGE ST OF U NITED S TATES P RACTICE IN I NTERNATIONAL L AW 1981- 88 3436, 3441 (“Article 44 grants combatant status to irregular forces in certain circumstances even if they do not satisfy the traditional requirements to lation and otherwise comply with the existing laws of war. This was distinguish themselves from the civilian popu not acceptable as a new norm of international law. It clearly does not reflect customary law. ... While the U.S. is of the view that certain provisions in Protocol I reflect customary inte rnational law (see, e.g. , Treaty Doc. 100 -2, supra , at X), the provisions on wars of national liberation and combatant and prisoner -of-war status are definitely not in this category. ... Accordingly, it is the view of the United States that it would be inapp ropriate to treat these provisions as part of customary international law under any circumstances.”). 120

148 4.6.1.3 Application of GPW 4A(2) Conditions to the Armed Forces of a State . apply the conditions in Article 4A(2) of the GPW to t Th he e text of the GPW does not expressly 150 embers of the arm Thus, under the GPW, m ed forces of a State armed forces of a State. receive combatant in (including its privileges and liabilities) by virtue of their membership status 151 the armed forces of a State. GPW 4A(2) conditions were intended to reflect Nonetheless, the 152 If an armed force of a State systematic ally fail ed to s’ armed forces. attributes of State distinguish itself from the civilian population and to conduct its operations in accordance with the law of war , its members should not expect to receive the privileges afforded lawful 153 combatants . sabotage or forfeit Similarly, members of the armed forces engaged in spying the ir entitlement to the privileges of combatant status if captured while engaged in those 154 . activities Belonging to a Party to the Conflict . The armed group must belong to a p arty t o the 4.6.2 155 . a party establishes belonging” to conflict that the armed group fulfills a The requirement of “ 156 . authority , i.e. , it is acting on the authority of a State right requir jus ad bellum ement of This 150 F INAL R ECORD OF THE D IPLOMATIC C ONFERENCE OF G ENEVA OF II- A 465 -66 (“General S LAVIN (Union of 1949 Soviet Socialist Republics) said that according to th -paragraph I, of the working text it would e first paragraph, sub (a) appear that members of the Armed forces would have to fulfil the four traditional requirements mentioned in , , (c) and (d) (b) in order to obtain prisoner of war status, which was contrary to the Hague Regulations (Article I of EVIJVER (Belgium) pointed the Regulations concerning the Laws and Customs of War, 18 October 1907). General D out that the above reproduced working text had been drafted with due regard to the Hague Regulations, and the first paragraph, sub -paragraph (I), of the working text carefully specified that only members of militia or volunteer corps reprinted in A NNUAL D IGEST should fulfil all four conditions.”). In re Lewinski (called von Manstein) Case, Cf. AW R UBLIC I NTERNATIONAL L P C ASES 509, 515- 16 (H. Lauterpacht, ed., 1949) (“Regular soldiers EPORTS OF AND are so entitled without any of the four requirements set out in Article 1 [of the Hague IV Reg.]: they are requisite in order to give the Militia and Volunteer Corps the same privileges as the Army.”). 151 Refer to (Armed Forces of a State). § 4.5 152 Refer to footnote 142 in § 4.6.1 (GPW 4A(2) Conditions in General ). 153 Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third Geneva See EGAL O PINIONS OF THE 1, 4 (“We conclude, however, FFICE OF L OUNSEL C O Convention of 1949 , Feb. 7, 2002, 26 that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces who would be legally entitled to POW status. In other words, an indiv idual cannot be a POW, even if a member of an armed force, unless forces also are: (a) ‘commanded by a person responsible for his subordinates’; (b) ‘hav[e] a ] their operations in fixed distinctive sign recognizable at a distance’; (c) ‘carry[] arms openly’; and (d) ‘conduct[ accordance with the laws and customs of war.’ Thus, if the President has the factual basis to determine that Taliban prisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he therefore has the grounds to also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) or 35 (AP I art. 43, ¶2.1.2) (“It is OTHE , P ARTSCH , & S OLF , N EW R ULES 234- Article 4(A)(3).”) (brackets in original); B generally assumed that th ese conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to be unnecessary and redundant to spell them out in the Conventions.”). 154 Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status ). 155 art. 81 (“Partisans are soldie GPW art. 4A(2). L IEBER C ODE Cf. rs armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.”). 156 (Competent Authority (Right Authority) to Wage War for a Public Purpose ). Refer to § 1.11.1.1 121

149 requirement recognizes that members of a non -State armed group are not entitled to the 157 privileges of combatant status even if that armed group satisfies the other conditions. The State’ s authority may be granted by its representatives oral ly; it need not be granted in writing, such as through a commission or warrant. In all cases, however, opposing parties to the conflict must be able to discern that the armed ’s formal group enjoys such authority. A State group “belongs ” to it is sufficient. On the other hand, the bare acknowledgement that an armed m by the armed group that it act s on behalf of a State would be insufficient . In some cases, clai 158 group may establish that it belongs to the State . State support and direction to the armed Being C ommanded by a Person R esponsible for His or Her S ubordinates . The 4.6.3 group must be commanded by a person responsibl e for his or her subordinates ; the armed armed 159 group . group must have a commander with effective authority over the armed This requirement helps ensure that the armed group has sufficient organization to discipline and 160 . conduct its operations in accordance with the law of war The commander may derive his or her authority over the armed group by a regular or may derive his or her command temporary commission from a State. However, a commander from an r position or authority . For example, t he armed group may be formed informally and othe may have elected the commander as its leader. In practice, a State may provide members of the armed group with certificates or distinctive badges to show that they are off icers, or military 157 See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 776 (explaining that “the most basic condition of the right of combatants to be S EVIE , D OCUMENTS ON POW L 1969), considered upon capture as prisoners of war” is belonging to a belligerent State and that if pers ons “do not belong to the Government or State for which they fight, ... they do not possess the right to enjoy the status of prisoners of war P 237 (AP I art. 43, ¶2.3.1) (“gangs of terrorists acting on ULES R OTHE , ARTSCH , & S OLF , N EW B Cf. upon capture.”). their own behalf and not linked to an entity subject to international law are excluded” from the definition of “armed forces of a Party to the Conflict” in AP I similar to how they would be excluded under Article 4A(2) of the GPW). 158 See The Military Prosec utor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 776- EVIE , D 77 (“It is natural that, in international armed conflicts, the Government POW S OCUMENTS ON L 1969), take under its wing the irregular forces which which previously possessed an occupied area should encourage and continue fighting within the borders of the country, give them protection and material assistance, and that therefore a ‘command relationship’ should exist between such Government and the fighting forces, wit h the result that a continuing responsibility exists of the Government and the commanders of its army for those who fight in its name and on its behalf.”). 159 See G REENSPAN , M ODERN L AW OF L AND W ARFARE 59 (“The commander must be a person responsible for his subordinates, that is, his authority over those in his command must be effective.”). 160 B G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare , 45 See RITISH Y EAR B OOK 173, 201 (1971) (explaining that this condition “does probably mean that the commander I NTERNATIONAL L AW OF must have sufficient authority to ensure that the conditions applicable to the members of the group, necessary for - UK M ANUAL ¶91 note 1 (explaining that “Field Marshall R undstedt, C. lawful combatancy, are observed.”); 1958 in-C. of the German armed forces in the West, disclaimed all responsibilities for the atrocities by Waffen S.S. units on the ground that neither their commanders nor members were subject to military law” and that “he could take no disciplinary action against them,” and thus German “Waffen S.S.” paramilitary units used during World War II failed to meet this condition and were not lawful combatants). 122

150 personnel responsible to higher authority, and not private acting on individual persons 161 . initiative or her subordinates gives rise to a The authority of the commander over his corresponding duty to ensure that the armed group ’s members conduct their operations in 162 accordance with the law of war. Having a F ixed D istinctive S ign R ecognizable at a D Members of the 4.6.4 istance. armed group should display a fixed distance. distinctive sign or other device recognizable at a r equirement is that members of the armed group are distinguishable from the The essence of this 163 population. civilian By helping to ensure that members of the armed group can be visually distinguished from civilians , this requirement helps protect the civilian population from being 164 erroneously made the object of attack. . The requirement does not specify a particular sign or 4.6.4.1 Distinctive Sign 165 earing a military uniform satisfies this condition. W emblem that persons must wear . 166 The s ign suffice s if it enables the person to be However, a full uniform is not required. 161 1958 UK M ANUAL ¶91 (“The first condition, ‘to be commanded by a person responsible for his subordinates,’ is fulfilled if the commander of the corps is regularly or temporarily commissioned as an officer or is a person of position and authority, or if the members are provided with certificates or badges granted by the government of the State to sho w that they are officers, or soldiers, so that there may be no doubt that they are not partisans acting on their own responsibility. State recognition, however, is not essential, and an organisation may be formed spontaneously and elect its own officers.”). 162 Refer to § 18.23.3 (Command Responsibility ). 163 W See G REENSPAN , M ODERN L AW OF L AND ARFARE 59 (“Soldiers must be dressed in such a fashion that they are clearly disti nguishable from the general population as members of the armed forces.”). 164 The Rationale for the United States Decision , 82 AJIL See Abraham Sofaer, Legal Adviser, Department of State, 784, 786 (1988) (“Inevitably, regular forces would treat civilians mor e harshly and with less restraint if they believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their who were EVIE , 50 footnote 187 (“In Vietnam individuals POW S POW status if captured.”). , For example L apparently civilian noncombatants (women, children, working farmers, etc.) would approach American servicemen in seeming innocence and then suddenly toss a hand grenade at them. After a very few such incidents the soldiers understandably came to distrust all civilians while they were in the field and frequently took definitive action upon suspicion and without waiting to ascertain the facts. Thus, the original illegal actions taken by the guerrillas lian population who, as noncombatants, were entitled to be subsequently endangered the members of the civi protected in their status.”) (internal citations omitted). 165 See GPW C 52 (“The drafters of the 1949 Convention, like those of the Hague Conventions, OMMENTARY considered it unnecessary to specify t he sign which members of the armed forces should have for the purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishab le from ... civilians.”). 166 See, e.g. , 1958 UK M ANUAL ¶92 (“The second condition, relating to a fixed distinctive sign recognisable at a distance, would be satisfied by the wearing of a military uniform, but something less than a complete uniform will AND This requirement will be satisfied by the R ULES OF L W ARFARE ¶33 (“ The distinctive sign. – e.”); 1914 suffic 57 (“The ‘distinctive PAIGHT , W AR R IGHTS ON L AND wearing of a uniform or even less than a complete uniform.”); S OMMENTARY (¶1577) (“What constitutes a uniform, and 468 C AP ICRC emblem’ does not mean a uniform.”). . Cf how can emblems or nationality be distinguished from each other? The Conference in no way intended to define what constitutes a uniform ... . ‘[A]ny customary uniform which clearly distingu ished the member wearing it from a non -member should suffice.’ Thus a cap or an armlet, etc. worn in a standard way is actually equivalent to a uniform.”). 123

151 distinguished from the civilian population. For example, a helmet or headdress that makes the silhouette of the individual readily distinguishable from that of a civilian can meet this partial uniform (such as a uniform jacket or trousers) requirement. Similarly, a , load bearing vest, armband, or other device could suffice, so long as it served to distinguish the members from population. Formally notifying enemy is not required , the civilian forces of the distinctive sign 167 and the proposal to add such a requirement was not accepted by States. Such notification, avoid misunderstanding and facilitate claims of POW status for captured members however, may of the armed group. Fixed . The text of the GPW indicates that the sign should be “ fixed 4.6.4.2 .” sign must be such that it cannot be easily This requirement has been interpreted to mean that the 168 In practice, however, it would be removed and disposed of at the first sign of danger. of the armed group are functionally distinguishable from important to assess whether members the civilian population, even if the distinctive sign that they wear is not permanent and could be 169 . removed 4.6.4.3 Visible at a Distance . “ Distance” has not been defined , but may be ring that the sign be easily distinguishable by the naked eye of ordinary interpreted as requi 170 people at a distance at which the form of the individual can be determined. 167 See J AMES B ROWN S COTT , T HE P ROCEEDINGS OF THE H AGUE P EACE C : III T HE C ONFERENCE OF ONFERENCES 1907 6 (1921) (“The P RESIDENT first takes up the German amendment relating to Article 1, tending to require to the hostile party of fixed distinctive emblems recognizable at a distance . He recalls that this previous notice amendment was rejected by 23 votes to 11, and asks whether it is again advanced by the German delegation. On the UNDELL ON G , he considers it useless to put the question to discussion and negative answer of Major General V passes to Article 2.”). 168 L EVIE , POW S 48 (a resistance fighter “m ust wear some item which will identify him as a combatant, thereby See distinguishing him from the general population, and that item must be such that he cannot remove and dispose of it at the first sign of danger. A handkerchief, or rag, or armband slipped onto or loosely pinned to the sleeve does not meet this definition. An armband sewed to the sleeve, a logotype of sufficient size displayed on the clothing, a unique type of jacket -these will constitute a fixed and distinctive identifying insignia, effectively separating the REENSPAN , M ODERN L AW OF L AND W ARFARE 59 combatant of the moment from the rest of the population.”); G (“Where a complete uniform is not worn, and this is sometimes not possible because of the poverty of the country, sudden emergency or o ther reasons, the fixed distinctive sign should be something which cannot be instantly taken off or assumed at will, thus enabling a combatant to appear a peaceful citizen one moment and a soldier the next. UK ¶92 (“Something in the nature of a badge ANUAL M The sign should be part of the clothing or sewn to it.”); 1958 sewn on the clothing should therefore be worn in addition [to a distinctive helmet]” in order to meet the condition that the sign must be fixed.). 169 See F RANCIS L IEBER , G UERRILLA P ARTIES C ON SIDERED WITH R EFERENCE TO THE L AWS AND U SAGES OF W AR 16- 17 (“The Southern prisoners made at Fort Donelson, whom I have seen at the West, had no uniform. They (1862) t region. Yet they were were indeed dressed very much alike, but it was the uniform dress of the countryman in tha treated by us as prisoner of war, and well treated too. Nor would it be difficult to adopt something of a badge, easily put on and off, and to call it a uniform. It makes a great difference, however, whether the absence of the un iform is used for the purpose of concealment or disguise, in order to get by stealth within the lines of the invader, for destruction or life or property, or for pillage, and whether the parties have no organization at all, and are so small that they canno t act otherwise than by stealth.”). 170 See 1958 UK M ANUAL ¶92 (“The distance at which the sign should be visible is necessarily vague, but it is reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyli ne should at once be distinguishable from the outline of a peaceful inhabitant, and this by the naked eye of an ordinary ARFARE W R ULES OF L AND individual at a distance at which the form of the individual can be determined.”); 1914 124

152 Carrying Arms Openly armed group must carry their arms 4.6.5 . Members of the 171 openly. This requirement is not satisfied if the armed group makes a practice of carrying only weapons on the approach of enemy forces or of hiding concealed weapons to avoid identification 172 as fighters . Conducting T heir O perations in A ccordance W Laws and C ustoms of W ar. 4.6.6 ith the The armed group, as a whole, must conduct its operations in accordance with the law of war. armed group enforced the law of war (such as by promulgating instructions Evidence that an and punishing violations by its members) w ould help regarding law of war requirements establ ish that an armed group meet s this condition. 4.7 L EVÉ E EN M ASSE A levée en masse inhabitants of non- occupied territory is a spontaneous uprising of the t the who, on the approach of the enemy in an international armed conflict, take up arms to resis 173 invading forces, without having time to form themselves into regular armed units. Participants in a levée en masse are entitled to the privileges of combatant status , provided that 174 carry their arms openly and respect the laws and customs of wa r. they L evée en Masse . The following discussion elaborates upon some 4.7.1 Conditions for a of the conditions for a levée en masse . ¶ 33 (“The distance that t he sign must be visible is left vague and undetermined and the practice is not uniform. This requirement will be satisfied certainly if the sign is ‘easily distinguishable by the naked eye of ordinary people’ at a I : AW HARLES H ENRY H YDE , II NTERNATIONAL L ual can be determined.”); C distance at which the form of the individ NITED HIEFLY AS A PPLIED BY THE U NTERPRETED AND S TATES 291 footnote 3 (1922) (quoting the same provision C I PAIGHT , W AR R IGHTS ON ng that “[i]f the sign is AND 57 (explaini L in the 1917 U.S. Rules of Land Warfare); S recognizable at a distance at which the naked eye can distinguish the form and color of a person’s dress, all reasonable requirements appear to be met” and noting the Japanese view during the Russo -Japanese War that a Russian free corps that “would wear no uniform but only a distinctive sign on the cap and sleeve” would only be distinguishable by the naked eye from the ordinary people or fulfill the considered belligerents “‘if they can be he Hague Réglement ’.”). conditions for militias or volunteers by t 171 See GPW art. 4A(2)(c); H AGUE IV R EG . art. 1(3). 172 1958 UK M ANUAL ¶94 (“The third condition is that irregular combatants shall carry arms openly. They may -grenade, or therefore be refused the rights of the armed forces if it is found that their sole arm is a pistol, hand -stick or similar weapon, or if it is found that they have hidden their dagger concealed about the person, or a sword arms on the approach of the enemy.”). 173 GPW art. 4A(6) (defining “prisoners of war, in the sense of the present Convention,” to include “[i]nhabitants of a non -occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and . art. 2 (“The AGUE IV R EG respect the laws and customs of war” who have fallen into the power of the enemy); H inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to re sist the invading troops without having had time to organize themselves in accordance with Article 1, shall IEBER be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.”); L C ODE art. 51 (“If the people of tha t portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and, if captured , are prisoners of war.”). 174 66. For more background, see L EVIE , POW S 64- 125

153 4.7.1.1 . A levé e en masse is a spontaneous uprising in which Spontaneous 175 Thus, unlike other categories of members have not had time to form into regular armed units. levée en masse lawful combatants, need not wear a distinctive sign nor be persons who join a generally preclude organized under a responsible command. T he spontaneity of their response s ures . their being able to take such meas Inhabitants . A levé e en masse is understood to reflect the right of 4.7.1.2 inhabitants to resist approaching enemy f orces. Non y to resist -inhabitants who travel to a territor 176 levée en masse invading forces would not be entitled to participate in a . Appr oach of the Enemy to Non- 4.7.1.3 . A lev ée en masse Occupied Territory may only be formed on the approach of the enemy to non- occupied territory. Once the belligerent has established an occupation, the local population should comply with the orders of 177 the , and a levée en masse may not be formed. occupa tion force before Similarly, even the establishment of an occupation, inhabitants of areas that have already been invaded may not 178 ée en masse . form a lev By contrast, members of an organized resistance movement un der Article 4A(2) of the GPW may operate as combatants in or outside their own territory, even if this territory is 179 occupied. Levée en Masse – Discerning Participants . Should some inhabitants form a levée en 4.7.2 masse to defend an area, it may be justifiable for the invading force to detain all persons of 180 military age in that area and treat them as POWs . Even if an inhabitant who joined or participated in the levée en masse lays down arms, if he or she is later captured, he or she may be 175 See REENSPAN G , M ODERN L AW OF L AND W ARFARE 63 (“the essence of a levée en masse is that it is unorganized.”). 176 (“Find Themselves” ). Compare § 10.3.2.1 177 § 11.7.1 (Inhabitants’ Obedience to the Occupying Power ). Refer to 178 See L AUTERPACHT , O PPENHEIM ’ S I NTERNATI ONAL L AW 258 (§81) (“Article 2 [of the H AGUE IV R EG .] II distinctly speaks of the approach of the enemy, and thereby sanctions only such a levy en masse as takes place in territory not yet invaded by the enemy. Once the territory is invaded, although the invasion has not yet ripened into en masse territory , as used by Article 2, is not occupation, a levy is no longer legitimate. But, of course, the term intended to mean the whole extent of the State of a belligerent, but only such parts of it as are not yet invaded. For this reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on the en masse .”). approach of the enemy, legitimately rise 179 Refer to § 4.6 (Other Militia and Volunteer Corps ). 180 10 (Change No. 1 1976) ¶65 (“Should some inhabitants of a locality thus take part in its defense, it 1956 FM 27- ¶100 (“Where the ANUAL M UK 1958 war.”); might be justifiable to treat all the males of military age as prisoners of majority of inhabitants of a locality have taken part in its defence in circumstances amounting to a levée en masse , it is justifiable and probably advisable to treat all the male inhabitants of military age as pris oners of war, leaving it to or defence of the locality.”). the individual concerned to claim that they took no part in the levée en masse 126

154 181 detained as a POW If a person joins a levée en masse , he or she may be held as a POW even . 182 . if he or she actually took no part in fighting If detained, a person believed to have participated in a levée en masse should be treated 183 a competent tribunal. as a POW until a determination is otherwis e made by If a competent tribunal determines levée en masse but instead committed private that a person did not join the 184 acts of hostility against enemy military forces, as an unprivileged the person may be treated 185 belligerent . 4.8 R IGHTS , D UTIES , AND L IABILITIES OF C IVILIANS Like combatants population also have certain rights, duties, and , members of the civilian under the law of war t be made the object of attack . If detained, liabilities . Civilians may no and a variety of additional protections. Civilians lack civilians are entitled to humane treatment ’s privilege , and may be punished, after a fair trial, by an enemy State for engaging the combatant in hostilities against it. Civilians – Note s on Terminology . Like other terms, “ civilian ” is used in a variety 4.8.1 186 of different ways in the law of war. 4.8.1.1 “Civilian ” V ersus “ Military ” . Sometimes, “ civilian ” is used to describe persons who are not military personnel. For example, persons authorized to accompany the armed forces are often c alled “ civilians ” in this sense, even though they are POWs if they fall 187 into the power of the enemy during international armed conflict. Combatant 4.8.1.2 “Civilian ” V ersus “ ” . “ Civilian ” is also often used to refer to persons who are not “ combatants. combatant ” is often used in different ways, “ civilian ,” ” Since “ , is correspondingly ” is used to also used in different ways. For example, sometimes “ civilians “civilian . Other times refer to persons who lack the right to participate in hostilities ” is used to ref er to persons who neither have the right to participate in hostilities nor have in fact 188 exclude civilian ” casualty reports generally For example, “ participated in hostilities . , even though some might call such persons “ ” because they are insurgents or terrorists civilians not entitled to participate in hostilities. 181 1956 FM 27- levee en masse lay down their 10 (Change No. 1 1976) ¶65 (“Even if inhabitants who formed the arms and return to their normal activities, they may be made prisoners of war.”). 182 1958 UK M ANUAL ¶100 (“If it is shown that they joined the levée en masse , but took no part in the defence, they may be held as prisoners of war.”). 183 § 4.27.3 (Competent Tribunal to Assess Entitlement to POW Status or Treatment). Refer to 184 Refer to § 4.18 (Private ). Persons Who Engage in Hostilities 185 Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents ). 186 Refer to § 4.3.2 (Combatant – Notes on Terminology ). 187 Refer to § 4.15.3 (Persons Authorized to Accompany the Armed Forces – Detent ion ). 188 See, e.g. , GC C OMMENTARY 134 (“These rules [for the protection of the wounded and sick] are even more essential when the wounded or sick person is a civilian, i.e. a person who, by definition, takes no part in the hostilities.”). 127

155 4.8.1.3 . The GC does not define “civilian, ” although it uses “Civilian ” in the GC 189 protected person” he GC uses the term “ . to refer to persons protected by the the word T 190 from the definition of “ protected person ” those persons who Convention. The GC excludes 191 , POWs and retained personnel. are protected under the other 1949 Geneva Conventions, e.g. In some cases, detained as a spy or saboteur, or as a “protected persons ” can include a person “ ” person under definite suspicion of activity hostile to the security of the Occupying Power, 192 . although such persons are not entitled to all the protections applicable to protected persons “Civilian ” in AP I and AP I I . AP I defines “ civili an” in opposition to 4.8.1.4 193 ”; under AP I, anyone who is not a “ combatant ” is, by definition, a “ civilian. ” “combatant The 194 United States has objected to AP I AP II uses the term “ civilian ” ’s definition of combatant. 195 without providing a definition. 4.8.1.5 General Usage of “ Civilian ” in This Manual . This manual generally uses “civilian ” to mean a me mber of the civilian population, i.e. , a person who is neither part of nor associated with an group, nor otherwise engaging in hostilities. armed force or Civilians – Conduct of Hostilities . C ivilians may not be made the object of attack , 4.8.2 196 unless they take direct part in hostilities . T he wounded and sick, as well as the infirm, and 197 expectant mothers, shall be the object of particular protection and respect. Civilians may be killed incid entally in military operations; however, the expected incidental harm to civilians may 198 and feasible an attack not be excessive in relation to the anticipated military advantage from , 199 during mil . of harm to civilians precautions must be taken to reduce the risk itary operations 189 , GC a rt. 10 (“The provisions of the present Convention constitute no obstacle to the humanitarian See, e.g. activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the co nflict concerned, undertake for the protection of civilian persons and for their relief.”). 190 § 10.3 (Protected Person Status ). Refer to 191 § 10.3.2.3 (Not Protected by the GWS, GWS -Sea, or the GPW ). Refer to 192 Refer to § 10.3.2.4 (Unprivile ged Belligerents Not Per Se Excluded From Protected Person Status ). GC art. 5. 193 See AP I art. 50(1) (“A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in A rticle 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”). 194 Refer to § 4.6.1.2 (AP I and the GPW 4A(2) Conditions ). 195 See, e.g. , AP II art. 13 (“1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”). 196 Refer to § 5.9 (Civilians Taking a Direct Part in Hostilities ). 197 GC art. 16 (“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.”). 198 Refer to § 5.12 (Proportionality in Conducting Attacks ). 199 Refer to § 5.11 (Feasible Precautions in Conduct ing Attacks to Reduce the Risk of Harm to Protected Persons and Objects ); § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack ). 128

156 Civilians who engage in hostilities thereby forfeit the corresponding protections of civilian status and may be liable to treatment in one or more respects as unprivileged 200 belligerents. . In general, civilians may be subject to non- 4.8.3 violent measures Civilians – Detention 201 that are justified by military necessity, such as searches, or temporary detention . Belligerents s may take necessary security measures in relation to civilians, including or Occupying Power 202 . idence for imperative reasons of security internment or assigned res Enemy civilians who are interned during international armed conflict or occupation protected persons ” under the GC and receive a variety of generally are classified as “ 203 . protections X address es in detai l the required treatment of enemy civilian internees Chapter . In all circumstances, during international armed conflict detained civilians must and occupation 204 be treated humanely. Special categories of civilians , such as children, may require additional 205 during detention. conside ration Civilians – Legal s Domestic Law . Unlike 4.8.4 Liability Under an Enemy State’ excepting them from the domestic law of the ’s privilege combatants, civilians lack the combatant Civilians who engage in hostilities may , after a fair trial, be punished by an enemy State. 206 opposing State . A State that is an Occupying Power has additional authorities over enemy civilians that 207 extend beyond the ability to punish their unauthorized participation in hostilities. 208 Note, however, the special case s of persons authorized to accompany the armed forces, 209 210 and participants in a levée en masse members of the merchant marine and civil aircraft, . ILITARY M EDICAL AND R ELIGIOUS P ERSONNEL M 4.9 “Medical personnel exclusively engaged in the search for, or the col lection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed 200 Refer to § 4.18 (Private Persons Who Engage in Hostilities ). 201 Refer to § 5.3.2.1 (Non -Violent Measures That Are Militarily Necessary ). 202 Refer to (Measures of Control and Security ). § 10.6 203 § 10.3 (Protected Person Status ). Refer to 204 Refer to § 10.5 (Humane Treatment and Other Basic Protections for P rotected Persons ). 205 § 4.20 (Children ). Refer to 206 § 4.18.3 (Private Pers ons Who Engage in Hostilities – Lack of the Privileges of Combatant Status ). Refer to 207 Refer to § 11.7 (Authority of the Occupying Power Over Inhabitants ). 208 Refer to § 4.15.4 (Persons Authorized to Accompany the Armed Forces – Liability Under Domestic Law for Participation in Hostilities ). 209 Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft ). 210 ée en Masse ). Refer to § 4.7 ( Lev 129

157 211 forces ” are treated as a special catego This manual generally refers to ry under the law of war. them as military medical and religious personnel. Under certain circumstances, (1) the authorized staff of voluntary aid societies and (2) the staff of a recognized aid society of a neutral country are treated like military medical and 212 religious personnel . Types of Military Medical and Religious Personnel. Military medical and religious 4.9.1 personnel include: (1) medical personnel exclusively engaged in the search for, or the collection, transport , or treatment of the wounded or sick, or in the prevention of disease; (2) staff exclusively engaged in the administration of medical units and establishments; and (3) chaplains 213 attached to the armed forces. Medical Personnel Exclusively Engaged in Medical Duties . M edical 4.9.1.1 personnel exclusively engaged in the search for, or the collection, transport , or treatment of the wounded or sick, or in the prevention of disease include military physicians, dentists, nurses, -bearers, and other pe rsons belonging to the armed forces orderlies, stretcher who give direct care 214 to the wounded and sick. Persons who are exclusively engaged in the prevention of disease also qualify as military medical personnel. For example, veterinary personnel qualify for military medical status , if they are exclusively engaged in providing health services for military personnel e.g. , performing ( food safety inspections and ensuring that animal illnesses do not spread to humans ). However, as a general matter, veterinary personnel would not qualify for military medical status based on 215 being part of the veterinary service. 4.9.1.2 Staff Exclusively Engaged in Support to Medical Units and Establishments . In addition to persons directly engaged in medical duties, medical personnel also include staff exclusively engaged in the administration of medical units and establishments. also receive status as medical personnel provided that they are exclusively These persons 216 For example, M edical Service Corps personnel, and assigned to the Medical Service. 211 GWS art. 24. 212 Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies 4.12 (Staff of a Recognized A id Society of a ); § Neutral Country). 213 GWS art. 24 (“Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration o f medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected at all times.”). 214 GWS C OMMENTARY 218 (“Medical personnel proper. – These are the doctors, surgeons, dentists, chemists, orderlies, nurs es, stretcher -bearers, etc., who give direct care to the wounded and sick.”). 215 See GWS C OMMENTARY 205 (“[GWS Article 22(4) of the GWS], which dates from 1929, was introduced at the suggestion of the United States Delegation, which pointed out that veterin ary personnel were attached to medical units in the American Army. A proposal, made by another delegation in 1929, to place the Veterinary Service on the same footing as the Medical Service was, on the other hand, rejected.”). 216 GWS C OMMENTARY 219 (“These are persons who look after the administration of medical units and establishments, without being directly concerned in the treatment of the wounded and sick. They include office revious category, they form part of the staff, ambulance drivers, cooks (male or female), cleaners, etc. Like the p 130

158 individuals with a non- medical Military Occupation Specialty permanently assigned to a medical unit or facility (such as its cooks, clerks and supply personnel, or crews operating permanent , would qualify for military medical status. medical aircraft) s Attached to the Armed Forces haplains attached to the armed Chaplain . C 4.9.1.3 forces include any cleric, regardless of faith, who is attached to the armed forces of a belligerent 217 and assigned duties exclusively of a religious or spiritual nature. Military Medical and Religious Status o acquire and retain 4.9.2 Requirements for . T a force military medical and religious status, members of the armed forces must (1) belong to ; (2) be designated as exclusive medical or religious whose members qualify for POW status personne ; and (3) serve exclusively in a medical or religious capacity. l by their armed forces Underlying military medical and religious status is the principle that the armed forces have committed to use these personnel exclusively in a humanitarian role; thus, t hese personnel “supra -national quasi -neutral character ” because their humanitarian duties place have a ” and “ 218 ” them “ above the conflict. Belong to a Force Whose Members Qualif y for POW Status 4.9.2.1 . To acquire military medical and religious status, a person mu st belong to an armed force whose members for POW status, , the armed forces of a State, regular armed forces who profess qualify i.e. , or other allegiance to a government or an authority not recognized by the Detaining Power 219 For example, medical militia and volunteer corps mee ting the conditions in the GPW. personnel belonging to non- State armed groups would not be entitled to retained personnel status under the GWS, GWS -Sea, and GPW because their members do not qualify for POW status . Medical Service of the armed forces, and accordingly had to be accorded the same immunity as medical personnel proper. They form an integral part of medical units and establishments, which could not function properl y without their help. They too must be exclusively assigned to the Medical Service.”). 217 Cf. B OTHE , P ARTSCH , & S OLF , GWS art. 24. N EW R ULES 99 (AP I art. 8, ¶2.6) (“In the new definition [of ‘religious personnel’ in AP I], the Christian notion of “chapla in” is only used by way of an example. Religious personnel are ministers of any religion. What is a ‘minister’ will not always be easy to determine, because that concept varies from religion to religion. Again the word ‘exclusively’ adds some precision. A lay preacher, being, -time minister, is not protected as religious personnel. Furthermore, the protection does not if a ‘minister’, a part extend to every individual minister. The protection granted by the First and Second Conventions only applies to those attached to the armed forces or to a hospital ship.”). 218 GWS OMMENTARY 244 (“On the one hand, the Conference thought it necessary to affirm the supra -national and C quasi See also Vowinckel v. First -neutral character of personnel whose duties placed them above the conflict.”). Federal Trust Co., 10 F.2d 19, 21 (9th Cir. 1926) (“Red Cross surgeons and nurses, who are engaged exclusively in ameliorating the condition of the wounded of the armies in the field, and in alleviating the sufferings of mankind in INTHROP , M ILITARY L AW & general, are not enemies of the United States in any proper sense of that term.”); W RECEDENTS 779 (“Another class who are to be exempt from violence, or seizure as prisoners, are the surgeons, P assistants and employees charged w ith the care and transport of the wounded on the field and the attendance upon them in field ambulance or hospital. Persons of this class ‘enjoy the rights of neutrality, provided they take no active part in the operations of war.’”). 219 Refer to § 4.5 (Armed Forces of a State); § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a (Other Militia and Volunteer Corps ). Government or an Authority Not Recognized by the Detaining Power ); § 4.6 131

159 4.9.2.2 Armed Forces . To acquire military medical and Designated by Their religious status, members of the armed forces must be designated as such by their armed forces, 220 usually by being part of the official medical or religious service. A member of the armed forces cannot desig nate himself or herself as military medical or religious personnel. Thus, members of the armed forces do not acquire military medical and religious status merely by performing medical or religious functions or by having medical or religious training. might be trained as a medical specialist, but For example, a member of a special operations unit is expected to perform both not be designated as military medical personnel, because that person ant and medical duties . That person, therefore, would not r combat eceive the rights, duties, and liabilities related to military medical status. He or she, however, may be treated like military 221 medical personnel while detained by the enemy by being required to perform medical duties. 4.9.2.3 Exclusively Engaged in Humanitarian Duties . In order to establish and maintain their status as military medical or religious personnel, these personnel must serve 222 This assignment must generally be permanent. exclusively in a humanitarian capacity. Military physicians or other medical sp ecialist personnel who are not exclusively engaged in humanitarian duties, such as duties that involve committing acts harmful to the 223 enemy, would not be entitled to military medical status For example, an Army Medical . icer serving as the commander of a tactica l convoy would not Corps or Medical Service Corps off 224 Similarly, in general, persons who engage in combat be entitled to military medical status . search and rescue missions would not be exclusively engaged in humanitarian duties, since 225 preventing the capture of combatants by the adversary constitutes an act harmful to the enemy. 220 218 (“Article 24 refers to the official medical personnel and chaplains of the armed GWS C OMMENTARY See at 220 (“On the other hand, chaplains, to be accorded immunity, must be attached to the armed forces. forces.”); id. They do not attach themselves. The decision will rest with the competent military authorities and the relationship must be an official one. Accordingly, ministers of religion who wish to serve in a non -official capacity, are not covered by the Convention, and, until such time as they have been regularly appointed, act at their own risk and per GPW art. 32 (referring to POWs “who, though not attached to the medical service of their armed forces, il.”). Cf. are physicians, surgeons, dentists, nurses or medical orderlies,” as not being entitled to retained personnel status). 221 Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); § 4.5.2.3 ). (Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces 222 GWS C OMMENTARY See (“The words ‘exclusively engaged’ indicate that the assignment must be permanent, 219 which is not the case in Article 25 deali ng with auxiliary personnel.”). 223 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack ). 224 See W. Hays Parks, St atus of Certain Medical Corps and Medical Service Corps Officers under the Geneva 5 (¶8) (Apr. 1989) (“U.S. Army MSC officers, AMEDD AWYER L RMY HE A T , Conventions reprinted in noncommissioned officers, or other Medical Corps personnel serving in positions t hat do not meet the ‘exclusively engaged’ criteria of article 24 are not entitled to its protections but, under article 25, are entitled to protection from intentional attack during those times in which they are performing medical support functions. This would include physicians who, while serving as medical company commanders, might be detailed to perform the duties specified in paragraph 2b. [¶2b. The medical company commander, a physician, and the executive officer, an MSC officer, by nature of their p ositions and grade, may be detailed as convoy march unit commanders. In this position they would be responsible for medical and nonmedical unit routes of march, convoy control, defense, and repulsing attacks.]”). 225 (Acts Harmful to the Enemy ). Refer to § 7.10.3.1 132

160 However, these individuals may be treated like auxiliary medical personnel or members of the 226 medical service. armed forces who are trained in medical care, but who are not attached to the The requirement that military medical and religious personnel serve exclusively in a humanitarian capacity not only requires that they refrain from acts harmful to the enemy, but also obligation to serve in a humanitarian capacity. For has been interpreted as a n affirmative example, captured military medical personnel who refuse to perform their medical duties to care 227 for fellow prisoners would not be entitled to retained personnel status. R IGHTS , D UTIES , AND L IABILITIES OF M ILITARY M ED ICAL AND R EL IGIOUS ERSONNEL 4.10 P Although military medical and religious personnel are members of, or attached to, the are in many respects treated like combatants, they are afforded special armed forces and must be respected and privileges so that they may fulfill their humanitar ian duties. They hey generally may not commit acts harmful to the In turn, t protected in all circumstances. f they fall into the power of the enemy during international armed conflict, t hey may be enemy. I retained to care for, or m inister to, POWs . - Conduct of Hostilities . Military 4.10.1 Military Medical and Religious Personnel 228 medical and religious personnel However, military may not be made the object of attack. medical and religious personnel rm from military must accept the risks of incidental ha 229 operations. Military medical and religious personnel generally may not commit acts harmful to the 230 ( e.g. , resisting lawful capture by the enemy military forces) . enemy Military medical and religious personnel , however, may employ arms in -defense or in defense of their patients self 231 against unlawful attacks. 226 Refer to § 4.13 ); § 4.5.2.2 (Members Trained as Medical Personnel, but Not (Auxiliary Medical Personnel Attached to the Medical Service). 227 L EVIE , See POW S 74 (“But what of the physician in the power of the enemy who, perhaps for some ideol ogical reason, refuses to perform any professional duties and will not provide medical treatment for the sick and wounded members of the armed forces of his own Power of Origin? This was the procedure followed by most of the North Vietnamese medical perso nnel captured in Vietnam. The South Vietnamese responded by treating them as ordinary prisoners of war. Once again, there was probably no specific legal basis for such action; but certainly, if a member of the medical profession refuses to employ his professional abilities, even for the benefit of his own countrymen, he is denying his professional status and, under those circumstances, there is little that a Detaining Power can do except to remove him from the category of a retained person and to place hi -of-war status (unless his m in a general prisoner recalcitrance is to be rewarded by repatriation).”). 228 Refer to § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel ). 229 Refer to § 7.8.2.1 (Incidental Harm Not Prohibited ). 230 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack ). 231 Defense of the Wounded and Sick ). Refer to § 7.10.3.5 (Use of Weapons in Self -Defense or 133

161 Military medical and religious personnel who take actions outside their role as military s and forfeit the corresponding protections of their special statu medical and religious personnel 232 , as appropriate . may be treated as combatants or auxiliary medical personnel Detention 4.10.2 Military Medical and Religious Personnel - . If military medical and during international armed conflict, th ey are religious personnel fall into the power of the enemy 233 not held as POWs They should present their , but instead are held as retained personnel. 234 identity cards to demonstrate their status as retained personnel. They are retained so that they 235 may fulfill their humanitarian duties to care for, or minister to, POWs. Although they are not held as POWs, military medical and religious personnel receive, at 236 a minimum, the protections of POW status. In addition, r etained personnel shall be granted all 237 and religious ministration to , POWs. facilities necessary to provide for the medical care of, For example, retained personnel may not be compelled to carry out any work other than that 238 concerned with their medical or religious duties. Retained personnel shall be authorized to 239 d in working detachments or in hospitals outside the camp. situate visit periodically POWs Retained personnel, through their senior officer in each camp, have the right to deal with the 240 competent authorities of the camp on all questions relating to their duties. If they are not needed to care for , or minister to, POWs , and if military requirements permit, retained personnel should be returned to the forces to which they belong so that they may 241 The parties to the con flict ir armed forces. members of the , or minister to, continue to care for 242 would establish special agreements to establish the procedures for repatriation . A 4.11 A UTHORIZED S TAFF OF V OLUNTARY ID S OCIETIES States may choose to employ the staff of National Red Cross Societies and that of other Voluntary Aid Societies, like military medical and religious personnel subject such . If States are to be treated like military medical staff to military laws and regulations, then such personnel 232 Refer to (Exclusively Engaged in Humanitarian Duties ). § 4.9.2.3 233 § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained ). Refer to 234 Refer to (Use of Identification Card to Help Establish Retained Personnel Status ). § 7.9.2 235 Refer to (Duties of Retained Personnel ). § 7.9.3 236 § 7.9.5.1 (POW Treatment as a Minimum ). Refer to 237 Refer to § 7.9.5.2 (All Facilities Necessary to Provide for the Medical Care of, and Religious Ministration to, POWs ). 238 er to § 7.9.5.6 (No Other Compulsory Duties ). Ref 239 Refer to § 7.9.5.3 (Visits of POWs Outside the Camp ). 240 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp ). 241 Refer to § 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable ). 242 (Agreements on Refer to § 7.9.4.3 (Special Agreements on the Percentage of Personnel to Be Retained ); § 7.9.5.8 Possible Relief of Retained Personnel ). 134

162 243 . States must notify other P arties to the 1949 Geneva Conventions and religious personnel 244 ore actually employing such personnel. bef American National Red Cross 4.11.1 . Under U.S. law, the American National Red Cross 245 is a voluntary aid society authorized to support the U.S. armed forces in time of war. t the U.S. armed forces in military American National Red Cross personnel who suppor 246 . Uniform Code of Military Justice operations in this way are subject to the 4.12 S R ECOGNIZED A ID S OCIETY OF A N TAFF OF A C OUNTRY EUTRAL The 1949 Geneva Conventions recognize that neutral States may lend their recognized aid societies to a party to the conflict by placing those personnel and units under the control of 247 that party to the conflict. The neutral Government shall notify this consent to the adversary of he party the State that accepts such assistance, and t flict that accepts such assistance must to a con 248 notify enemy States before using it. as interference in the This assistance is not considered 249 conflict by the neutral State . The s taff of a recognized aid society of a neutral c ountry who have been lent to a party to the conflict must be furnished with an identity card similar to that provided to retained personnel 250 before leaving their neutral State. Such personnel who have fallen into the hands of the 243 See y GWS art. 26 (“The staff of National Red Cross Societies and that of other Voluntary Aid Societies, dul recognized and authorized by their Governments, who may be employed on the same duties as the personnel named in Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff of such societies are subject to military laws and regulations.”). 244 See GWS art. 26 (“Each High Contracting Party shall notify to the other, either in time of peace or at the commencement of or during hostilities, but in any case before actually employing them, the names of the societ ies which it has authorized, under its responsibility, to render assistance to the regular medical service of its armed forces.”). 245 See 300102 (the purposes of the American National Red Cross include “to provide volunteer aid in 36 U.S.C. § time of war to the sick and wounded of the Armed Forces, in accordance with the spirit and conditions of ... the treaties of Geneva, August 22, 1864, July 27, 1929, and August 12, 1949” and “to perform all the duties devolved on a national society by each nation that has acceded to any of those treaties, conventions, or protocols”). 246 § 18.19.3.1 (Uniform Code of Military Justice Offenses ). Refer to 247 GWS art. 27 (“A recognized Society o f a neutral country can only lend the assistance of its medical personnel and units to a Party to the conflict with the previous consent of its own Government and the authorization of the Party to the conflict concerned. That personnel and those units sha ll be placed under the control of that Party to the conflict.”). 248 GWS art. 27 (“The neutral Government shall notify this consent to the adversary of the State which accepts such o notify the adverse Party thereof before assistance. The Party to the conflict who accepts such assistance is bound t making any use of it.”). 249 GWS art. 27 (“In no circumstances shall this assistance be considered as interference in the conflict.”). 250 GWS art. 27 (“The members of the personnel named in the first paragraph shall b e duly furnished with the identity cards provided for in Article 40 before leaving the neutral country to which they belong.”); GWS art. 40 (giving requirements with regard to the identification of “[t]he personnel designated in Article 24 and in Articles 26 and 27”). 135

163 251 adverse party Unless otherwise agreed, such personnel shall have may not be detained. to the permission to return to their country, or if this is not possible, to the territory of the party conflict in whose service they were, as soon as a route for their return is open and military 252 considerations permit. Pending their release, such personnel shall continue their work under the direction of the adverse party ; they shall preferably be engaged in the care of the wounded 253 and sick of the party On their departure, they sha to the conflict in whose service they were. ll take with them their effects , and if , personal articles and valuables and the instruments, arms 254 , the means of transport belonging to them. possible Such pers onnel, while in the power of a party to the conflict, should be treated on the same basis as co rresponding personnel of the armed forces of that party to the conflict ; food in particular must be sufficient as regards quantity, quality, and variety to keep them in a normal 255 256 state of health . They may also fly their national flag. 4.13 A UXILIARY M EDICAL P ERSONNEL Auxiliary medical personnel are m embers of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses , or auxiliary stretcher -bearers, in the search for or the collection, transport , or treatment of the wounded and sick in internat ional 257 armed conflict. auxiliary medical personnel are treated like combatants ; however, In general, while carrying out medical duties, they must distinguish themselves by wearing a white armlet bearing the distinctive sign e.g. , the red cross) , and they may not be made the object of attack. ( 251 GWS art. 32 (“Persons designated in Article 27 who have fallen into the hands of the adverse Party may not be detained.”). 252 GWS art. 32 (“Unless otherwise agreed, they shall have permission to return to their country, or if this is not poss ible, to the territory of the Party to the conflict in whose service they were, as soon as a route for their return is open and military considerations permit.”). 253 GWS art. 32 (“Pending their release, they shall continue their work under the direction of the adverse Party; they shall preferably be engaged in the care of the wounded and sick of the Party to the conflict in whose service they were.”). 254 GWS art. 32 (“On their departure, they shall take with them their effects, personal articles and valuables and the instruments, arms and if possible the means of transport belonging to them.”). 255 GWS art. 32 (“The Parties to the conflict shall secure to this personnel, while in their power, the same food, lodging, allowances and pay as are granted to the corresponding personnel of their armed forces. The food shall in any case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state of health.”). 256 GWS art. 43 (“The medical units belonging to neutral countries, which may have been authorized to lend their services to a belligerent under the conditions laid down in Article 27, shall fly, along with the flag of the n him by Convention, the national flag of that belligerent, wherever the latter makes use of the faculty conferred o Article 42. Subject to orders to the contrary by the responsible military authorities, they may on all occasions fly their national flag, even if they fall into the hands of the adverse Party.”). 257 GWS art. 25 (“Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher -bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carry ing out these duties at the time when they come into contact with the enemy or fall into his hands.”). 136

164 Auxiliary M ersonnel – U.S. A rmed F orces . The recent practice of the 4.13.1 edical P United States has not been to employ persons as auxiliary medical personnel. Rather, the U.S. 258 armed forces ve employed military medical and religious personnel. ha In addition, the U.S. armed forces have given members of the armed forces additional training in combat medicine but 259 . have not designated them as military medical personnel or as auxiliary medical pers onnel , such personnel have not worn the distinctive emblem while engaging in medical duties , Thus and they may be made the object of attack by the enemy. persons as Although the recent practice of the United States has not been to employ al personnel, the United States may auxiliary medic later decide to employ auxiliary medical personnel , and enemy military forces may employ such personnel. Moreover, certain members of the medical corps , who do not qualify as military medical personnel because they perform duties inconsistent with exclusive medical status , may be treated like auxiliary medical 260 personnel. Acquiring Auxiliary Medical Status . As with military medical and religious 4.13.2 s simply by status, members of the armed forces do not acquire auxiliary medical statu 261 performing medical duties. For example, a combatant who treats fellow combatants on the battlefield does not automatically acquire auxiliary medical status . Similarly, persons do not acquire auxiliary happen to have medical training. medical status only because they In order to acquire auxiliary medical status, a person must receive appropriate training 262 Those armed forces must provide as such by his and be designated or her armed forces. 263 rmband and a special identity document . proper identification to such persons, including an a Auxiliary Medical Personnel – Conduct of Hostilities . A uxiliary medical 4.13.3 264 personnel may not be made the object of attack when carrying out their medical duties . 258 § 4.9 ). (Military Medical and Religious Personnel Refer to 259 § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service). Ref er to 260 , W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the Geneva See, e.g. L 5 (¶8) (Apr. 1989) (“U.S. Army MSC officers, AMEDD AWYER HE A RMY , T reprinted in Conventions noncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the ‘exclusively engaged’ criteria of article 24 are not entitled to its protection but, under article 25 are entitled to protection from intentional attack during those times in which they are performing medical support functions.”). 261 § 4.9.2 (Requirements for Military Medical and Religious Status ). Refer to 262 GWS C OMMENTARY 222 (“To be accorded immunity, auxiliary personnel must, as we have said, have received special medical training beforehan d, the nature and duration of which are wisely not defined. If it is necessary to make good a deficiency in permanent personnel, such training may even take place in wartime; but personnel filling this temporary role must in any case have had a real train ing.”). 263 C OMMENTARY 223- 24 (“To have immunity even on the battlefield, military personnel caring for the GWS wounded had to form a distinct category —that of medical personnel —and enjoy a separate status, recognizable by a distinctive emblem and an identit y card. If recourse was had to such safeguards, it was because military considerations demanded them. Otherwise the risk of abuse would have been too great. It is not straining the imagination to picture combatants approaching an enemy position, ostensi bly to assist the wounded, and then opening fire in order to seize it: similarly, a fighting unit might suddenly transform itself into a medical unit, in order to avoid enemy fire.”). 137

165 , but only whi Auxiliary medical personnel shall wear le carrying out medical duties, a white the distinctive sign in miniature; the armlet shall be issued and armlet bearing in its center 265 stamped by the military authority. In addition, auxiliary medical personnel must abstain from 266 . acts harmful to the enemy while carrying out their medical duties , auxiliary medical personnel may be made the When the above conditions are not present attack on the same basis as other combatants. object of . A uxiliary medical pe rsonnel 4.13.4 Auxiliary Medical Personnel – Detention are POWs when detained by the enemy during international armed conflict, but may be required to perform 267 their medical duties , as needed. are not subject to the repatriation Auxiliary medical personnel 268 provisions that apply specifically to nnel. retained perso P ERSONNEL 4.14 NGAGED IN D UTIES R ELATED TO THE P ROTECTION OF C ULTURAL P ROPERTY E During armed conflict, different o classes of persons may be engaged in duties related t n of cultural property. These classes of persons may include: t personnel in the protectio specialis orces, armed custodians specially empowered to guard cultural property , as well as the armed f persons who are engaged in duties of control in accordance with the Regulations for the Execution of the 1954 Hague Cultural Property Convention. So far as consistent with the interests of security, such personnel should be respected and permitted to carry out their duties for the protection of cultural property . Personnel Engaged in the Protection of Cultural Property . As far as is consistent 4.14.1 wit h the interests of security, personnel engaged in the protection of cultural property shall, in , the interests of such property, be respected and, if they fall into the hands of the opposing party shall be allowed to continue to carry out duties whenever t he cultural property for which they are 269 analogous Such personnel are responsible has also fallen into the hands of the opposing party . to military medical and religious personnel who also shall continue to carry out their medical and 270 n they have fallen into the hands of the enemy spiritual duties whe . 264 Refer to § 7.8.1 (Categories of Persons Who Are Entitled to Respect and Protection as Medical and Religious ). Personnel on the Battlefield 265 § 7.8.4.2 (Wearing of Armlet With Miniature Distinctive Emblem ). Refer to 266 § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of A ttack ). Refer to 267 See GWS art. 29 (“Members of the personnel designated in Article 25 who have fallen into the hands of the enemy, shall be prisoners of war, but shall be employed on their medical duties in so far as the need arises.”). 268 Refer to § 4.10.2 (Military Medical and Religious Personnel - Detention ). 269 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 15 (“As far as is consistent with the interests of security, personnel e ngaged in the protection of cultural property shall, in the interests of such property, be respected and, if they fall into the hands of the opposing Party, shall be allowed to continue to carry out duties whenever the cultural art. 1 OERICH P ACT property for which they are responsible has also fallen into the hands of the opposing Party.”); R (requiring respect and protection for personnel of “[t]he historic monuments, museums, scientific, artistic, educational and cultural institutions”). 270 (Duties of Retained Personnel ). Refer to § 7.9.3 138

166 No special agreement may be concluded that would diminish the protection afforded by the 1954 Hague Cultural Property Convention to the personnel engaged in the protection of 271 . cultural property ersonnel i n the Armed Forces 4.14.1.1 arties to Specialist P . States, especially P the 1954 Hague Cultural Property Convention, may have within their armed forces, services or specialist personnel whose purpose is to secure respect for cultural property and to cooperate 272 with the civilian authorities responsible for safeguarding it. The United States has long had 273 such personnel in its armed forces. For example, during World War II, Allied forces dedicated a specific group of personnel 274 who were tasked to save as much of the cu lture of Europe as they could during combat. These personnel worked to mitigate combat damage to churches and museums and to locate moveable 275 works of art that were stolen or missing. 4.14.1.2 Armed Custodians Specially Empowered to Protect Cultural Property . States may use armed custodians who are specially empowered to protect cultural property . The guarding of cultural property under special protection by armed custodians specially empowered to do so, however, shall not be deemed to be a use for military pur poses that would deprive 276 cultural property of special protection. Persons Responsible for the Duties of Control in Accordance W ith the Regulations 4.14.2 for the Execution of the 1954 Hague Cultural Property Convention. A number of persons are responsible for the duties of control in accordance with the Regulations for the Execution of the 271 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 24(2) (“No special agreement may be concluded which would diminish the protection afforded by the present Convention to cultural property and to the personnel engaged in its protection.”). 272 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 7(2) (“The High Contracting Parties undertake to plan or establish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property and to co -operate with the civilian authorities responsible for safeguarding it.”). 273 -by-Section Analysis of Provisions , 4, Tab 1 to Strobe Talbot, Lette r of Submittal , May 12, 1998, Section P ESSAGE FROM THE RESIDENT T RANSMITTING THE 1954 5 (“It is AGUE C ULTURAL P ROPERTY C ONVENTION H M longstanding U.S. Army practice to maintain such personnel in their civil affairs reserve force. Marine Corps reserve civil affairs personnel receive training to perform similar functions if necessary.”). 274 R. M. E DSEL , T HE M ONUMENTS M EN 2 (2009) (“The Monuments Men were a group of men and women from thirteen nations, most of whom volunteered for service in the newly created Monuments , Fine Arts, and Archives section [of the Western Allied military effort], or MFAA. Most of the early volunteers had expertise as museum directors, curators, art scholars and educators, artists, architects, and archivists. Their job was simple: to save as much of the culture of Europe as they could during combat. The creation of the MFAA section was a remarkable experiment. It marked the first time an army fought a war while comprehensively attempting to mitigate cultural out adequate transportation, supplies, personnel, or historical precedent. The men damage, and was performed with tasked with this mission were, on the surface, the most unlikely of heroes.”). 275 R. M. E DSEL , T HE M ONUMENTS M EN xiv (2009) (“Their initial responsibility was to mitigate co mbat damage, primarily to structures – churches, museums, and other important monuments. As the war progressed and the German border was breached, their focus shifted to locating moveable works of art and other cultural items stolen or otherwise missing.” ). 276 ). No Use for Military Purposes Refer to § 5.18.8.2 (Conditions for the Granting of Special Protection – 139

167 1954 Hague Cultural Property Convention. These individuals may include: (1) the Director - n (UN General of the United Nations Educational, Scie ESCO); (2) ntific and Cultural Organizatio ; (4) a State ; (3) delegates of the Protecting Powers -appointed representative for cultural property ultural P roperty; a C 5) i nspectors and experts proposed by the ommissioner -General for C and ( . Commissioner -General for Cultural Property -General for Cultural Property, delegates of the Protecting Powers, The Comm issioners , and experts shall in no case exceed their mandates. In particular, they shall take inspectors account of the security needs of the Party to the 1954 Hague Cultural Property Conv ention to which they are accredited and shall in all circumstances act in accordance with the requirements 277 . of the military situation as communicated to them by that State Director -General of UNESCO . Under the 1954 Hague Cultural Property 4.14.2.1 -General of the United Nations Educational, Scientific, and Cultur al Convention, the Director . For example, among other duties, the Organization (UNESCO) plays an important role -General compiles and periodically revises an international list consisting of all p ersons Director - nominated by participating States as qualified to carry out the functions of Commissioner 278 General for Cultural Property. -Appointed Representative for Cultural Property . As soon as any 4.14.2.2 State Party to the 1954 Hague Cultural Property Convention is engaged in an international armed , that Party shall appoint a representative for cultural property situated in its territory ; if conflict that Party is in occupation of another territory, it shall appoint a special representative for 279 . cultural property situated in that territory Delegates of the Protecting Powers 4.14.2.3 . A Protecting Power shall appoint 280 delegates to perform certain functions in the protection of cultural property. The delegates of 277 R EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 8 (“The -General for Cultural Property, delegates of the Protecting Powers, inspectors and experts shall in no Commissioners case exceed their mandates. In particular, they shall take account of the security needs of the High Contracting Party to which they are accredited and shall in all circumstances act in accordance with the requirements of the military ”). situation as communicated to them by that High Contracting Party. 278 EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C R art. 1 (“On the entry ONVENTION into force of the Convention, the Director -General of the United Nations Educational, Scientific and Cultural ting Parties Organization shall compile an international list consisting of all persons nominated by the High Contrac as qualified to carry out the functions of Commissioner -General for Cultural Property. On the initiative of the -General of the United Nations Educational, Scientific and Cultural Organization, this list shall be Director periodically revised on the basis of requests formulated by the High Contracting Parties.”). 279 R EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 2 (“As soon as any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) It shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it shall appoint a special representative for cultural property situated in that territory;”). 280 R EGUL ATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 2 (“As soon as any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (b) The Protecting Power acting for each of the Parties i n conflict with such High Contracting Party shall appoint delegates EGULATIONS FOR THE E XECUTION OF THE 1954 accredited to the latter in conformity with Article 3 below;”); R delegates from among the art. 3 (“The Protecting Power shall appoint its H AGUE C ULTURAL P ROPERTY C ONVENTION 140

168 the Protecting Powers shall take note of violations of the 1954 Hague Cultural Property Convention, investigate, with the approval of the Party to which they are accredited, the circumstances in which they have occurred, make representations locally to secure their cessation , and, if necessary, notify the Commissione r-General of such violations. They shall 281 -General informed of their activities. keep the Commissioner Commissioner -General for Cultural Property . The Regulations for the 4.14.2.4 Execution of the 1954 Hague Cultural Property Convention provide for the appointment of a ner -General for cultural property, but always with the approval of the Party to which Commissio 282 he or she will be accredited. -General exercises a number of functions, including proposing the The Commissioner dering an investigation with the agreement of the Party appointment of inspectors and experts, or 283 to which he or she is accredited, and drawing up reports on the application of the Convention. 4.14.2.5 Inspectors and Experts Proposed by the Commissioner -General for Cultural Property . The Commissioner -Ge neral for Cultural Property may propose, for the approval of the Party to which the Commissioner -General is accredited, inspectors of cultural 284 property to be charged with specific missions. The Commissioner -General, delegates , and members of its diplomatic or consular staff or, with the approval of the Party to which they will be accredited, from among other persons.”). 281 R EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 5 (“The delegates of the Protecting Powers shall take note of violations of the Convention, investigate, with the approval of the Party to which they are accredited, the circumstances in which they have occurred, make representations locally to secure their cessation and, if necessary, notify the Commissioner -General of such violations. They shall keep him informed of their activities.”). 282 H R EGULATIONS FOR THE E XECUTION OF THE 1954 AGUE C ULTURAL P ROPERTY C ONVENTION art. 4 (“1. The Commissioner -General for Cul tural Property shall be chosen from the international list of persons by joint agreement between the Party to which he will be accredited and the Protecting Powers acting on behalf of the opposing Parties. 2. Should the Parties fail to reach agreement wit hin three weeks from the beginning of their discussions on this point, they shall request the President of the International Court of Justice to appoint the Commissioner -General, who shall not take up his duties until the Party to which he is accredited ha s approved his appointment.”). 283 EGULATIONS FOR THE E XECUTION OF THE 1954 R AGUE C ULTURAL P ROPERTY C ONVENTION art. 6 (“1. The H Commissioner -General for Cultural Property shall deal with all matters referred to him in connexion with the application of the Co nvention, in conjunction with the representative of the Party to which he is accredited and with the delegates concerned. 2. He shall have powers of decision and appointment in the cases specified in the present Regulations. 3. With the agreement of the Party to which he is accredited, he shall have the right to order an investigation or to, conduct it himself. 4. He shall make any representations to the Parties to the conflict or to their Protecting Powers which he deems useful for the application of th e Convention. 5. He shall draw up such reports as may be necessary on the application of the Convention and communicate them to the Parties concerned and to their Protecting Powers. He shall send copies to the Director -General of the United Nations Educa tional, Scientific and Cultural Organization, who may make use only of their technical contents. 6. If there is no Protecting Power, the -General shall exercise the functions of the Protecting Power as laid down in Articles 21 and 22 of the Commissioner Co nvention. ”). 284 R EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 7(1) (“Whenever the Commissioner -General for Cultural Property considers it necessary, either at the request of the delegates concerned or after consultation w ith them, he shall propose, for the approval of the Party to which he is 141

169 inspectors may have rec ourse to the services of experts, who will also be proposed for the 285 accredited. -General is approval of the Party to which the Commissioner In some cases, inspectors may be entrusted with the functions of delegates of the 286 Protecting Powers. . 4.14.3 Identifying Pe rsonnel Engaged in Duties for the Protection of Cultural Property Persons responsible for duties of control in accordance with the Regulations for the Execution of tion engaged in duties for the protec the 1954 Hague Cultural Property Convention, and persons 287 , are to carry a special identity card bearing the distinctive emblem. of cultural property In an armlet bearing the distinctive emblem issued and stamp addition, such persons ed by may wear 288 the competent authorities . Such persons may not, without legitimate reason, be deprived of their identity card or of 289 the right to wear the armlet. The distinctive emblem displayed on an armlet or special identity 290 card is to be displayed once (as opposed to repeated three times). P 4.15 A UTHORIZED TO A CCOMPANY THE A RMED F ORCES ERSONS Under the law of war, persons who are not members of the armed forces, but are them , fall into a special category. Although they are often referred to authorized to accompany ” because they are not military personnel, they differ materially from the civilian as “ civilians accredited, an inspector of cultural property to be charged with a specific mission. An inspector shall be responsible -General.”). only to the Commissioner 285 EGULATIONS FOR THE E XEC R 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 7(2) (“The UTION OF THE Commissioner -General, delegates and inspectors may have recourse to the services of experts, who will also be proposed for the approval of the Party mentioned in the preceding paragraph.” ). 286 EGULATIONS FOR THE R E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 9 (“If a Party to the conflict does not benefit or ceases to benefit from the activities of a Protecting Power, a neutral State may be asked to undertake those functions - of a Protecting Power which concern the appointment of a Commissioner - General for Cultural Property in accordance with the procedure laid down in Article 4 above. The Commissioner ons of delegates of Protecting Powers as General thus appointed shall, if need be, entrust to inspectors the functi specified in the present Regulations.”). 287 EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C R P ROPERTY C ONVENTION art. 21(2) (“[The ULTURAL persons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention] s hall carry a special identity card bearing the distinctive emblem. This card shall mention at least the surname and first names, the date of birth, the title or rank, and the function of the holder. The card shall bear the photograph of the holder as wel l as his signature or his fingerprints, or both. It shall bear the embossed stamp of the competent authorities.”). 288 R EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 21(1) (“The persons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention may wear an armlet bearing the distinctive emblem, issued and stamped by the competent authorities.”). 289 R EGULATIONS FOR THE E XECUTION OF THE 1954 H AGUE C ULTURAL P ROPERTY C ONVENTION art. 21(4) (“The said persons may not, without legitimate reason, be deprived of their identity card or of the right to wear the armlet.”). 290 – Once Versus Three Times ). Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Pro perty 142

170 population because these persons are authorized – and in some cases, are ordered – to 291 accompany military forces into a theater of operations to support the force. ry personnel to support military DoD policies have often addressed the use of non- milita 292 . operations Persons authorized to accompany the armed forces may not be made the object of attack unless they take direct part in hostilities. They may , however, be detained by enemy military OW status if they fall into the power of the enemy during and are entitled to P forces, international armed conflict . They have legal immunity from the enemy ’s domestic law for providing authorized support services to the armed forces. Persons Authorized to Accompany the Armed Forces – Note . In 4.15.1 s on Terminology persons who “ ” or “ follow ” the armed forces has referred to the past, the category of accompany 293 journalists, private clergy, and sutlers , of the who traditionally were subject to the jurisdiction 294 T hese persons, to the extent that they were simply following the army that they accompanied . armed forces for their own purpose s and not to provide support to military operations, were 291 184, 198 EPORTS OF THE NTERNATIONAL A RBITRAL A Christian Damson (United States) v. Germany, 7 R I WARDS (1925) (concluding that a non- military employee of the U.S. Government whose activities were “directly in furtherance of a military operation” was not a “civilian” for the purposes of the Treaty of Berlin and thus was not entitled to assert a claim under the provisions of the Treaty of Berlin that provided for Germany to compensate for damages to the civilian population that it caused during World War I); Arthur Ellt Hungerford (United States) v. 368, 371 (1926) (“From the foregoing it is EPORTS OF THE I NTERNATIONAL A RBITRAL A WARDS Germany, 7 R apparent that the members of the Y.M.C.A. who served on the western front were, in the language of the Commander -in-Chief of the A.E.F., ‘militarized and *** under the control and supervision of the American military authorities’. Or, to use the language of their own spokesman, they were ‘a part of the military machine’. They render ed military service of a high order. The mere fact that they were not formally inducted into the Army or were not in the pay of the Government of the United States is immaterial so far as concerns the question here presented. They had voluntarily segrega ted themselves from ‘the civilian population’ as that term is used in the Treaty of Berlin. They had deliberately exposed themselves and their personal belongings to the risks of war which began at the port of embarkation. The provisions of the Treaty of Berlin obligating Germany to make compensation for damages to ‘civilians’ or to ‘civilian victims’ or to the ‘civilian population’ were manifestly intended to apply to the passive victims of warfare, not to those who entered the war zone, subjected themse lves to risks to which members of the civilian population generally were immune, and participated in military activities, whether as combatants or noncombatants.”). 292 O D I NSTRUCTION 3020.41, , D (Dec. 20, 2011); D O D For example Operational Contract Support (OCS) NSTRUCTION 1100.22, Policies and Procedures for Determining Workforce Mix (Apr. 12, 2010); D O D D IRECTIVE I O D I NSTRUCTION 1400.32, DoD Civilian Work DoD Civilian Expeditionary Workforce 1404.10, (Jan. 23, 2009); D 1404.10, IRECTIVE O D D D (Apr. 24, 1995); Force Contingency and Emergency Planning Guidelines and Procedures O D I NSTRUCTION 3020.37, Continuation of (Apr. 10, 1992); D Emergency- Essential DoD U.S. Civilian Employees Essential DoD Contractor Services During Crises (Nov. 6, 1990 Incorporating Change 1, Jan. 26, 1996). 293 “Sutler” is an old term for a civilian provisioner to the army, whether in garrison or in the field. 294 For example , Articles of War TAT . 759, 787 (“All retainers to the camp and all , art. 2(d), Jun. 4, 1920, 41 S persons accompanying o r servicing with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles”); , art. 32, Jun. 30, 1775, reprinted in American Articles of War of 1775 all persons whatsoever, INTHROP , M ILITARY L AW & P RECEDENTS 953 (“All suttlers and retailers to a camp, and W serving with the continental army in the field, though not in- listed soldiers, are to be subject to the articles, rules, and regulations of the continental army.”). 143

171 295 subject to detention, not a necessary. s POWs On the , but like civilians, only if specifically r hand, non- military persons othe who were serving the armed forces, such as civilian employees 296 . of the war department, were detained as POWs 297 (4) of the GPW reflects the modern practice and rule . Article 4A Persons authorized to er Article 4A(4) include employees of the Department of accompany the armed forces und government agencies sent to support the armed forces, and other Defense, employees of other . DoD practice authorized persons working on government contracts to support the armed forces 298 rmit a broad range of civilians to be authorized to accompany U.S. forces. has been to pe ed forces are often referred to, and treated as , Persons authorized to accompany the arm “civilians, ” since they are not members of the armed forces. However, as discussed below, persons authorized to accompany the armed forc es are also treated like “combatants ” in some respects. Persons Authorized to Accompany the Armed Forces of Hostilities . 4.15.2 – Conduct The rules relating to the conduct of hostilities for persons authorized to acc ompany the armed forces are similar in some respects to the rules relating to military medical and religious personnel. For example, persons in both classes: (1) generally may not be made the object of 295 W INTHROP , M ILITARY L AW & P RECEDENTS 789 (“ Camp -followers , includ ing members of soldiers’ families, sutlers, contractors, newspaper correspondents, and others allowed with the army but not in the public employment , should, when taken, be treated similarly as prisoners of war, but should be held only so long as may be ne cessary.”) (emphasis added). 296 , S PAIGHT , W AR R IGHTS ON L AND 304 (“[W]hat persons may be made prisoner of war” includes See, e.g. -clerks, telegraph -operators, “persons not commissioned or enlisted, but employed permanently by an army as pay INTHROP , M ILITARY L AW & engine drivers, or, generally, in any civilian capacity with an army in the field.”); W P 789 (“The class of persons entitled upon capture to the privileges of prisoners of war comprises RECEDENTS nts and non -combatants, and the wounded and sick taken members of the enemy’s armies, embracing both combata on the field and in hospital. It should comprise also civil persons engaged in military duty or in immediate connection with an army, such as clerks, telegraphists, aeronauts, teamsters, laborers, mes sengers, guides, scouts, and men employed on transports and military railways —the class indeed of civilians in the employment and service of the government such as are specified in our 63d Article of War as ‘Persons serving with the armies in the field.’”) . 297 GPW C OMMENTARY 64 (“The Conference of Government Experts considered that the text of Article 81 of See the 1929 Convention had become obsolete (in particular the word ‘sutlers’ is no longer appropriate) and should include a reference to certain other classes of persons who were more or less part of the armed forces and whose position when captured had given rise to difficulties during the Second World War. The list given is only by way of indication, however, and the text could therefore cover other categories of persons or services who might be called upon, in similar conditions, to follow the armed forces during any future conflict.”). 298 For example , F INAL R EPORT ON THE P ERSIAN G ULF W AR 599 (“In Operations Desert Shield and Desert Storm, the United States employed civilians both as career civil service employees and indirectly as contractor employees. Civilians performed as part of the transportation system, at the forward depot level repair and intermediate level maintenance activities and as weapon systems technical representatives. Civilians worked aboard Navy ships, at Air Force (USAF) bases, and with virtually every Army unit. Only the Marine Corps (USMC) did not employ significant numbers of civilians in theater. This civilian expertise was in valuable and contributed directly to the success achieved.”). 144

172 attack ; (2) must accept the risk of incidental harm ; and (3) have from enemy military operations 299 -defense against unlawful attacks. the right of self Liability to Being Made the Object of Attack . For the purposes of 4.15.2.1 determining whether they may be made the object of attack, persons authorized to accompany the armed forces are treated as civilians. T hey may not be made the object of attack unless they 300 take direct part in hostilities. Employment in Hostilities . The law of war does not prohibit persons 4.15.2.2 ng authorized support that constitutes authorized to accompany the armed forces from providi taking direct part in hostilities. Even if the authorized support that they provide constitutes taking a direct part in hostilities , such persons retain their entitlement to POW s tatus under 301 Article 4A(4) of the GPW . Although international law does not prohibit States from using persons authorized to accompany the armed forces to provide support that constitutes direct ommanders should exercise care in placing such personnel in participation in hostilities, c taking a direct situations in which an attacking enemy may consider their activities to constitute in hostilities , as there may be legal and part . policy considerations against such use Commanders may not employ persons authorized to accompany the armed forces to perform duties and functions traditionally performed by a military person if such action is taken 302 for the purpose of shielding a military objective from attack. 4.15.2.3 Increased Risk of Incidental Harm . Persons authorized to accompany the armed forces should expect that they have an increased risk of death or injury incidental to an 303 and military objectives . enemy attack because of their proximity to military operations For example, they should expect that they might be inci dentally injured in an attack again st the force that they accompany y itself . Similarly, in some cases, the location at which they are serving ma 304 Furthermore , in some cases, an enemy could reasonably conclude that be a military objective . e.g. the mere presence of a person at a location ( , a remote military base) indicates that they are a combatant or are directly participating in hostilities, and therefor e could lawfully be made the object of attack. Self -Defens e and Arming 4.15.2.4 . Persons authorized to accompany the armed forces have a right of self by bandits . Persons -defense against unlawful attacks, such as attacks authorized to accompany the armed forces should not resist capture by enemy military forces If persons authorized to whom they expect to respect their status under the law of war. accompany the armed forces make any resistance to enemy military forces, then they may be 299 Refer to § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities ). 300 § 5.9 (Civilians Taking a Direct Part in Hostilities ). Refer to 301 § 4.15.4 (Persons Author ized to Accompany the Armed Forces – Liability Under Domestic Law for Refer to Participation in Hostilities ). 302 § 5.16 (Prohibition on Using Protected Persons and Object s to Shield, Favor, or Impede Military Refer to Operations ). 303 Refer to § 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives ). 304 Places of Military Significance ). Refer to § 5.7.8.4 (Examples of Military Objectives – 145

173 305 regarded as taking a direct part in hostilities Their , and may be made the object of attack. resistance to capture by enemy military forces whom they expect to respect their status under the law of war would be incompatible with the principle that a person may not claim the distinct 306 rights of both combatants and civilians at the same time. The arming of persons authorized to accompany the armed forces is analo gous to the 307 arming of military medical and religious personnel. DoD practice has been to permit to carry defensive commanders to authorize persons authorized to accompany the armed forces 308 weapons if necessary. A State may decide to d to accompany the armed forces for arm persons authorize -defense purposes without incorporating them into the armed forces or personal security and self otherwise authorizing them to act as a combatant. 4.15.2.5 Wearing of Uniform . The law of war does not prohibit persons authorized to accompany the armed forces from wear ing a uniform, including the uniform of armed forces that they accompany. Recent U.S. practice, however, has been to ensure that persons accompanying U.S. forces wear clothing that distinguishes them from members of the 309 armed forces in order to prevent confusion about their status. risk of being made the object of attack by Persons who wear a military uniform accept the . enemy forces, as the enemy would reasonably believe them to be lawful objects of attack Howeve r, the mere wearing of a uniform or being authorized by a State to wear a uniform does not necessarily authorize that person to act as a combatant . 4.15.2.6 Provision of Security Services . Persons authorized to accompany the armed forces who provide security agai nst criminal elements generally would not be viewed as 305 Refer to § 5.9.3.1 (Examples of Taking a Direct Part in Hostilities ). 306 Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the Same Time ). 307 § 7.10.3.4 (Arming of Military Medical Units or Facilities ). Refer to 308 See D O I NSTRUCTION 1100.22, Policy and Procedures for Determining Workforce Mix , E- 5 ¶2.d.(5)(a) (Apr. D 12, 2010) (“It is not a violation of the law of war for DoD civilians and Defense contractor employees who are authorized to accompany the armed forces in the field during hostilities to be issued a weapon on the authority of the NSTRUCTION O D I -defense as addressed in References (n), (o), and (t).”); D Combatant Commander for individual self 3020.41, Operational Contract Support (OCS) , E- 2 ¶4.e (Dec. 20, 2011) (describing policy procedures for issuing weapons to contingency contrac tor personnel). 309 D O D I NSTRUCTION 3020.41, Operational Contract Support (OCS) , E- 2 ¶3.j (Dec. 20, 2011) (“Defense contractors or their personnel are responsible for providing their own personal clothing, including casual and e assignment. Generally, commanders shall not issue military clothing to contractor working clothing required by th personnel or allow the wearing of military or military look -alike uniforms. However, a CCDR [Combatant Commander] or subordinate JFC [Joint Force Commander] deployed forw ard may authorize contractor personnel to wear standard uniform items for operational reasons. Contracts shall require that this authorization be in writing and maintained in the possession of authorized contractor personnel at all times. When commanders issue any type of standard uniform item to contractor personnel, care must be taken to ensure, consistent with force protection measures, that contractor personnel are distinguishable from military personnel through the use of distinctive ds, nametags, or headgear.”). patches, arm ban 146

174 taking a direct part in hostilities (and do not forfeit their protection from being made the object of 310 attack) . armed forces of a State However, providing such services to defend against enemy would be regarded as taking a direct part in hostilities (and would forfeit their protection from 311 being made the object of attack) . DoD policies have addressed the use of non- military personnel to provide security 312 services for DoD components. Where there has been a significant risk of attack by enemy armed forces of a State, DoD practice generally has been to use military personnel to provide security. Persons Authorized to Accompany the Armed Forces – Detentio n. For the 4.15.3 purposes of detention, persons authorized to accompany the armed forces are treated like . These persons may be detained by the enemy and are entitled to POW status during combatants 313 . international armed conflict When held as POWs, persons authorized to accompany the armed forces are to receive from the Detaining Power , and they should be assigned equivalent ranks to those advance of pay 314 of members of the armed forces for this purpose . Persons who are a uthorized to accompany the armed forces must be issued an identity 315 ir status. Presenting the card to confirm the identification card is not a prerequisite for POW status, but it helps captured persons establish to enemy forces that they are entitled to POW 316 status. 310 Compare § 4.23.1 (Police as Civilians ). 311 § Refer to ). 5.9.3.1 (Examples of Taking a Direct Part in Hostilities 312 , D O D I NSTRUCTION 3020.50, Private Security Contractors Operating in Contingency Operations, For example (Jul. 22, 20 Humanitarian or Peace Operations, or Other Military Operations or Exercises 09, Incorporating Change 1, Aug. 1, 2011). 313 See GPW art. 4(A)(4) (defining “prisoners of war, in the sense of the present Convention,” to include persons g who have fallen into the power of the enemy and “who accompany the armed forces without actually bein members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany,”); 1929 GPW art. 81 (“Persons who follow the armed forces without directly belonging thereto, such as correspondents, newspaper reporters, sutlers, or contractors, who fall into the hands of the enemy, and whom the latter think fit to detain, shall be entitled to be treated as prisoners of war, provided they are in possession of an authorization from the military authorities of the armed army without directly . art. 13 (“Individuals who follow an AGUE IV R EG H forces which they were following.”); belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy’s hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they a re IEBER in possession of a certificate from the military authorities of the army which they were accompanying.”); L C ODE art. 50 (“Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contrac tors, if captured, may be made prisoners of war, and be detained as such.”). 314 Refer to § 9.18.3 (Advance of Pay ). 315 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs ). 316 ). lp Clarify Status Refer to § 4.27.1 (Identification Cards Used to He 147

175 Persons Authorized to Accompany the Armed Forces Liability Under Domestic 4.15.4 – . Unlike combatants, persons authorized to accompany the Law for Participation in Hostilities nternational law armed forces receive no general license to participate in hostilities. However, i contemplates that persons authorized to accompany the armed f orces may lawfully support conduct of hostilities . S uch persons should not be liable under an enemy armed forces in the 317 ’s domestic law for providing authorized support services . State For example, they should not be prosecuted for offenses of aiding the enemy ersons authorized to accompany the armed . P forces may not be punished by an enemy State for authorized support activities or for defending themselves against unlawful attacks . This protection would not apply with respect to acts by persons authori zed to accompany the armed forces that are prohibited by the law of war. Persons authorized to accompany the armed forces should not engage in unauthorized participation in hostilities. Such activity would be treated like engagement in private acts of 318 , tility hos and such persons would be in the position of unprivileged belligerent s in relation to 319 those activities. There may be additional considerations in determining which prosecution forum is appropriate because persons authorized to accompany the armed forces are not themselves 320 members of the armed forces . Commanders who use persons authorized to accompany the armed forces could, under certain circumstances, be prosecuted for war crimes committed by such personnel under theories 321 of command responsibi lity or other theories of individual liability . V 4.16 C REWS OF M ERCHANT M ARINE A ESSELS OR C IVIL IRCRAFT Crews of merchant marine vessels or civil aircraft of a belligerent fall into a special persons authorized t category, and are in many respects treated like o accompany the armed 317 See B OTHE , P ARTSCH , S OLF , N EW R ULES 304 (AP I art. 51, ¶2.4.2.2) (“As civilians, they have no general right & to take part in hostilities, but some activities of these persons could amount to direct participation if done in the midst of an ongoing engagement. For example, it is common practice to have civilian technical advisers assist and advise in the installation and maintenance of sophisticated command and control or target acquisition equipment. Repair of a target acquisition o r missile guidance equipment in the midst of battle would probably be regarded as direct participation in hostilities. As in the case of a sick bay on a warship, the immunity from attack is academic, except with respect to individualized attack against th e protected person within a military objective. The issue becomes practically significant only if an attempt is made to subject such a civilian to penal sanction for his nd the lines of battle is not subject unauthorized participation in hostilities. Under US practice support activities behi to penal sanction, although the support activity may be the legitimate object of attack.”). 318 Refer to § 4.18 (Private Persons Who E ngage in Hostilities ). 319 Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents ). 320 Refer to § 18.19. 4.1 (Limits on Military Jurisdiction Over U.S. Citizens Who Are Not Members of the Armed Forces ). 321 ). (Theories of Individual Criminal Liability Refer to § 18.23.3 (Command Responsibility ); § 18.23 148

176 322 forces Under certain circumstances, c rews of merchant marine vessels or civil aircraft of a . 323 vessels neutral that engage in hostilities may be treated like the crews of belligerent or aircraft . Merchant or Civil Crews - Conduct of Hostilities 4.16.1 . Merchant vessels or civil aircraft of a belligerent may be used to support military operations, such as by conveying goods and military personnel to theaters of active military operations. 324 erchant vessels or civil aircraft may be captured. elligerent merchant Enemy m B attacks by enemy forces , including by eventually seizing the vessels or civil aircraft may resist 325 attacking vessels or aircraft. merchant vessels or civil aircraft should not commit However, 326 hostile acts in offensive combat operations. Merchant or Civil Crews – Detention . Members of the crews of merchant marine 4.16.2 vessels or civil aircraft of a belligerent are entitled to POW status, if they fall into the power of 327 the enemy during international armed conflict. mplates that certain members of the crews of merchant marine vessels or The GPW conte civil aircraft of a belligerent may benefit from more favorable treatment under international law ; , they would not be detained as POWs . During war time, enemy merchant seamen have i.e. 328 However, the 1907 Hague XI provides that customarily been subject to capture and detention. the crews of enemy merchant ships that did not take part in hostilities were not to be held as POWs provided “ that they make a formal promise in writing, not to undertake, while hostilities 329 Although these provisions proved ” last, any service connected with the operations of the war. 322 Refer to 4.15 (Persons Authorized to Accompany the Armed Forces ). § 323 Refer to § 15.14 (Acquisition of Enemy Character by Neutral -Flagged Merchant Vessels and Neutral -Marked Civi l Aircraft). 324 § 13.5 Refer to (Enemy Merchant Vessels ). 325 L , II O PPENHEIM ’ S I NTERNATIONAL L AW 266 AUTERPACHT (§85) (“In a sense, the crews of merchantmen owned by subje -of- cts of a belligerent belong to its armed forces. For those vessels are liable to be seized by enemy men war, and, if attacked for that purpose, they may defend themselves, may return the attack, and eventually seize the attacking men of merchant men become in such cases combatants, and enjoy all the privileges of -of-war. The crews the members of the armed forces.”). 326 L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW 266 (§85) (“But, unless attacked, they must not commit hostilities, and if they do so they are liable to be treated as criminals, just as are private individuals who commit ). hostilities in land warfare.” 327 GPW art. 4A(5) (defining “prisoners of war, in the sense of the present Convention,” to include “[m]embers of crews, including masters, pil ots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law” who have fallen into the power of the enemy). 328 GPW C OMMENTARY 65 (“In the past, it was generally recognized that in time of war merchant seamen were liable to capture.”). 329 See H AGUE XI art. 6 (“The captain, officers, and members of the crew, when nationals of the enemy State, are not made prisoners of wa r, on condition that they make a formal promise in writing, not to undertake, while hostilities AGUE XI art. 8 (“The provisions of the three last, any service connected with the operations of the war.”); H preceding articles do not apply to ships taking par t in the hostilities.”). 149

177 330 ineffective during World War I and World War II the GPW allows for the possibility that , 331 they might apply. S PIES , S ABOTEURS , AND O THER P ERSONS E NGAGING IN S IMILAR 4.17 CTS B EHIND E NEMY L INES A Spying, sabotage , and similar acts behind enemy lines have a dual character under the law of war; States are permitted to employ persons who engage in these activities, but these activities are puni shable by the enemy State. Belligerents may employ spies and saboteurs consistent with the law of war . However, any person ( including individuals who would otherwise receive the privileges of lawful combatants) engaging in spying, sabotage, or similar s behind enemy lines, is regarded as a n act unprivileged belligerent while doing so. These persons forfeit entitlement to the privileges of combatant and may be punished after a fair trial if captured. status Spies, Saboteurs, and Other Persons Engaging in Acts Behind Enemy 4.17.1 Similar Lines – Notes on Terminology . Spying has been given a technical definition in the Hague IV 332 . However, as discussed below, certain conduct, most notably sabotage, has been Regulations treated as having the same legal consequences as spying and has even been called spying, even 333 though such acts do not meet the definition of spying in the Hague IV Regulations . In some cases , “saboteurs ” has been used in a purely factual way to refer to those persons 334 , “saboteurs In other cases ” has been used . enemy materiel engaged in damaging or destroying as a legal term of art to refer to those persons who are engaged in damaging or destroying enemy 330 See L EVIE , POW S 63 (explaining that Articles 5 -8 of Hague XI “proved ineffective during World War I” and “[d]uring World War II the provisions of the Eleventh Hague Convention of 1907 were again completely disregarded, with the result that there was no assurance as to exactly what the status of a captured merchant seaman would be.”). Hague XI had fewer than 30 Parties at that time, and only technically applied when all the belligerents AGUE XI art. 9 (“The provisions of the present Convention do not to a conflict were also parties to Hague X See H I. apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”). D INAL R F IPLOMATIC ECORD OF THE II-A See Hague XI did not apply during World War II for this reason. ONFERENCE OF ENEVA OF 1949 C 419 G (UK representative noting that “[t]he provisions of the Eleventh Hague Convention were not applied during the last War, owing to the fact that all the belligerent States were not parties to it.”). 331 For further background see II- A F INAL R ECORD OF THE D IPLOMATIC C ONFERENCE OF G ENEVA OF 1949 238 -39, 418- 19. 332 Refer to § 4.17.2 (Spies ). 333 Refer to § 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines ). 334 ¶331 (“Whether saboteurs, UK M ANUAL 1958 i.e. , persons dropped or landed behind the lines of the belligerent in order to commit acts of destruction and terrorism, are to be treated as spies depends on whether they are caught in disguise or not. If they are disguised in civilian clothing or in the uniform of the army by which they are cau ght or that of an ally of that army, they are in the same position as spies. If caught in their own uniform, they are entitled to be treated as prisoners of war.”). 150

178 material and who, by definition, would not be entitled to receive the privileges of combatant 335 us. stat Spies and Saboteurs ” in This Manual . This m anual General Usage of “ 4.17.1.1 ” to refer to that general category of secretive, spying and sabotage generally uses the term “ hostile activities that, when performed behind enemy lines, deprives that person of enti tlement to In some places, the phrase the privileges of combatant status. “spying, sabotage, and similar acts behind enemy lines ” is used to make more clear that this general category of acts is broader than only spying and sabotage. . A person may only be considered a spy when, (1) acting clandestinely or 4.17.2 Spies under false pretenses, (2) in the zone of operations of a belligerent , (3) he or she obtains, or endeavors to obtain, information, (4) with the intention of communicating it to the hostile 336 party. During war, any person—military or civilian —whose actions meet all of these elements may be consid ered a spy under the law of war . The following discussion elaborates upon the elements of spying. . Acting “clandestinely or 4.17.2.1 Acting Clandestinely or Under False Pretenses ” means deliberately concealing or misrepresenting one’ s identity and under false pretenses 337 For example, a member of the armed forces fulfills this element when the person conduct. wears a disguise, such as civilian clothes or the uniform of the enemy , so that the enemy will fail to identify the person as a member of the opposing armed force. 335 II- A F INAL R EPORT OF THE D IPLOMATIC C ONFERENCE OF G ENEVA OF 1949 621 (Norwegian represen tative explaining that “[s]aboteurs could not of course claim protection under the Prisoners of War Convention; they should nevertheless be protected against criminal treatment and torture.”). 336 H IV R EG . art. 29 (“A person can only be considered a spy when, acting clandestinely or on false pretences, AGUE he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of ly, in disguise or under C ODE art. 88 (“A spy is a person who secret IEBER communicating it to the hostile party.”); L id. at art. 83 (“Scouts, or false pretense, seeks information with the intention of communicating it to the enemy.”); loyed single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, emp in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer AW , M ILITARY L INTHROP & P RECEDENTS 766 -67 (“A spy is a person who, without authority and death.”); W secretly, or under a false pretex t, contrives to enter within the lines of an army for the purpose of obtaining material information and communicating it to the enemy; or one who, being by authority within the lines, attempts secretly to Consider AP I art. 46(3) (“A member of the armed forces of a Party to the conflict who accomplish such purpose.”). is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner.”). 337 See W INTHROP , M ILITARY L AW & P RECEDENTS 767 (“The clandestine character of [the spy’s] proceedings and ANUAL the de ception thus practised constitute the gist or rather aggravation of the offence of the spy.”); 1958 UK M ¶330 (“The principal characteristic of the offence of espionage is disguise and secrecy in action.”). Consider AP I art. 46(3) (“A member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory shall not be consider ed as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner.”). 151

179 Persons who act openly, such as by wearing the uniform of the armed forces to which 338 they belong, do not meet this element. ground reconnaissance For example, members of a 339 uniforms would not meet this element. team or couriers who wear their normal In addition, observers on military reconnaissance aircraft have not been regarded as acting clandestinely or 340 under false pretenses. In the Zone of Operat ions of a Belligerent . A person must engage in acts 4.17.2.2 341 to be considered a spy. “ Zone of of espionage in the zone of operations of a belligerent 342 ” has been construed broadly to include areas supporting the war effort. However, a operations person who enga ges in surveillance or information gathering from outside territory controlled by would not meet this element, and would not be considered a spy. a hostile party 4.17.2.3 Obtains, or Endeavors to Obtain, Information . A person may be punished as a spy regardless of whether that person succeeds in obtaining information or in 343 A person, however, must obtain or attempt to obtain information transmitting it to the enemy. to be considered a spy. . A person 4.17.2.4 With the Intention of Communicating It to the Hostile Party -after information to a hostile party must act with the intention of communicating the sought to the conflict to be considered a spy within the meaning of this rule. 338 See H AGUE IV R EG . art. 29 (“[S]oldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, Consider AP I art. 46(2) (“A for the purpose of obtaining information, are not considered spies.”). member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.”). 339 . art. 29 (“Soldiers and civilians, carrying out their mission openly, intrusted with the delivery See H AGUE IV R EG of d espatches intended either for their own army or for the enemy’s army” are not considered spies). 340 H AGUE IV R EG . art. 29 (“Persons sent in balloons for the purpose of carrying despatches and, generally, of See nt parts of an army or a territory” are not considered spies.); maintaining communications between the differe INTHROP , M ILITARY L AW & P RECEDENTS 768 -69 (“[T]he mere observing of the enemy, with a view to gain W intelligence of his movements, does not constitute [spying], for this may be done, and in ac tive service is constantly done, as a legitimate act of war ... . Observing the enemy from a balloon is no more criminal than any other form of reconnaissance.”). 341 See, e.g. , 317 U.S. 1, 31 (1942) (characterizing a spy as one “who secretly and without uniform Ex Parte Quirin, passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy”) (emphasis added). 342 United States ex rel. Wessels v. McDonald, 265 F. 754, 763- 64 (E.D.N.Y. 1920) ( “In this great World War See through which we have just passed, the field of operations which existed after the United States entered the war, and, especially in regard to naval operations, brought the port of New York within the field of active operations.”). Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (“The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our Armed Forces.”). 343 See L IEBER C ODE art. 88 (“The spy is punishable ... whether or not he succeed in obtaining the information or in ILITARY L P , M INTHRO AW & P RECEDENTS 768 (“The fact that [one] was ‘lurking’ or conveying it to the enemy.”); W ‘acting’ with intent to obtain material information, to be communicated by himself or another to the enemy, is all that is required to complete the offence.”). 152

180 However, a person who seeks to send information to a State not involved in the conflict y still commit acts punishable by the offended State , and that person’ ma s conduct may fall 344 within the broader category of secretive, hostile acts behind enemy lines. eurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy 4.17.3 Sabot dition to spies, other persons acting clandestinely or under false pretenses with a . In ad Lines behind enemy lines have also been treated like spies under the law of war. hostile purpose ines have Like spies, persons engaged in these secretive, hostile activities behind enemy l also been deprived of the privileges of combatant status and often been punished. For example, 345 saboteurs acting clandestinely or under false pretenses in the zone of operations of a 346 belligerent are treated as spies. However, activities beside s sabotage that are helpful to one side ’s lines have been punishable as well, often ’s war effort that are done behind the other side 347 348 under the rubric of “ war treason ,” ” activities hostile to the or “ “ secretly entering the lines, 349 security of the State. ” 344 Refer to (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines ). § 4.17.3 345 C ANADIAN M ANUAL ¶610(1) (“Saboteurs are persons operating behind the lines of an adverse party to 2001 C OMMENTARY 57 (“Sabotage is harder to define, as no definition of it is given in commit acts of destruction.”); GC any text in international law. The term ‘sabotage’ [in article 5 of the GC] should be understood to mean acts whose or effect is to damage or destroy material belonging to the army of occupation or utilized by it.”). object 346 2001 C ANADIAN M ANUAL ¶610(3) (“Civilian saboteurs or saboteurs not in uniform are not so protected [i.e., entitled to POW status] and are liable to be treated as spies. Such civilian saboteurs and saboteurs not in uniform may be tried in accordance with the law of the captor and may face the death penalty. They must not, however, be , persons dropped or landed behind UK M ANUAL ¶331 (“Whether saboteu rs, i.e. punished without a fair trial.”); 1958 the lines of the belligerent in order to commit acts of destruction and terrorism, are to be treated as spies depends on n the uniform of the army by whether they are caught in disguise or not. If they are disguised in civilian clothing or i which they are caught or that of an ally of that army, they are in the same position as spies. If caught in their own uniform, they are entitled to be treated as prisoners of war.”). 347 See G REENSPAN , M ODERN L AW OF L AND W 330 (“The characteristic which unites all acts of war treason ARFARE is that they are hostile acts committed inside the area controlled by the belligerent against whom the acts are directed ’ PPENHEIM , II O AUTERPACHT S I NTERNATIONAL L AW by persons who do not possess the status of combatants.”); L 575 (§255) (“So- called ‘war treason’ consists of all such acts (except hostilities in arms on the part of the civilian population, spreading of seditious propaganda by aircraft, and espionage) committed within the lines of a belligerent C ODE art. 90 (“A traitor under the law of war, IEBER as are harmful to him and are intended to favour the enemy.”); L -traitor, is a person in a place or district under Martial Law who, unauthorized by the military commander, or a war ormation of any kind to the enemy, or holds intercourse with him.”). gives inf 348 Ex parte Quirin, 317 U.S. 1, 31 (1942) (giving as an example of an unprivileged belligerent “an enemy combatant who without uniform comes secretly through the lines for the purpose of w aging war by destruction of life or 786 (“A similar though less aggravated offence against the RECEDENTS INTHROP , M ILITARY L AW & P W property”); laws of war is that of officers, soldiers, or agents, of one belligerent who come secretly within the lines of th e other, or within the territory held by his forces, for any unauthorized purpose other than that of the spy, as, for example, for the purpose of recruiting for their army, obtaining horses or supplies for the same, holding unlawful communication, &c., --a class of offences of which instances were not unfrequent in the border States during our late civil war.”). 349 GC art. 5 (“Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.”). 153

181 350 These kinds of activities almost necessarily take on the character of spying. In many 351 . cases, these actions have been reported as spying However, the actual purpose of these e other sorts of activities may not be to gain or transmit intelligence information, but to tak actions that would further the war effort . ’s presence on the territory controlled by an opposing State with a Thus, a belligerent hostile purpose while clandes tinely or under false pretenses, suffices to make that person liable 352 under the law of war. t as a spy to treatmen Sabotage Permissible Under the Law of War . Under the law of war, 4.17.4 Spying and 353 belligerents may employ spies and saboteurs. Spying and sabotage are not prohibited by any law of war treaty to which the United States is a P arty. For example, spying and sabotage are not prohibited by the 1949 Geneva 354 , nor defined as a “ grave breach Conventions ” of those conventions. Similarly, spying and sabotage also have not been listed as war crimes punishable under the statutes of international 355 In addition, law of war treaties that regulate , but do not prohibit , spying, criminal tribunals. 356 recognize implicitly that belligerents may use this method of warfare. 350 1958 UK M ANUAL ¶331 note 1 (“A question may arise if a saboteur, being a member of the armed forces, is caught in civilian clothes worn over or under his military uniform. It may be difficult to accept the defence that the intention was to shed the civilian clothing before the commission of the offence. Sabotage operations behind the enemy lines are frequently carried out by members of the armed forces in uniform who, upon completion of their mission, make their way to the nearest neutral territory with a view to returning to their own country. If when engaged in sabotage or subsequent evading action they are discovered in civilian clothing worn over their uniform or underneath it they run the risk of being treated as s pies and not merely as members of the armed forces engaged in a sabotage mission. ... It may well be that a sabotage mission behind the enemy lines inevitably takes on the added character of espionage, unless uniform is worn throughout the stay in enemy ter ritory.”). 351 , 33 L L. Oppenheim, On War Treason AW Q UARTERLY R EVIEW 266 (1917) (“Thus, in 1780, during the American War of Independence, Major André was convicted and hanged as a spy, although he was not seeking information but was returning after having ne gotiated treason with General Arnold; it was a case of war treason. And the Japanese Japanese Major Shozo Jakoga and Captain Teisuki Oki, who in the summer of 1904, during the Russo- , with the aid of dynamite, a railway bridge War, were caught, disguised in Chinese clothes, in the attempt to destroy in Manchuria in the rear of the Russian forces —a clear case of war treason — would previous to the Hague Regulations surely have been executed as spies; in fact the case was reported in the newspapers as one of espionage.”). 352 Ex parte Quirin, 317 U.S. 1, 38 (1942) (“[E]ach petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile pu rpose. The offense was complete when with that purpose they entered — or, having so entered, they — our territory in time of war without uniform or other appropriate means of identification.”). remained upon 353 See United States v. List, et al . (The Hostag e Case), XI T RIALS OF W AR C RIMINALS B EFORE THE NMT 1245 (“By the law of war it is lawful to use spies.”); Richard R. Baxter, So- Called ‘Unprivileged Belligerency’: Spies, OOK OF B RITISH Y EAR 323, 333 (1951) (noting that “espionage AW I NTERNATIONAL L B Guerillas, and Saboteurs , 28 is regarded a conventional weapon of war, being neither treacherous nor productive of unnecessary suffering”). 354 Refer to § 18.9.5 (War Crimes – Notes on Terminology ). 355 See, e.g. , Charter of the International Military Tribunal , art. 6, annexed to Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for 154

182 Although spying and sabotage are n ot prohibited by the law of war, acting cla ndestinely ” or under false pretenses could, in some circumstances, constitute “ feigning a protected status, 357 one of the elements of perfidy. Persons engaged in these activities and commanders who y resort to perfidy. employ them should take special care not to kill or wound b Forfeiture of the Privileges of Combatant S tatus . Although Spying and Sabotage – 4.17.5 , and other persons engaged in , saboteurs the law of war allows belligerents to employ spies secretive hostile activities behind enemy lines , the law of war also permits belligerents to take additional measures to defend against these persons . acting clandestinely or under false pretenses , by distinguish These individuals , fail to 358 Thus, persons otherwise entitled to privileges of themselves as combatants generally must do. combatant status , including POW status, forfeit their entitlement to those privileges while 359 engaged in spying , sabotage, or other hostile, secretive activiti es behind enemy lines . Although not explicitly reflected in the GPW, this understanding was the general understanding 360 361 362 judicial decisions , at the 1949 Diplomatic Conference and is reflected in other treaties, 363 364 military manuals, and scholarly works. the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, -8. S TATUTE arts. 2 -5; ICTR S TATUTE arts. 2 -4. Consider R OME S TATUTE arts. 5 ICTY 288; 356 See H AGUE IV Consider EG . arts. 24, 29- 31 (governing the classification, conduct, and treatment of spies). AP I R art. 46 (same). 357 See § 5.22.1 (Definition of Perfidy ). 358 § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to Refer to he Civilian Population Distinguish Themselves From t ). 359 Compare § 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State ). 360 INAL R ECORD OF THE D IPLOMATIC C ONFERENCE OF G II- A F 1949 509 (noting the UK representative’s ENEVA OF statement that “spies ... according to general opinion, should not have the benefits of the privileges accorded by” the ONFERENCE OF C R EPORT OF THE D IPLOMATIC presentative INAL G ENEVA OF 1949 621 (Norwegian re GPW); II -A F explaining that “Saboteurs could not of course claim protection under the Prisoners of War Convention; they should nevertheless be protected against criminal treatment and torture.”). 361 R H AGUE IV See EG . art. 31 (impliedly contrasting the posi tion of a spy captured while spying with a “spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, t. 46 (1) (“Notwithstanding any AP I ar Consider ). and incurs no responsibility for his previous acts of espionage.” other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.”); AP I art. 44(4) (“A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 [certain obligations to distinguish himse lf during military engagements] shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.”). 362 See, e.g. , Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spie s as “familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war”); Mohamad Ali and Another v. Public (“[A]ppellan 766 EVIE , D OCUMENTS ON POW S ts, if [1969] A.C. 430 (P.C.) (appeal taken from U.K.), L Prosecutor they were members of the Indonesian armed forces, were not entitled to be treated on capture as prisoners of war 155

183 4.17.5.1 Liability of Persons Not Captured While Spying for Previous Acts of who engage in spying, . Persons who qualify for the privileges of combatant status Espionage , incur no responsibility or liability for previous acts of and then return to friendly lines 365 . espionage P ersons who have never qualified for the privileges of combatant status would not th benefit from this rule because they cannot regain a status that ey did not receive in the first 366 place. Cases of Doubt 4.17.5.2 hould there be any . During international armed conflict, s ent act and having fallen into the doubt as to whether persons suspected of committing a belliger hands of the enemy are entitled to POW status, such persons are entitled to have their status and should be treated as POWs pending that determined by a competent tribunal 367 . determination under the Geneva Convention when they had landed to commit sabotage and had been dressed in civilian clothes he explosives and lit them and when they were arrested.”). both when they had placed t 363 C ANADIAN ANUAL 2001 ¶320(1) (“Generally speaking, persons engaging in espionage may be attacked and if M 1992 G ERMAN M ANUAL ¶321 captured while doing so shall NOT have the right to the status of prisoner of war.”) ; 1958 (“Even if they are members of their armed forces, they do not have the right to the status of prisoner of war.”); ANUAL ¶96 (noting that “regular members of the armed forces who are caught as spies are not entitled to be UK M as prisoners of war”); 1956 FM 27- 10 (Change No. 1 1976) ¶74 (“Members of the armed forces of a party to treated the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property.”). 364 , POW L 82-83 EVIE (noting that “[e]ve n individuals who fall within the categories specifically enumerated in S Article 4 are not entitled to prisoner -of-war status if, at the time of capture by the enemy, they were dressed in INTHROP , M ILITARY civilian clothes and were engaged in an espionage or sabotage mission behind enemy lines”); W L AW P RECEDENTS 769 (“A spy, under capture, is not treated as a prisoner of war but as an outlaw, and is to be & tried and punished as such.”). 365 R AGUE IV H EG . art. 31 (“A spy who, after rejoining the army to wh ich he belongs, is subsequently captured See by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”); IEBER C ODE art. 104 (explaining that “[a] successful spy or war -traitor, safely returned to his own army, and L afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war -traitor”); Rieger, Dalloz Hebdomadaire (France, Cour de Cassation, Jul. 29, 1948), summarized in 44 AJIL 422 (1950) (“The court sustained a German national who, after mobilization as a German army officer, had been in France a spy and a the acquittal of recruiter of spies, but had not been apprehended until after he had rejoined the German Army and been demobilized ARB . 142, 148 (New York County Supreme Court, Dec. 4, 1865) (Court directed in Germany.”); In re Martin, 45 B the release of a prisoner who “was not taken in the act of committing the offense charged against him, of being a spy. He had returned within the lines of the confederate forces, or had ot herwise escaped, so that he was not arrested till after the confederate armies had surrendered, been disbanded and sent to their homes, with the promise Consider AP I that they should not be further disturbed if they remained there and engaged in peaceful pursuits.”). arts. 46(3), 46(4) (referring to persons who “engage in espionage in [the] territory” of a hostile party, and noting that a person “may not be treated as a spy unless he is captured while engaging in espionage”). 366 See L AUTERPACHT , II O PPENHE IM ’ S I NTERNATIONAL L AW 424- 25 (§161) (“But Article 31 applies only to spies who belong to the armed forces of the enemy; civilians who act as spies, and are captured later, may be punished.”). R “the army to which he belongs” in connection with AGUE IV . art. 31 (referring only to a spy who rejoins EG Cf. H protection against subsequent prosecution). 367 een Determined ). Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has B 156

184 IN 4.18 P ERSONS W HO E NGAGE RIVATE H OS TILITIES P private persons who engage in hostilities forfeit many of the protections to In general, civilian population are entitled, and are liable to treatment in one or more which members of the 368 respects as unprivileged belligerents. Private Persons Who Engage in Hostilities – Note s on Terminology . This section 4.18.1 private persons ” who engage in hostilities rather than “ civilians ” who engage in refers to “ hostilities for three reasons. First, an emphasis on “private” persons is consistent with 369 explanations of the principle of distinction. longstanding Second, it may be analytically unhelpful to focus on “ ” because private persons who engage in hostilities are liable to civilians Third l belonging to a military personne treatment in one or more respects as combatants. , non- State ( , persons authorized to accompany the armed forces) , who are often called “civilians ,” e.g. raise a different set of issues that merit special consideration as opposed to the general case of a private person who decides to engage in hostilities. For the purpose of applying different law of war rules, different formulations have been used to describe when a person has engaged in hostilities. Although these phrases often refer to the same conduct, the context in which each term is appl ied is important; whether a phrase includes a particular type of conduct may depend on the particular legal rule in question. Whether a particular person is liable as a consequence of his or her conduct to treatment as a combatant ( e.g. , being made the object of attack, internment, or prosecution for acts of unprivileged belligerency) must be assessed with reference to the specific legal rule at issue 370 rather than based on the use of a conclusory label, such as “enemy combatant .” This manual generally uses the phrase ” in a broad sense to refer “engaging in hostilities to any of those actions that could cause a person to forfeit one or more protections under the law of war. When discussing specific legal rules, on the other hand, this manual uses the partic ular engaging in hostilities. ” For example, this language of the rule at issue, rather than the phrase “ manual generally reserves the use of the phrase “ ” to address the taking a direct part in hostilities 368 Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents ). 369 ion has advanced during the last centuries, so See, e.g. IEBER C ODE , L arts. 22 and 23 (“Nevertheless, as civilizat has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. ... Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant In the overruling demands of a vigorous war.”). 370 Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the American See IGEST OF The Obama Administration and International Law , Mar. 25, 2010, 2010 D Society of International Law: U NITED S TATES P RACTICE IN I NTERNATIONAL L AW 749 (“Some commentators have criticized our decision to detain certain individuals based on their membership in a non -state armed group. But as those of you who follow the Guantánamo habeas litigation know, we have defended this position based on the AU MF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various judges who have considered these arguments have taken issue with certain points, they have accepted the overall proposition that individuals who are part of an organized armed group like Al Qaeda can be subject to law -of-war detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory labels, like ‘enemy combatant,’ but on whether the factual record in the particular case meets the legal standard.”). 157

185 rule applicable when a civilian forfeits his or he r protection from being made the object of 371 attack. Private Persons Who Engage in Hostilities al of the Distinct Protections 4.18.2 – Deni Afforded Peaceful Civilians . Private p ersons who engage in hostilities forfeit many of the 372 The principle of military necessity can protections afforded civilians under the law of war. 373 . action (such as detention) to address the threat posed by such persons justify taking military The forfeiture of many of the protections of civilian status is also reflected in the principle that a 374 person may not claim the distinct rights of both combatants and civilians at the same time. in Hostilities – Lack of the Privileges of Combatant 4.18.3 Private Persons Who Engage . Private persons who engage in hostilities are not entitled to the privileges of combatant Status 375 . The law of war does not condone the “ farmer by status and may be punished, after a fair trial 376 day and guerilla by night.” 371 Refer to § 5.9 (Civilians Taking a Direct Part in Hostilities ). 372 Join t Chiefs of Staff, Joint Pub. 3 -60, Joint Doctrine for Targeting , A -2 (Jan. 17, 2002) (“The protection See offered civilians carries a strict obligation on the part of civilians not to participate directly in armed combat, become combatants, or engage in acts of war. Civilians engaging in fighting or otherwise participating in combat operations, singularly or as a group, become unlawful combatants and lose their protected civilian status.”); 1992 G ERMAN ANUAL ¶517 (“Persons taking a direct part in hostilities are not entitled to claim the rights accorded to M civilians by international humanitarian law (Art. 51 para 3 AP I; Art. 13 para 3 AP II). The same applies if they are they are definitely suspected of activities hostile to the security of the State (Art. 5 para 1 GC IV).”); 1956 FM 27- 10 (Change No. 1 1976) ¶60 (“Persons who are not members of the armed forces, as defined in Article 4, , who GPW bear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges attaching to the members of the civilian population (see sec. II of this chapter).”). 373 Refer to § 2.2.1 (Military Necessity as a Justification ). 374 Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at the Same Time ). 375 ¶88 (If civilian inhabitants “commit or attempt to c See 1958 UK M ANUAL ommit hostile acts, they are liable to NTERNATIONAL , II O PPENHEIM ’ S I L AW 206 (§57) (“According to a AUTERPACHT punishment, after a proper trial.”); L not generally recognised customary rule of International Law, hostile acts on the part of private individuals, organised as compact movements operating under responsible authority, are not acts of legitimate wafare, and the AR W RIALS OF , XI T United States v. List, offenders may be punished in accordance with International Law.”); et al. RIMINALS EFORE THE NMT 1246 (“[T]he rule is established that a civilian who aids, abets, or participates in the C B IEBER C ODE art. 82 (“Men, or squads of fighting is liable to punishment as a war criminal under the laws of war.”); L men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avoca tions, or with the occasional assumption such men, of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers -- ileges of prisoners of or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the priv war”). 376 B OTHE , P ARTSCH , & S OLF , N EW R ULES 252 (AP I art. 44, ¶2.7.1) (“[T]he pre -existing rule [ i.e ., prior to AP I] precluded combatant status and PW status for the persons who engaged in civilian pursuits during the day but fought Geneva Conventions for the Protection of War Victims: ENATE E XECUTIVE R EPORT 84- 9, as a guerilla by night.”); S Report of the Committee on Foreign Relations on Executives D, E, F, and G , 82nd Congress, First Session, 5 (Jun. 27, 1955) (“In sum, extension of protection to “partisans” [in the GPW] does not embrace that type of partisan who performs the role of farmer by day, guerilla by night. Such individuals remain subject to trial and punishment as 216 (§134) L HEODORE W OOLSEY , I NTRODUCTION TO THE S TUDY OF I NTERNATIONAL AW unlawful belligerents.”); T (1897) (explaining that “[g]uerilla parties [i.e., armed groups not called out by public authority], however, do not 158

186 The denial of the privileges of combatant status to private persons engaging in hostilities may be justif jus ad bellum principle ied on the basis that such persons act inconsistently with the 377 authority, under which the of competent resort to armed force is a prerogative of the State. qualification for entitlement to the privileges of combatant These individuals lack the principal 378 status —State authorization. This requirement for State authorization has been traced to 379 medieval law of arms. who engage in hostilities the privileges of combatant status has Denying private persons rivate persons who engage in hostilities justified on humanitarian grounds. P also been viewed as 380 civilian risk undermining the protections afforded the population. , private persons who And engage in hostilities generally have not been trained in the law of war and are not subject to the 381 same disciplinary regime as members of the armed forces. Thus, their participation in 382 . hostilities has been associated with the commission of war crimes enjoy the full benefit of the laws of war” and instead “are apt to fare worse than either reg ular troops or an unarmed peasantry” because, inter alia, “they put on and off with ease the character of a soldier”). 377 § 1.11.1.1 (Competent Authority (Right A uthority) to Wage War for a Public Purpose ). Refer to 378 § 4.6.2 (Belonging to a Party to the Conflict). Refer to 379 The Status of Combatants and the Question of Guerrilla Warfare , 45 B RITISH Y EAR B OOK OF G.I.A.D. Draper, NTERNATIONAL L AW 173, 175 (1971) (“With the break -up of Christendom the medieval law of arms took shape as I -at-arms and mercenaries ‘avowed’ the embryonic international law of war. The older idea of knights, men by a prince changed to that of armed forces in the service of a territorial, secular state. However, many of the ideas and jus militare came through into the new international law of war, including the idea of a right or technical rules of the privilege to fight reserved for military classes and the requirement of a certain ‘openness’ in the manner of fighting. This ‘openness’ spells out the older idea of a ‘public’ war and the rejection of perfidy as abhorrent to the knightly classes. Conversely, those who had not the right to fight met short shrift at the hands of those who had. The marauder and the freebooter acted against, and were outside, ‘faith and the law of nations’ and were early forms of (1965) (The medieval 246 H. K EEN , T HE L AWS OF W AR IN THE L ATE M IDDLE A GES M. See also war criminals.”). law of arms “was a formal and generally accepted law, and its currency helped to establish” the principle that “war, in its proper sense could only be waged by sovereigns.”). 380 REENSPAN , M ODERN L AW OF L AN D W ARFARE G 55 (“If any and every citizen capable of bearing arms is entitled to use them then the distinction between the soldier and the remainder of the population disappears. The result could only expose the civilian element, regardless of sex, to massacre. The enemy soldier, unable to distinguish his foe, aware that any man, woman, boy, or girl in civilian clothes might produce at any moment a concealed weapon iscriminately.”); Raymund to be used against him, would inevitably be disposed to treat soldier and civilian alike, ind T. Yingling and Robert W. Ginnane, The Geneva Conventions of 1949 , 46 AJIL 393, 402 (1953) (“While the conditions imposed by the convention for treatment as prisoners of war of members of resistance movements would d many persons acting as ‘partisans’ during World War II, nevertheless, it is believed that such not have covere conditions are the minimum necessary if regular forces are to have any protection against attacks by the civilian population and if any distinction is to be ma de between combatants and noncombatants. The farmer by day, assassin by night, type of ‘partisan’ cannot be condoned by international law, whatever other justification circumstances may give him.”). Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance ), footnote 164 and accompanying text. 381 § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates ). Refer to 382 See, e.g. , C HARLES H ENRY H YDE , II I NTERNATIONAL L AW : C HIEFLY AS I NTERPRETED AND A PPLIED BY THE U NITED S TATES 296 (1922) (“The law of nations, apart from the Hague Regulations above noted, denies belligerent qualifications to guerrilla bands. Such forces wage a warfare which is irregular in point of origin and authority, of discipline, of purpose and of procedure. They may be constituted at the beck of a single individual; they lack uniforms; they are given to pillage and destruction; they take few prisoners and are hence disposed to show slight 159

187 Activities That Constitute “ ostilities ” b y Private Persons . Certain 4.18.4 Engaging in H engaging in hostilities, ” , when done by private persons, make them activities constitute “ i.e. y State as unprivileged belligerents. liable to treatment in one or more respects by the enem Being Part of a Hostile, Non- State Armed Group . Being part of a non- 4.18.4.1 State arm ed group that is engaged in hostilities against a State is a form of engaging in hostilities that makes private persons liable to treatment in one or more respects as unprivileged 383 belligerents by that State . Being part of a non- State armed group may involve formally joining the group or simply participating sufficiently in its activities to be deemed part of it. non- State armed group may be a difficult factual question. Whether a person has joined a -State armed groups may not use formal i ndicia of me mbership ( e.g. , uniforms or identity Non 384 , or members of these groups may seek to conceal their cards) association with the group. It may be appropriate to use circumstantial or functional information to assess whether a person is 385 State armed gr oup. part of a non- In addition, non- State armed groups may also rely on individuals who are not members of are functionall y part of those organizations. Their support might be the groups, but who particularly important to enable the non- State armed group to conduct and sustain its 386 operations. For example, these individuals might participate sufficiently in the activities of the group or support its operations substantially in a way that is analogous to the support that 387 These provide to the armed forces. persons authorized to accompany the armed forces quarter.”); Wharton, , § 221, VII M OORE ’ S D IGEST 175 (“If war were to be waged by priv ate parties, Com. Am. Law operating according to the whims of individual leaders, every place that was seized would be sacked and outraged; and war would be the pretence to satiate private greed and spite.”). 383 See, e.g. , In re Guantanamo Bay Litigation, Respondents’ M emorandum Regarding the Government’s Detention , Misc. No. 08 6 (D.D.C., Mar. 13, 2009) (“Because Authority Relative to Detainees Held at Guantanamo Bay -442, 5- hose who were part of the use of force includes the power of detention, the United States has the authority to detain t -standing U.S. jurisprudence, as well as law al-Qaida and Taliban forces. Indeed, long -of-war principles, recognize that members of enemy forces can be detained even if ‘they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.’ Accordingly, under the AUMF as informed by law -of-war principles, it is enough that an individual was part of al- Qaida or Taliban forces, the principal organizations that fall w ithin the AUMF’s authorization of force.”) (internal citations omitted); Hamdan v. Rumsfeld, 548 U.S. 557, 693 (2006) (Thomas, J., dissenting) (“For well over a century it has been established that to unite with banditti, jayhawkers, guerillas, or any othe r unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined.”) (internal emphasis and quotations omitted). 384 Refer to § 17.5.1.1 (Increased Difficulty in Identifying Enemy Forces and Other Military Objectives ). 385 See, e.g. , Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (“Although it is clear al Qaeda has, or at least at one time had, a particular organizational structure, ... , the details of its structure are generally unknown, ... , but it is thought to be somewhat amorphous, ... . As a result, it is impossible to provide an exhaustive list of criteria for f’ al Qaeda. That determination must be made on a case- by -case basis determining whether an individual is ‘part o by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.”) (internal citations omitted). 386 Refer to § 17.5.1.2 (Different Support Structures for Non -State Armed Groups ). 387 ). (Persons Authorized to Accompany the Armed Forces Refer to § 4.15 160

188 individuals may be regarded as constructively part of the group, even if they are, in fact, not 388 formal members of the group. 4.18.4.2 . In addition to being part of or substantially Other Hostile Acts other hostile State armed group, can make a person liable to supporting a hostile, non- acts treatment in one or more respects as an unprivileged belligerent under the law of war. For rivate persons who bear example, p e arms against enemy personnel or who attempt to kill or injur 389 . enemy personnel would become liable to being made the object of attack erform ing P s pying, sabotage, and other hostile activities behind enemy lines would render a person liable to 390 prosecution for such conduct . Private Persons Who Engage in Hostilitie s and the Law of War . As in the cases of 4.18.5 spying and sabotage , under international law private enemy nationals are not generally regarded as being prohibited from engaging in hostilities during international armed conflict. 391 International law ze, however, that opposing States may punish such persons. does recogni other forms of unprivileged belligerency Nonetheless, like in hostilities has , private engagement been described in some contexts as a “ war crime ” or as a violation of international law or the la w 392 of war. 388 Hedges v. Obama, No. 12- 3644, Reply Brief for Defendant -Appellant , 11 -12 (2d Cir. Sept. 20, 2012) (“More generally, ‘substantial support’ encompasses individuals who, even if not considered part of the i rregular enemy forces at issue in the current conflict, bear sufficiently close ties to those forces and provide them support that warrants their detention consistent with the law of war. The substantial support concept, as properly informed by the law of war, would include people whose support for al -Qaeda or the Taliban makes them analogous to those who ‘accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contr actors, members of labour units or of services responsible for the welfare of the armed forces.’ Such substantial supporters are, in short, ‘more or less part of the armed force’ and subject to law -of-war detention for the duration of the conflict.”) (internal citations omitted). 389 (Civilians Taking a Direct Part in Hostilities ). Refer to § 5.9 390 § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines ). Refer to 391 See G REENSPAN , ODERN L AW OF L AND W ARFARE 61 (“Guerillas who do not comply with the provisions laid M down [of GPW art. 4(A)(2)] may perform patriotic service for their country (just as espionage agents often do), yet such illegitimate hostilities come within the technical heading of war crimes, and their perpetrators must be prepared RIALS OF W AR to take their punishment if captured.”); United States v. List, et al . (The Hostage Case), XI T C RIMINALS B EFORE THE NMT 1245 (“Just as the spy may act lawfully for his country and at the same time be a war criminal to the enemy, so guerrillas may render great service to their country and, in the event of s uccess, become ERBERT C. heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such.”); H OOKS , F RISONERS OF W AR 40 (1924) (“Individuals who undertake to wage a war in their private capacity are not P entitled to the tre atment of prisoners of war. The enemy may punish them when captured as war criminals. The safety of the troops compels the enemy to punish such hostilities as acts of illegitimate warfare, and international law gives the right to do so. Nations do not prohibit its citizens from such acts, however, for they may be most helpful to it just as spying is helpful.”). 392 See, e.g. , James Speed, Attorney General, Military Commissions , July 1865, 11 O PINIONS OF THE A TTORNEY G ENERAL 297, 314 (1869) (“A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, may be tried, condemned, and executed as offenders against the laws of war.”). 161

189 In discussions of the status of private acts of hostility under international law, the point is often made that international law does not require States to prevent what they may regard as acts 393 of patriotism and heroism. However, outside the context of patriotic acts of resistance by persons in international armed conflict, private acts of carry additional sanction under international law. hostility often For example, persons who set off in private military expeditions against a foreign State from a State that has peaceful relations with the foreign State, have been subject to punishment under 394 the law of nations. Similarly, private acts of hostility , under certain conditions , may be 395 regarded as piracy. In contemporary parlance, private act are often punished as s of hostility 396 ” The unauthorized use of violence by private persons to achieve political ends has “terrorism. 397 tates. been viewed as contrary to the principles of democratic S Moreover, States have obligations under international la w to repress terrorism, especially when conducted on their 398 territory against other States. 4.19 R IGHTS , D UTIES , AND L IABILITIES OF U NPRIVILEGED B ELLIGERENTS Unprivileged belligerents have certain rights, duties, and liabilities. In general, unprivileged belli gerents lack the distinct privileges afforded to combatants and civilians, and are subject to the liabilities of both classes . Unprivileged belligerents generally may be made the object of attack by enemy combatants . T hey, however, must be afforded funda mental guarantees of humane treatment if hors de combat . Unprivileged belligerents may be punished by enemy States for their engagement in hostilities if they are convicted after a fair trial . 393 Richard R. Baxter, Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs , 28 B RITISH Y EAR So- OOK OF I L AW 323, 342 (1951) (“In both occupied and unoccupied areas, resistance activities, NTERNATIONAL B guerrilla warfare, and sabotage by private persons may be expected to continue on at least as widespread a basis in n the past. More often than not, patriotism or some sort of political allegiance lies at the future warfare as they have i root of such activities. Consequently the law of nations has not ventured to require of states that they prevent the that they refrain from the use of secret agents or that these activities upon belligerent activities of their citizenry or the part of their military forces or civilian population be punished.”). 394 Refer to (Domestic Neutrality Laws ). § 15.1.5 395 § 13.3.3.1 (Entitlement of Vessels to Conduct Attacks During Non -International Armed Conflict). Refer to 396 See, e.g. , R. v. Khawaja, (Su preme Court of Canada, Dec. 14, 2012) (upholding the terrorism conviction of a defendant who provided support to terrorist groups in Afghanistan and rejecting his argument that his support for terrorist groups could not be punished because they were part o f an armed conflict governed by international law). 397 Public Prosecutor v. Folkerts, (The Netherlands, District Court of Utrecht, Dec. 20, 1977), 74 reprinted in NTERNATIONAL L AW such as those EPORTS 695, 698 (1987) (“It is totally unacceptable in democratic countries R I just mentioned [the United States and the Federal Republic of Germany], and also in the Netherlands, for individuals who disagree with their country’s policy, for that reason to resort to acts of violence such as those which took place here. Such acts attack the most fundamental principles of the constitutional State.”). 398 R See, e.g. , U.N. S ECURITY C OUNCIL ESOLUTION 1373, U.N. Doc. S/RES/1373 (2001) (deciding that all States shall, inter alia , “[e]nsure that any person who participates in th e financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;”). 162

190 Rules Applicable to the Treatment 4.19.1 of Unprivileged Belligerents . Although unprivileged belligerents have not been recognized and protected in treaty law to the same extent 399 as peaceful civilians and lawful combatants, basic guarantees of humane treatment in i.e. , elementary consideration s of humanity) customary international law ( protect unprivileged 400 401 belligerents. Moreover, some treaty protections apply to certain unprivileged belligerents. , U.S. practice has , as a matter of domestic law or policy , afford ed In some cases eatment than they unprivileged belligerents more favorable tr would be entitled to receive under 402 international law. Nonetheless, U.S also recognized that unprivileged . practice has belligerents should not be afforded the distinct privileges afforded lawful combatants and the 403 protections afforded peaceful civilians under the law of war. Unprivileged Belligerents – Conduct of Hostilities . Although unprivileged 4.19.2 belligerents lack the right to engage in hostilities, international law nevertheless requires that 404 lawful c ombatants during their conduct of hostilities. they observe the same duties as In addition, unprivileged generally subject to the same liabilities to which belligerents are i.e. by combatants are subject in the conduct of hostilities; , they may be made the object of attack . Unprivileged belligerents placed hors de combat , however, may not be made enemy combatants bject of attack, and must be treated humanely. the o Unprivileged Belligerents – Det ention. Unprivileged belligerents are liable to 4.19.3 capture and detention, like lawful combatants. 4.19.3.1 Humane Treatment . Although unprivileged belligerents are not entitled to the privileges of POW status , unprivileged belligerents , like all other detained persons, must be treated humane ly. In particular, they, like all other detainees , must receiv e, at a minimum, the fundamental guarantees of humane treatment described in C ommon Article 3 of the 1949 405 In addition, the United States has explicitly supported, out of a sense of Geneva Conventions. 399 4.3.1 Refer to § (“Unprivileged Belligerents” as a Catego ry in Treaty Law ). 400 § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards ). Refer to 401 GPW art. 3; GC art. 5. See, e.g. , 402 See, e.g. , Boumedie ne v. Bush, 553 U.S. 723 (2008) (affording the constitutional privilege of habeas corpus to M ILITARY A SSISTANCE IETNAM OMMAND V C aliens detained as unprivileged belligerents at Guantanamo); U.S. IRECTIVE -(3) (Dec. 27, 1967), 46, Military Intelligence: Combined Screening of Detainees Annex A ¶4.a.(2) D 381- 62 AJIL 766- 67 (classifying as POWs members of certain categories of guerilla or insurgent units reprinted in provided that they were not engaged in acts of terrorism, sabotage, or spying while captured). 403 Refer to, e.g. , § 4.6.1.2 (AP I and the GPW 4A(2) Conditions ); F RANCIS L IEBER , G UERRILLA P ARTIES (“no C R EFERENCE TO THE L AWS AND U SAGES OF W AR 22 (1862) ONSIDERED WITH army, no society, engaged in war, any more than a society at peace, can allow unpunished assassination, robbery, and devastation, without the deepest ”). injury to itself and disastrous consequences, which might change the very issue of the war. 404 Refer to § 4.4.1 (Combatants – Conduct of Hostilities ). 405 3 of the 1949 Geneva Conventions ). Refer to § 8.1.4.1 (Common Article 163

191 legal obligation, guarantees reflected in Article 75 of AP I the fundamental as minimum 406 standards for the humane treatment of all persons detained during international armed conflict. . During international armed conflict, i n cases of doubt as 4.19.3.2 Cases of Doubt or entitled to POW to whether a person held as an unprivileged bell igerent is, in fact, a POW treatment , that person should enjoy POW protections until their status is assessed by a competent 407 tribunal . Necessary Security Measures tate may take necessary security 4.19.3.3 . A S ed belligerents. measures with regard to unprivileg Since they have engaged in hostilities, unprivileged belligerents, or persons suspected of being unprivileged belligerents, may be denied certain privileges to which they might otherwise who are be entitled under the law of war. For example, th e rights of unprivileged belligerents ” status under the GC would be subject to derogation for security protected person entitled to “ 408 . reasons should be afforded However, unprivileged belligerents who are protected by the GC 409 its full protections w hen feasible. 4.19.3.4 Duration of Detention . Unprivileged belligerents who are detained in generally must be released when er participation in hostilities order to prevent their furth 410 hostilities have ended n. DoD practice has , unless there is another legal basis for their detentio 411 been to review periodically the detention of all persons not afforded POW status or treatment. Unprivileged Belligerents – Liability for Participation in Hostilities . Although 4.19.4 412 or immunity from prosecution, international law affords lawful combatants a privilege 413 lack such protection. unprivileged belligerents A State may punish unprivileged enemy 415 414 subject to applicable requirements, such as a fair trial . , belligerents 406 Refer to (Article 75 of AP I and Relevant AP II Provisions ). § 8.1.4.2 407 (POW Protections for Certain Persons Until Status Has Been Determined ). Refer to § 4.27.2 408 § 10.4 (Derogation for Security Reasons ). Refer to 409 Refer to § 10.4.4 (Limits on Derogation ). 410 Refer to (Participants in Hostilities or Persons Belonging to Armed Groups That Are Engaged in § 8.14.3.1 Hostilities ). 411 Refer to § 8.14.2 (Review of Continued Detention for Security Reasons ). 412 Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law ). 413 § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status ); § 4.18.3 Refer to (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status ). 414 See, e.g. , 1956 FM 27- 10 (Change No. 1 1976) ¶73 (“The foregoing provisions [of article 5 of the GC] impliedly recognize the power of a Party to the conflict to impose the death penalty and lesser punishments on spies, other persons not entitled to be treated as prisoners of war, except to the extent that that power has saboteurs, and art. 88 (“The spy is punishable with death IEBER C ODE been limited or taken away by Article 68, GC (par. 438).”); L by hanging by the neck, whether or no t he succeed in obtaining the information or in conveying it to the enemy.”). 415 . art. 30 (“A spy taken in the act shall not be punished without previous trial.”). See H AGUE IV R EG 164

192 4.19.4.1 aw of Wa r – Notes on Term inology . Unprivileged B elligerency and the L , spying and other forms of unprivileged belligerency contemporary parlance generally have In 416 war crimes. ” not been referred to as “ ” or “ violations of the law of war For example, spying is permissible under the law of war in the sense that bell igerents are not prohibited from employing 417 . ; these activities are punishable but not prohibited under international law spies , offense s related to unprivileged belligerency have been However, i n some cases 418 characterized as violations of the law of war. For example, a violation called spying has been 419 “war crime or Spying and other acts of unprivileged belligerency have of the law of war .” been called offenses against the law of nations or law of war – the punishment of these offenders a recognized incident or exercise of a belligerent ’s war powers under the law has been viewed as 420 of war . The difference in these characterization war s may be traced to different definitions of “ s may also be ” that have been used over time. The difference in these characterization crime law of war. ” If one views the law of war as only containing traced to different definitions of the “ prohibitions , the punishment of unprivileged belligerents, like all exercises of the war powers, 421 of the bellig erent State. emanates from the domestic law On the other hand, if one views the 416 Richard R. Baxter, So- s, and Saboteurs , 28 B RITISH Y EAR Called ‘Unprivileged Belligerency’: Spies, Guerilla OOK OF NTERNATIONAL B L AW 323, 324 (1951) (“The correct legal formulation is, it is submitted, that armed and I unarmed hostilities, wherever occurring, committed by persons other than those entitled to be treated as prisoners of war or peaceful civilians merely deprive such individuals of a protection they might otherwise enjoy under international law and place them virtually at the power of the enemy. ‘Unlawful belligerency’ is actually ‘unprivileged belligerency’.”). 417 Re fer to § 4.17.4 (Spying and Sabotage Permissible Under the Law of War ). 418 See, e.g. , 10 U.S.C. § 950t (27) (defining the offense of spying as “in violation of the law of war”); G.I.A.D. RITISH Y EAR B OOK OF Draper, The Status of Combatants and the Question of Guerrilla Warfare , 45 B NTERNATIONAL L 173, 173, 176 (1971) (“On balance, the theory that illicit combatants may be killed after I AW ect to any restraint imposed by the law of war, is somewhat artificial. There may capture, as an act of warfare, subj be some substance in the contention, and it may be more consonant with the war practices of belligerents, the official manuals on the law of war issued by States, and the de cisions of national tribunals applying the law of war, that illegal participation in combat is a violation of the law of war exposing the offender to loss of immunity from attack, and, upon capture, to trial and punishment upon conviction. However, the ma tter is controversial, and there are certain passages in the classical writers on the law of war, such as Grotius, which lend support to the theory of ‘unprivileged belligerency’.”). 419 ENERAL , U.N. S ECRETARY -G , Historical Survey of the Question of International Criminal Jurisdiction , See, e.g. U.N. Doc. A/CN.4/7/Rev.1, 1 (1949) (“During the greater part of modern history customary law has also recognized so-called war crimes of various description. Perfidy, particularly that type of perfidy which is describ ed as espionage, is the oldest example of such a war crime.”); Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as ILITARY M INTHROP , W “offenders against the law of war subject to trial and punishment by military tribunals.”); L AW & P RECEDENTS 770 ( “Under the law of nations and of war, [a spy’s] offence is an exclusively military one, 29 (18.20) S HERSTON B AKER , I H ALLECK ’ S I NTERNATIONAL L AW 628- cognizable only by military tribunals.”); G. ar alone”); James Speed, Attorney General, Military (1908) (“the act of spying is an offence against the laws of w 13 (1869) (“to act as spy is an offence 297, 312- PINIONS OF THE A TTORNEY G ENERAL , July 1865, 11 O Commissions against the laws of war, ... every lawyer knows that a spy was a well -known offender under the la ws of war,”). 420 Ex parte Quirin, 317 U.S. 1, 28 (1942) (holding that the trial and punishment of enemy saboteurs by military commission was an “important incident to the conduct of war”). 421 ). (Law of War as Prohibitive Law Refer to § 1.3.3.1 165

193 law of war as also including source s of authority , the punishment of unprivileged belligerents is 422 . also grounded in the international law of war Although the relationship between unprivileged belligerency and the law of war has been characterized in different ways, it is well- accepted that S tates may punish unprivileged enemy . belligerents after a fair trial C 4.20 HILDREN The GC provides special protection for children in order to protect them against the dange war. In addition, c ertain provisions of treaties and U.S. law seek to restrict the use or rs of . recruitment of children in armed conflict Specific Protection All Childre n During International Armed Conflict . 4.20.1 s for re Orphane d or Separated . The parties to 4.20.1.1 Children Under Fifteen Who A the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion , and their education are 423 The maintenance of the children concerned means their facilitated in all circumstances. , medical and feeding, clothing, and accommodation, care for their health, and, where necessary 424 hospital treatment. Their education shall, as far as possible, be entrusted to persons of a similar cultural 425 This provision is intended to exclude inappropriate religious or political propaganda tradition. 426 designed to influence them . to the conflic The parties t shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the observance of the principles stated in the first paragraph of Article 427 24 of the GC. 422 Refer to § 1.3.3.2 (Law of War as Permissive Law ). 423 GC art. 24 (“The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances.”). 424 GC C OMMENTARY 187 (“The maintenance of the children concerned means their feeding, clothing, and accommodation, care for their health and, where necessary medical and hospital treatment.”). 425 GC art. 24 (“Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.”). 426 GC C OMMENTARY 187 (“That provision is most important. It is intended to exclude any religious or political propaganda designed to wean children fro m their natural milieu; for that would cause additional suffering to human beings already grievously stricken by the loss of their parents.”). 427 GC art. 24 (“The Parties to the conflict shall facilitate the reception of such children in a neutral country f or the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the observance of the principles stated in the first paragraph.”). 166

194 4.20.1.2 . The parties to the conflict Identification for Children Under Twelve shall endeavor to arrange for all children under twelve to be identified by the wearing of identity 428 discs, or by some other means. The age of t welve was chosen becaus e it was considered that 429 children over twelve are generally capable of stating their own identity. Protection for Alien Children in a Belligerent ’s Home Territory . In a belligerent ’s 4.20.2 home territory, the GC provides that certain s ( i.e. , those quali fying for protected person alien who are c hildren under fifteen years, pregnant women , and mothers of status under the GC) children under seven years shall benefit from any preferential treatment to the same extent as the 430 . nationals of the State concerned ction for Children in Occupied Territory . Provisions of the GC address the 4.20.3 Prote 431 protection of c hildren in occupied territory. Protection for Children in the Context of Internment U nder the GC . The GC 4.20.4 provides certain protections for children in the context of internment. Provisions of the GC address: 432 • the internment of children with their parents; • special treatment for children during internment , including o ensuring the e ducation of children and young people, including school 433 attendance, additional food for children under fifteen in proportion to their physiological o 434 needs , and 435 and ; special playgrounds o reserved for children and young people 428 GC art. 24 (“They shall, furthermore, endeavour to arrange for all children under twelve to be identified by the wearing of identity discs, or by some other means.”). 429 GC OMMENTARY 189 (“It will be noticed that the age limit here is twelve, whereas in the first two paragraphs it C was fifteen years of age: this is in accordance w ith a recommendation made at the XVIIth International Red Cross Conference in Stockholm, where it was considered that children over twelve were generally capable of stating their own identity.”). 430 § 10. 7.1 (Regulation of the Situation of Protected Persons, in Principle, by Provisions Applicable to Refer to Aliens in Time of Peace). 431 Refer to § 11.13 (Protection of Children in Occupied Territory ). 432 Refer to § 10.10.3 (Families Kept Together ). 433 Refer to § 10.16.2 (Education ). 434 Refer to § 10.13.1.2 (Additional Food for Certain Groups ). 435 (Opportunities for Physical Exercise, Sports, and Outdoor Games ). Refer to § 10.16.3 167

195 • special agreements for the release, the repatriation, the return to places of residence, or the accommodation in a neutral country of, among others, children, pregnant women, and 436 mothers with infants and young children. Child Soldiers . Certain provisions of treaties and U.S. law seek to restrict the use 4.20.5 If children are nonetheless employed in armed or recruitment of children in armed conflict. conflict, they generally are treated on the same basis as adults , although children may be subject in detention because of their age. to special treatment Prohibitions on the use or recruitment of children also apply in non- international armed 437 conflict. U.S. Offense of Recruiting or Using Child Soldiers 4.20.5.1 S. law makes it a . U. crime , under certain circumstances, to recruit, enlist, or conscript a person to serve in an armed 438 s of age. force or group, while such person is under 15 year U.S. law also makes it a crime to 439 These restrictions in use a person under 15 years of age to participate actively in hostilities. 440 arty. to provisions in treaties to which the United States is not a P U.S. law are similar 4.20.5.2 Child Soldiers Protocol . As a Party to the Optional Protocol to the 441 , the Convention on the Rights of the Child on the involvement of children in armed conflict United States must “ all feasible measures to ensure that members of [ its] armed forces who take 442 the age of 18 years do not take a direct part in hostilities .” The United States have not attained 436 Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain Classes of Internees ). 437 § 17.10.2 (Children and Participation in Non -International Armed Conf lict). Refer to 438 18 U.S.C. § (1) recruits, 2442(a) (making punishable, under certain circumstances, “[w]hoever knowingly— enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group; ... knowing such person is unde r 15 years of age”). 439 2442(a) (making punishable, under certain circumstances, “[w]hoever knowingly ... (2) uses a 18 U.S.C. § person under 15 years of age to participate actively in hostilities; knowing such person is under 15 years of age”). 440 Consider AP I art. 77(2) (“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain ir armed forces. In recruiting among those persons who have attained the age of fifteen from recruiting them into the years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.”); Convention on the Ri ghts of the Child, art. 38(2) -(3), Feb. 16, 1995, 1577 UNTS 3, 56 (providing that “States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities” and that “Sta tes Parties shall refrain from recruiting any OME TATUTE art. 8(2)(b)(xxvi) S person who has not attained the age of fifteen years into their armed forces”); R ars into the national (defining ‘war crime’ to include “[c]onscripting or enlisting children under the age of fifteen ye armed forces or using them to participate actively in hostilities” in international armed conflict). 441 2201 UNTS 311 (“ R ATIFICATION ( WITH DECLARATION AND UNDERSTANDINGS ) United States of America Deposit of instrument with the Secretar y-General of the United Nations: 23 December 2002 ”). 442 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, art. 1, May 25, 2000, 2173 UNTS 222, 237 (“States Parties shall take all feasible measu res to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.”). 168

196 made a statement of understanding regarding the ” meaning of the phrase “ direct part in hostilities 443 in the Child Soldiers Protocol. he United States also has an obligation to As a Party to the Child Soldiers Protocol, t ensure that persons who have not attained the age of 18 years are not compulsorily recruited into 444 its armed forces. In a declaration deposited pursuant to Article 3(2) of the Child Soldiers 445 the United States described its measures in place to comply with this obligation and Protocol , stated that the minimum age at which it permitted persons to be voluntarily recruited in the U.S. 446 Armed Forces is 17 years of age . children . In general, 4.20.5.3 receive the rights, Treatment of Child Soldiers duties, and liabilities of combatant status on the same basis as other persons. For example, there is no age requirement for someone to receive POW status. Similarly, whether a civilian is considered to be taking a direct par s age. t in hostilities does not depend on that person’ Children who have participated in hostilities or been associated with an armed force who might require additional consideration because of their age . For example , rules for are detained 447 provision for their education might be applicable . Similarly, it might be the additional appropriate to take into account the age of a defendant in determining liability or punishment for violations of the law of war. 443 See United States, Statement on Ratification of the Child Soldiers Protocol , Dec. 23, 2002, 2201 UNTS 311, 312 (“(2) T he United States understands that, with respect to Article 1 of the Protocol - ... (B) the phrase ‘direct part in hostilities’ - (i) means immediate and actual action on the battlefield likely to cause harm to the enemy because there ionship between the activity engaged in and the harm done to the enemy; and (ii) does not is a direct causal relat mean indirect participation in hostilities, such as gathering and transmitting military information, transporting weapons, munitions, or other supplies, or forward de ployment;”). This statement of understanding was intended to address the usage of the phrase “direct part in hostilities” in the context of these treaty obligations relating to limiting the participation of children in armed conflict, and the phrase “dire ct part in hostilities” may be interpreted differently in other contexts, such as the circumstances in which civilians forfeit their protection from being made Refer to § 5.9 the object of attack. ). (Civilians Taking a Direct Part in Hostilities 444 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, art. 2, May 25, 2000, 2173 UNTS 222, 237 (“States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.”). 445 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, art. 3(2), May 25, 2000, 2173 UNTS 222, 237 (“Each State Party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a descriptio n of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.”). 446 Statement on Ratification of the Child Soldiers Protocol , Dec. 23, 2002, 2201 UNTS 311 (“(A) the United States, minimum age at which the United States pe rmits voluntary recruitment into the Armed Forces of the United States is 17 years of age; (B) The United States has established safeguards to ensure that such recruitment is not forced or coerced, including a requirement in section 505 (a) of title 10, Un ited States Code, that no person under 18 years of age may be originally enlisted in the Armed Forces of the United States without the written consent of the person’s parent or guardian, if the parent or guardian is entitled to the person’s custody and con trol; (C) each person recruited into the Armed Forces of the United States receives a comprehensive briefing and must sign an enlistment contract that, taken together, specify the duties involved in military service; and (D) all persons recruited into the Armed Forces of the United States must provide reliable proof of age before their entry into military service.”). 447 (Education ). Refer to § 9.16.2 (Education ); § 10.16.2 169

197 4.21 M ERCENARIES The act of being a mercenary is not a crime in customary international law nor in any 448 treaty to which the United States is a Party. and the GPW Under the customary law of war , “mercenaries ” receive the rights, duties, and liabilities of combatant status on the same basis as “mercenary or example, being a ” or paid for participating in hostilities does not other persons. F deprive a person of POW status, if that person otherwise meets the requirements for POW status, 449 . tate such as by being a member of a militia that is part of the armed forces of a S Mercenaries be tried and punished for violations of the law of war must comply with the law of war and may for the on the same basis as other persons . States that employ mercenaries are responsible ir w of war. conduct, including their compliance with the la Mercenaries are often In general, a nationals of States that are not parties to a conflict. national of a neutral State who, during an international armed conflict, commits hostile acts against a State or who voluntarily enlists in the armed for ces of one of the parties should not be more severely treated by the State against whom he or she has abandoned his or her neutrality 450 than a national of the other belligerent State could be for the same act. . A number of treaty provisions are intended to repress 4.21.1 Treaties on Mercenaries any such provision because these not accepted mercenary activities. The United States has 451 with fundamental principles of the law of war. efforts are not consistent 452 nts or POWs . This provision AP I denies “ mercenaries ” the right to be lawful combata certain States wanted to condemn mercenary groups that had in AP I was adopted because 453 played a role in armed conflicts that had taken saharan Africa since 1960. place in Sub- 448 See Edward R. Cummings, Attorney -Adviser, Department of State, International Legal Rights of Captured C UMULATIVE D IGEST OF U NITED S TAT ES P RACTICE IN I NTERNATIONAL L AW 1981- , Oct. 17, 1980, III Mercenaries 1988 3457 (“The act of being a mercenary is not a crime under international law. An individual who is accused of tections of being a mercenary and who is captured during an armed conflict is entitled to the basic humanitarian pro the international law applicable in armed conflict, including those specified in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Aug. 12, 1949; TIAS No. 3365; 6 UST 3516). The specific rights which such an individual would be entitled to vary depending on whether the conflict is an international conflict or an internal one and, in the case of international armed conflicts, on whether the person is entitled to prisoner -of-war status.”). 449 Refer to § 4.5 (Armed Forces of a State). 450 Refer to § 15.6.2.1 (No More Severe Treatment Than National s of an Opposing Belligerent State ). 451 , The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. See, e.g. U NIVERSITY J OURNAL OF MERICAN Sofaer, Legal Adviser, United States Department of State, January 22, 1987 , 2 A I L AW AND P OLICY 460, 469 (1987) (“[Article 47 of AP I] was included in the Protocol not for NTERNATIONAL humanitarian reasons, but purely to make the political point that mercenary activity in the Third World is unwelcome. In doing so, this article disre gards one of the fundamental principles of international humanitarian law by defining the right to combatant status, at least in part, on the basis of the personal or political motivations of the individual in question. This politicizing of the rules of w arfare is contrary to Western interests and the interests of humanitarian law itself.”). 452 See AP I art. 47(1) (“A mercenary shall not have the right to be a combatant or a prisoner of war.”). 453 ULES B OTHE , P ARTSCH , & S OLF , N EW R 269 (AP I art. 47, ¶2.2) (“The condemnation and outlawing of mercenary groups and individual mercenaries who had played a substantial (and often unsavoury) role in the armed conflicts 170

198 454 However, AP I ” very narrowly . defines “ For example, any member of the armed mercenary to the conflict, or any member of the armed forces of any other State, who is forces of a party 455 sent on official duty as a member of its armed forces, is not a mercenary as defined by AP I. although, un In addition, der AP I, mercenaries lack the right to be a combatant or a POW, Parties to AP I may nonetheless decide as a matter of policy to treat enemy mercenaries as lawful combatants or POWs. Mercenarism in Shortly after the adoption of AP I, the Convention for the Elimination of 456 Africa was adopted, which uses the same definition of mercenary as AP I, greater but creates 457 obligations for Parties to punish and repress mercenarism. United States is not a Party to The this treaty. The International Convention against the Recruitment, Use, Financing and Training of Mercenaries of December 4, 1989, defines “mercenary ” slightly more broadly than AP I , applies to both international and non- international armed conflicts s various offenses related , and define which took place in Sub , which was -saharan Africa since 1960 was a high priority goal of African delegations supported by other Third World delegations and by the Eastern European group.”). 454 See AP I art. 47(2) (“A mercenary is any person who: ( a ) Is specially recruited locally or abroad in order to fight in an armed conflict; ( b ) Does, in fact, tak e a direct part in the hostilities; ( c ) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that pro mised or paid to combatants of similar ranks and functions in the armed forces of that Party; ( d ) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; ( e ) Is not a member of the armed forces of a Party to the conflict; and ( f ) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.”). 455 -Adviser, Department of State, Edward R. Cummings, Attorney International Legal Rights of Captured S 1981- C UMULATIVE D IGEST OF U NITED TATES P RACTICE IN I NTERNATIONAL L AW Mer cenaries , Oct. 17, 1980, III 3457, 3461 (“This narrow definition of mercenaries in effect denies prisoner -of-war status to individuals who 1988 fight strictly for private gain. It does not affect any individual who is a member of the state’s regular forces and other legitimate combatants.”). 456 See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 1(1), Jul. 3, is any person who: a 1977, 1490 UNTS 89, 96 (“A mercenary ) Is specially recruited locally or abroad in order to fight in an armed conflict; b ) Does in fact take a direct part in the hostilities; c ) Is motivated to take part in the hostilities essentially by the desire for private gain and i n fact is promised by or on behalf of a party to the conflict material compensation; d ) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; e the conflict; and f ) Is not sent by a State ) Is not a member of the armed forces of a party to other than a party to the conflict on official mission as a member of the armed forces of the said State.”). 457 See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 6, J ul. 3, 1977, 98 (“The contracting parties shall take all necessary measures to eradicate all mercenary 1490 UNTS 89, 97- activities in Africa. To this end, each contracting State shall undertake to: a ) Prevent its nationals or foreigners on its territory from engaging in any of the acts mentioned in Article 1 of this Convention; b ) Prevent entry into or passage through its territory of any mercenary or any equipment destined for mercenary use; ) Prohibit on its c territory any activities by persons or organ isations who use mercenaries against any African State member of the Organization of African Unity or the people of Africa in their struggle for liberation; d ) Communicate to the other Member States of the Organization of African Unity either directly or t hrough the Secretariat of the OAU any information related to the activities of mercenaries as soon as it comes to its knowledge; e ) Forbid on its territory the recruitment, training, financing and equipment of mercenaries and any other form of activities l ikely to promote mercenarism; f ) Take all the necessary legislative and other measures to ensure the immediate entry into force of this Convention.”). 171

199 458 to the recruiting, use, financing, or training of mercenaries United States is not a Party to . The this treaty. 4.22 AP P ROVISIONS ON C IVIL D EFENSE P ERSONNEL I “civil defence” -67 of AP I address i.e. , the performance of certain Articles 61 , 459 nefit the civilian population. humanitarian tasks intended to be The United States has supported the principle that civilian civil defense organizations and their personnel be respected and protected as civilians and be permitted to perform their civil 460 defense tasks except in cases of im perative military necessity. However, a number of military operational problems have been identified with respect to the system of protection for civil defense established by AP I, and these provisions of AP I may be understood not to preclude an 461 attack on an otherwise lawful military objective. L 4.23 E O FFICERS NFORCEMENT AW 462 . In general , police officers receive the rights, duties, and liabilities of civilian status However, law enforcement agencies are in many respects similar to military forces. T hey are generally distinguishable from authorized to use necessary force on behalf of the State, are , and are often organized like military forces private citizens . In cases where States choose to use , they receive the rights, duties, and liabilities of police officers as part of the armed forces 463 status combatant . 458 See International Convention against the Recruitment, Use, Financing and Training of Mercenaries, Dec. 4, 1989, G ENERAL A SSEMBLY R ESOLUTION 44/34, U.N. Doc. A/RES/44/34 (Dec. 4, 1989). Annex to U.N. 459 AP I art. 61 (“For the purposes of this Protocol: (a) ‘Civil defence’ means the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it to recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival. These tasks are: (i) Warning; (ii) Evacuation; (iii) Management of shelters; (iv) Management of blackout -fighting; ...”). measures; (v) Rescue; (vi) Medical services, including first aid, and religious assistance; (vii) Fire 460 Remarks on the Unite Michael J. Matheson, Deputy Legal Adviser, Department of State, d States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American Red Cross -Washington College of Law Conference on International Humanitarian Law MERICAN U 419, 427 (1987) J OURNAL OF I NTERNATIONAL L AW AND P OLICY NIVERSITY (Jan. 22, 1987), 2 A (“Turning now to the field of civil defense, we support the principle that civilian civil defense organizations and their personnel be respected and protected as civilians and be permitted to perform their civil defense tasks except in cases of imperative military necessity. We also support the principle that in occupied territories, civilians receive from the appropriate authorities, as practicable, the facilities necessary for the performance of their tasks. These principles reflect, in general terms, many of the detailed provisions in articles 62 and 63.”). 461 PPENDIX TO 1985 CJCS A M EMO ON AP I 69-71 (“In general, the system of protection for civil defense established by the Pr otocol is well -meaning, but creates a number of military operational problems. The main practical problems arise from the ambiguity of the definition of civil defense activities in Article 61. ... An attacking force er to respect the sign in a particular case. To lessen the risk of misuse of will often have difficulty deciding wheth this sign and avoid placing an unacceptable burden on proof of an attacking force, an understanding is proposed that makes it clear that Articles 61 -67 do not preclude an attack on an otherwise lawful military objective.”). 462 Refer to § 4.8 (Rights, Duties, and Liabilities of Civilians ). 463 ). § 4.4 (Rights, Duties, and Liabilities of Combatants Refer to 172

200 Police as Civilians 4.23.1 . In general, members of l aw enforcement agencies have 464 civilian status . Furthermore, r general outine domestic law enforcement is part of the ” taking a direct part in hostilities protection of the civilian population and does not constitute “ 465 that would deprive police officers of their protection from being made the object of attack. ith a Military Role . S ome States use police forces in a paramilitary 4.23.2 Police W itary forces in a police role. Members of the armed forces engaged in police capacity or use mil roles are combatants. largely depends on whether combatants The extent to which police officers are treated as . States may decid e to make law enforcement the State decides to use them in that capacity 466 armed forces agencies part of their . , like othe r Members of these law enforcement agencies , receive combatant status by virtue of their membership in the members of those armed forces 467 armed forces . tates may auth orize m In addition, S embers of the law enforcement agencies to . T hese without incorporating them into their armed forces accompany their armed forces 468 authorized to accompany the armed forces . persons have the legal status of persons Police in Non- International Armed C onflict a larger role 4.23.3 . Police officers may play in armed conflic because in such conflicts the ts between States and insurgent or terrorist groups 469 treat all enemy persons ’ participation in hostilities as criminal. State may OURNALISTS 4.24 J In general, journa lists are civilians . However, journalists may be members of the armed , persons authorized to accompany the armed forces forces , or unprivileged belligerents . Military Journalists 4.24.1 . Members of the armed forces may serve as journalists or in some other public affairs capacity. These persons have the same status as other members of the 470 armed forces. 464 Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III C UMULATIVE IGEST OF U NITED S TATES P RACTICE IN I D L AW 1981- 88 3436, 3450 (“Members of the civilian police NTERNATIONAL force are not deemed to be legitimate objects of attack during international wars unless they are incorporated into the aw of war.”). armed forces. The ‘status of police is generally that of civilians’ for purposes of the l 465 § 5.9.3.2 (Examples of Acts Not Considered Taking a Direct in Hostilities ). Refer to 466 For example , Belgium, Statement on Ratification of AP I , May 20, 1 986, 1435 UNTS 367, 367 -68 (“Considering paragraph 3 of article 43 (armed forces) and the special status of the Belgian gendarmerie , the Belgian Government the Belgian has decided to notify the High Contracting Parties about the following duties which are entrusted to during periods of armed conflict. It believes that this notification, in so far as is necessary, meets the gendarmerie gendarmerie . (a) The Belgian requirements of article 43 in respect of the , which was established to gendarmerie maintain o rder and enforce the law, is a public force which, under national legislation, constitutes one of the armed forces and which therefore corresponds to the concept of ‘armed forces of a party to a conflict’ within the meaning of article 43 of Protocol I. Th us, in times of international armed conflict the members of the gendarmerie have ‘combatant’ status within the meaning of that Protocol.”). 467 Refer to § 4.5 (Armed Forces of a State ). 468 Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces ). 469 -State Armed Groups ). Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non 173

201 . In general, ournalists and other media 4.24.2 Other Journalists independent j 471 representatives are regarded as civilians ; , journalism does not constitute taking a direct i.e. that such a person would be deprive such in hostilities part d of protection from being made the 472 object of attack . Journalists Authorized to Accompany the Armed Forces ournalists 4.24.2.1 . J 473 ch persons For example, they have the status of su authorized to accompany the armed forces . 474 . are detained as POWs during international armed conflict Such journalists are sometimes 475 ” DoD practice has been to embed journalists with units during called “ war correspondents. 476 military operations. Journalists authori zed to accompany the armed forces may be detained by opposing military forces. Since such personnel are liable to become POWs, they must be issue d identification cards so that they may establish their entitlement to POW status upon capture by 477 during international armed conflict. the enemy General Rules for the T reatment of C ivilian J ournalists and J ournalists A uthorized 4.24.3 to A rmed F orces . ccompany the A Journalists - 4.24.3.1 . J ournalists who Risks in Areas of Military Operations enter areas of military operatio ns assume a significant risk that they could be injured or killed 470 Refer to § 4.4 (Rights, Duties, and Liabilities of Combatants ). 471 See Hedges v. Obama, No. 12- 3644, Reply Brief for Defendant- Appellant , 11 (2d Cir. Sept. 20, 2012) (“As an initial matter, it is an established law of war norm, which is reflected in Article 79 of Additional Protocol I to the Geneva Conventions, that ‘journalists’ are generally to be protected as ‘civilians.’ Although the United States is not Consider AP I art. 79 a party to Additional Protocol I, it supports and respects this important principle.”). N FOR JOURNALISTS s engaged in dangerous professional missions in areas . 1. Journalist EASURES OF PROTECTIO (“M of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1. 2. They shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in Article 4 A (4) of the Third Convention.”). 472 Refer to § 5.9.3.2 ). (Examples of Acts Not Considered Taking a Direct in Hostilities 473 Refer to (Persons Authorize d to Accompany the Armed Forces ). § 4.15 474 See GPW art. 4A(4) (defining “prisoners of war, in the sense of the present Convention” to include “[p]ersons who accompany the armed forces without actually being members thereof, such as ... war correspondents, ... provided that they have received authorization from the armed forces which they accompany,” who have fallen into . art. 13 (“Individuals who follow an army without directly belonging to it, AGUE IV R EG the power of the enemy); H such as newspaper correspondents and reporters, ... who fall into the enemy’s hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they were accomp anying.”). 475 GPW art. 4A(4); AP I art. 79(2). 476 D EPARTMENT OF THE A RMY F IELD M ANUAL 46- 1, Public Affairs Operations , 25 -26 (May 30, 1997) (“PAOs should seek out those members of the media who are willing to spend extended periods of time with soldiers duri ng an operation, embedding them into the unit they cover. Embedding is the act of assigning a reporter to a unit as a member of the unit. The reporter eats, sleeps, and moves with the unit. The reporter is authorized open access to all sections of the u nit and is not escorted by public affairs personnel. Rather, the unit is the reporter’s escort.”). 477 ). Become POWs Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to 174

202 478 incidental to an enemy attack or from other dangers. To minimize the risk that they will be s. journalists should seek to distinguish themselves from military force made the object of attack, such as providing information of Moreover, in some cases, the relaying of information ( 479 ) could constitute taking a direct part in hostilities. immediate use in combat operations rces should not Civilian journalists and journalists authorized to accompany the armed fo participate in the fighting between the belligerents in this or other ways if they wish to retain 480 protection from being made the object of attack. Like other civilians, civilian journalists who hostilities against a State may be engage after a fair trial . in punished by that State Journalists and Spying 4.24.4 . Reporting on military operations can be very similar to 481 A journalist who acts as a spy may be subject to collecting intelligence or even spying. 482 To avoid being mistaken for spies, journalists security measures and punished if captured. should act openly and with the permission of relevant authorities. Presenting identification documents, such as the identification card issued to authorized war correspondents or other 483 appropriate iden tification, may help journalists avoid being mistaken as spies. ’ work 4.24.5 Security Precautions and Journalists . States may need to censor journalists or take other security measures so that journalists do not reveal sensitive information to the enemy. Unde ’s territory r the law of war, there is no special right for journalists to enter a State without its consent or to access areas of military operations without the consent of the State 484 conducting those operations. D ELEGATES OR R EPRESENTATIVES OF TH E P ROTEC TING P OWERS 4.25 Appointment of Delegates of the Protecting Powers . T he Protecting Powers may 4.25.1 appoint, apart from their diplomatic or consular staff, delegates from among their own nationals 485 and the GC . or the nationals of other neutral Powers to carry out its duties under the GPW 478 ORK For example , T HE N EW Y Ernie Pyle Is Killed on Ie Island; Foe Fired when All Seemed Safe T IMES , Apr. , 19, 1945 (“GUAM, April 18—Ernie Pyle died today on Ie Island, just west of Okinawa, like so many of the doughboys he had written about. The nationally known war correspondent was killed instantly by Japanese -gun fire. The slight, graying newspaper man, chronicler of the average American soldier’s daily round, in machine - and out of foxholes in many war theatres, had gone forward early this morning to observe the advance of a well -fourth Army Corps.”). § 4.15.2.3 (Increased Risk of Incidental Harm ). known division of the Twenty Refer to 479 Refer to § 5.9.3.1 (Examples of Taking a Direct Part in Hostilities ). 480 Consider AP I art. 79 (“Journalists engaged in dangerous professional missions in areas of armed conflict” sh all be protected as civilians from attack “provided that they take no action adversely affecting their status as civilians,”). 481 § 4.17.2 (Spies ). Refer to 482 Refer to (Necessary Security Measures ); § 4.19.4 (Unprivileged Belligerents – Liabi lity for § 4.19.3.3 Participation in Hostilities ). 483 Consider AP I art. 79(3) (journalists “may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist.”). 484 Compare § 4.26.2 (Consent of the Parties to the Conflict Concerned ). 485 GPW art. 8 (“For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, (same). delegates from amongst their own nationals or the nationals of other neutral Powers.”); GC art. 9 175

203 These delegates shall be subject to the approval of the Power with which they are to carry out 486 their duties. Duties of the Representatives or Delegates of the Protecting Power 4.25.2 . The parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or 487 delegates of the Protecting Powers. The representatives or delegates of the Protecting Powers shall not in any case exceed 488 their mission under the 1949 Geneva Conventions . They shall, in par ticular, take account of 489 the imperative necessities of security of the State wherein they carry out their duties. Restrictions on Representatives of the Protecting Powers 4.25.3 . A belligerent may impose legitimate security restrictions on the activities of th e delegates or representatives of the Protecting Powers working in its territory or in its facilities. However, belligerents should only Powers “ as an restrict the activities of the representatives or delegates of the Protecting measure when this is rendered necessary by imperative military exceptional and temporary 490 ” necessities. For example, a belligerent may postpone a visit by Protecting Power camp for security or humanitarian reasons, such as tactical movement representatives to a POW of its own forc es or to protect Protecting Power personnel from explosive remnants of war being cleared from recent military operations along the route to the POW camp . RGANIZATIONS AND O THER I MPARTIAL H UMANITARIAN O 4.26 ICRC The 1949 Geneva Conventions contemplate that the ICRC and other i mpartial humanitarian organizations may , subject to the consent of the parties to the conflict concerned, 491 provide humanitarian aid and seek to ensure the protection of war victims in armed conflict. tial humanitarian organization may assume the In some cases, the ICRC or another impar 492 humanitarian functions performed by the Protecting Powers . . To be an “impartial humanitarian organization ” under the 1949 4.26.1 “Impartial” equirement of Geneva Conventions, a humanitarian organization must be impartial. The r 486 GPW art. 8 (“The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.”); GC art. 9 (same). 487 GPW art. 8 (“The Parties to the conflict shall facilitate to the greatest extent possible the tas k of the representatives or delegates of the Protecting Powers.”); GC art. 9 (same). 488 GPW art. 8 (“The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention.”); GC art. 9 (same). 489 GP W art. 8 (“They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.”); GC art. 9 (same). 490 -S EA art. 8 (same). GWS art. 8; GWS § 9.33.1 (Access by Protecting Powers ); § 10.33.1 (Access by Refer to Protecting Powers ). 491 See, e.g. , GWS art. 9 (“The provisions of th e present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake f or the protection” and relief of persons EA art. 9 (same); GPW art. 9 (same); GC art. 10 (same). protected by the Convention); GWS -S 492 Protecting Power ). Refer to § 18.15.2 (Appointment of a 176

204 impartiality distinguishes these humanitarian organizations from those with an allegiance to a 493 , such as national red cross societies . party to the conflict The activities of the ICRC or 4.26.2 Consent of the Parties to the Conflict Concerned. other impartial humanitarian organizations in a State’ s sovereign territory, or in the area of a 494 ent of that State military operations, are subject to the cons State’s . The requirement of State ’s sovereign right to control acces s to its territory and a belligerent ’s consent is based on the State 495 military operations or territory it occupies. right to control access to its For example, members of impartial humanitarian organizations , like other civilians, may be removed from the 496 vicinity of military objective s for their protection. States may grant a ccess on a case -by-case basis; access granted to one impartial humanitarian organization does not constitute entitlement of access for other humanitarian Impartial humanitarian organizations that h organizations. ave been granted access must also act 497 within the terms of this consent . For comparison, the activities of the Protecting Power are 498 also subject to the consent of the affected States. 4.26.2.1 Impartial Humanitarian Organizations – Conditions on Access . States may attach conditions to their consent , including necessary security measures . For example, in the past, armed groups have sometimes attempted to use humanitarian organizations as cover for 499 In addition to legitimate militar y considerations, other participation in hostilities . 493 Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies ). 494 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of TATES RACTICE IN P IGEST OF U NITED S , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region NTERNATIONAL L 1991- 1999 2057, 2066 (“The obligations set forth in this paragraph generally are subject to I AW s to the conflict, as noted in Article 9 of the GPW and 10 of the GC. Although the U.S. the consent of the partie historically has called upon the ICRC to assist it in implementation of the provisions of the 1949 Geneva Conventions, ultimately any decision to seek assistance of th e ICRC or any other humanitarian organization is subject to the consent of the parties to the conflict in general and the host nation in particular.”). 495 § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations ); Refer to § 11.4.1 mporarily ). (Right of the Occupying Power to Govern the Enemy Territory Te 496 § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives ). Refer to 497 See U.S. R ESPONSE TO ICRC CIHL S TUDY 520 (“We do n ot believe that rule 31, as drafted, reflects customary international law applicable to international or non -international armed conflicts. The rule does not reflect the important element of State consent or the fact that States’ obligations in this area extend only to HRP [Humanitarian Relief Personnel] who are acting within the terms of their mission - that is, providing humanitarian relief. To the extent that the authors intended to imply a ‘terms of mission’ requirement in the rule, the authors illustrated the difficulty of proposing rules of customary international law that have been simplified as compared to the corresponding treaty rules.”). 498 Refer to § 18.15.3 (Activities of the Protecting Power ). 499 U.S. R ESPONSE TO ICRC CIHL S TUDY 519- 20 (“For example, during the 1982 Israeli incursion into Lebanon, Israel discovered ambulances marked with the Red Crescent, purportedly representing the Palestinian Red Crescent Society, carrying able -bodied enemy fighters and weapons. This misconduct reportedly was repeated during the 2002 seizure of Bethlehem’s Church of the Nativity by members of the terrorist al Aqsa Martyrs Brigade. ... Military commanders also have had to worr y about individuals falsely claiming HRP [humanitarian relief personnel] status, as happened in Afghanistan when some members of Al Qaeda captured while fighting claimed to be working for a humanitarian relief organization. These examples demonstrate why States, in crafting treaty provisions on this topic, have created a ‘terms of mission’ condition for HRP in a way that rule 31 fails to do.”). 177

205 considerations may also limit access by impartial humanitarian organizations to military operations. For example, the GPW obligates a Detaining Power to protect POWs from “ public 500 which may entail limiting access to POWs curiosity,” by private organizations. Impartial Humanitarian Organizations – CCW Amended Mines Protocol 4.26.2.2 . In certain cases, however, there may be an obligation to take measures to help Obligation protect the personnel of certain humanitarian organizations that are performing functions with the CCW Amended Mines Protocol the consent of the Party on whose territory the functions are 501 . performed from the effects of mines, booby -traps, and other devices . The 1949 Geneva Conventions explicitl y recognize 4.26.3 Special Status of the ICRC 502 among impartial humanitarian organizations . Similarly the special position of the ICRC , Congress has specifically authorized – and the President has designated – the ICRC to be extended the same privileges and immunities that are afforded to public international 503 organizations in which the United States participates. T he President has also recognized the 504 role of the ICRC in visiting individuals detained in armed conflict. The United States has relied on the ICRC ’s capacity, particularly in conflict situations , and has contributed 505 substantially to the ICRC’ The United States has maintained a very construct ive s work. dialogue with the ICRC. The ICRC does important work in visiting detainees , facilitating communication between detainees and t heir families, organizing relief operations, and undertaking similar humanitarian activities during armed conflicts. For example, the ICRC has performed the functions of a 500 § 9.5.3 (Protect ion Against Insults and Public Curiosity ). Refer to 501 § 6.12.11 (Obligation to Seek to Protect Certain Groups From the Effects of Minefields, Mined Areas, Refer to Mines, Booby -Traps, and Other Devices ). 502 See, e.g. , GPW art. 125 (“The special position of the International Committee of the Red Cross in this field shall be recognized and respected at all times.”); GC art. 142 (same). 503 See 22 U.S.C. § 288f mmittee of the Red Cross, in view of its unique status as an -3 (“The International Co impartial humanitarian body named in the Geneva Conventions of 1949 and assisting in their implementation, shall be considered to be an international organization for the purposes of this subchapter and may be extended the provisions of this subchapter in the same manner, to the same extent, and subject to the same conditions, as such provisions may be extended to a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation EGISTER EDERAL R , 53 F International Committee of the Red Cross for such participation.”); Executive Order 12643, 24247 (Jun. 23, 1988) (“I hereby extend to the International Committee of the Red Cross the privileges, exemptions, and immunities provided by the International Organizations Immunities Act.”). 504 Refer to § 8.10.4 (ICRC Access to Detainees ). 505 Gary Robbins, Chargé d’Affaires, Department of State, U.S. Mission to the Organization for Security and Cooperation in Europe, Response to Ambassador Peter Maurer, President of the International Committee of the Red Cross , Jan. 30, 2014 (“We honor the work that the ICRC has done over the past 150 years. With its founding principles of impartiality, neutrality, and independence, the ICRC is able to carry out crucial work where others cannot. The United Stat es values the ICRC’s work and relies on its capacity, particularly in conflict situations. In fiscal year 2013, the United States contributed more than $280 million to the ICRC’s work, which reflects our confidence in the organization. We look forward to supporting the ICRC in the future as we confront significant humanitarian need around the globe.”). 178

206 506 Protecting Power during arm In addition, t he ICRC has performed the f unctions of ed conflict. for POWs and protected persons the Central Information Agency during international armed 507 . conflict In order to facilitate access, t he ICRC conducts its visits to detention facilities on a 508 , a practice that DoD has sought to respect. confidential basis ICRC has issued policy proposals or interpretative guidance on a variety of The Although the ICRC’s proposals and interpretations do not have binding international law issues. In some cases, the United States and other legal effect, they have often been helpful to States. the ICRC’ or interpretations and instead expressed opposing States have not accepted s proposals . For example, the United States has not accepted the ICRC ’s study on customary views inter pretive guidance ” on direct participation in international humanitarian law nor its “ 509 hostilities. 4.27 D D S D ETAINEES IN C ETERMINING THE TATUS OF OUBT ASES OF Identification Cards Used to Help Clarify Status . The 1949 Geneva Conventions 4.27.1 contemplate that identific ation cards will be used to help clar ify the status of detainees in 510 international armed conflict. Parties to the GPW must provide identity cards to persons under 511 their jurisdiction who are liable to become POWs . Similarly, P arties to the GWS must 512 provide retained personnel with a special identity card that denotes their status. Capturing 513 In addition, units should not take these identity cards from POWs or retained personnel. 514 States should retain duplicate copies of identification cards that they issue. In contemporary 506 § 18.15.2.3 Refer to (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by Protecting Powers Under the 1949 Geneva Conventions ). 507 (Central POW Information Agency ); § 10.31.3 (Central Information Agency for Protected Refer to § 9.31.3 ). Persons 508 See, e.g. , American Civil Liberties Union v. Department of Defense, 389 F. Supp. 2d 547, 554 (S.D.N.Y. 2005) (noting that DoD po licy “requires confidential treatment of all ICRC communications”). For discussion of the ICRC see Prosecutor v. Blagoje Simic et al. , ICTY Trial Chamber, IT practice of confidentiality, 9, Decision on the -95- Prosecution Motion Under Rule 73 for a Ruling , ¶¶45 -74 (Jul. 27, 1999); Concerning the Testimony of a Witness et al. 9, -95- Prosecutor v. Blagoje Simic, Separate Opinion Of Judge David Hunt On , ICTY Trial Chamber, IT Prosecutor’s Motion For A Ruling Concerning The Testimony Of A Witness -33 (Jul . 27, 1999). , ¶¶14 509 Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law ); § 5.9.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities ). 510 52 (“If need be, any person to whom the provisions of Article 4 [of the GPW] are , GPW C See, e.g. OMMENTARY applicable can prove his status by presenting the id entity card provided for in Article 17.”). 511 Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs ). 512 Refer to § 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status ). 513 GPW art. 17 (“The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.”); GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or identity cards nor of the right to wear the armlet. In case of loss, they shall be entitled to receive duplicates of the cards and to have the insignia replaced.”). 514 GWS art. 40 (Identity cards for military medical and religious personnel “should be made out, if possible, at least in duplicate, one copy being kept by the home country.”); GPW art. 17 (Identity cards for prisoners of war “[a]s far ible ... shall be issued in duplicate.”). as poss 179

207 practice, moder n storage systems, such as computer databases, are used rather than storing 515 duplicates of the issued identification cards. Producing an i dentification card to capturing forces is not necessarily a prerequisite for a person to be entitled to a particular . Identification cards may become lost, damaged, or status stolen during military operations , so a failure to produce an identity card does not necessarily 516 status. mean that person lacks a particular POW Protections for Certain Persons Until Status . 4.27.2 Has B een Determined Capturing detainee’ s status, including whether that person personnel may be unable to establish a status under the GPW is entitled to POW . For example, a detainee might have lost his or her identity card or the detainee might be a deserter who does not wish to admit that he or she is a member of enemy armed forces . During international armed conflict, s hould 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 of the GPW 517 GPW until such time as their status has been determined by a competent tribunal. Competent Tribunal to Assess Entitlement to POW Status or Treatmen t. The 4.27.3 ” in Article 5 of the GPW is often called an “ Article 5 tribunal. ” In some “competent tribunal 518 but a cases, courts have undertaken to assess whether a detainee is entitled to POW status, 515 For example , D O D I NSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions , (Apr ¶3(a)(3) . 16, 2012) (“The duplicate ID card requirements of Article 17 of Reference (f), to facilitate identi fication of POWs with the Prisoner of War Information Bureau as delineated in Article 122 of Reference (f), are more adequately met by the information routinely maintained in the Defense Enrollment Eligibility Reporting System (DEERS). Accordingly, duplic ate ID cards will not be required.”). 516 64- OMMENTARY , GPW 65 (noting that States at the Diplomatic Conference of Geneva of 1949 See, e.g. C “considered that the capacity in which the person was serving should be a determining factor; the possession of a[n identification] card is not therefore an indispensable condition of the right to be treated as a prisoner of war, but a supplementary safeguard”). 517 len GPW art. 5 (“Should any doubt arise as to whether persons, having committed a belligerent act and having fal into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”). Consider AP I art. 45(1) (“A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of be entitled to such status, or if the Party on which he depends claims such status prisoner of war, or if he appears to on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.”). 518 See, e.g. , United States v. Lindh, 212 F. Supp. 2d 541, 557- 58 (E.D. Va. 2002) (assessing whether a captured Taliban fighter was entitled to POW status under GPW); United States v. Noriega, 808 F. Supp. 791, 794- 96 (S.D. Fla. 1992) (assessing whether a captured Panamanian General was entitled to POW Status und er GPW); Stanislaus 36 EVIE , D OCUMENTS ON POW S 732- Krofan & Anor. v. Public Prosecutor, (Singapore Federal Court, 1966), L (assessing whether captured Indonesian saboteurs were entitled to POW status under GPW); The Military , EVIE and Others (Israeli Military Court, Ramallah, Apr. 13, 1969), L Prosecutor v. Omar Mahmud Kassem D OCUMENTS ON POW S 771- 80 (assessing whether members of the Popular Front for the Liberation of Palestine were entitled to POW status under GPW). 180

208 “competent tribunal ” generally entails the Detaining Power administrative convening an 519 board. The GPW affords the Detaining Power substantial discretion regarding the 520 composition and procedures of an Article 5 tribunal. ’s entitlement any doubt Article 5 only requires a tribunal if there is “ ” regarding a person 521 to POW status or treatment. For example, if there was no doubt that the armed group to which a person belongs fails to qualify for POW status, then the GPW would not require a tribunal to 522 adjudicate the person’ s claim to POW status by virtue of membership in that group. By its terms , Article 5 of the GPW 4.27.4 Tribunals to Assess Other Detainee Issues. ’s entitlement to POW However, an administrative only addresses a person status or treatment. ntitlement to POW status process may be appropriate to address status questions besides e or treatment , such as whether detainees are retained personnel or civilians. DoD practice has been 523 to use Article 5 tribunals or similar administrative tribunals to address those issues . For example, DoD used administrative trib during unals to address a variety of detainee issues 524 526 527 525 Iraq in 2003, the Persian Gulf in 1991, Panama, detention operations in Viet Nam, 519 Denmark proposed the term “competent tr ibunal” instead of “military tribunal” because “[t]he laws of the -B Detaining Power may allow the settlement of this question by a civil court rather than by a military tribunal.” II G INAL ECORD OF THE D IPLOMATIC C ONFERENCE OF R ENEVA OF 1949 270. F 520 For e xamples of the procedures of past U.S. tribunals, see, e.g., U.S. C ENTRAL C OMMAND R EGULATION 27- 13, 1997 M ULTI - (Jan. 15, 1991); Captured Persons: Determination of Eligibility for Enemy Prisoner of War Status ERVICE ETENTION R EGULATION § 1-6. e . D S 521 Status of Taliban Forces Under Article 4 of the Third Geneva Jay S. Bybee, Assistant Attorney General, C PINIONS OF THE O FFICE OF L EGAL OUNSEL 1, 9 (“Under Article 5 of GPW, , Feb. 7, 2002, 26 Convention of 1949 O ‘[s]hould any doubt arise as to whether persons ... be long to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.’ As we understand it, DoD in the past has presumed prison ers to be entitled to POW status until a tribunal determines otherwise. The presumption and tribunal requirement are triggered, however, only if there is ‘any doubt’ as to a prisoner’s Article 4 status.”) (amendments in original). 522 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis ). 523 See, e.g. , 1997 M ULTI -S ERVICE D ETENTION R EGULATION § 1-6. e .(10) (boards making determinations pursuant to Article 5 of G PW may make, in addition to a determination that someone is an enemy prisoner of war, also determinations that an individuals is retained personnel, an “innocent civilian,” or a civilian internee “who for reasons of operational security, or probable cause incident to criminal investigation, should be detained.”). 524 In Viet Nam, the U.S. Army used panels of three officers assisted by a judge advocate advisor to assess the status IETNAM Military Intelligence: 46, 381- M ILITARY A SSISTANCE C OMMAND V IRECTIVE D , U.S. See, e.g. of detainees. OMMAND D ILITARY A SSISTANCE C M V IETNAM IRECTIVE 20- (Dec. 27, 1967); U .S. Combined Screening of Detainees Prisoners of War -- Determination of Eligibility (Mar. 15, 1968); Fred K. Green, The Concept of “War” and the 5, 267, 285 T HE M ILITARY L AW AND THE L AW OF W AR R EVIEW s, 10 Concept of “Combatant” in Modern Conflict -5). (1971) (discussing detainee status classifications under Military Assistance Command Vietnam Directive 20 525 103- F RED B ORCH , J UDGE A DVOCATES IN OMBAT See 06 (2001) (describing detainee screening procedures in C UST C AUSE in Panama ). 1989- 1990 Operation J 526 See F INAL R EPORT ON THE P ERSIAN G ULF W AR 577- 78 (describing article 5 tribunals during Operation D ESERT S TORM ). 527 J , C ENTER FOR L AW AND M ILITARY O PERATIONS , T See, e.g. UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & HE S CHOOL , U.S. A RMY , I L EGAL L ESSONS L EARNED F ROM A FGHANISTAN AND I RAQ : M AJOR C OMBAT O PERATIONS 1 (11 S EPTEMBER 2001 - M AY 2003) 41- 47 (2004) (describing Article 5 tribunals conducted during Operation I RAQI in 2003). F REEDOM 181

209 529 528 Afghanistan, and Guantanamo. 528 See Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 227 (D.D.C., 2009) (describing detainee review procedures in Afghanistan); Detainee Review Procedures At Bagram Theater Internment, enclosed in Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Senator Carl Levin, Jul. 14, 2009 (describing modified detainee review procedures in Afghanistan). 529 , Executive Order 13567, Periodic Review of Individuals Detained at Guantanamo Bay Naval Station See, e.g. 13277 (Mar. 7, 2011) (establishing EGISTER R EDERAL , 76 F uthorization for Use of Military Force Pursuant to the A a process to review on a periodic basis the continued discretionary exercise of existing detention authority for certain individuals detained at Guantanamo Bay, Cuba); Paul Wolfowitz, Deputy Secretary of Defense, Order Establishing Combatant Status Review Tribunal, Jul. 7, 2004, as amended 2006 (establishing an administrative process to review mo Bay, Cuba). the detention of foreign nationals held as enemy combatants at Guantana 182

210 V – The Conduct of Hostilities Chapter Contents 5.1 Introduction 5.2 Principles for the Conduct of Hostilities 5.3 Overview of Rules for the Protection of Civilians 5.4 Assessi ng Information Under the Law of War 5.5 Rules on Conducting Assaults, Bombardments, and Other Attacks 5.6 Discrimination in Conducting Attacks 5.7 Military O bjectives 5.8 Combatants 5.9 Civilians Taking a Direct Part in Hostilities 5.10 Persons Placed Hors de Combat 5.11 Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects 5.12 Proportionality in Conducting Attacks 5.13 Attacks on Facilities, Works, or Installations C ontaining Dangerous Forces 5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack 5.15 Undefended Cities, Towns, and Villages 5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military Operations 5.17 Seizure and Destruction of Enemy Property 5.18 Protection of Cultural Property During Hostilities 5.19 Sieges and Encircled Areas 5.20 Starvation 5.21 Overview of Good Faith, Perfidy, and Ruses 5.22 Treachery or Perfidy Used to Kill or Wound 5.23 Use of Enemy Flags, Insignia, and Military Uniforms 5.24 Improper Use of Certain Signs 5.25 Ruses of War and Other Lawful Deceptions 5.26 Non- Forcible Means and Methods of Warfare 5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Dire cted Against Their Own Country NTRODUCTION I 5.1 The right of States engaged in armed conflict to adopt means and methods of warfare is 1 hapter addresses the law of war rules on the conduct of hostilities This C not unlimited. during international armed conf lict , such as the rules applicable to conducting attacks, the seizure and destruction of enemy property, and deception. 1 ). (Acceptance That Belligerent Rights Are Not Unlimited Refer to § 2.6.2.1 183

211 This C hapter, however, does not address all rules related to the conduct of hostilities. For Chapter VI. In addition, later c example, rules on weapons are addressed in hapters address the ), Air IV) IV) , Space (Chapter X (Chapter XIII , rules and issues specific to the Naval (Chapter X non- international armed and Cyber (Chapter XVI) domains , and Chapter XVIII addresses conflict . Violations o f the rules in the conduct of hostilities may be violations of criminal law, although it is not a purpose of this Chapter to address liability under criminal law. Notes on Terminology – and Methods of Warfare ”. In general, method of 5.1.1 “Means has referred to how warfare is conducted warfare means of warfare has referred to , while 2 weapons or devices used to conduct warfare . For example, an analysis of a m ethod of warfare might consider the way in which an artillery projectile may be employed, particularly wh ere employment could have an adverse means of effect on the civilian population. On the other hand, an analysis of the legality of the might consider the legality of the way in which the artillery projectile is designed to kill warfare 3 or injure enemy com batants. Although the terms means of warfare and methods of warfare lack an established, specific meaning, i n some cases , t he phrase “ method of warfare” may be a term of art in a legal instrument that has been by the United States . For example, the specifically interpreted Chemical Weapons Convention obligates Parties to undertake not to use riot control agents as a “method of warfare ,” and the United States has interpreted that prohibition not to include certain 4 uses of riot control agents . Adherence to Law of War Obligations in the Conduct of Hostilities During Military 5.1.2 Operations . The law of war rules in the conduct of hostilities have been implemented during military operations through rules of engagement and other military orders. U.S. practice and the conduct of U.S. m ilitary operations often exceed the requirements For example, military commanders often seek of the law of war. to reduce the risk of civilian 2 See, e.g. , W. Hays Parks, Special Assistant to The Judge Advocate General o f the Army for Law of War Matters, Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol , reprinted in Memorandum of Law: is one of two historic phrases in the law of war. HE RMY L AWYER 33, 34- 35 (Jun. 1997) (“ Method of warfare A T Although neither phrase has an agreed definition, means of warfare traditionally has been understood to refer to the effect of weapons in their use against combatants, while method of warfare refers to the way weapons are used in a AP C OMMENTARY 621 (¶1957) (“The term ‘means of combat’ or ‘means of warfare’ ( cf. broader sense.”); ICRC Article 35 – Basic rules ) generally refers to the weapons being used, while the expression ‘methods of combat’ generally refers to the way in which such weapons are used.”). 3 See W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters, Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol , reprinted in considers the legality of the way in which a projectile or its HE A RMY L AWYER 33, 35 (Jun. 1997) (“Thus, means T fragments, for example, kill or injure combatants. As an illustration, Protocol I of the UNCCW makes the use of fragments not detectable by X -ray a prohibited means of warfare . In contr ast, method weighs the way in which weapons may be employed, particularly where employment may have an adverse effect on civilians not taking a direct part in the hostilities.”). 4 § 6.16.2 ). (Prohibition on Use of Riot Control Agents as a Method of Warfare Refer to 184

212 casualties by taking additional precautions even when such measures are not required by th e law are cases in which, for military or policy reasons, an attack is not of war. Similarly, there 5 conducted, even though the attack would be legally permissible. Although t he law of war creates international obligations regarding the conduct of hostilities that apply to the parties to a conflict, responsibility for implementing certain international obligations would only apply to those persons belonging to the party’s forces with 6 obligations . the domestic authority to make the decisions necessary to implement those For example, a pilot would be entitled to rely on the determination by headquarters that a given 7 target is, in fact, a military objective. P RINCIPLES FOR THE C ONDUCT OF H OSTILITIES 5.2 the law of war are discussed in Chapter II, The principles that provide the foundation for and these principles apply to the conduct of hostilities. As noted in Chapter II, specific rules on the conduct of hostilities are derived from , and must be interpreted consistent with, the basic 8 he law of war. principles that underlie t Moreover, w rule applies, law of war here no specific 9 principles provide a general guide for conduct during war , including the conduct of hostilities . 5.3 O VERVIEW OF R ULES FOR THE P ROTECTION OF C IVILIANS 10 The protection of civilians against the harmful effects of hostilities is one of the main 11 Many of the rules for the protection of civilians are derived from purposes of the law of war. 12 the principles of distinction and proportionality. Specific rules for the protection of civilians 5 , F For example INAL R EPORT ON THE P ERSIAN G ULF W AR 615 (“Similar actions were taken by the Government of Iraq to use cultural property to protect legitimate targets from attack; a classic example was the positioning of two fighter aircraft adjacent to the ancient temple of Ur (as depicted in the photograph in Volume II, Chapter VI, ‘Off Limits Targets’ section) on the theory that Coalition respect for the protection of cultural property would preclude the attack of those aircraft. While the law of war permits the attack of the two fighter aircraft, with Iraq bearing cted not to responsibility for any damage to the temple, Commander -in-Chief, Central Command (CINCCENT) ele attack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacent to Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting lue of their destruction by Coalition air forces when weighed against the risk of damage to the temple. Other the va cultural property similarly remained on the Coalition no -attack list, despite Iraqi placement of valuable military es.”). equipment in or near those sit 6 United Kingdom, Statement on Ratification of AP I , Jan. 28, 1998, 2020 UNTS 75, 78 Cf. (“The United Kingdom understands that the obligation to comply with [art. 57] paragraph 2(b) only extends to those who have the authority and practical possibi lity to cancel or suspend the attack.”). 7 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia , ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian objec t and not a legitimate military objective. ... It is the opinion of the committee that the aircrew involved in the attack should not be assigned any responsibility for the fact they were given the wrong target ... .”). 8 Refer to § 2.1.2.1 (Law of War Principles as an Aid in Interpreting and Applying Law of War Rules ). 9 Refer to § 2.1.2.2 (Law of War Principles as a General Guide). 10 Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual ). 11 Refer to § 1.3.4 (Purposes of the Law of War ). 12 (Proportionality 2.4 ). Refer to § 2.5 (Distinction ); § 185

213 may be grouped into two categories: (1) essentially negative duties to respect civilians and to refrain from directing military operations against them; (2) affirmative duties to take feasible precautions to protect civilians . and other protected persons and obj ects Persons and Objects . The party Responsibility of the Party Controlling Civilian 5.3.1 controlling civilians and civilian objects has the primary responsibility for the protection of 13 civilians and civilian objects. The party controlling the civilian population generally has the 14 greater opportunity to minimize risk to civilians. Civilians also may share in the responsibility 15 to take precautions for their own protection. Essentially Negative Duties to Respect Civilians and to Refrain From Directing 5.3.2 Mil . In general, military operations must not be directed against itary Operations Against Them 16 enemy civilians. In particular : 13 J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 See rtain general principles AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals ce including the following: ... (c). That a distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible. ... Th e principle in (c) addresses primarily the Party exercising control over members of the civilian population.”); ULES OTHE , 284 (AP I art. 48, ¶2.2) (explaining that “an important share of the P ARTSCH , & S OLF , N EW R B iple of distinction rests on the Party which controls the civilian responsibility for implementing the princ Statement on Ratification of the 1954 Hague Cultural Property Convention , Mar. 13, population.”); United States, (“It is the understanding of the United States of America that, as is true for all civilian 2009, 2575 UNTS 7, 8 objects, the primary responsibility for protection of cultural objects rests with the party controlling that property, to ensure that it is properly identified and that it is not used for an unlawful purpose.”). 14 F INAL R EPORT ON THE P ERSIAN G ULF W AR 614 (“In the effort to minimize collateral civilian casualties, a substantial responsibility for protection of the civilian population rests with the party controlling the civilian n sense standpoint, the party controlling the civilian population has the population. Historically, and from a commo opportunity and the responsibility to minimize the risk to the civilian population through the separation of military objects from the civilian population, evacuation of the civilian population from near immovable military objects, and development of air raid precautions. Throughout World War II, for example, both Axis and Allied nations took each of these steps to protect their respective civilian populations from the effects of military operations.”). 15 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of U RACTICE IN P IGEST OF NITED S TATES , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region NTERNATIONAL 2057, 2063 (“The obligation of distinguishing combatants and military objectives AW 1991- 1999 I L from civilians and civilian objects is a shared responsibility of the attacker, defender, and the civilian population as such. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian population, consistent with mission accomplishment and allowable risk to the attacking force. A defender must exercise reasonable precaution to separate the civilian population and civilian objects from military objectives. Civilians must exercise reasonable precaution to remove themselves from the vicinity of military objectives or military operations. The force that has control over the civilians has an obligation to place them in a safe place.” ); Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land , 28 (1907) (“It seems hardly necessary to say, however, that if any defense is attempted or if a town is occupied or held by the armed forces of the enemy, it ceases to be undefended and, for that reason, may be attacked or fired upon. The inhabitants of such a place, so soon as a garrison is established or military defense is attempted, become charged with the knowledge that the town is defended and, as such, liable to attack, and, if they desire to secure an immunity from acts of war, should remove their families and belongings from the zone of active military operations.” ). 16 AP I art. 48 (“In order to ensure respect for and protection of the civilian population and civilian objects, Consider the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between 186

214 17 • Civilians must not be made the object of attack ; Military objectives may not be attacked • when the expected incidental loss o f life and injury to civilians or damage to civilian objects would be excessive in relation to the 18 ; concrete and direct military advantage expected to be gained 19 • and Civilians must not be used as shields or as hostages ; Measures of intimidation or terr orism against the civilian population are prohibited, • including acts or threats of violence, the primary purpose of which is to spread terror 20 among the civilian population. Violent Measures T hat A re Militarily Necessary 5.3.2.1 . The principle that Non- military operations military operations must not be directed against civilians does not prohibit short of violence that are militarily necessary. For example, such operations may include : 21 stoppi ng and searching civilians for weapons and to verify that they are c ivilians ; • • -defense, or temporarily detaining civilians for reasons of mission accomplishment, self 22 ; for their own safety civilian objec ts and military objectives and accordingly shall direct their operations only against military objectives.”). 17 Refer to § 5.6.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack ). 18 § 5.12 (Proportionality in Conducting Attacks ). Refer to 19 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military ). Operations 20 (Collective Penalties and Measures of Intimidation or Terrorism Refer to § 10.5.3.2 ). 21 , 101st Airborne ROE Card, Iraq (2003), reprinted in C ENTER FOR L For example M ILITARY O PERATIONS , AW AND T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , U.S. A RMY , I L EGAL L ESSONS L EA RNED F ROM A I RAQ : M AJOR C OMBAT O PERATIONS (11 S EPTEMBER 2001 - 1 FGHANISTAN AND M AY 2003) 315 (2004) (“You may stop civilians and check their identities, search for weapons and seize any found.”). § 10.6.1 (General Compare Authority of a Belligerent to Search and Secure Protected Persons and Their Property ). 22 For example , Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14, 2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain persons temporarily, consistent wi th the laws and customs of war (e.g., in self -defense or for force protection).”); Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003), reprinted in L AW AND ENTER FOR U.S. M ILITARY O PERATIONS , T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , C S RMY , I L EGAL L ESSONS L EARNED F ROM A FGHANISTAN AND I RAQ : M AJOR C OMBAT O PERATIONS (11 A EPTEMBER 2001 1 M AY 2003) 314 (2004) (“Detain civilians if they interfere with mission accomplishment or if required for - ENTER FOR L AW AND M ILITARY O PERATIONS , C self -defense.”); 101st Airborne ROE Card, Iraq (2003), reprinted in T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , U.S. L A RMY , I L EGAL L ESSONS EARNED F ROM A RAQ : M AJOR C OMBAT O PERATIONS (11 S EPTEMBER 2001 I - 1 M AY 2003) 315 (2004) (“Detain FGHANISTAN AND ENTER FOR L AW AND M ILITARY civilians when necessary to accomplish your mission or for their own safety.”); C ILITARY PERATIONS , T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , U.S. A RMY , L AW AND M O 03 (2001) (“Based on the 102- O PERATIONS IN K OSOVO , 1999- 2001: L ESSONS L EARNED FOR J UDGE A DVOCATES KFOR [Kosovo Force] guidance, Task Force Falcon instructed U.S. soldiers and Marines to detain persons who 187

215 23 • civilians , including interrogating civilians; collecting intelligence from • restricting the movement of civilians or directing their movement away from military 24 operations for their own protection; or 25 seeking to influence enemy civilians with propaganda. • 5.3.2.2 . The principle that Military Operations Intended to Benefit Civilians t preclude military operations military operations not be directed against civilians does no rian assistance operations , intended to benefit civilians. Such operations may include humanita noncombatant e , civil affairs operations , or civil -military operations. vacuation operations During counter -insurgency operations , military operations to protect civilians and to help obtain 26 their support may be particularly important. s and 5.3.3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilian . Parties to a conflict mus t take feasible precautions to Other Protected Persons and Objects 27 civilian population and other protected persons and objects. reduce the risk of harm to the Feasible precautions to reduce the risk of harm to civilians and civilian objects must be taken 28 Feasible precautions should be taken to mitigate the s. when planning and conducting attack 29 burden on civilians when seizing or destroying enemy property. It is specifically provided that committed criminal misconduct under a familiar standard, the Uniform Code of M ilitary Justice (UCMJ). This was the standard to be applied during each of the 1,300 patrols that U.S. soldiers conducted per week in Kosovo. If soldiers or Marines witnessed an act that would be a crime under the UCMJ, they arrested the wrongdoer. COMK FOR and the SRSG augmented crimes under the military code with mission -specific unauthorized acts, such as weapons, uniform, and curfew violations. Soldiers were also authorized to detain local citizens who were considered a threat to the military or to the overall mission.”). 23 Refer to (Information Gathering). § 5.26.2 24 § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives ). Refer to 25 § 5.26.1.2 (Propaganda Generally Permissible). Refer to 26 Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect ). Them 27 See, e.g. , Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American Red Cross -Washington College of Law Conference on International 419, OLICY P MERICAN U NIVERSITY J OURNAL OF I NTERNATIONAL L AW AND (Jan. 22, 1987), 2 A nitarian Law Huma 27 (1987) (“We support the principle that all practicable precautions, taking into account military and 426- t of military operations to minimize incidental death, injury, and humanitarian considerations, be taken in the conduc damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect the G ENERA Basic A SSEMBLY R ESOLUTION 2675, L civilian population, unless circumstances do not permit.”); U.N. Principles for the Protection of Civilian Populations in Armed Conflict , U.N. Doc. A/8028 (Dec. 9, 1970) (“In the conduct of military operations, every effort should be made to spare the civilian populations from the ravag es of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.”). Refer to § 5.18.4 (Other Feasible Precautions to Red uce the Risk of Harm to Cultural Property ). 28 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects ). 29 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians ). § 5.17.5 Refer to 188

216 30 feasible precautions must be taken in connection with certain types of weapons. Feasible precautio ns to reduce the risk of harm to civilians must also be taken by the party subject to 31 attack . Feasible Precautions – Notes on Terminology . Although this manual 5.3.3.1 ther adjectives h ave been used to describe the obligation to ta ke primarily uses “feasible,” o 34 32 33 “ reasonable,” “ due,” practicable, feasible precautions during armed conflict. The words “ ” 35 ” necessary and “ have been used to describe this obligation. What Precautions A re Feasible 5.3.3.2 . The standard for what precautions must ard or diligence, not an absolute requirement to do everything be taken is one of due reg 36 possible. A wanton disregard for civilian casualties or harm to other protected persons and 37 objects is clearly prohibited. 30 Refer to § 5.3.3.3 (Requirements to Take Precautions Regarding Specific Weapons ). 31 (Feasible Precautions to Reduce the Risk of Harm to Pr otected Persons and Objects by the Party Refer to § 5.14 ). Subject to Attack 32 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the -Washington College of Law Conference on International Humanitarian Law Sixth Annual American Red Cross AW AND MERICAN U NIVERSITY J OURNAL OF I NTERNATIONAL L 27 (1987) (“We P OLICY 419, 426- (Jan. 22, 1987), 2 A support the principle that all practicable precautions, taking into account military and humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect the civilian population, unless circumstances do not permit.”). 33 See, e.g. , U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of IGEST OF RACTICE IN NITED S TATES P U International Humanitarian Law in the , Jan. 11, 1991, D Gulf Region I NTERNATIONAL AW 1991- 1999 2057, 2063 (“A defender must exercise reasonable precaution to separate the L -10 (Ch civilian population and civilian objects from military objectives.”); 1956 FM 27 ange No. 1 1976) ¶41 (“Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places within the meaning of the preceding paragraph but also that these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated.”); Neville Chamberlain, Prime Minster, United Kingdom, Statement before the §§ , 337 EBATES ANSARD 937 (“[R]easonable care must H OUSE OF C OMMONS D H , Jun. 21, 19 House of Commons 38, be taken in attacking those military objectives so that by carelessness a civilian population in the neighbourhood is not bombed.”). 34 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 UNTS 128, 129 (“The United States reserves the right to use other devices (as defined in Article 2(5) of the Amended Mines Protocol) to destroy any stock of food or drink that is judged likely to be us ed by an enemy military force, if due precautions are taken for the safety of the civilian population.”). 35 G ENERAL U.N. SSEMBLY R ESOLUTION 2675, Basic Principles for the Protection of Civilian Populations in A Armed Conflict , U.N. Doc. A/8028 (Dec. 9, 1970) (“In the conduct of military operations, every effort should be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to AGUE IX art. 5 (“In bombardments by naval forces all the avoid injury, loss or damage to civilian populations.”); H 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 o r wounded are collected, on the understanding that they are not used at the same time for military purposes.”). 36 See also Neville Chamberlain, Prime Minster, United Kingdom, Statement before the House of Commons , Jun. 21, 937 -939 (“[R]easonable care must be taken in attacking §§ EBATES D ANSARD , 337 H OUSE OF C OMMO NS H 1938, 189

217 Feasible precautions are those that are practicable or practically possible , taking into account all circumstances ruling at the time, including humanitarian and military 38 considerations . These circumstances may include: • the effect of taking the precaution on mission accomplishment; • risk to one ’s own forces or presents other security whether taking the precaution poses a risks; • the likelihood and degree of humanitarian benefit from taking the precaution; of taking the precaution, in terms of time, resources, or money ; or • the cost • whether taking the precaution forecloses alternative courses of action . those military objectives so that by carelessness a civilian population in the neighbourhood is not bombed. ... I say that reasonable care must be taken, in attacking military objectives, n ot to go outside those objectives, but it is extremely difficult in practice to determine whether in fact the dropping of bombs which have killed civilians in the neighbourhood of military objectives is the result of want of care or not. Suppose a man mak es a bad shot, which is not at all unlikely when machines are going at over 300 miles an hour and when, as I am informed, in taking aim you have to release the bomb miles away from its objective—it seems to me that it is extremely difficult to lay down exa ctly the point at which reasonable care turns into unreasonable want of care.”). 37 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of RACTICE IN P IGEST O F U NITED S TATES , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region I NTERNATIONAL L AW 1991- 1999 2057, 2064 (“While it is difficult to weigh the possibility of collateral civilian casualties on a target -by -target basis, minimization of collateral civilian casualties is a continuing responsibility at -and all levels of the targeting process. Combat is a give -take between attacker and defender, and collateral civilian casualties are likely to occur notwithstanding the best efforts of either party. What is prohibited is wanton disregard for possible civilian casualties.”). 38 art. 1(5) (“‘Feasible precautions’ are those precautions which CCW P ROTOCOL III ON I NCENDIARY EAPONS See W are practicable or practically possible taking into account all circumstances ruling at the time, including A MENDED M P ROTOCOL art. 3(10) (“Feasible precautions are INES humanitarian and military considerations.”); CCW those precautions which are practicable or practically possible taking into account all circumstances ruling at the AR W P ROTOCOL V ON E XPLOSIVE R EMNANTS OF CCW siderations.”); time, including humanitarian and military con art. 5(1) (“Feasible precautions are those precautions which are practicable or practicably possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”). United Cf. Statement on Ratification of AP I Kingdom, , Jan. 28, 1998, 2020 UNTS 75, 76 (“The United Kingdom understands the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”); Canada, Statement on Ratification of AP I , Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the understanding of the Government of Canada that, in relation to Articles 41, 56, 57, 58, 78 and 86 the [word] ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military Statement on Ratificatio n of AP I , Feb. 14, 1991, 1607 UNTS 526, 529 (“The Federal considerations.”); Germany, Republic of Germany understands the word ‘feasible’ in Articles 41, 56, 57, 58, 78 and 86 of Additional Protocol I to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time including humanitarian and military considerations.”); Netherlands, Statement on Ratification of AP I , Jun. 26, 1987, 1477 UNTS 300 (“With regard to Article 41, paragraph 3, Article 56, paragraph 2, Article 57, paragraph 2, Article 58, Article 78, paragraph 1, and Article 86, paragraph 2 of Protocol I: It is the understanding of the Government of the Kingdom of the Netherlands that the word ‘feasible’ means that which is practicable or practically possible, taking into acc ount all circumstances ruling at the time, including humanitarian and military considerations.”). 190

218 For example, if a commander determines that taking a precaution would result in , a risk of failing to accomplish the mission) or an increased risk of harm to operational risk ( i.e. 39 , then the precaution would not be feasible their own forces and would not be required. Similarly, taking a precaution would not be required if it is assessed not to yield a humanitarian benefit. For example, issuing a warning before an attack would not be required 40 when civilians are not present. , it would not be required to use distinctive emblems Moreover to identify civilians and civilian objects as such, if enemy forces are likely to use that 41 information to direct attacks against those civilians and civilian objects. Since what precautions ar e feasible depends greatly on the context and other military considerations, it would be inaccurate to conclude that specific precautions are required as a general rule. For example, there is not a general requirement to use precision -guided 42 munitions. Nonetheless, military commanders must make reasonable efforts to reduce the risk of harm to civilians and civilian objects. Requirements to Take Precautions Regarding Specific Weapons . In 5.3.3.3 reduce the risk of harm to the addition to the general obligation to take feasible precautions to t is specifically provided that civilian population and other protected persons and objects, i in connection with certain types of weapons : precautions be taken 43 mines, booby -traps, or other devices • ; 44 incendiary weapons; • 45 las er systems; • a nd 46 explosive ordnance. • 39 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of IGEST OF U NITED S TATES P RACTICE IN , Jan. 1 1, 1991, D International Humanitarian Law in the Gulf Region I NTERNATIONAL AW 1991- 1999 2057, 2063 (“‘Feasible precautions’ are reasonable precautions, consistent with L ects should mission accomplishment and allowable risk to attacking forces. While collateral damage to civilian obj be minimized, consistent with the above, collateral damage to civilian objects should not be given the same level of concern as incidental injury to civilians. Measures to minimize collateral damage to civilian objects should not include steps that will place U.S. and allied lives at greater or unnecessary risk.”). 40 Refer to § 5.11.1 ulation ). (Effective Advance Warning Before an Attack That May Affect the Civilian Pop 41 Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such ). 42 Refer to § 5.11.3 (Selecting Weapons (Weaponeering) ). 43 Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect C ivilians From the Effects of Mines, Booby -Traps, and Other Devices ). 44 Refer to § 6.14.3 (Restrictions on the Use of Incendiary Weapons ). 45 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent Blindness ). 46 6.19.3 ). (Abandoning Explosive Ordnance Refer to § 6.19.2 (Using Explosive Ordnance ); § 191

219 5.3.3.4 AP I Obligation to Take Constant Care to Spare Civilians and Civilian . Parties to AP I have agreed that Objects “[i]n the conduct of military operations, constant care 47 ” Although this shall be taken to spare the civilian population, civilians and civilian objects. obligation is susceptible to a range of interpretations, Parties to AP I may also interpret it in a manner that is consistent with the discussion in this section. 5.4 A NFORMATIO N U NDER THE SSESSING AW OF W AR I L makers must make decisions in good faith and based on Commanders and other decision- the information available to them. Even when information is imperfect or lacking (as will ommanders and other decision- mak ers may direct frequently be the case during armed conflict), c operations, so long as they make a and conduct military good faith assessment of the information 48 that is available to them at that time. Law of War Rules Often Depend on Difficult Factual Assessments . Many of the 5.4.1 rules for the conduct of hostilities require determinations of fact that may be difficult to make . The special circumstances of armed conflict often make an accurate determination of 49 For example, combatants must make decisions while enemy forces are facts very difficult. 50 51 pting to attack and while enemy forces are seeking to deceive them. attem In addition, them 52 often justifies taking actions based upon the importance of prevailing during armed conflict 53 onflict. limited information that would be considered unreasonable outside armed c Thus, f or example, it may be difficult to discern whether a person is a combatant, a civilian, or a civilian taking a direct part in hostilities. Similarly, it may be difficult to assess the degree to which an object makes an effective contrib ution to the adversary ’s military action or to assess the concrete and direct military advantage anticipated from an attack. Decisions Must Be Made in Good Faith and Based on Information Available at the 5.4.2 military commander , rson s responsible for planning, authorizing . Decisions by Time s or other pe 47 AP I art. 57(1). 48 A 1985 CJCS M EMO ON AP I 52 (“Comman ders and other military personnel who make decisions in PPENDIX TO the fog of war must do so in good faith and on the basis of whatever information they have available at the time. Such decisions will almost never be free of ‘doubt,’ either subjective or objective.”). 49 Refer to § 1.4.2.2 (Nature of War – Limited and Unreliable Information – “Fog of War”). 50 Brown v. United States, 256 U.S. 335, 343 (1921) (“Detached reflection cannot be demanded in the presence Cf. of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation o disable his should pause to consider whether a reasonable man might not think it possible to fly with safety or t assailant rather than to kill him.”). 51 Refer to § 5.25 (Ruses of War and Other Lawful Deceptions ). 52 ). Refer to § 1.4.1 (Object of War 53 Korematsu v. United States, 323 U.S. 214, 244 (1944) (Jackson, J., dissenting) (“The very essence of the military job is to marshal physical force, to remove every obstacle to its effect iveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may b e unreasonably cautious and exacting. Perhaps he should be.”). 192

220 or executing military action must be made in good faith and based on their assessment of the 54 . information available to them at the time recognized this A large number of States have 55 has also been reflected in the decisions of courts assessing individual This principle principle. responsibility under the law of war have declined to second -guess military decisions with , which 56 the benefit of hindsight . other decision- makers make decisions in The requirement that military commanders and good faith based on the information available to them recognizes that decisions may be made when information is imperfect or lacking often be the case during armed conflict . , which will 54 See United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons , Jan. 21, 2009, 2562 UNTS 36, 37 (“[A]ny decision by any military commander, military personnel, or any other person responsible for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized, or execu ted the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”). 55 See, e.g. , Australia, , Jun. 21, 1991, 1642 UNTS 473 (“In relation to Arti cles 51 Statement on Ratification of AP I to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information fr om all sources, which is available to them at the relevant time.”); Austria, Statement on Ratification of AP I , Feb. 13, 1983, 1289 UNTS 303 (“Article 57, paragraph 2, of Protocol I shall be applied to the extent that, for any decision taken by a military commander, the information actually available at the time of the decision is the determining factor.”); Canada, Statement on Ratification of AP I , Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the time and that such decisions basis of their assessment of the information reasonably available to them at the relevant cannot be judged on the basis of information which has subsequently come to light.”); Italy, Statement on , Feb. 27, 1986, 1425 UNTS 438, 439 (“In relation to Articles 51 to 58 inclusive, the Italian Ratification of AP I Govern ment understands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which evant time.”); Netherlands, Statement on Ratification of AP I , Jun. 26, 1987, 1477 is available to them at the rel UNTS 300 (“With regard to Articles 51 to 58 inclusive of Protocol I: It is the understanding of the Government of the Kingdom of the Netherlands that military commanders an d others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all Statement on Ratification of AP I , Apr. 21, 1989, Spain, sources which is available to them at the relevant time;”); 1537 UNTS 389, 392 (“It is understood that decisions by military authorities or others with legal powers to plan or carry out attacks which might affect civilian personnel goods or other effects, necessarily shall not be made on any basis other than that of relevant information available at the time in question and obtained for that purpose.”); Switzerland, Statement on Ratification of AP I , Feb. 17, 1982, 1271 UNTS 409 (“The provisions of article 57, paragraph 2, create obligati ons only for battalion or group commanders and higher -echelon commanders. The information available to the commanders at the time of the decision shall be the determining factor.”); United Statement on Ratification of AP I , Jan. 28, 1998, 2020 UN TS 75, 76 (“Military commanders and others Kingdom, responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the r elevant time.”). 56 United States v. List, et al. (The Hostage Case), XI T RIALS OF W AR C RIMINALS B EFORE THE NMT 1295- 96 (“It was with this situation confronting him that he [the defendant, Rendulic] carried out the ‘scorched earth’ policy in the Norwegian p rovince of Finmark which provided the basis for this charge [of wanton destruction of property] of the indictment. ... There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in restrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the fac tors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal.”). 193

221 5.5 ULES ON C ONDUCTING A SSAULTS , B OMBARDMENTS , AND O THER A TTACKS R Combatants may conduct assaults, bombardments, and other attacks, but a number of rules apply to these operations. Notes on Terminology – Protection From “ Attack As Such,” “ Being Made the 5.5.1 ” “ Direct Attack, ” V ersus Protection From Intenti onal Attack Object of Attack, ” and “ ” or “ ” Harm “Incidental . A variety of formulations have been commonly used to Collateral distinguish between: (1) i.e. , the attack is the protection from being made the object of attack ( purposefully directed against that person or object ) and (2) the protection from the incidental effects of an attack ( i.e. , the object or person is not the object of the attack, but is collaterally harmed by the attack) . 57 are treated quite different r. In the former case, it ly under the law of wa These situations 58 59 as such is often said that protected persons and objects are protected “ ,” from “ direct attack ,” 61 60 ” or from being “ from attack directed exclusively against them, ,” from “ intentional attack 62 made the “ object of attack.” Sometimes a combination of these formulation s has been used. ”), a text may not use any qualification ( e.g. , “ direct attack ” or “as such, In some cases, but is understood to refer only to the first category of protection. For example, Article 5 2 of AP 63 I provides that “ [a]ttacks shall be limited strictly to military objectives. However, t his article ” has been understood to comprise only an obligation not to direct attacks against civilian objects ttacks directed against military and not to address the question of incidental harm resulting from a 57 See, e.g. , United States v. Ohlendorf, et al. (The Einsatzgruppen Case) , IV T RIALS OF W AR C B EFORE RIMINALS 411, 467 (“A city is bombed for tactical purposes; communications are to be destroyed, railroads wrecked, NMT THE ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it inevitably happens that nonmilitary persons a re killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women, and children and shooting them.”). 58 See, e.g. , 1956 F M 27 -10 (Change No. 1 1976) ¶40a (“Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such.”) (emphasis added). 59 UK M ANUAL ¶5.3.2 (“A civilian is a non 2004 attack and is to be -combatant. He is protected from direct protected against dangers arising from military operations.”) (emphasis added). 60 Department of Defense, Report to the Senate and House Appropriations Committees regarding international policies and procedures regarding the protection of natural and cultural resources during times of war , Jan. 19, 1993, reprinted as Appendix VIII in Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed 201, 204 (1993) (“Like any civilian Conflict (The Hague Convention of 1954) object, cultural property is protected from intentional attack so long as it is not used for military purposes, or to shield military objectives from attack.”). 61 See, e.g. , 1956 FM 27 -10 (Change No. 1 1976) ¶25 (“However, it is a generally recognized rule of international law that civilians must not be made the object of attack directed exclusively against them .”) (emphasis added). 62 AP I art. 51(2) (“The civilian population as su ch, as well as individual civilians, shall not be the object of attack .”) (emphasis added). 63 AP I art. 52(2). 194

222 64 objectives. “object of attack manual generally uses the phrase ” to convey the idea that the attack This object. is being purposefully directed against that person or This manual generally uses the term “ incidental harm” refer to the death or injury to to destruction of or damage to civilian objects civilians but potentially , or the , that is incidentally ( a collateral consequence against a military knowingly) caused as of an attack directed 65 objective. Overview of Rules in C onducting Attacks . Parties to a conflict must conduct 5.5.2 In particular, the attacks in accordance with the principles of distinction and proportionality. fol lowing rules must be observed: Combatants may make military objectives , but ma y not direct attacks • the object of attack 66 , or other protected persons and objects. against civilians, civilian objects Combatants must refrain from attacks in which the expected loss of life or injury to • d be excessive in civilians, and damage to civilian objects incidental to the attack, woul 67 . relation to the concrete and direct military advantage expected to be gained • Combatants must take feasible precautions in conducting attacks to reduce the risk of 68 harm to civilians and other protected persons and objects . • In conducting attacks, combatants must assess in good faith the information that is 69 available to them. 70 • Combatants may not kill or wound the enemy by resort to perfidy. 71 Specific rules apply to the use of certain types of weapons. • 64 See, e.g. , United Kingdom, Statement on Ratification of AP I , Jan. 28, 1998, 2020 UNTS 75, 77 (“The first y such attacks as may be directed against non sentence of paragraph 2 prohibits onl -military objectives; it does not deal with the question of collateral damage resulting from attacks directed against military objectives.”); Canada, Statement on Ratification of AP I , Nov. 20, 1990, 1591 UNTS 462, 465 (“The first sentence of paragraph 2 of the Article is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.”). 65 Refer to § 5.12 (Proportionality in Conducting Attacks ). 66 Refer to (Discrimination in Conducting Attacks ). § 5.6 67 er to § 5.12 (Proportionality in Conducting Attacks ). Ref 68 Refer to § 5.11 (Feasible P recautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and Objects ). 69 Refer to § 5.5.3 (Assessing Information in Conducting Attacks ). 70 Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound ). 71 (Certai n Types of Weapons With Specific Rules on Use). Refer to § 6.5.1 195

223 Assessing Information in Conducting A ersons who plan, authorize, or 5.5.3 ttacks . P attacks must make the judgments required by the law of war make other decisions in conduct ing 72 in good faith and on the basis of information available to them at the time. For example, a is of available information, determine in good faith that a target is a commander must, on the bas military objective before an attack . Similarly, the expected incidental damage to authorizing able to the civilians or civilian objects must be assessed in good faith, given the information avail commander at the time. In making the judgments that are required by the law of war rules governing attacks , persons may rely on information obtained from other sources, including human intelligence or 73 other sources of information. For example, in a long -distance attack, a commander may rely on information obtained from aerial reconnaissance and intelligence units in determining 74 whether to conduct an attack. 5.5.3.1 Heightened Identification Requirements in Conducting Attacks . Although doing so woul d exceed the requirements of the law of war, applying heightened standards of may be a policy choice to reduce the risk of incidental harm in conducting an identification 75 attack. 72 Refer to § 5.4 (Assessing Information Under the Law of War ). 73 ICTY, stablished to Review the NATO Bombing Campaign Final Report to the Prosecutor by the Committee E , ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object and Against the Federal Republic of Yugoslavia not a legitimate military objective. ... It is the opinion of the committee ... that it is inapp ropriate to attempt to assign criminal responsibility for the incident to senior leaders because they were provided with wrong information by officials of another agency.”). 74 ICRC C OMMENTARY 681 (¶2195) (“In the case of long- distance attacks, informati on will be obtained in AP particular from aerial reconnaissance and from intelligence units, which will of course attempt to gather information about enemy military objectives by various means.”). 75 For example , The White House, Office of the Press Secretary, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities , May ve hostilities only when the 23, 2013 (In counterterrorism operations, “lethal force will be used outside areas of acti Third , the following criteria must be met before lethal action may be taken: 1) following preconditions are met: ... Near certainty that the terrorist target is present; 2) Near certainty that non -combatants will not be injured or killed;”); Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003), A & ENTER FOR L AW AND M ILITARY O PERATIONS , T HE J UDGE DVOCATE G ENERAL ’ S L EGAL C ENTER C reprinted in M CHOOL U.S. A RMY , I L EGAL L ESSONS L EARNED F ROM A FGHANISTAN AND I RAQ : S , AJOR C OMBAT O PERATIONS (11 S EPTEMBER 2001 - M AY 2003) 314 (2004) (“1. On order, enemy military and paramilitary forces are declared 1 hostile and may be attacked subject to the following instructions: a. Positive Identification (PID) is required prior to engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact 177 (“Attack procedures INAL R EPORT ON THE P ERSIAN G ULF W AR your next higher commander for decision.”); F that if the pilot could not positively identify his target or was not confident the weapon would guide specified properly (because of clouds, for example), he could not deliver that weapon. Several attack sorties were forced to 13, 525- IRECTIVE M ILITARY A SSISTANCE C OMMAND V IET -N AM D .S. return with their bombs for this reas on.”); U Military Operations: Rules of Engagement for the Employment of Firepower in the Republic of Vietnam , ¶6a (May 814, 815 (“All possible AW L IGEST OF U NITED S TATES P RACTICE IN I NTERNATIONAL D 1975 reprinted in 1971), means will be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a means will target must be clearly identified as hostile prior to making a decision to place fire on it.”) (“All possible be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a target must be clearly identified as hostile prior to making a decision to place fire on it.”). 196

224 5.5.3.2 . In AP I Presumptions in Favor of Civilian Status in Conducting Attacks the context of conducting attacks, certain provisions of AP I reflect a presumption in favor of civilian status in cases of doubt. Article 52 [i] n case of doubt whether (3) of AP I provides that “ an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military actions, it 76 shall be presumed not to be so used.” Article 50(1) of AP I provides that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Under customary international law, no legal presumption of civilian status exists for persons or objects, nor is there any rule inhibiting commanders or other military personnel from 77 acting based on the information available to him or her in doubtful cases. Attacks, however, be directed against civilians or civilian objects based on merely hypothetical or may not ive speculative considerations regarding their possible current status as a military object . In assessing whether a person or object that normally does not have any military purpose or use is a military objective, commanders and other decision -makers must make the decision in good faith based on the information available to them in light of the circumstances ruling at the time. A legal presumption of civilian status in cases of doubt may demand a degree of certainty 78 that would not account for the realities of war . Affording such a presumption c ould also encourage a defender to ignore i ts obligation to separate military objectives from civilian s and 79 For example, unprivileged belligerents may seek to take advantage of a legal . civilian objects 80 Thus, there is concern that a ffording such a presumption lik presumption of civilian status. ely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war. 76 AP I art. 52(3). See also B OTHE , P AR TSCH , & S OLF , N EW R ULES 326 (AP I art. 52, ¶2.5.1) (“It should be noted that the presumption applies only as to objects which normally do not have any significant military use or purpose. RC in draft Art. 47, the phrase ‘installations and The committee deleted from the illustrative list proposed by the IC means of transport’, thus indicating an intent by the Conference that the presumption should not apply to objects which are of such a nature that their value to military action in combat situations is prob able. Means of transport and of communication fall into a category where their use for military purposes cannot be excluded through a presumption.”). 77 Christopher Greenwood, See, e.g. , Customary international law and the First Geneva Protocol of 1977 in the Gulf W AR R OWE , T HE G ULF ETER 1990- 91 IN I NTERNATIONAL AND E NGLISH L AW 63, 75 (1993) (“[I]t is very conflict P in , OTHE , P ARTSCH , & S OLF , N EW R ULES 327 doubtful that Article 52(3) represents customary international law.”); B (AP I art. 52, ¶2.5.2) (quotin g a Rapporteur’s observation at the Diplomatic Conference that a presumption “will be a significant new addition to the law”). 78 § 1.4.2.2 (Nature of War – Limit ed and Unreliable Information – “Fog of War”). Refer to 79 See F INAL R EPORT ON THE P ERSIAN G ULF W AR 616 (“This language, which is not a codification of the customary practice of nations, causes several things to occur that are contrary to the traditional law of war . It shifts the burden for determining the precise use of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalan ce ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.”). 80 I 53 (rejecting the presumption of civilian status in AP I because See A PPENDIX TO 1985 CJCS M EMO ON AP “[t]his presumption also provides an additional protection for guerillas and other irregulars who may find it advantageous to be presumed to be a civilian rather than a combatant.”). 197

225 In applying its rules on “doubt,” arties to AP I have interpreted these rules in a some P 81 e.g. than its text would suggest. , applying a “substantial doubt” more limited way ( standard) Failure by the Defender to Separate or Distinguish Does N elieve the Attacker 5.5.4 ot R of the Duty to Discriminate in Conducting Attacks . A party that is subject to attack might fail to precautions to take feasible ce the risk of harm to civilians, such as by separat ing the civilian redu 82 population from military objectives Moreover, i n some cases , a party to a conflict may . attempt to use the presence or movement of the civilian population or individual civilians in 83 ord er to shield military objectives from seizure or attack . When enemy persons engage in such behavior, commanders should continue to seek to discriminate in conducting attacks and to take feasible precautions to reduce the risk of harm to 84 the civilian popul ation and civilian objects. However, the ability to discriminate and to reduce harm to the civilian population likely will be diminished by such enemy conduct. In the risk of the attacking addition, such conduct by the adversary does not increase the legal obligations of 85 party to discriminate in conducting attacks against the enemy. Permissible Location of Attacks . In general, attacks may be conducted against 5.5.5 86 Attacks, however, may not be military objectives wherever located, outside neutral territory. conducted in special zones established by agreement between the belligerents, such as hospital, 87 safety, or neutralized zones. 81 M See, e.g. , 2004 UK ¶5.3.4 (“In the practical application of the principle of civilian immunity and the rule ANUAL of doubt, (a) comma nders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time, (b) it is only in cases of substantial doubt, after this assessment about the status of the individual in question, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt does not override the commander’s duty to protect the safety of troops under his command or to preserve the military situation.”). 82 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party Subject to Attack ). 83 Refer to (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military § 5.16 Operations ). 84 See F INAL R EPORT ON THE P ERSIAN G ULF W AR 615 (“As correctly stated in Article 51(8) of Protocol I, a nation confronted with callous actions by its opponent (such as the use of ‘human shields’) is not released from its n to minimize collateral injury to the civilian population or damage to obligation to exercise reasonable precautio civilian objects. This obligation was recognized by Coalition forces in the conduct of their operations.”). 85 See W. Hays Parks, Air War and the Law of War , 32 A IR F ORCE L AW R EVIEW 1, 163 (1990) (“While an attacker facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions to esult of the minimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a r illegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility with regard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue to violate the law of war by exposing other innocent civilians to similar risk.”). 86 Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of Neutrality ). 87 ). § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected Refer to 198

226 Attacks on military objectives in the enemy rear or diversionary attacks away from the 88 current theaters or zones of active military operations are lawful. law of war does not The conducted near require that attacks on enemy military personnel or objectives be ongoing 89 fighting, , or in a theater of active armed conflict. in a theater of active military operations There are many examples of lawful attacks taking place far from where the fighting was 90 previously taking place. For policy or operational reasons, military orders, such as applicable rules of ttacks on otherwise lawful militar y objectives may engagement, may limit the locations where a be conducted. ay Be . In the absence of 5.5.6 Force That M Applied Against Military Objectives ns and civilian objects of wanton destruction that is not justified by expected harm to civilia or , the law of war imposes no limit on the degree of force that may be directed military necessity against enemy military objectives enemy military personnel (but not including enemy , including 91 ). hors de combat personnel who are placed For example, the principle of military necessity does not require that only the minimum force that is actually necessary in a specific situation 88 Refer to § 5.7.7.3 (Definite Military Advantage ). 89 John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson IGEST OF , Apr. 30, 2012, 2012 D Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy S TATES P RACTICE IN I NTERNATIONAL U AW 584, 585 (“There is nothing in international law ... that prohibits NITED L t when the country involved us from using lethal force against our enemies outside of an active battlefield, at leas consents or is unable or unwilling to take action against the threat.”). 90 For example , John D. Negroponte, Letter dated 7 October 2001 from the Permanent Representative of the United essed to the President of the Security Council States of America to the United Nations addr , U.N. Doc. No. S/2001/946 (Oct. 7, 2001) (informing the U.N. Security Council that “the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self -defence following the armed attacks that were carried out against the United States on 11 September 2001” including U.S. OUIS M RMY IN , U NITED S TATES A ORTON L military operations against al- Qaida and the Taliban in Afghanistan); : W AR II, T HE W AR IN THE P ACIFIC , S TRATEGY AND C OMMAND W T HE F IRST T WO Y EARS , 269- 74 (1962) ORLD (describing U.S. bombing raid led by Lt. Col. James H. Doolittle on April 18, 1942, against military objectives in Tokyo). 91 See Refresher Course for Battalion and Brigade Commanders , ¶11, Appendix B in D EPARTMENT OF THE A RMY S UBJECT CHEDULE 27- 1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907 , 16 (Aug. 29, S 1975) (“Nowhere in the law of war will you find a prohibition on shooting—and shooting to kill —the enemy in a firefight. On the battlefield the regrettable but necessary reality is kill or be killed. Once the enemy has surrendered, however, or otherwise fallen into your hands, there is no need to kill him.”); J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122, 124 (1973) (“I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian population or civilians as such, b ut there is no rule of international law that restrains them from using weapons against enemy armed forces or military targets. The correct rule of international law which has applied in the past and continued to apply to the conduct of our military opera tions in Southeast Asia is that ‘the loss of life and damage 620 AP C OMMENTARY to property must not be out of proportion to the military advantage to be gained.’”); ICRC (¶1953) (“The armed forces and their installations are objectives that may be attacked wherever they are, except when the attack could incidentally result in loss of human life among the civilian population, injuries to civilians, and damage to civilian objects which would be excessive in relation to the expected direct and specific militar y advantage.”). 199

227 92 may be used against military objectives Instead, the broader imperatives of winning the war . 93 enemy military objectives. may be considered, and overwhelming force may be used against s an opportunity to surrender before In addition, combatants need not offer opponent 94 attack. carrying out an In particular, the following practices are not prohibited: (1) surprise attacks; (2) attacks on retreating forces; (3) harassing fires; and (4) attacks on specific individuals. Surprise Attacks . The law of war does not prohibit the use of surprise to 5.5.6.1 conduct attacks, such as the use of surprise in ambushes, sniper attacks, air raids, and attacks by 95 . special operations forces carried out behind enemy lines There is no requirement that an 96 enemy combatant must be warned before being attacked. Rather, warning requirements only 97 apply with respect to the civilian population. Attacks on Retreat 5.5.6.2 . Enemy combatants remain liable to atta ck ing Forces 98 when retreating. Retreat is not the same as surrender. Retreat ing forces remain dangerous as 92 § 2.2.3.1 (Consideration of the Broader Imperatives of Winning the War ). Refer to 93 See, e.g. , 2007 NWP 1- 14M ¶5.3.1 (“It is important to note that the principle of military necessity does not prohibit the application of overwhelming force against enemy combatants, units and material consistent with the bition of IR F ORCE O PERATIONS & THE L AW 16 (2009) (“The prohi principles of distinction and proportionality.”); A unnecessary suffering does not limit the bringing of overwhelming firepower on an opposing military force in order to subdue or destroy it.”). 94 See F INAL EPORT ON THE P ERSIAN G ULF W AR 629 (“A combatant force involved in an armed conflict is not R obligated to offer its opponent an opportunity to surrender before carrying out an attack.”). 95 , 1958 UK M ANUAL ¶115 note 2 (“It is not forbidden to send a detachment or individual members of For example s or a member of the enemy armed forces. Thus, for instance, the the armed forces to kill, by sudden attack, member raid by a British commando party on the headquarters of General Rommel’s African Army at Beda Littoria in 1943 was not contrary to the provisions of the Hague Rules. The operation was carri ed out by military personnel in uniform; it had as part of its objective the seizure of Rommel’s operational headquarters, including his own PAIGHT , W AR R IGHTS ON L AND 87- (“A 88 residence, and the capture or killing of enemy personnel therein, ... .”); S rise attack is a very different thing [from a treacherous one]. When a body of Federal cavalrymen made a surp sudden descent on ‘Hickory Hill’ farm, in which the young Confederate General, W. F. H. Lee (son of the great commander, R. E. Lee), was convalescing from a wound, and carried him off as a prisoner of war to Fortress Munroe, they were guilty of no treachery under the laws of war. It was a fair and open raid.”). 96 See, e.g. , W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Ad vocate General, U.S. Army, Memorandum re: Legality of Silencers/Suppressors 6 (Jun. 9, 1995) (“There is no law of war requirement that a combatant must be ‘warned’ before he or she is subject to the application of lawful, lethal force. A landmine provide s no warning; neither does an ambush, a sniper, a machinegun in a concealed defensive position, a Claymore munition in a defensive perimeter, a delayed action munition, a naval mine, or many other means or methods of warfare. A sentry or personnel in a li stening or observation post lawfully may be killed quietly, preferably through surprise, by garrote or knife attack. A surface -to-air missile undetected by its targeted aircraft likewise kills by surprise.”); W. Hays Parks, Special Assistant for Law of Wa r Matters, Memorandum of Law —Legality of Snipers 3 (Dec. 1992) (“The element of surprise is a fundamental AWYER L HE A RMY T reprinted in (Sept. 29, 1992), principle of war, and does not make an otherwise legitimate act of violence unlawful.”). 97 Refer to § 5.11.1.2 (That May Affect the Civilian Population ). 98 ERSIAN F R EPORT ON THE P INAL G ULF W AR 632 (“The law of war permits the attack of enemy combatants and at any time, wherever located, whether advancing, retreating, or standing still. Retreat does not enemy equipment -unit level, for example, once an objective has been seized and the position prevent further attack. At the small 200

228 the enemy force may recover to counterattack , consolidate a new defensive position, or assist the 99 100 war effort in other ways. etreating enemy combatants may a ruse. Retreat may also be R have the same amount of force brought to bear upon them as an attacking military force, and a combatants military commander is under no obligation to limit force directed against enemy because they are, or appear to be, in retreat. . H 5.5.6.3 Harassing Fires arassing fires against enemy combatants are not prohibited. (Such action is clearly distinguishable from attacks to terrorize or otherwise harm the elivered on enemy civilian population, which are, of course, prohibited.) Harassing fires are d locations for the purpose of disturbing enemy forces ’ rest, curtailing their movement, or lowering 101 their morale. 5.5.6.4 Attacks on Specific Individual s . Military operations may be directed 103 102 U.S. forces have against specific enemy combatants. often conducted such operations. consolidated, an attacking force is trained to fire upon the retreating enemy to discourage or prevent a counterattack.”). 99 R F INAL EPORT ON THE P ERSIAN G ULF W AR 622 (“It is recognized by military professionals that a retreating See force remains dangerous. The First Marine Division and its 4,000 attached U.S. Army forces and British Royal Marines, in the famous 1950 march out of the Chosin Reservoir in North Korea, fighting outnumbered by a 4:1 th th Chinese Armies trying to annihilate it, and 26 margin, turned its ‘retreat’ into a battle in which it defeated the 20 ... .”). 100 Refer to § 5.25.2 (Examples of Ruses ). 101 AP PPENDIX TO CJCS M EMO ON 1985 I 47 (“Harassing fires are delivered on enemy locations for the pur pose of A disturbing the rest, curtailing the movement, or lowering the morale of troops.”). 102 See, e.g. , Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law , Mar. 25, 2010, 2010 IGEST OF very act of U NITED S TATES P RACTICE IN I NTERNATIONAL L AW 718 (“First, some have suggested that the D targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. ... Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader -10 (Change No. 1 1976) ¶31 (“[The prohibition on killing or harm to civilians and civilian objects.”); 1956 FM 27 wounding treacherously reflected the Hague IV Regulations] does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.”). 103 , Remarks by the President on Osama Bin Laden (May 2, 2011) (“Today, at my For example Barack Obama, direction, the United States launched a targeted operation against that compound [suspected of ho using Osama Bin Laden] in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they killed Osama b Remarks on the Death of Senior Al in Laden and took custody of his body.”); George W. Bush, RESIDENTS P 1099 (describing UBLIC P APERS OF THE P -I , Jun. 8, 2006, 2006 Qaeda Associate Abu Musab Al Zarqawi how after “work[ing] tirelessly with their Iraqi counter parts to track down this brutal terrorist,” U.S. “special OHN operation forces, acting on tips and intelligence from Iraqis, confirmed Zarqawi’s location” and killed him); J HE ILLER C ARTWHEEL : M , R EDUCTION OF R ABAUL 44 (Office of the Chief of Military His tory, Department of the T Army 1959) (“American intelligence officers had discovered the exact time on 18 April [Admiral] Yamamoto[, Commander -in-Chief of the Japanese Combined Fleet,] was due to reach the Buin area ... . [D]isposing of Yamamoto would advance the Allied cause, so the Commander, Aircraft, Solomons, was told to shoot him down [and did so successfully].”); Henry Pinckney McCain, Adjutant General of the U.S. Army, Telegram to General U ELATIONS OF THE R APERS NITED ELATING TO THE F OREIGN R P reprinted in Frederick Funston (Mar. 10, 1916), (Department of State 1925) 1916 S TATES W ITH THE A DDRESS OF THE P RESIDENT TO C ONGRESS D ECEMBER 5, 201

229 Prohibition Against Declaring . It is forbidden to declare 5.5.7 That No Quarter Be Given 104 that no quarter will be given. This means that it is prohibited to order that legitimate offers of detainees, such as unprivileged belligerents , will be summarily surrender will be refused or that 105 executed. Moreover, it is also prohibited to conduct hostilities on the basis that there shall be 106 no survivors, or to threaten the adversary with the denial of quarter. 107 This rule . This rule is based on both humanitarian and military considerations also 108 applies during non -international armed conflict. . Obligation of Combatants to Distinguish Themselves When Conducting Attacks 5.5.8 that include, but are not limited Combatants have certain obligations to distinguish themselves 109 to, those times when they conduct attacks. For example, militia and volunteer corps must 110 In addition, wear fixed, distinctive insignia, including when they are conducting attacks. 111 esort to perfidy. combatants may not kill or wound by r Combatants may not fight in the 112 enemy ’s uniform. Lastly , persons engaging in spying or sabotage risk additional penalties 113 under the domestic law of enemy States. Fighting Out of Uniform . Although military operations generally are 5.5.8.1 ccasions, such conducted while wearing a uniform or other distinctive emblems, there may be o (relaying that the “President has directed that an armed force be sent into Mexico with the sole object of capturing ncho] Villa and preventing any further raids by his band”). [Pa 104 IV H EG . art. 23(d) (noting that it is especially forbidden “[t]o declare that no quarter will be given;”). AGUE R AP I art. 40 (“It is prohibited to order that there shall be no survivo rs, to threaten an adversary therewith or Consider to conduct hostilities on this basis.”). 105 ICRC AP C OMMENTARY 476 (¶1595) (“[A]ny order of ‘liquidation’ is prohibited, whether it concerns -called irregular troops, saboteurs, commandos, political or any other kind of commissars, irregular troops or so parachutists, mercenaries or persons considered to be mercenaries, or other cases.”). 106 ICRC C OMMENTARY 476 (¶1595) (“It is not only the order to put them to death that is prohibited, but also the AP threat and the ex ecution, with or without orders.”). 107 R B P ARTSCH , & S OLF , N EW , ULES 217 (AP I art. 40, ¶2.1) (“A declaration or order that there shall be no OTHE survivors, or that no prisoners shall be taken, tends to stiffen the adversary’s will to resist and is therefor e counterproductive to the achievement of the legitimate objectives of a military operations. Moreover, it incites the adversary to adopt a similar policy thus causing the conflict to degenerate into unrestrained savagery.”). 108 Refer to § 17.6.1 (Prohibition on Declaring That No Quarter Be Given ). 109 See also A LLAN R OSAS , T HE L EGAL S TATUS OF P RISONERS OF W AR : A S TUDY IN I NTERNATIONAL 351 (1976) (“What such proposals and statements [made in H AW A PPLICABLE IN A RMED C ONFLICTS L UMANITARIAN the context of the negotiations for the 1949 Geneva Conventions] do seem to imply, however, is that in areas where enemy forces are present (notably in occupied territory) members of independent (or of regular) forces are not allowed to appear as part of the peaceful civilian population (e.g., as peasants or workers) while occasionally committing hostile acts against the enemy (the ‘day- time civilian, night -time combatant’ - situation).”). 110 § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance). Refer to 111 Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound ). 112 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms ). 113 § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines ). Refer to 202

230 as a surprise attack by enemy forces , when military personnel are unable to dress in their 114 ’s assault. uniforms before resisting the enemy Military personnel not in uniform may resist an attack, so long as they are not wearing 115 ’s uniform and the enemy do not kill or wound treacherously. ilitary personnel For example, m who resist an attack , and who do not purposefully seek to conceal their status as not in uniform , commit no violation of the law of war and remain entitled to the privileges of combatants . T he normal wear ing combatant status ms or other distinctive emblems, however, of unifor ilian population should resume as soon as practicable because such wear helps protect the civ 116 by helping to distinguish military forces from the civilian population . from erroneous attack 5.5.8.2 AP I Obligation for Combatants to Distinguish Themselves During Attacks . AP I provides that: “ or Military Operations Preparatory to an Attack combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a 117 military operation preparatory to an attack. ” The AP I provision only partially describes the obligation under customary internationa l law tants to distinguish themselves from the civilian population. Under customary of comba international law, the obligation of combatants to distinguish themselves is a general obligation that the armed forces have as a group and is not limited to times when they are engaged in an 118 Moreover, measures such as wearing attack or in a military operation preparatory to an attack. insignia or other distinctive emblems may be of less practical significance during an attack. During an attack, combatants are li kely to be distinguishable based on their activities more than any insignia or devices they are wearing. ONDUCTING CKS A ISCRIMINATION IN C TTA D 5.6 ombatants may make enemy combatants and other Under the principle of distinction, c the object of attack , but may not make the civilian population and other military objectives 119 protected persons and objects the object of attack. Persons , Objects , and Locations T hat A Being Made the 5.6.1 re Not Protected From Object of Attack . Combatants may make enemy combatants and othe r military objectives the 120 object of attack. 114 For example , S PAIGHT , A IR P OWER AND W AR R IGHTS 101 (“In the second world war, too, there were instances in which pilots fought en dishabille . For example, in Kenya a pilot of the South African Air Force happened to be wearing nothing but a singlet when Italian bombers approached, and so clad (or unclad) he dashed to his aircraft and joined in the fight.” ). 115 Refer to § 5.23 ); § 5.22 (Treachery or Perfidy Used to Kill (Use of Enemy Flags, Insignia, and Military Uniforms or Wound ). 116 § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to Refer to Distinguish Themselves From the Civilian Population ). 117 AP I art. 44(3). 118 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis ). 119 § 2.5.2 (Discriminating in Conducting Attacks Against the Enemy). Refer to 203

231 Persons , and Locations T hat A re Protected From Being Made the Object of 5.6.2 , O bjects ersons, objects, and locations that are not military objectives may not be made the Attack . P made the object of object of attack he following persons and objects may not be . In particular, t attack : , unless that protection is specifically forfeited under the circumstances Persons, such as • 121 individual civilians and the civilian population; o 122 military medical and religious personnel o ; , including military medical units 123 combatants placed hors de combat ; o and 124 o parlementaires ; and • , provided they are not military objectives, such as Objects and locations 125 military medical transport, facilities, and equipment; o 126 cultural property; o historic monuments, museums, scientific, artistic, educational and cultural o 127 institutions ; places of worship ; o 128 , or cit undefended village s, towns ; ies o 129 o , and persons and objects within these zones ; and hospital and safety zones 120 Refer to § 5.7 (Military Objectives ). 121 Refer to § 4.8.2 (Civilians – Conduct of Hostilities ). 122 § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities ); § 7.8 Refer to (Respect and Protection of Categories of Medical and Religious Personnel ); § 7.10 (Military Medical Units and Facilities ). 123 Refer to § 5.10 (Persons Placed Hors de Combat ). 124 § 12.5.4 (Rights of Inviolability of the Parlementaire ). Refer to 125 Refer to § 7.10 (Military Medic al Units and Facilities ). 126 Refer to § 5.18 (Protection of Cultural Property During Hostilities ). 127 OERICH P ACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions R shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and pr otection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war.”). 128 Refer to § 5.15 (Undefended Cities, Towns, and Villages ). 129 (Civilian Hospital and Safety Zones and Localities ). § 5.14.3.1 Refer to 204

232 130 o , and persons and obje cts within neutralized zones. neutralized zones M 5.7 BJECTIVES ILITARY O refers to persons and objects that may be made the object of attack . Military objective s . Apart Certain classes of persons and objects are categorically recognized as military objectives from these class es that are categorically military objectives , other objects are assessed as to military objective. ” whether they meet the definition of “ Military Objective – Notes on Terminology term military objective has been 5.7.1 . The as a term o to mean a person or object that may lawfully be made the used in various treaties f art 131 . object of attack 5.7.1.1 Persons and Objects as Military Objectives . Although enemy combatants may be made the object of attack, s ome sources do not classify persons as military objectives , and lim it the term to objects . military objective military objective in treaties have defined the term military objective Definitions of s 132 . (rather than persons) are concerned In addition, the treaty definitions have insofar as objects been written with the purpose of explaining when objects that normally are civilian objects have become military objectives under the circumstances . This manual uses the term military objective to include persons who may be made the 133 object of attack. 5.7.1.2 Dual -Use Objects . Sometime s, “ dual -use ” is used to describe objects that are used civilian population, such as power stations or by both the armed forces and the communications facilities. However, from the legal perspective, such objects are either military 134 If an object is a military ; there is no intermediate legal category. objectives or they are not 130 ). Refer to § 5.14.3.3 (Neutralized Zones 131 , CCW P ROTOCOL III ON I NCENDIARY W EAPONS art. 2(4) (referring to “combatants or other military See, e.g. P ONVENTION AGUE C ULTURAL H ROPERTY C art. 8( 1) (referring to “any important military objectives”); 1954 objective constituting a vulnerable point”); GC art. 18 (“In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such [civilian] hospitals be situated as far as possible from such objectives.”). 132 ON See CCW ROTOCOL III I NCENDIARY W EAPONS art. 1(3) (“‘Military objective’ means, so far as objects are P far A MENDED M INES P ROTOCOL art. 2(6) (“‘Military objective’ means, so concerned, any object which ... .”); CCW as objects are concerned, any object which ... .”). AP I art. 52(2) (“Attacks shall be limited strictly to Consider military objectives. In so far as objects are concerned, military objectives are limited to those objects which ... .”). 133 Refer to § 5.7.2 (Persons Who Are Military Objectives ). 134 Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf conflict , AW L ETER 63, 73 (1993) (“If an object is a OWE , T HE G ULF W AR 1990- 91 IN I NTERNATIONAL AND E NGLISH R P in military objective, it may be attacked (subject to the requirements of the principle of proportionality which are discussed in the next section), while if it is a civilian object, it may not be attacked. There is no intermediate category of ‘dual use’ objects: either something is a military objective or it is not.”). 205

233 135 objective, it is not a civilian object and may be made the object of attack. However, it will be pulation resulting appropriate to consider in a proportionality analysis the harm to the civilian po 136 . from the destruction of such a military objective ertain classes of persons are military 5.7.2 Persons Who Are Military Objectives . C 137 These classes of persons include: and may be made the object of attack. objectives 138 ilitary ground, air, and naval units , or unprivileged belligerents; combatants, such as m • and 139 civilians taking a direct part in hostilities . • However, the following classes of persons are not military objectives : military medical and religious personnel , unless they commit ac ts harmful to the • 140 enemy; 141 military medical units, unless they have forfeited their protected status; • 142 placed hors de combat ; • and combatants 143 • parlementaires . Objects T hat Are Military Objective s. Military objectives, insofar as objects are 5.7.3 concerned lude “any object which by its nature, location, purpose or use make s an effective , inc contribution to military action and whose total or partial destruction, capture or neutralization, in 144 ” the circumstances ruling at the time, offers a definite military advanta ge. 135 ctives CCW A MENDED M INES P ROTOCOL art. 2(7) (“‘Civilian objects’ are all objects which are not military obje as defined in paragraph 6 of this Article.”). 136 § 5.12 (Proportionality in Conducting Attacks ). Refer to 137 ON CCW ROTOCOL III See I NCENDIARY W EAPONS art. 2(4) (referring to “combatants or other military P 635 (¶2017) (“It should be noted that the definition [of military objective in OMMENTARY AP C ICRC objectives”); AP I] is limited to objects but it is clear that members of the armed forces are military objectives, ... .”). 138 Refer to § 5.8 (Combatants ). 139 Refer to § 5.9 (Civilians Taking a Direct P art in Hostilities ). 140 § 7.8.3 Refer to (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack ). 141 § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made the Object of Refer to ). Attack 142 Refer to § 5.10 (Persons Placed Hors de Combat ). 143 Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire ). 144 CCW A MENDED M INES P ROTOCOL art. 2(6). See also CCW P ROTOCOL III ON I NCENDIARY W EAPONS art. 1(3) (same); 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means combatants and those objects during -fighting or war - hostilities which, by their nature, location, purpose, or use, effectively contribute to the war sustaining capability of an opposing force and whose total or partial destruction, capture, or neutralization would 206

234 This definition of military objective may be viewed as a way of evaluating whether 145 military necessity exists to attack a n object . It may also be applied outside the context of attack the seizure or destruction of an object is justified by conducting s to assess whether 146 military necessity . s. Two types of objects are 5.7.4 Objects Categorically Recognized as Military Objective military objectives. categorically recognized as In other words, the definition of military Thus, objective is always considered to be met as a matter of law with regard to these objects. these objects may be made the object of attack without specifically applying the analysis discussed in § Definition of Military Objective for Objects: A Two -Part Test ). 5.7.5 ( Military Equipment and Bases . First, certain objects belonging to the 5.7.4.1 147 armed forces and used in military operations are recognized as military objectives. This includes : • Military ground , air, and naval equipment (other than identifiable medical equipment or 148 , transport) including vehicles, ships, weapons, munitions, and supplies , such as strategic and tactical integrated air defense systems; o ; a nd missile launching equipment and positions o o command and control equipment . Military bases, such as a rmy, air, and naval bases (other than military medical facilities , • POW camps , and civilian internee camps ), whether used for training, billeting, or staging, or offensive or defensive purposes, suc h as headquarters o or command and control facilities; defense ministries ; and o constitute a definite military advantage to the attacker under the circumstances at the time of an attack.”). Consider AP I art. 52(2) (“In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial ization, in the circumstances ruling at the time, offers a definite military advantage.”). destruction, capture or neutral 145 § 2.2 (Military Necessity ). Refer to 146 Refer to § 5.17 (Seizure and Destruction of Enemy Property ); § 5.17.2.1 (Using the Military Objective Definition to Asse ss Whether the Seizure or Destruction of Enemy Property Is Justified by Military Necessity ). 147 2004 M ANUAL ¶5.4.1 (“The term ‘military objective’ includes combatant members of the enemy armed UK ¶5.27 ANUAL USTRALIAN M installations.”); 2006 A forces and their military weapons, vehicles, equipment, and (“The term ‘military objective’ includes combatant members of the enemy armed forces and their military weapons, ally accepted C ANADIAN M ANUAL ¶407(1) (“The following are gener vehicles, equipment and installations.”); 2001 as being military objectives: a. military bases, warehouses, petroleum storage areas, ports and airfields; and b. military aircraft, weapons, ammunition, buildings and objects that provide administrative and logistical support for military o perations.”). 148 § 7.15 For devices to facilitate identification of military medical units, transport, and equipment, refer to (Display of the Distinctive Emblem to Facilitate Identification ). 207

235 o facilities . intelligence Objects Containing Military Objectives 5.7.4.2 . Second, objects that contain 149 military objectives are For example, military objectives. • Storage and production sites for military equipment, including o ; and missile production and storage facilities nuclear, biological, and chemical weapons research and production facilities; and o 150 Facilities in which combatants . • are sheltering or billeting Definition of Military O for Objects: A Two -Part Test . The definition of 5.7.5 bjective , both of which military objective insofar as objects are concerned may be divided into two parts : (1) that the object must be met for the object to be considered a military objective somehow ion to military action ; and (2) attacking the object makes an effective contribut , in the 151 . , offers a definite military advantage circumstances reason why the object meets the first part of the definition also satisfies the Generally , the In other words, a ttacking the object in the circumstances will offer inition. second part of the def a definite military advantage because it seeks to preclude the object from effectively contributing ’s military action. to the enemy two parts are not necessarily connected because t he However, the concept of definite military advantage is broader than simply denying the adversary the benefit 152 These broader aspects of of an object . ’s effective contribution to its military operations “military advantage ” may also be relevant in evaluating an attack under the proportionality 153 rule. definition of The following discussion elaborates upon the military objective . 149 OGERS , L AW ON THE B ATTLEFIELD 36 (“A civilian object which contains military personnel or things of military R C ANADIAN M ANUAL ¶407(2) (“Civilian vessels, aircraft, significance is considered a military objective.”); 2001 nd buildings are military objectives if they contain combatants, military equipment or supplies.”). vehicles a Cf. W P ROTOCOL III ON I NCENDIARY EAPONS art. 2(4) (plants “used to cover, conceal, or camouflage combatants CCW or other military objectives,” may be attack ed with incendiary weapons) . 150 1956 FM 27- 10 (Change No. 1 1976) ¶40 (giving as examples of legitimate objects of attack “a place which is occupied by a combatant military force or through which such a force is passing,” as well as “[f]actories producing munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports and railroads being used for the transportation of military supplies, and other places devoted to the support of military OMMENTARY ICRC AP C 701 (¶2265) (“If combat is taking place ion of troops”); operations or the accommodat within a city or a town, and there is fighting from house to house, which is frequently the case, it is clear that the situation becomes very different and that any building shelte ring combatants becomes a military objective.”). 151 ICRC AP C OMMENTARY 635 (¶2018) (“The definition comprises two elements: a) the nature, location, purpose or use which makes an effective contribution to military action; b) the total or partial destructio n, capture or neutralization which in the circumstances ruling at the time offers a definite military advantage. Whenever these two elements are simultaneously present, there is a military objective in the sense of the Protocol.”). 152 Refer to § 5.7.7.3 (Definite Military Advantage ). 153 antage Expected to Be Gained”). (“Concrete and Direct Military Adv Refer to § 5.12.5 208

236 By its nature, location, purpose 5.7.6 , or use makes an effective contribution to military whether t , or use . The first part of the test is action he object, by its nature, location, purpose makes an effective contribution to the enemy ’s military action. Natur e, Location, Purpose, or Us e . The n ature, location, purpose, or use 5.7.6.1 ’s fective contribution to the enemy of the object may contribute to the object making an ef military action. The issue is whether, in total, an effective contribution is made; one factor alone contribution. In addition, nature, location, purpose, or use need need not provide the effective not be viewed as mut ually exclusive concepts; rather, these concepts may be understood to overlap. “Natur e” refers to the type of object and may be understood to refer to objects that are military objectives . F or example, military equipment and facilities, by their make ture, per se na 154 an effective contribution to military action . “nature ” can also be On the other hand, used for military purposes as discussed below. understood to refer to objects that may be The location of an object may provide an effective contribution to military action . For example, during military operations in urban areas, a house or other structure that would ordinarily be a civilian object may be located such that it provides cover to enemy forces or from which attacks could be launched or directed . The word would provide a vantage point ” also helps clarify that an area of land can be militarily important and therefore “location a 155 military objective . ’s present function. For example, using an otherwise civilian “Use” refers to the object 156 building to billet combatant forces makes the building Similarly, using a military objective. equipment and facilities for military purposes, such as using them as a command and control center or a communications station, would result in such objects providing an effective contribution to the enemy ’s military action. 157 For example, runways at a in the future . “Purpose ” means the intended or possible use civilian airport could qualify as military objectives because they may be subject to immediate event that runways at military air bases have been rendered unserviceable or military use in the 158 Similarly, the possibility that bridges or tunnels would be used to assist in the inoperable. adversary’s military operations in the future could result in such objects providi ng an effective 154 AP C OMMENTARY 636 (¶2020) (“A closer look at the various criteria used [ ICRC , nature, purpose, location, i.e. or use] reveals that the first refers to objects which, by their , make an effective contribution to mil itary nature action. This category comprises all objects directly used by the armed forces: weapons, equipment, transports, fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centres etc.”). Refer to § 5.7.4 (Objects Categorically Recognized as Military Objectives ). 155 Refer to § 5.7.8.4 (Examples o f Military Objectives – Places of Military Significance ). 156 Refer to § 5.7.4.2 (Objects Containing Military Objectives ). 157 See, e.g. , 2006 A USTRALIAN M ANUAL ¶5.29 (“ Pur pose means the future intended use of an object while ‘use’ UK M ANUAL ¶5.4.4 (“e. ‘Purpose’ means the future intended use of an object means its present function.”); 2004 while ‘use’ means its present function.”). 158 (Examples of Military Objectives – ). Transportation Objects Refer to § 5.7.8.3 209

237 contribution to the enemy’s military action, even though they are not being used at that moment for such purposes . . The object must make 5.7.6.2 Make an Effective Contribution to Military Action ; however, this contribution or be intended to make an effective contribution to military action 159 .” For example, an object might make an effective, but need not be “ direct proximate ” or “ remote , contribution to the enemy ’s military action and nonetheless meet this aspect of the n object might be geographically distant from most of the fighting and definition . Similarly, a nonetheless satisfy this element. Military action has a b road meaning and is understood to mean the general prosecution of 160 the war . It is not necessary that the object provide immediate tactical or operational gains or . Rather, the that the object make an effective contribution to a specific military operation ’s effective contribution to the war -fighting or war -sustaining capability of an opposing object 161 is sufficient. force -supporting,” -fighting, ” “ war Although t and “ war - war erms such as “ ” are not explicitly reflected in the treaty definitions of military objective , the United sustaining 162 . States has interpreted the military objective definition to include these concepts Partial Destruction, Capture 5.7.7 Whose Total or , or Neutralization, in the Circumstances Ruling at the Time, O ffers a Definite Military Advantage . In addition to making an effective contribution to the adversary ’s military action, the attack of the object must also, in the circumstances ruling at the time, offer a definite military advantage for the object to be “military objective .” considered a 159 Cf. B OTHE , P ARTSCH , & S OLF , N EW R ULES 324 (AP I art. 52, ¶2.4.3) (noting that “[m]ilitary objectives must tribution to military action’ ... does not require a direct connection with combat operations” make an ‘effective con and that “a civilian object may become a military objective and thereby lose its immunity from deliberate attack through use which is only indirectly related to co mbat action, but which nevertheless provides an effective contribution to the military phase of a Party’s overall war effort.”). 160 L OGERS , AW ON THE R B ATTLEFIELD 36 (“The term military action appears to have a wide meaning equating to the general prosecuti on of the war.”). 161 M A PPENDIX TO 1985 CJCS EMO ON AP I 51 (“Under this definition [of military objective in AP I], an area of See land could, for example, be a military objective, as could political and economic activities that support the enemy’s ULES R OTHE , P ARTSCH , 324 (AP I art. 52, ¶2.4.2) (noting that military objectives may & S OLF , N EW B war effo rt.”); include “activities providing administrative and logistical support to military operations such as transportation and communications systems, railroads , airfields and port facilities and industries of fundamental importance for the Cf. 10 U.S.C. § conduct of the armed conflict.”). 950p(a)(1) (“The term ‘military objective’ means ... those objects during hostilities which, by their nature, location, purpos e, or use, effectively contribute to the war -fighting or war - sustaining capability of an opposing force .”) (emphasis added). 162 See also W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in NTERNATIONAL H UMANITARIAN L AW F ACING N EW C HALLENGES 100 (2007) (“ War -sustaining and/or war- fighting I reflect State practice. Historical evidence and the description of the target sets agreed upon by NATO governments in ALLIED FORCE support the idea that nations have, do, and will attack not only an enemy’s war -fighting capability, but also his capacity to sustain the conflict.”); Horace B. Robertson, The Principle of the Military TUDIES S NITED S TATES 35, IR F ORCE A CADEMY J OURNAL OF L EGAL A , 8 U Objective in the Law of Armed Conflict 51 50- (1997) (comparing the definition of military objective in the 1995 Commander’s Handbook on the Law of Naval Operations to the definition of military objective in AP I). 210

238 5.7.7.1 e or Neutralization . The definition of military objective Captur ’s destruc tion is justified. It also incorporates considerations beyond whether an object ’s capture and neutralization would offer a incorporates considerations of whether the object military advantage. ), which would confer a Capture refers to the possibility of rather than destruction seizure ( military advantage. F or example, the seizure of a city may be a military objective because of its 163 strategic location. Neutralization refers to a military action that denies an object to the enemy without capturing or destroying it. For example, a specific area of land may be neutralized by planting 164 landmines on or around it , and thus denying it to the enemy. 5.7.7.2 In the Circumstances Ruling at the Time . The attack of the object must , ” offer a definite military advantage for the object to be “in the circumstances ruling at the time, considered a military objective. i.e. , future use) of the object can be considered in whether an Nonetheless, the purpose ( 165 In addition, the object provides an effective contribution to the adversary ’s military action. definite military advantage off ered by the attack need not be immediate, but may be assessed in 166 the full context of the war strategy. Definite Military Advantage 5.7.7.3 Definite ” means a concrete and perceptible . “ 167 military advantage, rather than one that is merely hypothetical or speculativ e. 168 The advantage need not be immediate. For example, the military advantage in the attack of an individual bridge may not be seen immediately (particularly if, at the time of the attack, there is no military traffic in the area), but can be established by the overall effort to isolate enemy military forces on the battlefield through the destruction of bridges . 163 Refer to (Examples of Military Objectives – Places of Military Significance ). § 5.7.8.4 164 Refer to § 5.7.8.4 (Examples of Military Objectives – Places of Military Signi ficance). 165 § 5.7.6.1 (Nature, Location, Purpose, or Use). Refer to 166 Refer to § 5.7.7.3 (Definite Military Advantage ). 167 For example , W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in ACING NTERNATIONAL UMANITARIAN L AW F H N EW C HALLENGES footnotes 88 and 170 and accompanying text I (2007) (giving an example of a case in which objects did not meet this standard, “the 25 February 1991 recommendation by the U.S. Air Force component of US Central Command for an air attack on a Baghdad statue of s of arms with crossed swords (modeled on the arms Saddam Hussayn and another statue, consisting of matching set of Saddam Hussayn), called the Victory Arch or Crossed Swords Monument,” because the military assessment was that such targets were worthless and any value from attacking them was too speculative). 168 See J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122, 124 (1973) (“Turning to the deficiencies in the Resolutions of the Institut de Droit International, and with the foregoing in view, it cannot be said that Paragraph 2, which refers to legal restraints that there must be an ‘immediate’ military advantage, reflects the law of armed conflict that has been adopted in the practices of States.”). 211

239 “Military advantage ” refers to the advantage anticipated from an attack when considered 169 as a whole, and not only from its isolated or particular parts. ” Similarly, “military advantage the full context of the war is not restricted to immediate tactical gains, but may be assessed in 170 strategy. The definite military advantage offered by damaging, destroying, or neutralizing the object may result f rom denying the enemy the ability to use this object in its military operations i.e. , to benefit from the object ’s effective contribution to the military action). For example, the ( attack or seizure of objects with a common military purpose, such as bridg es used , or potentially , in lines of communication would offer a definite military advantage. available to be used The military advantage from an attack is broader than only denying the enemy the benefit of that object ’s contribution to its military action . For example, in a diversionary attack, the ’s n object would result from diverting the enemy military advantage to be gained from attacking a 171 resources and attention. The military advantage from an attack may involve a variety of other considerations, i ncluding improving the security of the attacking force. The military advantage from an attack may result from harm to the morale of enemy 172 Diminishing the morale of the civilian population and their support for the war effort forces. 173 does not provide a de finite military advantage . However, attacks that are otherwise lawful are 174 . not rendered unlawful if they happen to result in diminished civilian morale 169 See, e.g. , France, Statement on Ratification of AP I , translated in S CHINDLER & T OMAN , T HE L AWS OF A RMED C ONFLICTS : A C OLLECTION OF C ONVENTIONS , R ESOLUTIONS , AND O THER D OCUMENTS 800 (2004) (“It is the understanding of the Government of the French Republic that the expression ‘military advantage’ contained i n paragraphs 5(b) of Article 51, 2 of Article 52 and 2(a)(iii) of Article 57, is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.”); Spain, Statement on Ratification of AP I , Apr. 21, 1989, 1537 UNTS 389, 392 (“Articles 51, 52 and 57. It is understood that the words ‘military advantage’ in these articles refer to the advantage expected from the attack as a whole and not from isolated parts of it.”). 170 ORT ON THE P See F INAL R EP 613 (“‘Military advantage’ is not restricted to tactical gains, but ERSIAN G ULF W AR is linked to the full context of a war strategy, in this instance, the execution of the Coalition war plan for liberation of Kuwait.”). 171 For example , B OTHE , P ARTSCH , & S OLF , N EW R art. 52, ¶2.4.4 325 (AP I ) (“Thus, prior to the 1944 cross ULES channel operation, the Allies attacked a large number of bridges, fuel dumps, airfields and other targets in the Pas de . These targets made an effective contributio n to German military action in that area. The primary military Calais advantage of these attacks anticipated by the Allies, however, was not to reduce German military strength in that area, but to deceive the Germans into believing that the Allied amphibious ass ault would occur in the Pas de Calais T ILITARY A NALYSIS D IVISION , HE U NITED S TATES S TRATEGIC B OMBING instead of the beaches of Normandy.”); M APANESE S ACIFIC ): J (P A IR P OWER 10 (1946) (“The [Doolittle] raid was too small to do substantial physical URVEY dam age, but its repercussions on the planning level of the high command were considerable. ... [A]ttention was focused on the eastern approaches to the home islands, and additional impetus given the prewar plan to attack Midway and the Aleutians. ... [T]he Japanese began to implement their plans for air defense of Japan which before that time had received scant consideration. ... A total of four Army fighter groups were held in Japan throughout 1942 and 1943 for the defense of the homeland when the Japanese Na vy was urgently demanding that the Army send reinforcements to the Solomons.”). 172 Refer to § 5.5.6.3 (Harassing Fires ). 173 528- 29 (§214eb) (“It is also probable that till the end of Cf. L AUTERPACHT , II O PPENHEIM ’ S I NTERNATIONAL L AW the War the aerial bombardment by the Allies did not assume the complexion of bombing for the exclusive purpose 212

240 The military advantage expected to be gained from an attack might not be readily apparent to the enem y or to outside observers because, for example, the expected military advantage might depend on the commander’s strategy or assessments of classified information. Objectives . The f ollowing types 5.7.8 Examples of Objects Often Regarded as M ilitary t the definition of “ ” in past conflicts, but may not generally have me of objects military objective be military objectives in all circumstances : (1) leadership facilities; (2) communications objects; (3) transportation objects; (4) places of military significance; an d (5) economic objects -sustaining industries . associated with military operations or with war -supporting or war i.e. , an object could fall in more than one category exclusive ( This list of examples is not , and this list is not exhaustive ( i.e. , an object outside these categories may nonetheless in this list) meet the definition of military objective i.e. , whether an ). Lastly, this list is not conclusive, example is, in fact, a military objective, must be assessed according to the definition of military objective. Examples of Military Objectives – L eadership F acilities . Facilities used 5.7.8.1 by enemy leaders as headquarters for military operations or otherwise to command military 175 y leaders operations have often been regarded as military objectives. In some cases, enem 176 themselves may be made the object of attack . 5.7.8.2 Examples of Military Objectives – Communications Objects . Communications objects, such as facilities, networks, and equipment that could be used for of spreading terror and shattering the morale of the population at large—though th is was the inevitable concomitant of strategic target -bombing. Thus what remained of the protection afforded by International Law to the civilian population in the matter of aerial bombardment was the principle —generally acknowledged by the Allies, though not always capable of being adhered to in practice—that the bombing of towns or purely residential parts of towns which were not in any way related to the war efforts of the enemy was unlawful. At the same time abstention from such bombing could also be explained by reference to considerations of economy militating against costly operations for the sake of achieving purely psychological effect —considerations the disregard of which rendered the use by Germany of the flying bomb and long- range projectiles n ot only unlawful but, in the judgment of many, also detrimental to her own war effort.”). 174 For example , Judith A. Miller, Commentary , 78 U.S. AVAL W AR C OLLEGE I NTERNATIONAL L AW S TUDIES 107, N 110 (2002) (“I will readily admit that, aside from directly dama ging the military electrical power infrastructure, NATO wanted the civilian population to experience discomfort, so that the population would pressure Milosevic and the Serbian leadership to accede to UN Security Council Resolution 1244, but the intended effects on the civilian Refer population were secondary to the military advantage gained by attacking the electrical power infrastructure.”). to § 5.3.2 tive Duties to Respect Civilians and to Refrain From Directing Military Operations (Essentially Nega Against Them ). 175 For example , 2006 A USTRALIAN M ANUAL ¶2.8, at 2 -5 (“HISTORICAL EXAMPLE — AVOIDING COLLATERAL DAMAGE, AFGHANISTAN 2002 -2003 ... A major focus in Afghanistan was the leadership. This meant targeting residences and road convoys, with difficulties of identification and the consequent acceptance of non- combatant casualties as a necessary proportionate risk to achieve the military objective.”). 176 ). (Leaders § 5.8.4 Refer to 213

241 command and control of military operations or intelligence gathering , have often been regarded 177 as military objectives. Examples of Military Objectives – Transportation Objects . T ransportation 5.7.8.3 e.g. , port facilities and air fields) and equipment that could be part of objects, including facilities ( e.g. , highways, railroads, waterways, lines of communication ( bridges connecting military and forces with logistics depots and storage areas ), have often been regarded as military 178 . objectives Examples of Military Objectives – Places of M ilitary Significance . Areas 5.7.8.4 179 For example, anti of land that are militarily significant may constitute military objectives. - 177 For example Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing , ICTY, , ¶ ¶71 Campaign Against the Federal Republic of Yugoslavia -72 (Jun. 13, 2000) (“On 23 April 1999, at 0220, NATO intentionally bombed the central studio of the RTS (state -owned) broadcasting corporation at 1 Aberdareva Street in the centre of Belgrade. ... The bombing of the TV studio was part of a planned attack aimed at disrupting and degrading the C3 (Command, Control and Communications) network. In co -ordinated attacks, on the same night, radio relay buildings and towers were hit along with electrical power transformer stations.”). 178 S For example , DoD stateme nt, Dec. 26, 1966, X W HITEMAN ’ D IGEST 427 (“U.S. policy is to target military targets only, particularly those which have a direct impact on the movement of men and supplies into South Vietnam. These targets include but are not limited to roads, railroad s, bridges, road junctions, POL facilities, barracks and supply depots. ... In the specific case of Nam Dinh and Phu Li, targets have been limited to railroad and highway bridges, railroad yards, POL dumps and air defense sites.”); Report of the United Nati ons Command Note Dated 2 September 1950 From the Operations in Korea for the Period 1 to 15 August 1950, enclosure to Permanent Representative of the United States of America to the President of the Security Council Transmitting the Third Report of the Uni ted Nations Command in Korea in Accordance with the Security Council Resolution of 7 July 1950 (S/1588) , U.N. Doc. S/1756 (Sept. 2, 1950) (“United States Far East Air Force medium bombers struck heavy blows at north Korean industrial targets of military si gnificance and at the north Korean transportation system. The Korean manufacturing complex, the largest in the Far East, and the oil refinery at Wonsan, have been extensively damaged by successive attacks. The marshalling yards in Pyongyang, Wonsan, and Seoul have been repeatedly attacked, as have yards of less consequence. A general transportation interdiction program continues with destruction of rail and highway bridges along principal lines of communication. The rail and port transportation center a -dong was also bombed.”). t Najin 179 See, e.g. Statement on Ratification of AP I , Nov. 20, 1990, 1591 UNTS 462, 465 (“It is the , Canada, understanding of the Government of Canada in relation to Article 52 that: A specific area of land may be a a. military o bjective if, because of its location or other reasons specified in the Article as to what constitutes a military objective, its total or partial destruction, capture or neutralization in the circumstances governing at the time offers a definite military ad vantage, ... . ”); Germany, Statement on Ratification of AP I , Feb. 14, 1991, 1607 UNTS 526, 529 (“Article 52 of Additional Protocol I is understood by the Federal Republic of Germany to mean that a specific area meets all requirements of Article 52, paragraph 2.”); Netherlands, of land may also be a military objective if it Statement on Ratification of AP I , Jun. 26, 1987, 1477 UNTS 300 (“It is the understanding of the Government of the Kingdom of the Netherlands that a specific area of land may also be a mil itary objective if, because of its location or other reasons specified in paragraph 2, its total or partial destruction, capture, or neutralization in the circumstances Feb. 8, New Zealand, Statement on Ratification of AP I , ;”); ruling at the time, offers a definite military advantage 1988, 1499 UNTS 358 (“In relation to Article 52, it is the understanding of the Government of New Zealand that a specific area of land may be a military objective if, because of its location or other reasons specified in the A rticle, its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite military advantage.”); United Kingdom, Statement on Ratification of AP I , Jan. 28, 1998, 2020 UNTS 75, 77 (“ Re: Article 52 It is the understanding of the United Kingdom that: A specific area of land may be a military objective if, because of its location or other reasons specified in this Article, its total or partial destruction, capture or ng at the time offers definite military advantage; ... .”). neutralization in the circumstances ruli 214

242 180 tank mines may be laid on such areas in order to block enemy forces’ tanks Areas of land . that have been regarded as military objectives have included, for example: 181 • ; road networks • known or suspected enemy avenues of approach or withdrawal ; 182 mountain pass es, h ills, defiles, and bridgeheads; and • 183 s, towns , or cities whose seizure is militarily important . • village 5.7.8.5 Examples of Military Objectives – Economi c O bjects A ssociated With Military O perations . Economic objects associated with military operations or with war - supporting or war industries have been regarded as military objectives. -sustaining sufficient importance to a Electric power stations are generally recognized to be of State’s capacity to meet its wartime needs of communication, transport, and industry so as 184 usually to qualify as military objectives during armed conflicts. 180 Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065 United States, UNTS 128, 130 (“The United States understands that an area of land itself can be a legitimate military objective for the purpose of the use of landmines, if its neutralization or denial, in the circumstances applicable at the time, offers a military advantage.”). 181 P See F INAL R EPORT ON THE ERSIAN G ULF W AR 612 (“A bridge or highway vital to daily commuter and business traffic can be equally crucial to military traffic, or support for a nation’s war effort. Railroads, airports, seaports, and the interstate highway system in the United States have been funded by the Congress in part because of US nati onal security concerns, for example; each proved invaluable to the movement of US military units to various ports for deployment to Southwest Asia (SWA) for Operations Desert Shield and Desert Storm. Destruction of a bridge, airport, or port facility, or interdiction of a highway can be equally important in impeding an enemy’s war effort.”). 182 ATTLEFIELD , L AW ON THE R 37. OGERS B 183 For example , M ILAN N. EGO , J OINT O PERATIONAL W ARFARE : T HEORY AND P RACTICE II- 34- II- 35 (Reprint of V 1st ed., 2009) (“In purely m ilitary terms, a capital is normally an operational objective to be seized or defended. The reason is that no enemy’s capital can possibly physically include the enemy’s entire armed forces, or even most of the ground forces. Therefore, the defeat of ene my forces defending the capital (and most other large cities as well) would normally amount to the accomplishment of an operational objective that in some situations could have strategic consequences for the war’s outcome. ... General Mark Clark, the Fifth A rmy’s commander, was directed by President Franklin D. Roosevelt and General George Marshall to take Rome as quickly as possible, and in any event before the planned Normandy landing. The Allied troops entered Rome on 6 June 1944, the same day the forces landed in Normandy.”). Allied 184 Partial Award: Western Front, Aerial Bombardment and Related Claims, Eritrea Ethiopia Claims Commission, Eritrea’s Claims 1, 3, 5, 9- 13, 14, 21, 25 & 26 , ¶117 (Dec. 19, 2005) (“The Commission agrees with Ethiopia that elect ric power stations are generally recognized to be of sufficient importance to a State’s capacity to meet its wartime needs of communication, transport and industry so as usually to qualify as military objectives during armed conflicts. The Commission also recognizes that not all such power stations would qualify as military objectives, for example, power stations that are known, or should be known, to be segregated from a general power grid and are limited to supplying power for humanitarian purposes, such as medical facilities, or other uses that could have no IR For example , W. Hays Parks, Air War and the Law of War , 32 A effect on the State’s ability to wage war.”). F ORCE L AW R EVIEW 1, 168- 69 (1990) (“In selecting North Vietnamese power sources for attack, target intelligence kilowatt electric generating plant authorities identified the Lang Chi hydroelectric facility, a Soviet- built, 122,500- 215

243 Oil refining and distribution facilities and objects associated with petroleum, oil, and lubricant products (including production, transportation, storage, and distribution facilities) have 185 . also been regarded as military objectives 5.8 C OMBATANTS In general, combatants, whether privileged or unprivileged, may be made the obje ct of . hors de combat attack, provided they have not been placed 5.8.1 Armed Forces and Groups and Liability to Being Made the Object of Attack. or belonging to an armed group makes a person liable to being Membership in the armed forces 186 made the object of att ack regardless of whether he or she is taking a direct part in hostilities. he organization’ This is because t s hostile intent may be imputed to an individual through his or her association with the organization. Moreover, the individual, as an agent of the group, can be assigned a combat role at any time, even if the individual normally performs other functions for 187 . the group , combatants may be made the object of attack at all times, regardless of the Thus 188 ime of attack. activities in which they are For example, combatants who are engaged at the t 63 miles up the Red River Valley from Hanoi that was capable of supplying seventy -five percent of the electricity for Hanoi’s industrial and defense needs. Without question, it was a valuable target. ... The Lang Chi hydroelectric facility was attacked by Air Force F -4 Phantoms using LGB [laser -guided bombs] on 10 June 1972. They placed pound LGB through t he roof of the 50- by -100- foot building, thereby destroying the electric generating twelve 2000- plant without breach of the dam, despite the fact that the roof of the power plant was 100 feet below the top of the dam.”). 185 For example , Department of Defense, -Action Report , Report to Congress: Kosovo/Operation Allied Force, After 82 (Jan. 31, 2000) (“Following the end of Operation Allied Force, NATO released an initial assessment of their attack effectiveness against a number of targets. These targets destroyed or sign ificantly damaged include: ... • Fifty -seven percent of petroleum reserves; • All Yugoslav oil refineries ... .”); Department of Defense, Report to the Senate and House Appropriations Committees regarding international policies and procedures regarding the pro tection of natural and cultural resources during times of war , Jan. 19, 1993, reprinted as Appendix VIII in Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954) 201, 204 (1993) (“Similarly, natural resources that may be of value to an enemy in his war effort are legitimate targets. The 1943 air raids on the Ploesti oil fields in Romania, and the Combined Bomber Offensive campaign against Nazi oil, were critical to allied defeat of Germany in World War II, for example. What is prohibited is unnecessary destruction, that is, destruction of natural resources that has no or limited military value.”). 186 See, e.g. , ICRC AP C OMMENTARY 1453 (¶4789) (“Those who belong to ar med forces or armed groups may be 57 (explaining that “as members of the REENSPAN , M ODERN L AW OF L AND W ARFARE attacked at any time.”); G armed forces [non -combat military personnel except for medical personnel and chaplains] are legitimate objects of by the enemy,”). attack 187 Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009) (noting that “many members of the armed forces who, under different circumstances, would be ‘fighters’ may be assigned to non- combat roles at the time of their apprehension” and tha t “[t]hese individuals are no less a part of the military command structure of the enemy, and may assume (or resume) a combat role at any time because of their integration into that structure.”), abrogated on different grounds by Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011). 188 W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of the S NITED U C TATES D IGEST OF UMULATIVE , Nov. 2, 1989, III Executive Order 12333 and Assassination Army, 3413 (“Combatants are liable to attack at any time or place, P RACTICE IN I NTERNATIO NAL L AW 1981- 1988 3411, 216

244 standing in a mess line, engaging in recreational activities, or sleeping remain the lawful object 189 hors de combat . of attack, provided they are not placed 5.8.1.1 . In DoD practice, an armed U.S. Practice in Declaring Forces Hostile in rules of as hostile (also known as declaring the force hostile) force or group may be designated . This means that personnel to whom such rules of engagement apply are authorized engagement to attack the members of the group . In DoD practice, the authority to designate a group as 190 hostile has been limited to only certain officials. Categories of Persons Who A re Combatants f 5.8.2 or the Purpose of Assessing Their . The following categories of persons are combatants who may be made the Liability to Attack are sufficiently associated with armed forces or armed groups: object of attack because they 191 members of the armed forces of a State; • 192 • members of militia and volunteer corps; regardless of their activity when attacked. Nor is a distinction made between combat and combat service support personnel with regard to the right to be attacked as combatants; combatants are subject to attack if they are participating in hostilities through fire, maneuver, and assault; providing logistic, communications, administrative, or other support; or functioning as staff planners. An individual combatant’s vulnera bility to lawful targeting (as opposed to assassination) is not dependent upon his or her military duties, or proximity to combat as such.”) (citations omitted). 189 For example , 101st Airborne ROE Card, Iraq (2003), C ENTER FOR L AW AND M ILITARY O PERATIONS , reprinted in T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , U.S. A RMY , I L EGAL L ESSONS L EARNED F ROM AY A I RAQ : M AJOR C OMBAT O PERATIONS (11 S EPTEMBER 2001 - 1 M FGHANISTAN AND 2003) 315 -16 (2004) (“1. Fire at all members of forces DECLARED HOSTILE. You may immediately fire upon any force that you know to be hostile. ... 1. Facts : An enemy unit maneuvers within your weapon range. Response : Shoot to eliminate the threat and accomplish the mission. 2. Facts : An unarmed enemy soldier sees you and does not hing but stare at you. Response : Shoot to eliminate the threat. The soldier is a member of a Hostile Force and is lawful target.”). 190 For example O , C HAIRMAN F T HE J OINT C HIEFS O F S TAFF I NSTRUCTION 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces , A reprinted in -2, ¶2(b) (June 13, 2005), ENTER NTERNATIONAL AND PERATIONAL L AW D EPARTMENT , T HE J UDGE A DVOCATE G ENERAL ’ S L C O & EGAL I O CHOOL U.S. A RMY , S , PERATIONAL L AW H ANDBOOK 94 (2014) (“Once a force is declared hostile by appropriate authority, U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared hostile force. Policy and procedures regarding the authority to declare forces hostile are provided in Appendix A to Standing Rules of 3121.01A, HAIRMAN O F T HE J OINT C HIEFS O F S TAFF I NSTRUCTION A, paragraph 3.”); C Enclosure M AW AND , ENTER FOR L PERATIONS O ILITARY -12, ¶6 (Jan. 15, 2000), Engagement for US Forces C reprinted in , A T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , U.S. A RMY , Rules of Engagement (ROE) Handbook for Judge Advocates 96 (May 1, 2000) (“6. Declaring Forces Hostile. Once a force is declared hostile by appropriate authority, US units need not observe a hostile act or a demonstration of hostile intent before engaging that force. The responsibility for exercising the right and obligation of national self -defense and as necessary declaring a force hostile is a matter of the utmost importance. All available intelligence, the status of international relationships, the requirements of international law, an appreciation of the political situation, and the potential consequences for the United States must be carefully weighed. The exercise of the right and obligation of national self -defense by competent authority is separate from and in no way limits the commander's right and obligation to exercise unit self -defense. The authority to declare a force hostile is limited as amplified in Appendix A of this Enclosure.”). 191 Refer to § 4.5 (Armed Forces of a State). 192 (Other Militia and Volunteer Corps ). 4.6 Refer to § 217

245 193 • lev ée en masse ; participants in a 194 Stat e armed groups; and • persons belonging to non- leaders whose responsibilities include the operational command and control of the armed • 195 forces or of a non -State armed group. Persons Belonging to Non Armed Groups . Like members of an enemy 5.8.3 -State State ’s armed forces, individual s wh o are formally or functionally part of a non- State armed group that is engaged in hostilities may be made the object of attack because they likewise share 196 . in their group’s hostile intent Formal Membership . Formal membership in an armed group might be 5.8.3.1 or direct information or by other types of information. indicated by formal In some cases, there might be formal or direct information indicating membership in the group. This might include: • using a rank, title , or style of communication; • taking an oath of loyalty to the group or the group ’s leader ; • wearing a uniform or other clothing, adornments , or body markings that identify members of the group; or • documents issued or belonging to the group that identify the person as a member , such as 197 membership lists, identity cards , or membership applications. or direct information might be available Although in some cases this type of formal , in because members of these groups seek to conceal their it will not be available many cases association with that group. In such cases, the following types of information might indicate that State armed group: a person is a member of a non- 193 Refer to 4.7 ( Lev ée en Masse ). § 194 Refer to § 5.8.3 (Persons Belonging to Non -State Armed Groups ). 195 Refer to § 5.8.4 (Leaders ). 196 Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (“The district court seemed to think it important to Cf. -Adahi’s motive for atte -Qaida training camp. We do not understand why. Whatever his determine Al nding the al Qaida was intent on attacking the United States and its allies, that bin Laden motive, the significant points are that al- fatwa announcing that every Muslim had a duty to kill Americans, and that Al- Adahi voluntarily had issued a affiliated himself with al- Qaida.”). 197 Cf. Alsabri v. Obama, 684 F.3d 1298, 1304- 05 (D.C. Cir. 2012) (upholding a district court’s determination that petitioner was part of the Taliban, al- Qaida, or associat ed forces, including by considering “an English translation of a document appearing to be Alsabri’s application to attend an al Qaeda training camp” and “an English -language translation of a 92 -page collection of documents that the government maintains wer e internal Taliban or al Qaeda records” that “were captured by Coalition forces from the ‘Director of Al -Qa’ida Security Training Office,’”). 218

246 • ; acting at the direction of the group or within its command structure perform for the group that is analogous to a function normally performed • ing a function ; e’s armed forces by a member of a Stat taking a direct part in hostilities, including consideration of the frequency, intensity, and • 198 duration of such participation; accessing facilities, such as safehouses, training camps, or bases us ed by the group that • 199 outsiders would not be permitted to access; 200 traveling along specific clandestine routes used by those groups; • or • traveling with members of the group in remote locations or while the group conducts 201 operations. Functional Membership . Some non- State armed groups might not be 5.8.3.2 organized in a formal command structure, as generally is required for POW status during 198 Refer to § 5.9.3 (“Taking a Direct Part in in Hostilities” ). 199 Cf. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C. Cir. 2012) (“[I]t is difficult to believe that ‘Taliban fighters would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a part of the Taliban.’”) (quoting Alsabri v. Obama, 764 F.Supp.2d 60, 94 (D.D.C. 2011)); Uthman v. Obama, 637 F.3d 400, — 406 (D.C. Cir. 2011) (“In two prior cases, this Court has stated that staying at an al Qaeda guesthouse is ‘powerful indeed ‘over whelming’ —evidence’ that an individual is part of al Qaeda. Al –Adahi, 613 F.3d at 1108 (quoting Al – Bihani v. Obama, 590 F.3d 866, 873 footnote 2 (D.C. Cir. 2010)) (alterations omitted). The reason for that a visitor to Afghanistan would end up at an al Qaeda guesthouse by assessment is plain: It is highly unlikely that mistake, either by the guest or by the host.”). 200 Cf. Suleiman v. Obama, 670 F.3d 1311, 1314 (D.C. Cir. 2012) (“There is no dispute that Suleiman’s travel was initiated at the suggestion o f and facilitated by a Taliban recruiter, and that he traveled a well -worn path to Afghanistan frequently used by Taliban recruits. We have stated that such travel may indicate that an individual traveled to Afghanistan to join the Taliban.”) (citing Al O dah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010)); Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“[T]raveling to Afghanistan along a distinctive path used by al Qaeda members can be probative evidence that the traveler was part of al Qaeda.”); Al Odah v. United States, 611 F.3d 8, 16 (D.C. Cir. 2010) (finding it significant that “Al Odah traveled to Afghanistan on a series of one -way plane tickets purchased with cash in a manner consistent with travel patterns of those going to Afghanistan to jo in the Taliban and al Qaeda”). 201 Cf. Hussain v. Obama, 718 F.3d 964, 968- 69 (D.C. Cir. 2013) (“Evidence that Hussain bore a weapon of war while living side -side with enemy forces on the front lines of a battlefield at least invites — and may very well -by compel — the conclusion that he was loyal to those forces. We have repeatedly affirmed the propriety of this common -sense inference.”); Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“Being captured in the company of a Taliban fighter and two al Qaed a members and Osama bin Laden bodyguards 12 miles from Tora Bora in December 2001 might not be precisely the same as being captured in a German uniform 12 miles from the Normandy beaches in June 1944. But it is still, at a minimum, highly significant. And absent a credible alternative explanation, the location and date of Uthman’s capture, together with the company he was keeping, strongly suggest that he was part of al Qaeda.”). 219

247 202 international armed conflict. Such groups might lack a formal distinction between those 203 who nonethe members less participate in the hostile activities of the group members and non- . ’s hostile intent may be An individual who is integrated into the group such that the group i.e. , constructively ) part of the group, imputed to him or her may be deemed to be functionally ( even if not formally a State member of the group. The integration of the person into the non- ’s intention to commit hostile armed group and the inference that the individual shares the group who are merely sympathet ic to the group’ acts distinguish such an individual from persons s 204 goals. State armed The following may indicate that a person is functionally a member of a non- group: 205 • following directions issued by the group or its leaders; taking a direct part in hostilities on behalf of the group on a sufficiently frequent or • 206 or intensive basis; • performing tasks on behalf of the group similar to those provided in a combat, combat support, or combat service support role in the armed forces of a State. Dissociation or Renunciation . A person may not be made the object of 5.8.3.3 association with a non- State armed group if that association has clearly attack based on his or her been severed . Relevant factors in determining when an individual has unambiguously ceased to be a member of a non- State armed group may include: • whether the individual has formally ceased to be a member of the group, such as by filing relevant paperwork or by otherwise formally renouncing any allegiance to the group; he has • whether there are concrete and verifiable facts or persuasive indicia that he or s affirmatively returned to peaceful pursuits, such as by participating in a reconciliation program and swearing an oath of loyalty to the government ; and the amount of time that has passed since the person participated in the activities of the • 207 group in question, if coupled with other indicia of dissociation or renunciation. 202 § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates ). Refer to 203 Compare § 4.7 ( Lev ée en Masse ). 204 Compare § 5.9.3.2 (Examples of Acts Not Considered Taking a Direct in Hostilities ). 205 Cf. Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011) (“[D]emonstrating that someone is part of al Qaeda’s comman d structure is sufficient to show that person is part of al Qaeda.”); Al -Adahi v. Obama, 613 F.3d 1102, 1109 (D.C. Cir. 2010) (“When the government shows that an individual received and executed orders from al -Qaida members in a training camp, that evidenc e is sufficient (but not necessary) to prove that the individual has affiliated himself with al- Qaida.”); Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (“Evidence that an individual operated within al -Qaida’s command structure is ‘sufficient but is n ot necessary to show he is ‘part of’ the organization.’” (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010))). 206 ). Hostilities” (“Taking a Direct Part in in Refer to § 5.9.3 220

248 The onus is on the person having belonged to the armed group to demonstrate clearly and affirmatively ities of to the opposing forces that he or she will no longer participate in the activ 208 the group. , if person s who have dissociated from an armed group rejoin the group Moreover or fail to cease permanently their participation in hostilities, they may be made the object of 209 attack. Leaders . M ilitary leaders are subject to attack on the same basis as other members 5.8.4 -State armed groups are also subject to attack on of the armed forces. Similarly, leaders of non the same basis as other members of the group. There is no objection to making a specific enemy 210 leader who is a combatant th e object of attack. Leaders who are not members of an armed force or armed group (including heads of State, civilian officials, and political leaders) may be made the object of attack if their responsibilities include the operational command or control of the armed forces . For example, as the commander -in-chief of the U.S. armed forces , the President would be a legitimate target in wartime, as would, for example, the Prime Minister of a constitutional monarchy . In contrast, a cons the reigning monarch of titutional monarchy with an essentially ceremonial role in State affairs may not be made the object of attack. In addition to leaders who have a role in the operational chain of command, leaders 211 taking a direct part in hostilities may also be made the obje ct of attack. Planning or 212 authorizing a combat operation is an example of taking a direct part in hostilities. As a matter of practice, attacks on the national leadership of an enemy State have often been avoided on the basis of comity to help ensur e that authorities exist with whom peace and agreements may be concluded. 207 Stephen Pomper, Assistant Legal Adviser for Political- Military Affairs, Department of State, Toward a Limited Consensus on the Loss of Civilian Immunity in Non -International Armed Conflict: Making Progress Through AVA 181, 189 (2012) (“Relevant factors in TUDIES N W L AR C OLLEGE I NTERNATIONAL L AW S , 88 U.S. Practice determining that an individual has ceased to be a member of an organized armed group include the amount of time that has passed since that individual has taken relevant action on behalf of the group in question, and whether he or she affirmatively has disassociated himself or herself from the organized armed group.”). 208 Wolff Heintschel von Heinegg & Peter Dreist, The 2009 Kunduz Air Attack: The Decision of the Federal Prosecutor -General on the Dismissal of Criminal Proceedings Against Members of the German Armed Forces , 53 ERMAN Y EARBOOK OF -General takes the NTERNATIONAL L AW 833, 844- 45 (2010) (“Here, the Prosecutor I G opportunity to identify different categories of lawful targets under the law of non- international armed conflict. As regards fighters belonging to a non -State party to the conflict, their qualification as lawful targets is not based on some form of legal status but on the mere fact of their functional integration in to an organized armed group. If they are so integrated, they do not qualify as civilians even though they may eventually pursue civilian occupation. They only regain their civilian status if they clearly and irrevocably renounce their function in the organized armed group. -General is not prepared to consider Taliban fighters to be lawful targets only insofar and for Hence, the Prosecutor such time as they take a direct part in armed hostilities.”). Compare § 5.10.3 (Persons Who Have Surrendered ). 209 Refer to § 5.9.4.2 (No “Revolving Door” Protection ); § 5.9.4.1 (Permanently Ceased Participation in Hostilities ). 210 Refer to § 5.5.6.4 (Attacks on Specific Individuals ). 211 Refer to § 5.9.3 (“Taking a Direct Part in in Hostilities” ). 212 ). § 5.9.3.1 (Examples of Taking a Direct Part in Hostilities Refer to 221

249 5.9 IVILIANS T AKING A D IRECT P ART IN H OSTILITIES C Civilians who take a direct part in hostilities forfeit protection from being made the object of attack. Civilians Taking a Direct Part in H ostiliti es – Notes on Terminology . This manual 5.9.1 “direct part in hostilities ” to indicate what activities cause a civilian to forfeit his uses the phrase or her protection from being made the object of attack. This usage does not mean that t he United Stat es has adopted the direct participation in hostilities rule that is expressed in Article 51 of AP I. 5.9.1.1 “Active” V ersus “ Direct ” . The phrases “ active part in hostilities ” and “ direct in hostilities ” have been used to describe when civilians forfeit the ir protection from part . As noted above, this manual uses “ “active ” rather than being made the object of attack ” direct in this context , although as discussed below, this usage should not be regarded as indicating a substantive difference between “ active” and “ direct .” Common Article 3 of the 1949 Geneva Conventions refers to “ [p] ersons taking no active 213 part in the hostilities. and AP II use the phrase “ direct part in hostilities. ” In addition, ” AP I AP I uses the phrase “ direct part in hostilities ” to addre ss other situations apart from the 214 protection of civilians. active Although the words and direct can mean different things in the English language , the terms have sometimes been treated as the same for the purpose of applying the direct 215 One of the reasons for treating the terms the same is that participation in h . ostilities rule uses “ ” and the active, although the English language version of the 1949 Geneva Conventions II use “ direct, ” the French language versions of these English language versions of AP I and AP 216 he English and French language versions Because t .” directement treaties use the same word, “ 213 AP I art. 51(3) (“Civilians shall enjoy the protection [from being made the object of attack], unless and for such time as they take a direct part in hostilities.”); AP II art. 13(3) (“Civilians shall enjoy the protection [from being made the object of attack], unless and for such time as they take a direct part in hostilities.”). 214 See, e.g. , AP I art. 43(2) (“Members of the armed forces of a Party to a conflict (other than medical personnel and chap lains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”); AP I art. 47(2) (“A mercenary is any person who ... [ inter alia ] ( b ) Does, in fact, take a direct part in the hostilities ... .”). 215 , ¶¶614 , Prosecutor v. Tadić, ICTY Trial Chamber, IT -94- 1-T, See, e.g. -15 (May 7, 1997) (“The rules Judgment contained in paragraph 1 of Common Article 3 proscribe a number of acts which: ... (iii) are committed against persons taking no active part in hostilities ... the test the Trial Chamber has applied is to ask whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those hostilities in the context of which the alleged offences are sa id to have been committed. If the answer to that question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3.”); -96- 4-T, Judgment , ¶629 (Sept. 2, 1998) (“‘Th e victims referred Prosecutor v. Akayesu, ICTR Trial Chamber, ICTR to in this Indictment were, at all relevant times, persons not taking an active part in the hostilities’. This is a material averment for charges involving Article 4 inasmuch as Common Article 3 is for the protection of ‘persons taking no active part in the hostilities’ (Common Article 3(1)), and Article 4 of Additional Protocol II is for the protection of, ‘all persons who do not take a direct part or who have ceased to take part in hostilities.’ These phrases are so similar that, for the Chamber’s purposes, they may be treated as synonymous.”). 216 ne participant pas directement aux hostilitiés ”). GC art. 3, 973 UNTS 289 (“ 222

250 of the 1949 Geneva Conventions, AP I, and AP II are equally authentic , States negotiating these 217 ive ” treaties may not have intended a difference between “ ” and act “direct. ” and “ ” the same in this context is that active direct Another reason for treating the terms “ they are understood to be terms of art addressi ng a particular legal standard , and there are a range . Thus, there may be different views about what the ans me of views as to what that legal standard underlying standard means , even when there is agreement on the appropriate term to describe ing that standard. Accordingly , there seems to be little value in distinguish between the two . f or the purposes of applying this legal rule terms AP I , Article 51(3) Provision on Direct Participation in Hostilities 5.9.1.2 . Article 51(3) of AP I does not reflect customary international law, the Although, as drafted, 218 . United States supports the customary principle Similarly, on which Article 51(3) is based ’s interpretive guidance on the meaning of direct participation in although parts of the ICRC , the United States has are consistent with customary international law not accepted hostilities significant parts of the ICRC’ s interpretive guidance as accurately reflecting customary 219 international law . But some States that are Parties to AP I may interpret and apply Article 51(3) of AP I consistent with the customary international law standard. Persons to Whom This Rule A pplies . For the purpose of applying the rule 5.9.2 civilians ” are persons who do not fall within the categories of discussed in this section, “ 5.8.2 ( Categories of Persons Who A re Combatants f or the Purpose of combatants listed in § ). Accordingly, for the purposes of this section, “civilians” Assessing Their Liability to Attack : include 217 See, e.g. , GC art. 150 (“The present Convention is established in English and in French. Both texts are equally authentic.”); AP I art. 102 (“The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the depositary, which shall transmit certified true e Parties to the Conventions.”); AP II art. 28 (same). copies thereof to all th 218 See John B. Bellinger, III, Legal Adviser, Department of State, Unlawful Enemy Combatants , Jan.17, 2007, IGEST OF U NITED S TATES P 16 (“While we agree that there is a general I NTERNATIONAL L AW 915- RACTICE IN D principle of international law that civilians lose their immunity from attack when they engage in hostilities, we disagree with the contention that the provision as drafted in AP I [Article 51(3)] is customary international law.”); Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American Red Cross -Washington College of Law Conference on International Humanitarian Law 419, 426 (1987) (“We OLICY MERICAN U NIVERSITY J OURNAL OF I NTERNATIONAL L AW AND P A (Jan. 22, 1987), 2 ations from also support the principle that the civilian population not be used to shield military objectives or oper attack, and that immunity not be extended to civilians who are taking part in hostilities. This corresponds to provisions in articles 51 and 52[ of AP I].”). 219 See, e.g. Military Affairs, Department of State, Toward a , Stephen Pomper, Assistant Legal Adviser for Political- Limited Consensus on the Loss of Civilian Immunity in Non- International Armed Conflict: Making Progress 181, 186 (2012) (“From the TUDIES N AVAL W AR C OLLEGE I NTERNATIONAL L AW S , 88 U.S. Through Practice operational perspective, the feedback [on the ICRC’s interpretive guidance] was that the report was too rigid and complex, and did not give an accurate picture of State practice or (in some respects) of a practice to which States could realistically aspire.”); Al- Bihani v. Obama, 590 F.3d 866, 885 (D.C. Cir. 2010) (Williams, J., concurring) (“The work itself explicitly disclaims that it should be read to have the force of law. ... Even to the extent that Al gest that we should follow it on the basis Bihani’s reading of the Guidance is correct, then, the best he can do is sug of its persuasive force. As against the binding language of the AUMF and its necessary implications, however, that force is insubstantial.”). 223

251 220 • members of the civilian population; 221 d to accompany the armed forces ; person a nd • s authorize 222 members of the merchant m arine and civil aircraft of parties to a conflict. • Persons Belonging to Hostile, Non- State Armed Groups 5.9.2.1 . Some States may choose to characterize persons who belong to hostile, non- that do not State armed groups atus as lawful combatants civilians ” who may not be attacked unless they are qualify for st as “ . However, these States may also taking a direct part in hostilities characterize the act of joining and remaining a member of an armed group that is engaged in hostilities as a form of taking a direct part in hostilities that continuously deprives these individuals of their protection from 223 being made the object of attack. The U.S. approach has generally been to refrain from classifying those belonging to non- State oups as “civilians ” to whom this rule would apply. Th e U.S. approach has been to armed gr State armed group as treat the status of belonging to a hostile, non- a separate basis upon which a 224 person is liable to attack , apart from whether he or she has taken a direct part in hostilities . Either approach may yield the same result: members of hostile , non- State armed groups may be made the object of attack unless they are placed hors de combat . However, practitioners , especially when working with coalition partners, sh reasoning ould understand that different legal is sometimes applied in reaching that result. “Taking a Direct Part in in Hostilities ”. Unlike the treaty definition of “ military 5.9.3 225 the United States is not a P arty to a treaty with a comparable provision objective ” for objects, for the purpose of assessing what conduct renders defining taking a direct part in hostilities civilians liable to being made the object of attack . ature At a minimum, taking a direct part in hostilities includes actions that are, by their n 226 , intended to cause actual harm to the enemy. Taking a direct part in hostilities and purpose extends beyond merely engaging in combat and also includes certain acts that are an integral part ’s ability to of combat operations or that effectively and substantiall y contribute to an adversary 220 Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual ). 221 Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces ). 222 (Crews of Merchant Marine Vessels or Civil Aircraft ). Refer to § 4.16 223 Stephen Pomper, Assistant Legal Adviser for Political- Toward a Limited Military Affairs, Department of State, Consensus on the Loss of Civilian Immunity in Non -International Armed Conflict: Making Progress Through 181, 193 endnote 22 (2012) (“As discussed AVAL W AR C OLLEGE I NTERNATIONAL L AW S TUDIES N Practice , 88 U.S. below, there is a range of views on whether ind ividuals who pass the membership threshold lose their civilian status (and are therefore unprivileged belligerents) or remain civilians but are deemed to be continuously taking a direct part in hostilities and accordingly continuously lose their protection s from being made the object of attack.”). 224 § 5.8.3 (Persons Belonging to Non -State Armed Groups ). Refer to 225 § 5.7 .3 (Objects That Are Military Objectives ). Refer to 226 619 (“Thus ‘direct’ participation means acts of war which by their nature or purpose are AP C OMMENTARY ICRC likely to cause actual harm to the personnel and equipment o f the enemy armed forces.”). 224

252 227 conduct or sustain combat operations. , taking a direct part in hostilities does not However ’s encompass the general support that members of the civilian population provide to their State 228 . war effort , such as by bu ying war bonds by a civilian constitutes taking a direct part in hostilities is likely to Whether an act by depend highly on the context, such as the weapon systems or methods of warfare employed 229 the civilian’s side in the conflict. e contexts, training and logistical For example, in som in hostilities, while in other contexts it might support may be viewed as taking a direct part 230 231 not. The following considerations may be relevant: 227 See G UENTER L EWY , A MERICA IN V IETNAM 232 (1978) (“We know that on occasion in Vietnam women and children placed mines and booby traps, and that villagers of all ages and sexes, willingly or under duress, served as porters, bu ilt fortifications, or engaged in other acts helping the communist forces. It is well established that once civilians act as support personnel they cease to be noncombatants and are subject to attack.”). 228 -Military Affairs, Department of State, Toward a Limited Stephen Pomper, Assistant Legal Adviser for Political Consensus on the Loss of Civilian Immunity in Non -International Armed Conflict: Making Progress Through ct to 181, 189 (2012) (“With respe N AVAL W AR C OLLEGE I NTERNATIONAL L AW S TUDIES , 88 U.S. Practice determining what it means to take ‘direct part in hostilities,’ as a threshold matter there seems to be a common view that direct participation in hostilities stands in contrast to support by a general population to a nation’s war effort. Civilians who are contributing to a nation’s war effort accordingly do not by dint of this alone lose their protection.”). 229 Nils See , 35 Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report Melzer, (2005) (“Since, currently, th e qualification of a particular act as direct participation in hostilities often depends on the particular circumstances and the technology or weapons system employed, it is unlikely that an abstract definition of direct participation in hostilities applic able to every situation can be found.”). 230 For example , Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation 81 641, 680- OLITICS J OURNAL OF I NTERNATIONAL L AW AND P N.Y.U. in Hostilities” Interpretive Guidance , 42 (201 0) (“For example in Iraq, it has been noted, ‘IED and suicide -bomber cells are essentially combatant units themselves,’ where the most technically skilled bomb builder ‘also doubles as a training instructor.’ Further, ‘bombers do not ‘just turn up to thei r target’. They need a logistical infrastructure, which consists of individuals ... who provide everything from reconnaissance of the potential target ... to the provision of a safe house and food, and the explosives -laden vehicle or suicide belt.’ ... To limit direct participation to persons who place or detonate explosives is an artificial division of what is fundamentally a group activity. ... The person who is key in planning and facilitating such deadly attacks must be a valid target as a direct particip ant in hostilities ...”) (first and second ellipses in original). 231 Military Affairs, Department of State, Toward a Limited Stephen Pomper, Assistant Legal Adviser for Political- Consensus on the Loss of Civilian Immunity in Non -International Armed Conflict: Making Progress Through NTERNATIONAL N AVAL W AR C OLLEGE I L (“Any determination that a civilian AW S TUDIES 181, 189 , 88 U.S. Practice is taking part in hostilities (and thus loses immunity from being made the object of attack) will be highly situational and needs to be made by a decisionmaker taking the following considerations into account: • Nature of the harm: Is the individual's activity directed at (i) adversely affecting one party's military capacity or operations or enhancing the capacity/operations of the other, or (ii) killing, injuring or damaging civilian objects or persons? • Causation/integration between action and harm: Is there a sufficiently direct causal link between the individual's relevant act and the relevant harm, or does the act otherwise form an integral part of coordinated action resulting in that harm? (Although it is not enough that the act merely occurs during hostilities, there is no requirement that the lities: Is the individual's activity linked to act be only a single causal step removed from the harm.) • Nexus to hosti an ongoing armed conflict and is it intended either to disadvantage one party, or advance the interests of an opposing oing three factors must be party, in that conflict? ... There is also a range of views about whether each of the foreg present in order to make a determination that an individual is directly participating in hostilities (or whether a ‘totality of the circumstances’ approach should govern), ... . Moreover, there is a range of views concerning the 225

253 • to the opposing party ’s persons or objects , such the degree to which the act causes harm as o proximate or “ but for ” cause of death, injury, or damage to whether the act is the persons or objects belonging to the opposing party; or o the degree to which the act is likely to affect adversely the military operations or opposing party; military ca pacity of the the degree to which the act is connected to the hostilities , such as • the degree to which the act is temporally or geographically near the fighting; or o the degree to which the act is connected to military operations ; o fic p urpose underlying the act, such as • the speci whether the activity is intended to advance the war aims of one party o to the conflict the detriment of the opposing party ; to • ilitary significance of the activity to the party ’s war effort, such as the m o the degree to which the act contributes to a party ’s military action against the opposing party; whether the act is of comparable or greater value to a party ’s war effort than acts o 232 that are commonly regarded as taking a direct part in hostilities; whether the act po o ses a significant threat to the opposing party; the degree to which the activity is viewed inherently or traditionally as a military one, • such as relevance of geographic and temporal proximity of an individual's actions to particular hostile acts in ongoing hostilities.”). 232 W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of the TATES UMULATIVE D IGEST OF U NITED S C Executive Order 1 2333 and Assassination , Nov. 2, 1989, III Army, 3416 P I NTERNATIONAL L AW 1981- 1988 3411, RACTICE IN (“Finally, one rule of thumb with regard to the likelihood that an individual may be subject to lawful attack is his (or her) im munity from military service if continued service in his (or her) civilian position is of greater value to a nation’s war effort than that person’s service in the military. A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to a nation’s national security or war aims. Thus, more than 900 of the World War II Project Manhattan personnel were civilians, and their participation in the U.S. atomic weapons program was of such importance as to have made th em liable to legitimate attack. Similarly, the September 1944 Allied bombing raids on the German rocket sites at Peenemunde regarded the death of scientists involved in research and development at that facility to have been as important as destruction of the missiles themselves.”). 226

254 o whether the act is traditionally performed by military forces in conducting emy (including combat, combat support, and military operations against the en 233 combat service support functions); or o , such whether the activity involves making decisions on the conduct of hostilities as determining the use or application of combat power . 5.9.3.1 Examples of Taking a Direct Part in Hostilities . The following acts are generally considered taking a direct part in hostilities that would deprive civilians who perform them of protection from being made the object of attack. These examples are illustrative and not exhaustive : • taking up or bearing arms against the opposing party , or otherwise personally trying to 234 , or capture personnel or damage material , kill, injure belonging to the opposing party such as defending military objectives against enemy attack ( e.g., manning an antiaircra o ft 235 gun , acting as a bodyguard for an enemy combatant ); o acting as a member of a weapon s crew ; o engaging in an act of sabotage ; or o emplacing mines or improvised explosi ve devices ; • preparing for combat and returning from combat; • planning , , authorizing, or imp lementing a combat operation against the opposing party even if that person does not personally use weapons or otherwise employ destructive 236 force in connection with the operation; 233 Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict , 98 AJIL 1, 17 (2004) (“The argument that civilians are protected unless engaged in overtly aggressive acts like carry ing weapons may be particularly difficult to maintain where armed groups are technically accorded civilian status by virtue of not being considered lawful combatants. To the extent that civilians fulfill the same function as combatants, either in the arme d forces or as part of the organization of an ‘illegitimate’ nonstate actor, they are logically subject to targeting under the same provisions of international humanitarian law.”). 234 2006 A USTRALIAN ANUAL ¶5.36 (“Civilians are only protected as long as th ey refrain from taking a direct part M in hostilities. ... Civilians bearing arms and taking part in military operations are clearly taking part in hostilities;”); e that the (¶1943) (“It seems that the word ‘hostilities’ covers not only the tim C OMMENTARY 618- 19 AP ICRC civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon.”). 235 2004 UK M ANUAL ¶5.3.3 (“Whether civilians are taking a direct part in hostilities is a question of fact. Civilians manning an anti -aircraft gun or engaging in sabotage of military installations are doing so.”). 236 See ael Supreme Public Committee against Torture in Israel, et al. v. Government of Israel, et al. , HCJ 769/02, Isr Court Sitting as the High Court of Justice, ¶37 (Dec. 11, 2005) (“We have seen that a civilian causing harm to the army is taking ‘a direct part’ in hostilities. What says the law about those who enlist him to take a direct part in the ties, and those who send him to commit hostilities? Is there a difference between his direct commanders and hostili 227

255 • uch as providing or relaying information of immediate use in combat operations, s acting as an artillery spotter or member of a ground observer corps or otherwise o 237 , or ambush; relaying information to be used to direct an airstrike , mortar attack and 238 or lookout for combatants conducting military operations ; o acting as a guide supply ing weapons and ammunition, whether to conventional armed forces or non- • state armed groups ing weapons ( such as improvised explosive devices) in close , or assembl 239 , geographic or temporal proximity to their use such as deliverin g ammunition to the front o lines; or o outfitting and preparing a suicide bomber to conduct an attack . 5.9.3.2 Examples of Acts Not Considered Taking a Direct in Hostilities . The following acts are generally not considered taking a direct part in hostilities that would deprive o perform them of protection from being made the object of attack civilians wh . These examples are illustrative and not exhaustive : • mere sympathy or moral support for a party ’s cause ; • general contributions made by citizens to the ir State ’s war effort ( e.g. , buying war bonds or paying taxes to the government that will ultimately be used to fund the armed forces); those responsible for them? Is the ‘direct’ part taken only by the last terrorist in the chain of command, or by the entire chain? In our opinion, the ‘direct’ character of the part taken should not be narrowed merely to the person committing the physical act of attack. Those who have sent him, as well, take ‘a direct part’. The same goes for the person who decided upon the act, and the person wh o planned it. It is not to be said about them that they are taking see Schmitt, at p. 529).”). an indirect part in the hostilities. Their contribution is direct (and active) ( 237 2013 G ERMAN M ANUAL ¶518 (“Accordingly, civilians who perform concrete actions that constitute direct participation in hostilities (e.g. conducting military operations, transporting weapons and ammunition to combat units, operating weapon systems, transmitting target data that leads immediately to the engagement of a military object ive, etc.) can be engaged as military objectives while performing such actions.”). 238 , 101st Airborne ROE Card, Iraq (2003), reprinted in C ENTER FOR L For example M ILITARY O PERATIONS , AW AND T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER & S CHOOL , U.S. A RMY , I L EGAL L ESSONS L EARNED F ROM 2003) A I RAQ : M AJOR C OMBAT O PERATIONS (11 S EPTEMBER 2001 - 1 M AY FGHANISTAN AND 315, 316 (2004) (“ 7. Facts : Your unit comes under fire, you notice a young civilian woman who appears to be pointing to the location where friendly tr oops are concealed, based on her actions, those locations are then targeted. Response : Shoot to eliminate the threat ... .”). 239 See, e.g. , United States v. Hamdan 6 (Dec. 19, 2007), reversed on different grounds , 696 F.3d 1238 (D.C. Cir. 2012) (“The Commis sion also finds that the accused directly participated in those hostilities by driving a vehicle containing two surface -to-air missiles in both temporal and spatial proximity to both ongoing combat operations [in the nearby town of Takta Pol and the more d istant Kandahar]. ... Although Kandahar was a short distance away, the accused’s past history of delivering munitions to Taliban and al Qaeda fighters, his possession of a vehicle containing surface to air missiles, and his capture while driving in the direction of a battle already underway, satisfies the requirement of ‘direct participation.’”). 228

256 • e.g. , police officers who maintain public order against common criminals police services ( 240 ); during armed conflict e.g. , opinion journalists who write columns • independent journalism or public advocacy ( 241 supporting or criticizing a State ’s war effort); working in a munitions factory or other factory that is not in geographic or temporal • proximity to military operations but that is supplying weapons, materiel, and other goods 242 useful to the armed forces of a State; or providing medical care or impartial humanitarian assistance . • es not make a person Although performing these activities do liable to being made the object of es not immunize a person from attack if that person attack, performing these activities also do a direct part in hostilities or is otherwise lawful ly made the object of attack. takes 5.9.3.3 Taking a Direct Part in Hostilities and Standards for the Use of Force in -Defense Self d States, the U.S. armed forces have been authorized to . In the practice of the Unite use necessary and proportional force in self -defense in response to hostile acts or demonstrated 243 hostile intent. In some cases, hostile acts or demonstrated hostile intent may also constitute taking a direct part in hostilities. However, hostile acts and demonstrated hostile intent in some respects may be narrower than the concept of taking a direct part in hostilities. For example, although supplying weapons and ammunition in close geographic or te mporal proximity to their use is a 240 Refer to § 4.23.1 (Police as Civilians ). 241 Refer to § 4.24.2 (Other Journalists ). Cf. Final Report to the Prosecutor by the Committee Established to ICTY, Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia , ¶47 (Jun. 1 3, 2000) (“Whether the media constitutes a legitimate target group is a debatable issue. If the media is used to incite crimes, as in Rwanda, then it is a legitimate target. If it is merely disseminating propaganda to generate support for the war effort, it is not a legitimate target.”). 242 B OTHE , P ARTSCH , & S OLF , N EW R ULES 303 (AP I art. 51, ¶2.4.2.2) (noting that during international armed conflict, “workers in defense plants or those engaged in distribution or storage of military supplies in rear areas, do not pose an immediate threat to the adversary and therefore would not be subject to deliberate individual attack”). However, these individuals assume the risk of incidental injury as a result of attacks against those factories. Refer to § 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives ). 243 For example HAIRMAN OF THE , C J OINT C HIEFS OF S TAFF I NSTRUCTION 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces , ¶6b(1) (June 13, 2005), reprinted in NTERNATIONAL AND PERATIONAL L AW D EPARTMENT , T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C O & ENTER I L CHOOL U.S. A RMY , O S , AW H ANDBOOK 95 (2007) (“Unit co mmanders always retain the inherent right PERATIONAL and obligation to exercise unit self -defense in response to a hostile act or demonstrated hostile intent. Unless otherwise directed by a unit commander as detailed below, military members may exercise individual s elf -defense in NSTRUCTION HAIRMAN OF THE J OINT C HIEFS OF S TAFF I response to a hostile act or demonstrated hostile intent.”); C , Standing Rules of Engagement for US Forces , Enclosure A, A -1 (Jan. 15, 2000), reprinted in 3121.01A NTERNATIONAL AND O PERATIONAL L AW D EPARTMENT , T HE J UDGE A DVOCATE G ENERAL ' S S CHOOL , U.S. A RMY , I JA, O PERATIONAL L AW H ANDBOOK 102 (2006) (“US forces always retain the right to use necessary and trated hostile intent.”). -defense in response to a hostile act or demons proportional force for unit and individual self 229

257 common example of taking a direct part in hostilities, it would not necessarily constitute a hostile act or demonstrated hostile intent. be On the other hand, hostile acts and demonstrated hostile intent in some respects may broader than the concept of taking a direct part in hostilities. For example, the use of force in response to hostile acts and demonstrated hostile intent applies outside hostilities, but taking a ur during hostilities. Thus, the concept of taking direct part in hostilities is limited to acts that occ a direct part hostilities must not be understood to limit the use of force in response to hostile acts or demonstrated hostile intent. In the practice of the United States, offensive combat operations a gainst people who are taking a direct part in hostilities have been authorized through specific rules of engagement. Duration of Liability to Attack been a range of views about the duration 5.9.4 . There has for which civilians who have taken a direct part in hostilities forfeit protection from being made 244 the object of attack . In the U.S. approach, c ivilians who have taken a direct part in hostilities must not be made the object of attack after they have permanently ceased their participation because there woul d be no military necessity for attacking them . P ersons who take a direct part in hostilities , however, do not benefit from a “ revolving door ” of protection. There may be difficult cases not clearly falling into either of uations a case- by-case analysis of the these categories, and in such sit 245 specific facts would be needed. 5.9.4.1 Permanently Ceased Participation in Hostilities . If a civilian has , then that person must not be made the object of permanently ceased participation in hostilities 246 The assessment of whether a person attack because th ere is no military necessity for doing so. 244 See, e.g. , Nils Melzer, Background Paper – Direct Participation on Hostilities under International Humanitarian – Expert Meeting of Oct. 25 -26, 2004 Law 34 (“At one end of the spectrum were experts who preferred narrowly definin g temporal scope and favoured strictly limiting loss of protection to the period where DPH is actually being carried out. At the other end were experts who said that, once a person had undertaken an act constituting DPH, that person must clearly express a will to definitively disengage and offer assurances that he or she will not resume hostilities in order to regain protection against direct attack. However, opinions varied greatly and could not easily be divided into two groups supporting distinct posit ions.”). 245 Public Committee against Torture in Israel, et al. , HCJ 769/02, Israel Supreme v. Government of Israel, et al. Court Sitting as the High Court of Justice, ¶40 (Dec. 11, 2005) (“These examples point out the dilemma which the ‘for such time’ requi rement presents before us. On the one hand, a civilian who took a direct part in hostilities once, or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other y which each terrorist has ‘horns of the alter’ (1 Kings 1:50) to grasp or a hand, the ‘revolving door’ phenomenon, b ‘city of refuge’ (Numbers 35:11) to flee to, to which he turns in order to rest and prepare while they grant him INSTEIN , at p. Schmitt, at p. 536; Wa tkin, at p. 12; Kretzmer, at p. 193; D immunity from attack, is to be avoided ( see 29; and Parks, at p. 118). In the wide area between those two possibilities, one finds the ‘gray’ cases, about which customary international law has not yet crystallized. There is thus no escaping exam ination of each and every case.”). 246 § 2.3 ). (Humanity Refer to 230

258 has permanently ceased participation in hostilities must be based on a good faith assessment of 247 the available information. might have d in an iso lated instance of taking a direct part engage For example, a civilian d multiple acts , because taking a in hostilities. This isolated instance is likely to have involve include s deploying or moving to a position of attack and normally direct part in hostilities 248 exfiltrating from an atta ck. However, if this participation was an isolated instance that will military necessity after he or she has for attacking that person exists not be repeated, then no ceased taking a direct part in hostilities . Accordingly, t he civilian must not be made the object of after he or she has ceased taking a direct part in hostilities . However, there may be other attack . For example, such civilians may, legal consequences from this isolated instance of participation 249 depending on the circumstances, be detained, interned, or prosecuted because of these actions . 5.9.4.2 No “ Revolving Door ” Protection . The law of war, as applied by the United States, gives no “revolving door -and -on protection in a case ” protection; that is, the off and regains his or her protection from being made the object where a civilian repeatedly forfeits of attack depending on whether or not the person is taking a direct part in hostilities at that exact 250 time. Thus, for example, persons who are assessed to be engaged in a pattern of taking a direct part in hostilities do not regain protection from being made the object of attack in the time 251 . period between instances of taking a direct part in hostilities 247 Refer to § 5.4 (Assessing Information Under the Law of War ). 248 Refer to § 5.9.3.1 (Examples of Taking a Direct Part in Hostilities ). 249 ). Refer to § 4.18 (Private Persons Who Engage in Hostilities 250 Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Kenneth Watkin, See also J P Y ORK U NI VERSITY EW OURNAL OF I NTERNATIONAL L AW AND OLITICS Hostilities’ Interpretive Guidance , 42 N 641, 689 (2010) (“Further, on one level the term ‘revolving door’ evokes the idea of a form of carnival shooting . At some point, the gallery, where soldiers must wait until an opponent pops out from behind a door to be shot at credibility of the law begins to be undermined by suggesting an opponent can repeatedly avail themselves of such protection.”). 251 Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilit ies’ AW AND 641, 692 (2010) OLITICS EW Y ORK U NIVERSITY J OURNAL OF I NTERNATIONAL L P , 42 N Interpretive Guidance (“However, given the lack of credibility associated with the term, there can be no ‘revolving door’ of protection. After the first involvement, an y subsequent act demonstrating direct participation would start to provide the basis to believe that there is the beginning of a pattern of conduct that reflects an intention to regularly engage in the hostilities. Repetitious participation can be conside red in determining if such persons are in reality continuously engaged in hostilities. When such participation occurs, affirmative disengagement would be required in order to Cf. Bill Boothby, “And For Such Time establish that such persons are no longer direct participants in hostilities.”). OURNAL OF J EW Y ORK U NIVERSITY , 42 N As”: The Time Dimension to Direct Participation in Hostilities I NTERNATIONAL L AW AND P OLITICS 741, 765- 66 (2010) (“In my view, an alternative interpretation of the treaty language i s equally valid. According to this alternative view, the temporal element in the provision lies both in the phrase ‘unless and for such time’ and in the word ‘participates.’ ... If, however, a person engages in repeated acts of DPH, there is an evident arti ficiality in regarding that individual as having protected status during the intervals in between. Experience shows that during those periods a further act of direct participation by the persistent participator is likely to be in prospect, and the likelih ood is that during those intervals he will be preparing himself for the next act, checking his equipment, obtaining any additional equipment or stores he may require, -minded or otherwise involved individuals, refining his plan and s o on. While some such communicating with like activities may be DP in their own right, the more important point is that a person who is so engaged cannot be 231

259 A “ revolving door ” of protection would place these civilians who take a direct part in tilities on a better footi , who may be made the object of attack even hos ng than lawful combatants 252 when not taking a direct part in hostilities. The United States has strongly disagreed with give the so -called “farmer by posited rules of international law that, if accepted, would operate to 253 day, guerilla by night ” greater protections than lawful combatants. Adoption of such a rule would risk diminishing the protection of the civilian population. 5.9.5 Hostilities and the Law of War Civilians Who Take a Direct Part in . Although the concept of direct participation in hostilities may be discussed in contexts besides targeting, such as in the context of criminal liability or detention, there are often significant differences between “taking a direct part in hostilities ” for targeting purposes and the standards used for assessing whether a civilian may be detained or prosecuted . For example, w hether someone may be made the object of attack for taking a direct part m ay be prosecuted for his or her actions. In in hostilities is different from whether he or she criminal liability for support to enemy armed groups is much broader than some cases, domestic taking a direct part in hostilities. ” what acts constitute “ Similarly, the authority to detain enemy persons during wartime extends beyond 254 detaining those who have taken a direct part in hostilities. H AT ERSONS P LACED OMB ORS DE C P 5.10 may not be made the object of Persons, including combatants, placed hors de combat attack. Persons placed include the following categories of persons , provided hors de combat : they abstain from any hostile act and do not attempt to escape persons in the power of an adverse party ; • persons not yet in custody, who have surrendered; • persons who have been rendered unconscious or otherwise incapac itated by wounds , • sickness, or shipwreck; and • persons parachuting from aircraft in distress . Hors de Combat – Notes on Terminology . Hors de combat is a French phrase that 5.10.1 means “ out of the battle. ho may not be ” It is generally used as a term of art to mean persons w and who therefore must be treated made the object of attack because they are out of the fighting humanely . equated with a civilian who remains uninvolved in the conflict. To do so is to place at risk the respect, based on law, t o be accorded to the civilian population.”). 252 § 5.8.1 (Armed Forces and Groups and Liability to Being Made the Object of Attack ). Refer to 253 Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status ). 254 – POW Status During Detention (Combatants ); § 4.4.2 ). Refer to § 4.8.3 (Civilians – Detention 23 2

260 255 Hors de combat is used in Common Article and has 3 of the 1949 Geneva Conventions 256 been defined in Article 41 of AP I. Persons in the Power of an Adverse Party . Persons in the power of an adverse 5.10.2 party include all persons detained by an adverse party, such as POWs, unprivileged belligerents, civilian internees. As with other categories of persons hors de combat , retained personnel, and be considered hors de detainees must refrain from hostile acts or attempts to escape in order to 257 . combat Persons Who Have Surrende red . Persons who 5.10.3 are not in custody but who have 258 surrendered are hors de combat and may not be made the object of attack. In order to make a person hors de combat genuine ; (2) clear and unconditional; and (3) , the surrender must be (1) 259 under circumstances where it is feasible for the opposing party to accept the surrender. 5.10.3.1 Genuine . The offer to surrender must be genuine. In addition to being 260 perfidy . legally ineffective, feigning the intent to surrender can constitute 5.10.3.2 Clear and Unconditional . The offer to surrender must be clear and unconditional . Any ar ms being carried should be laid down. All hostile acts or re sistance, or manifestations of hostile intent, including efforts to escape or to destroy items, documents, or equipment to prevent their capture by the enemy , would need to cease immediately for the offer ’s hands to be clear and unconditional . Raising one ’s head to show above one that one is not 255 e part in the hostilities, including GWS art. 3(1) (requiring humane treatment for “[p]ersons taking no activ by sickness, wounds, members of armed forces who have laid down their arms and those placed hors de combat art. 3(1) (same); GPW art. 3(1) (same); GC art. 3(1) (same). EA -S detention, or any other cause”); GWS 256 . 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; (b) He clearly AP I art expresses an intention to surrender; or (c) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapabl e of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.”). 257 Consider AP I art. 41(2) (“A person is if: (a) He is in the power of an adverse Party; ... provided hors de combat that in any of these cases he abstains from any hostile act and does not attempt to escape.”). 258 H AGUE IV R EG . art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;”). AP I art. 41(2) (“A person is Consider hors de combat if: ... (b) He clearly expresses an intention to surrender; ... provided that in any of these cases he abstains from any hostile act and does not attempt to escape.”). 259 Harold Hongju Koh, Legal Adviser, Department of State, The Lawfulness of the U.S. Operation Against Osama 59 (“Finally, 558- IGEST OF U NITED S TATES P RACTICE IN I NTERNATIONAL L AW , May 19, 2011, 2011 D bin Laden consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and r eceived by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstance s presented here.”). 260 § 5.22.3 (Examples of Killing or Wounding by Resort to Perfidy ). Refer to 233

261 preparing to fire a weapon or engage in combat is often a sign of surrender. Waving a white flag 261 desire to negotiate. technically is not gn of surrender, but signals a a si 262 at discretion, ” A person who offers to , unconditional. The surrender must be “ i .e. hors de combat until that offer has been demands are met surrender only if certain would not be accepted. Under Circumstances t Is Feasible to Accept . For an offer of 5.10.3.3 in Which I s de combat hor , it must be feasible for the opposing party to accept surrender to render a person 263 offer. undefended ” (and thus the By way of comparison, a city may not be declared “ essentially surrendered) if it is not open for immediate physical occupation by opposing military 264 forces. The feasibility of accepting the surrender refers to whether it is practical and safe for the in the circumstances opposing force to take custody of the surrendering persons . For example, gun at an enemy consider the situation of and shoot enemy soldiers who man an antiaircraft raise their hands as if to surrender seconds before a second aircraft attack aircraft, and then who s . In the circumstances, it would not be feasible for the crew of the attacking aircraft their position 265 to land and accept their s urrender. a soldier fifty meters from an enemy defensive Similarly, position in the midst of an infantry assault by his unit could not throw down his weapon and raise his arms (as if to indicate his desire to surrender) and reasonably expect that the def ending unit urrender while resisting the on will be able to accept and accomplish his s going assault by his 266 unit. Although t he feasibility of accepting surrender includes consideration of whether it is feasible to take custody of the persons offering to surrender, this does not include consideration of whether it is feasible to care for detainees after taking custody . Offers to surrender may not be refused because it would be militarily inconvenient or impractical to guard or care for 267 detainees. 261 Refer to § 12.4 ). (The White Flag of Truce to Initiate Negotiations 262 AGUE R H . art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his IV EG ;”) (emphasis added). t discretion arms, or having no longer means of defence, has surrendered a 263 See F INAL R EPORT ON THE P ERSIAN G ULF W AR 629 (“Surrender involves an offer by the surrendering party (a unit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an o ffer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon – an attempt at surrender in the midst of a hard -fought battle is neither easily communicated nor received. The issue is one of reasonableness.”). 264 § 5.15.3.1 (Open for Immediate Physical Occupation ). Refer to 265 Refer to § 14.9.3.2 (Feasibility of Air Units to Accept the Surrender of Ground Forces ). 266 See S PAIGHT , W AR R IGHTS ON L AND 92- 93 (“A party in a trench must all surrender, genuinely and unmistakably, for a regiment, squadron, company or squad of men is not like a ship, which, when it ‘hath its bellyful of fighting,’ hauls down its colours and is clearly out of the fight. There is no such homogeneity in a unit in land war. ... It is the safest rule for a commander to pay no heed to a white flag which is hoisted, in the midst of an action, by a few men who form part of a more considerable force which still resists.”). 267 ). (Prohibition on Killing of POWs § 9.5.2.1 Refer to 234

262 Persons R , Sicknes s, 5.10.4 endered Unconscious or Otherwise Incapacitated by Wounds or Shipwreck. Persons who have been rendered unconscious or otherwise incapacitated by , sickness , are hors de , or shipwreck, such that they are no longer capable of fighting wounds 268 . combat Those “rendered unconscious” does not include persons who simply fall asleep. Sleeping 269 combatants generally may be made the object of attack. Shipwrecked combatants include those who have been shipwrecked from any cause and 270 t sea by or from aircraft. includes forced landings a who ha ve been incapacitated by wounds, sickness , or shipwreck are in a helpless Persons 271 . state, and it would be dishonorable and inhumane to make them the object of attack In order 272 hors de combat On , the person must be wholly disabled from fighting. to receive protection as the other hand, many combatants suffer from wounds and sickness, but nonetheless continue to 273 fight and would not be protected. In many cases, the circumstances of combat may make it difficult to distinguish between persons who have been incapacitated by wounds, sickness, or shipwreck and those who continue 268 Consider AP I art. 41(2) (“A person is hors de combat if: ... (c) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any any hostile act and does not attempt to escape.”). of these cases he abstains from 269 , For example , Judy G. Endicott, Raid on Libya: Operation E LDORADO C ANYON S in HORT OF W AR : M AJOR USAF C ONTINGENCY PERATIONS 1947– 1997 (A. Timothy Warnock, Air Force Historical Research Agency ed., 2 000) O C LDORADO E ANYON , in which the United States responded to the Berlin discotheque bombing (describing Operation by conducting air strikes on multiple Libyan targets — in the early hours of April —including two military barracks 15, 1986). 270 Refer to § 7.3.1.2 (Shipwrecked ). 271 GWS EA C OMMENTARY 87 (“[I]t must be pointed out that the purpose of this provision [i.e., the first paragraph -S -Sea], and in deed of the whole Convention, is to protect wounded, sick and shipwrecked of Article 12 of the GWS persons who, if they were not in this helpless state, could rightfully be attacked.”). 272 Cf. L IEBER C ODE art. 71 (“Whoever intentionally inflicts additional wounds on an enemy alread y wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.”). 273 136 footnote 1 (“Cases are frequent of soldiers who have heroically continued to fight in GWS C OMM ENTARY spite of serious wounds. It goes without saying that in so doing they renounce any claim to protection under the Convention.”). 235

263 274 to fight. If possible, those seeking protection as wounded, sick, or shipwrecked, should make 275 their condition clear. an Ai rcraft in Distress . In general, persons Persons 5.10.5 Parachuting From , such as aircrew or embarked passengers , parachuting from an aircraft in distress are treated as though 276 i.e. , hors de combat they are , they must not be made the object of attack. This protection is provided because a person descending by parachute is temporarily hors 278 277 de combat just like someone who is shipwrecked or unconscious. 5.10.5.1 No Hostile Acts or Attempts to Evade Capture . As with other categories of persons hors de combat , the protection from being made the object of attack is forfeited if the persons engage in hostile acts or attempt to evade capture. slipping Routine “ ” to steer a parachute or similar actions to facilitate a safe parachute landing do not constitute acts of evasion. nto Com bat by Parachute . Persons deploying into Persons Deploying I 5.10.5.2 combat by parachute may be attacked throughout their descent, and upon landing. Persons deploying into combat by parachute may include special operations or rne forces ( i.e. , specialized combat reconnaissance personnel, combat control teams, or airbo . forces trained to arrive at military objectives by parachute drops) 274 -S EA C OMMENTARY 90 (“[D]u GWS ring a landing by armed forces it will not always be possible while the attack is in progress to distinguish between an attacker trying to reach land and a soldier in danger of drowning. Similarly, in the case of persons specialized in under -water attacks , it may not always be evident when they are in peril and need assistance as shipwrecked. In such instances, persons in distress who renounce active combat can only expect the adversary to respect and rescue them if they make their situation clear, and of course provided the adversary sees their signals.”). 275 § 5.10.3.2 (Clear and Unconditional ). Compare 276 1956 FM 27- 10 (Change No. 1 1976) ¶30 (“The law of war does not prohibit firing upon paratroops or other persons who are or appear to be bound upon hostile missions while such persons are descending by parachute. Persons other than those mentioned in the preceding sentence who are descending by parachute from disabled PPENDIX TO 1985 CJCS M EMO ON AP I 31 (“Article 42 of the Protocol prohibits aircraft may not be fired upon.”); A attacks on aircrew members descending by parachute from disabled aircraft. The United States regards such attacks as prohibited under customary international law, and the US delegation argued for explicit recognition of such a rule at the diplomatic conference which negotiated the Protocol.”). Consider AP I art. 42 (“1. No person parachuting from an aircraft in distress shall be made the object of attack during his descent. ... 3. Airborne troops are not protected by this Article.”); Commission of Jurists to Consider and Report Upon the Revision of the Rules of General Report, Part II: Rules of Aërial Warfare , art. 20, Feb. 19, 1923, reprinted in 32 AJIL Warfare, OCUMENTS S O FFICIAL D : 12, 21 (1938) (“When an aircraft has been disabled, the occupants, when UPPLEMENT endeavoring to escape by means of a parachute, must not be attacked in the course of their descent.”). 277 ICRC AP C OMMENTARY 495 (¶1637) (“There is absolutely no doubt that the majority [of States at the diplomatic conference] considered that airmen in distress are comparable to the shipwrecked persons protected by the Second Convention.”). 278 ICRC parachutes from an aircraft in distress is therefore C OMMENTARY 497 (¶1644) (“The airman who AP hors de combat temporarily , just as if he had lost consciousness, until the moment that he lands on the ground, and as long as he is incapacitated.”). 236

264 Persons deploying into combat by parachute may be attacked even if they deploy from an aircraft in distress ( t to resist the assault). e.g. , the enemy has attacked the aircraf It may be the case, however, that airborne forces are parachuting from an aircraft in . Since they would not be “deploying into distress outside the context of an airborne assault while descen combat, by parachute. hors de combat ” they would be ding F 5.11 R P ONDUCTING A TTACKS TO R EDUCE THE C ISK OF H AR M TO EASIBLE RECAUTIONS IN ROTECTED P ERSONS AND O BJECTS P take feasible precautions in conducting attacks to reduce the risk of Combatants must 279 . harm to civilians and other protected persons and objects As discussed above, what 280 precaution s are f easible depend greatly on the context, including operational considerations. Feasible precautions in conducting attacks may include the following: Effective Advance Warning Before an Attack That May Affect the Civilian 5.11.1 ffective advance warning must be given of an attack that may affect the civilian Population. E 281 population, unless circumstances do not permit. In addition, warning requirement s exist before certain medical units, vessels, or facilitie s ing made the object of attack: forfeit their protection from be 279 See H AGUE IV R EG art. 27 (“In sieges and bombardm ents all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military AGUE art. 5 (“In bombardments by naval forces all the necessary measures must be taken by the IX purposes.”); H 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 Letter to are not used at the same time for military purposes.”); Harold Koh, Legal Adviser, Department of State, Paul Seger, Legal Adviser of Switzerland regarding Switzerland’s Position on the U.S. Reservation to Protocol III of the Convention on Certain Conventional Weapons , Dec. 30, 2009 (“In particular, the U.S. reservation is Additional Protocol I to the Geneva Conventions. consistent with article 57(2)(ii) and article 57(4) of the 1977 Article 57(4) provides that governments shall ‘take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.’ Although the United States is not a party to Additional Pro tocol I, we believe these Consider AP I provisions are an accurate statement of the fundamental law of war principle of discrimination.”). art. 57(2) (“With respect to attacks, the following precautions shall be taken: (a) Those who plan or decide upon a n attack shall: ... (ii) Take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;”); AP I art. 5 7(4) (“In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”). 280 Refer to § 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other Protec ted Persons and Objects ). 281 H AGUE IV R EG . art. 26 (“The officer in command of an attacking force must, before commencing a IX art. 6 (“If the AGUE bombardment, except in cases of assault, do all in his power to warn the authorities.”); H military situation permits, the commander of the attacking naval force, before commencing the bombardment, must art. 19 (“Commanders, whenever admissible, inform the IEBER C ODE do his utmost to warn the authorities.”); L enemy of their intention to bombard a place, so that t he noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to AP I art. 57(2)(c) (“Ef inform the enemy. Surprise may be a necessity.”). Consider fective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”). 237

265 282 • militar y medical units and facilities; 283 ground medical transports; • 284 • hospital ships and sick- bays in warships; 285 civilian hospitals; and • 286 civilian hospital convoys. • 5.11.1.1 Effective Advance Warning . There is no set form for warnings. general , communicated to the national leadership of the enemy State , or Warnings may be operations (such as delivered to the civilian population through military information support broadcast or leaflets) advising th e civilian population of risk of injury if they remain near 287 an attack is not required. military objectives. Giving the specific time and place of Warnings have been used by U.S. forces conflicts, conducting bombardments in many 288 290 289 , and the armed conflict against t he Korean War the 2003 Iraq War, such as World War II, 291 al-Qaida, the Taliban, and associated forces . 282 Refer to § 7.10.3.2 (Due Warning Befo re Cessation of Protection ). 283 Refer to § 7.11.1 (Protection of Ground Medical Transports on the Same Basis as That of Medical Units ). 284 Refer to § 7.12.6.1 (Due Warning Before Cessation of Protection ). 285 ). Refer to § 7.17.1.2 (Due Warning Before Cessat ion of Protection 286 § 7.18.1 (Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian Hospitals ). Refer to 287 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of RACTICE IN P IGEST OF U NITED S TATES , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region I NTERNATIONAL L AW 1991- 1999 2057, 2064 (“A warning need not be specific. It may be a blan ket warning, delivered by leaflets and/or radio, advising the civilian population of an enemy nation to avoid remaining in proximity to military objectives.”). 288 R For example , S PAIGHT , A IR P OWER AND W AR IGHTS 242 (“An hour and a half before the Skoda armam ent works at Pilsen in Czechoslovakia were attacked by Flying Fortresses of the 8th U.S.A.A.F. on 25 April, 1945, Supreme Allied Headquarters broadcast the following warning: ‘Allied bombers are out in great strength to -day. , A IR PAIGHT Skoda works. Skoda workers get out and stay out until the afternoon.’”); S Their destination may be the OWER AND P AR R IGHTS 243 (“Before objectives in the French town of Annecy were bombed on the night of 9 W May, 1944, the alert was sounded by an Allied plane equipped with a siren. It cruised over the town for twenty minutes before the first bombers arrived, with the result that the inhabitants had time to seek shelter and only those who disregarded the warning were injured.”). 289 For example , Report of the United Nations Command Operations in Korea for the Period 1- 15 July 1952, enclosure to Note Dated 8 October 1952 From the Representative of the United States Addressed to the Secretary - General Transmitting the Forty -Ninth Report of the United Nations Command Operations in Korea in Accordance with the Security Council Resolution of 7 July 1950 (S/1588 ) , U.N. Doc. S/2805 (Oct. 9, 1952) (“For approximately one month prior to the raid on Pyongyang and other main supply targets, the United Nations Command aircraft had dropped l eaflets warning civilians to stay away from military targets. Immediately after the strikes more leaflets were dropped telling civilians to beware of delayed action bombs and to stay away from bomb craters. Every precaution was taken to attack only military targets and to prevent injury to non -combatants. ... In consonance with the United Nations policy of taking every possible step both to restore peace and to prevent needless loss of life, United Nations Command leaflets and radio broadcasts are being used continually to warn civilians in enemy- 238

266 5.11.1.2 . The purpose of warning is to That May Affect the Civilian Population facilitate the protection of the civilian population so that they can take measures to avoid the dangers inherent in military operations. If the civilian population will not be affected, then there 292 is no obligation to provide a warning. . These circumstances include 5.11.1.3 Unless Circumstances Do Not Permit , such as exploiting legitimate military reasons the element of surprise in order to provide for 293 mission accomplishment and preserving the security of the attacking force. Adjusting the Timing of the Attack . Adjusting the timing of an attack may reduce 5.11.2 the risk of incident when civilians are less al harm. For example, attacking a military objective 294 may be appropriate likely to be present . Similarly, it may be appropriate to wait until enemy forces have departed from populated areas before attacking such forces in order to reduce the 295 risk of civilian casualties. Selecting Weapon s (Weaponeering) . Depending on the circumstances, the use of 5.11.3 certain weapons rather than others may lower the risk of incidental harm , while offering the same or superior military advantage in neutralizing or destroying a military objective . occupied northern Korea to move away from places where the Communists have concentrated war material factories and military equipment, supplies and personnel. These warnings are a humanitarian measure taken to mini mize civilian loss of life in United Nations Command attacks on military targets.”). 290 For example , Jim Garamone, Coalition Aircraft “Paper” Iraq With Leaflets , A MERICAN F ORCES P RESS S ERVICE , Mar. 19, 2003 (stating that Coalition forces “dropped almost 2 m illion leaflets over Iraq” that “warned Iraqis to stay away from military targets”). 291 For example , Jim Garamone, U.S. Commando Solo II Takes Over Afghan Airwaves , A MERICAN F ORCES P RESS S ERVICE , Oct. 29, 2001 (describing the Commando Solo II flights that u se broadcasts “to warn the Afghan population to stay away from Taliban and Al Qaeda targets,” including one broadcast that warns civilians to “‘[s]tay away from military installations, government buildings, terrorist camps, roads, factories or bridges’”). 292 G , M ODERN L AW OF L AND W ARFARE 338- 39 (“Naturally, there is no obligation to give notice where REENSPAN no civilians remain, and only the military will come under fire.”). 293 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of RACTICE IN IGEST OF U NITED S TATES P , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region 2057, 2064 (“The ‘unless circumstances do not permit’ recognizes the importance NTERNATIONAL AW 1991- I L 1999 of the element of surprise. Where surprise is important to mission accomplishment and allowable risk to friendly forces, a warning is not required.”). 294 For example , F INAL R EPORT ON THE P ERSIAN G ULF W AR 100 (noting that during Operation D ESERT S TORM “attacks on known dual (i.e., military and civilian) use facilities normally were scheduled at night, because fewer people would be inside or on the streets outside.”). 295 For example , F INAL R EPORT ON THE P ERSIAN G ULF W AR 631 (“The concentration of Iraqi military personnel and vehicles, inc luding tanks, invited attack. CINCCENT decided against attack of the Iraqi forces in Kuwait City, since it could lead to substantial collateral damage to Kuwaiti civilian property and could cause surviving Iraqi units to decide to mount a defense from Kuwa it City rather than depart. Iraqi units remaining in Kuwait City would cause the Coalition to engage in military operations in urban terrain, a form of fighting that is costly to attacker, defender, was made to permit Iraqi forces to leave Kuwait City and innocent civilians, and civilian objects. The decision engage them in the unpopulated area to the north.”). 239

267 For example, it may be advantageous to employ incendiary weapons in attacking an adversary biological weapons so as to prevent the biological agents from ’s repository of 296 the civilian popul adversely affecting ation. , it may be Similarly, under certain circumstances advantageous to use -guided munitions to minimize the risk of or precision cluster munitions 297 incidental harm . As with other precautions, the decision of which weapon to use will be subject to many effectiveness, cost, and the need to preserve capabilities for practical considerations, including other engagements. Thus, there would be few, if any, instances in which the use of a particular 298 -guided munitions or cyber t ools , weapon system , such as precision the only legally would be 299 permissible weapon . Identifying Zones in Which Military Objectives Are More Likely to Be Presen t or 5.11.4 Civilians Are Likely to Be Absent . Identifying and designating zones in which military objectives are more likely to be present or civilians are likely to be absent may also reduce the risk of harm to civilians or other protected persons and objects. For example, attacks in areas in which civilians are present might be subject to greater 300 restrictions Similarly, it may be possible to identify areas in which objects of the greatest . 296 Refer to § 6.14 (Incendiary Weapons ). 297 U For example , W. H ays Parks, Linebacker and the Law of War , A IR NIVERSITY R EVIEW (Jan. -Feb. 1983) (During the Vietnam War, the North Vietnamese placed “AAA gun positions, ground -controlled intercept (GCI) to-air missile (SAM) sites atop or adjacent to di radar, and surface- kes, and storing POL [petroleum, oil, and lubricants] alongside or on top of dikes as a shield against attack. All were legitimate targets. ... When [the air defenses] were finally authorized for attack during Linebacker I, it was with the stipulation that the targets were to be attacked with weapons that would minimize the risk of structural damage to the dikes. This was accomplished § 6.13.2 Refer to (Use of through the use of napalm, strafing, cluster munitions, and other antipersonnel weapons.”). Cluster Munitions to Reduce the Risk of Incidental Harm ); § 6.14.3.2 (U.S. Reservation t o CCW Protocol III on Incendiary Weapons ). 298 Refer to § 14.9.2 (Selection of Weapons in Conducting Attacks From the Air Against Ground Military 16.5.3.1 Objectives (Cyber Tools as Potential Measures to Reduce the Risk of Harm to Civilians or Civilian ); § ). Objects 299 ANUAL G See, e.g. M , 2013 ¶1117 (“The law of armed conflict (LOAC) contains no obligation to use ERMAN precision guided ammunition. There may however be situations in which the obligation to discriminate between military targets and civilians/civilian objects or the obligation to avoid or minimise collateral damage cannot be USTRALIAN M ANUAL ¶8.38 fulfilled without the use of such weapons.”) (internal cross -reference omitted); 2006 A (“The existence of precision -guided weapons, such as GBU 10 and Harpoon missiles, in a military inventory does not mean that they must necessarily be used in preference to conventional weapons even though the latter may cause collateral damage. In many cases, conventional weapons may be used to bomb legitimate military targets without violating the LOAC requirements. It is a command decision as to which weapon to use. This decision will be guided by the basic principles of the LOAC: military necessity, avoidance of unnecessary suffering and ¶527(1) (“With the advent of modern technology many armed forces ANUAL C ANADIAN M 2001 proportionality.”); are now able to deliver weapons on target with much greater precision. However, states are not limited to the use of precision weapons and munitions. An attack by conventional, free -fall weapons or ‘dumb’ bombs is lawful provided that the overriding princ iples of proportionality and superfluous injury/unnecessary suffering as well as other applicable rules are not violated.”). 300 For example , General Petraeus, Unclassified Excerpts from Tactical Directive , Aug. 1, 2010, reprinted in General Petraeus Issues Updated Tactical International Security A ssistance Force – Afghanistan, Headquarters, Aug. 4, 2010 (“Prior to the use of fires, the commander Directive: Emphasizes “Disciplined Use of Force,” 240

268 military importance are located and to place additional restrictions on attack s conducted outside 301 . these areas in order to limit unnecessary destruction AP I Provision on Choice Possible Between Several Military Objectives . AP I 5.11.5 provides that “ [w]hen a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be 302 t danger to civilian lives and to civilian objects. ” expected to cause the leas The United States 303 has expressed the view that this rule is not a requirement of customary international law. 5.12 P ROPORTIONALITY IN C ONDUCTING A TTACKS ts must refrain from attacks in which t he exp ected l oss of life or injury to Combatan civilians , and damage to civilian objects incidental to the attack , would be excessive in relation 304 to the concrete and direct military advantage expected to be gained. This is commonly called the proportionality rule. approving the strike must determine that no civilians are prese nt. If unable to assess the risk of civilian presence, fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational This directive, as with the security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) previous version, does not prevent commanders from protecting the lives of their men and women as a matter of self -defense where it is determined no other options are available to effectively counter the threat.).”); U.S. Military Operations: Rules of Engagement for the ILITA RY A SSISTANCE C OMMAND V IET -N AM D IRECTIVE 525- 13, M NITED U IGEST OF reprinted in 1975 D , ¶5g (May 1971), Employment of Firepower in the Republic of Vietnam RACTICE IN I S TATES P ied Strike Zones (SSZ). An area designated for a 814, 815 (“Specif NTERNATIONAL L AW specific period of time by Government of South Viet -Nam (G.V.N.) RVNAF [Republic of Vietnam Armed Forces] in which there are no friendly forces or populace and in which targets may be attacked on the initiative of U.S./FWMAF/RVNAF commanders. SSZ will not be referred to as ‘Free Fire Zones.’ Furthermore, the term ‘Free Fire Zone’ will not be used under any circumstances.”). 301 For example , M ALCOLM W. C AGLE & F RANK A. M ANSON , T HE S EA W AR IN K OREA 97 (1957) ( “Vice Admiral Struble’s orders to the bombardment forces clearly specified that there should be no promiscuous firing at the city itself or at civilian installations. To achieve this, the entire objective area had been divided into 60 sub -areas. Known mi litary targets had been previously assigned, and those which offered the greatest potential hazard to our landing troops were circled in red. It had been agreed that any ship could fire into a red -circle area with or without a ‘spot.’ In the uncircled ar eas, however, firing was permitted only if definite targets were found and an air spot was available. This differentiation between types of areas was adopted to reduce destruction of nonmilitary targets to a ion forces, and to avoid injury to civilian personnel. ‘The Seoul minimum, to save the city of Inchon for occupat - Inchon area is inhabited by our South Korean Allies,’ said Struble in an order to his forces, ‘and our forces plan to utilize facilities in this area. Unnecessary destruction will impede o ur progress. Bombing and gunfire will be confined to targets whose destruction will contribute to the conduct of operations – accurate gunfire and pinpoint bombing against specific targets, rather than area destruction, is contemplated.”). 302 AP I art. 57(3). 303 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of IGEST OF U NITED S TATES P RACTICE IN , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region 2057, 2064 (“Paragraph 4B(4) contains the language of Article 57(3) of Protocol I, I L AW 1991- 1999 NTERNATIONAL and is not a part of customary law. The provision applies ‘when a choice is possible ... ;’ it is not mandatory. An attacker may comply with it if it is possible to do so, subject to mission acc omplishment and allowable risk, or he may determine that it is impossible to make such a determination.”) (amendment shown in Digest). 304 1956 FM 27- 10 (Change No. 1 1976) ¶41 (“loss of life and damage to property incidental to attacks must not be in relation to the concrete and direct military advantage expected to be gained. Those who plan or decide excessive upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as 241

269 General Notes on Applying the Proportionality Rul . In 5.12.1 e in Conducting Attacks only need be applied when civilians or civilian conducting attacks, the proportionality rule It would not apply whe n civilians objects are at risk of harm from attacks on military objectives. 305 . or civilian objects are not at risk Types of Harm – Loss of Life Damage. The proportionality rule in 5.12.2 , Injury, and conducting attacks loss of life , injury, and damage to property. Lesser forms of harm, addresses or temporary losses, need not be considered in applying the such as mere inconveniences 306 proportionality rule. 5.12.2.1 Remote Harms . R emote harms resulting from the attack do not need to be considered in a proportionality analysis. For example, the death of combatant an enemy might cause economic harm to his or her family , or the destruction of a tank factory might cause in the form of lost jobs ; the attacker would not be required to consider such loss economic harm 307 in applying the proportionality rule. Similarly, the attacker would not be required to consider in the proportionality analysis the possibility that a munition might not detonate as intended and 308 . might injure civilians much later after the attack because the risk of such harm is too remote laces within the meaning of the preceding paragraph but also that these objectives military objectives or defended p may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated.”). Consider AP I art. 51(5)(b) (considering as a prohibited indiscriminate attack “[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct m ilitary advantage anticipated.”); AP I art. 57(2)(a)(iii) (requiring that those who plan or decide upon an attack “[r]efrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”). 305 Refer to (Force Th at May Be Applied Against Military Objectives ). § 5.5.6 306 See Yoram Dinstein, Distinction and Loss of Civilian Protection in International Armed Conflicts , 84 U.S. N AVAL W AR C OLLEGE I NTERNATIONAL L AW S TUDIES , 183, 186 (2008) (“Yet it must be borne in mind that not every inconvenience to civilians ought to be considered relevant. In war -time, there are inevitable scarcities of foodstuffs and services. Indeed, food, clothing, petrol and other essentials may actually be rationed; buses and trains may not run on tim e; curfews and blackouts may impinge on the quality of life; etc. These do not count in the H. 370 (2012) (“Issues of ARGETING T ILLIAM B OOTHBY , T HE L AW OF W calculus of proportionality.”). Cf. proportionality do not of course arise where there is no attac k. Thus where soft attack methods are adopted resulting, perhaps, in inconvenience but neither injury nor damage, there is no requirement to consider that inconvenience when deciding whether, and if so how, to undertake the military operation.”). 307 For ex ample , Rear Admiral Thomas Wilson, Director of Intelligence, Joint Staff, DoD News Briefing , Apr. 22, 1999 (“Krusevac tractor plant in Serbia was a new target. You can see here assembly and engineering buildings or parts for tanks and APCs as well as for civilian vehicles, and we which were involved in manufacturing support had moderate to severe physical damage to these facilities with functional damage assessments being made at this time. ... Q: At the Yugo factory there are tens of thousands of Yugoslav workers that can’t work. I take it the tractor factory will put thousands out of work. Is that an intended strike against the economy of Milosevic? Rear Admiral Wilson: The intent of the strike was to destroy their ability to sustain and repair milita ry vehicles. It’s an unfortunate consequence of the leadership's decision to pursue their policies that’s impacting the Yugoslav people.”). 308 , Legal Issues Regarding Explosive Remnants Of War , Group of Government Experts of Christopher Greenwood States Pa rties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, CCW/GGE/I/WP.10 (2002) 8 (“If, for example, cluster weapons are used against military targets in an area where 242

270 5.12.2.2 E nemy A ction, or B eyond the C ontrol of E ither Harm Resulting From . Persons or objects harmed through action directly attributable to enemy action, or beyond Party , would be excluded from the attacking force ’s proportionality analysis. the control of either party For example, civilians in jured or killed by enemy air defense measures, such as spent -to-air measures or antiaircraft projectiles , would not be considered in the attacking surface 309 force Similarly, the risk that the attacking force ’s munitions would ’s proportionality analysis. be diverted from their intended target by legitimate deception activities of the opposing force, such as jamming, smoke , would not need to be considered in the attacking force ’s , or chaff proportionality analysis . Harm to Certain Cat egories of Persons and Objects That is Understood No t to 5.12.3 Prohibit Attacks Under the Proportionality Rule . Harm to the following categories of persons : (1) and objects would be understood not to prohibit attacks under the proportionality rule military objectives; (2) certain cat egories of individuals who may be employed i n or on military objectives ; and (3) human shields . 5.12.3.1 Harm to Military Objectives . Harm to m ilitary objectives, including enemy combatants and military equipment , need not , civilians taking a direct part in hostilities, be considered in a proportionality analysis. For example, an attack against an enemy combatant might also injure other enemy combatants who were not the specific targets of the attack. Harm to these individuals or damage to military objectives w ould not need to be taken into account in applying the proportionality rule , even if this harm was an unintended result of the attack. 5.12.3.2 Who May Be Employed In or O n Military Harm to Certain Individuals . Harm to certain persons who may be employ ed in or on military objectives would be Objectives understood not to prohibit attacks under the proportionality rule . These categories include: 310 persons authorized to accompany • the armed forces; portionality test may require that account be taken both of the risk to the there are known to be civilians, then the pro civilians from sub -munitions in the -munitions exploding during the attack and of the risk from unexploded sub hours immediately after the attack. It is an entirely different matter, however, to require that account be taken of the longer -term risk posed by [Explosive Remnants of War (ERW)], particularly of the risk which ERW can pose after a conflict has ended or after civilians have returned to an area from which they had fled. T he degree of that risk turns on too many factors which are incapable of assessment at the time of the attack, such as when and whether civilians will be permitted to return to an area, what steps the party controlling that area will have taken to clear une xploded ordnance, what priority that party gives to the protection of civilians and so forth. The proportionality test has to be applied on the basis of information reasonably available at the time of the attack. The risks posed by ERW once the immediate aftermath of an attack has passed are too remote to be capable of assessment at that time.”). 309 See, e.g. , F INAL R EPORT ON THE P ERSIAN G ULF W AR 177- 78 (During the 1991 Gulf War, “[t]here is also a probability that some [incidental civilian] casualties occ urred when unexploded Iraqi SAMs [surface -to-air missiles] or AAA [antiaircraft artillery] fell back to earth. The often dense fire the Iraqis expended in attempts to shoot down Coalition aircraft and cruise missiles almost certainly caused some destructi on on the ground from malfunctioning fuses or self -destruction features, as well as the simple impact of spent rounds.”). 310 (Increased Risk of Inciden ). tal Harm Refer to § 4.15.2.3 243

271 311 • ; and parlementaires civilians workers who place themselves i knowing that it is • n or on a military objective, 312 . susceptible to attack, such as workers in munitions factories These persons are deemed to have assumed the risk of incidental harm from military operations. Moreover, the law of war accepts that the defender may employ these persons to support military operations near or within military objectives. If these persons could have the attacking force, then the defending force that use d such effect of prohibiting attacks by the litary objectives would be unlawfully using the presence persons in proximity to its forces or mi 313 of such persons to shield its operations or its military objectives from attack. 5.12.3.3 . Use of human shields violates the rule that Harm to Human Shields 314 civilians may not be used to shield, favor, or i mpede military operations. The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury, provided that the attacker takes feasible precautions in conducting 315 its attack. 311 § 12.5.3 (Duties and Liabilities of the Parlementaire ). Refer to 312 See 2007 NWP 1- 14M ¶8.3.2 (“The presence of civilian workers, such as technical represen tatives aboard a warship or employees in a munitions factory, in or on a military objective, does not alter the status of the military EW N OTHE , P ARTSCH , & S OLF , objective. These civilians may be excluded from the proportionality analysis.”); B R P I art. 51, ¶2.4.2.2) (During international armed conflict, workers in defense plants or those engaged ULES 303 (A in distribution or storage of military supplies in rear areas “assume the risk of incidental injury as a result of attacks Draft Rules for the Limitation against their places of work or transport.”); International Committee of the Red Cross, 1956) (“Nevertheless, should Sept. , art. 6(3), 9 ( of the Dangers Incurred by the Civilian Population in Time of War withstanding, be within or in close proximity to a military members of the civilian population, Article 11 not objective they must accept the risks resulting from an attack directed against that objective.”). 313 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military ). Operations 314 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military ). Operations 315 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of U RACT IGEST OF NITED ICE IN S TATES P , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region NTERNATIONAL L AW 1991- 1999 2057, 2063 (“In no case may a combatant force utilize individual civilians or the I civilian population to shield a military objective from attack. A nation that utilizes civilians to shield a target from attack assumes responsibility for their injury, so long as an attacker exercises reasonable precaution in executing its operations. Likewise, civilians working within or in the immediate vicinity of a legitimate military objective assume EPARTMENT OF THE A RMY S UBJECT , ¶3g, Appendix C in D a certain risk of injury.”); Instructor Training Course S CHEDULE 27- 1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907 , 18 (Aug. 29, 1975) (“(4) Question: Suppose we are receiving fire from the enemy, and they are using unarmed civilians as shields. May we Yes. We may fire since we fire back, knowing that we will be killing many of these unarmed cilivians? Answer: have the right to defend ourselves. The responsibility for innocent casualties falls upon those who would violate the law of war by using innocents as shields.”). 244

272 If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow 316 violations by the defending force to increase the legal obligations on the attacki ng force. “Excessive” 5.12.4 . Under the proportionality rule, the potential attack against the military objective is prohibited only when the expected incidental harm is excessive compared to the military advantage to be gained. The weighing or comparison betw een the expected incidental harm and the expected 317 not necessarily lend itself to empirical analyses. On the one hand, military advantage does striking an ammunition depot or a terrorist training camp would not be prohibited because a 318 farmer is plowing a field in the area. military advantage On the other hand, a very significant 319 In less would be necessary to justify the collateral death or injury to thousands of civilians. clear -cut cases, the question of whether the expected incidental harm is excessi ve may be a 320 ended legal inquiry, and the answer may be subjective and imprecise. highly open- 316 § 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Du ty to Refer to ). Discriminate in Conducting Attacks 317 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia , ¶48 (Jun. 13, 2000) (“The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral tunately, most applications of the principle of proportionality are not quite so clear cut. It is much effects. ... Unfor easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.”). 318 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO B ombing Campaign Against the Federal Republic of Yugoslavia , ¶48 (Jun. 13, 2000) (“For example, bombing a refugee camp is obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers. Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a (“Accepting at face value for the sake of legal 65 OGERS , L AW ON THE B ATTLEFIELD 64- field in the area.”); R lorry and a busload of soldiers also killed a small boy in a analysis a press report of a pilot whose attack on an army civilian car, this could not be said to have violated the proportionality principle.”). 319 See, e.g. , G REENSPAN , M ODERN L AW OF L AND W ARFARE 335 (“[A]n attack on a war factory which is known to be of minor importance cannot justify the incidental destruction of the whole town where it is situated.”). For C AR W AVAL N OLLEGE , 68 U.S. The 1977 Protocols to the Geneva Convention of 1949 , W. Hays Parks, example S (“During the Vietnam War, for example, the North Vietnamese I NTERNATIONAL L AW 467, 470 (1995) TUDIES installed substantial concentrations of antiaircraft guns and missiles on the earthware dikes and dams surrounding warranted airstrikes against these positi ons. However, attack of the Military necessity Haiphong and Hanoi. positions with conventional ordnance would destroy not only the enemy positions but the dams as well. This would result in massive flooding and in the probable deaths of several hundred thousand civilians, a cost U.S. authorit ies concluded was disproportionate to the military advantage to be gained. When the mission finally was approved by President Nixon, it was executed with a clear proviso that only antipersonnel bombs, capable of neutralization of the stantial damage to the dikes, would be used.”). positions without sub 320 Statement of Interest of the United States of America , Matar v. Dichter, 05 Civ. 10270 (WHP) (S.D.N.Y. Nov. 17, 465, 471- 72 (“Along similar lines, D IGEST OF U NITED S TATES P RACTICE IN I NTERNATIONAL L AW 2006), 2006 , that ‘[t]hose who plan or decide upon plaintiffs cite Article 57 of Additional Protocol I, which provides, inter alia an attack shall ... [r]efrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, in jury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ Additional Protocol I, Art. 57, cl. 2(a)(iii). 245

273 “Concrete and ilitary A dvantage Expected to B e G ained ”. The expected 5.12.5 Direct M concrete and military advantage gained from attacking a particular military objective must be “ .” direct “definite military advantage ” in the definition of The considerations in assessing a ” are also relevant in assessing the “ “military objective concrete and direct military advantage 321 expected to be gained. There is no requirement that ” immediate. ” the military advantage be “ However, the military advantage may not be merely hypothetical or speculative. Similarly, “military advantage ” is not restricted to immediate tactical gains, but may be assessed in the full 322 context of war strategy. T he military advantage anticipated from an attack is intended to refer to an attack considered as a whole, rather than only from isolated or particular parts of an 323 attack. : (1) de nying the Military advantage may involve a variety of considerations, including s effective contribution to its military action ( e.g. , enemy the ability to benefit from the object’ using this object in its military operations); (2) improving the security of the attacking force; and (3) diverting the enemy ’s resources and attention. Again, the rub lies in determining what counts as ‘excessive.’ Any number of intangibles must be [c]onsidered: How important is the military objective sought to be achieved? What are the pros and cons of each option available to achieve that objective? For each option, what is the probabi lity of success? What are the costs of failure? What are the risks of civilian casualties involved in each option? What are the risks of military casualties involved in each option? How are casualties of either kind to be weighed against the benefits o f the operation? In short, questions of proportionality are highly open -ended, and the answers to them tend to be subjective and imprecise.”). 321 nite Military Advantage Refer to § 5.7.7.3 (Defi ). 322 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of U NITED S TATES P RACTICE IN IGEST OF , Jan. 11, 1991, D International Humanitarian Law in the Gulf Region NTERNATIONAL L AW 1991- 199 9 2057, 2064 (“The concept of ‘incidental loss of life excessive in relation to the I INAL R EPORT For example military advantage anticipated’ generally is measured against an overall campaign.”). , F P G ULF W AR 611 (“An uncodified but similar provision is the principle of proportionality. It ERSIAN ON THE prohibits military action in which the negative effects (such as collateral civilian casualties) clearly outweigh the military gain. This balancing may be done on a target -by -target basis, as frequently was the case during Operation Desert Storm, but also may be weighed in overall terms against campaign objectives.”). 323 Statement on Ratification of AP I , Jan. 28, 1998, 2020 UNTS 75, 77 (“ United Kingdom, Re: Article 51 and Article 57 In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.”); Australia, Statement on Ratification of AP I , Jun. 21, 1991, 1642 UNTS 473 (“In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia that references to the military attack considered as a whole ‘military advantage’ are intended to mean the advantage anticipated from the and not only from isolated or particular parts of that attack ... .”); Germany, Statement on Ratification of AP I , Feb. 14, 1991, 1607 UNTS 526, 529 (“In applying the rule of proportionality in Article 51 and Article 57, 'military advantage' is understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.”); Netherlands, Statement on Ratification of AP I , Jun. 26, 1987, 1477 UNTS 300 ( “With regard to Article 51, paragraph 5 and Article 57, paragraphs 2 and 3 of Protocol I: It is the understanding of the Government of the Kingdom of the Netherlands that military advantage refers to the advantage a whole and not only from isolated or particular parts of the attack ... .”). anticipated from the attack considered as 246

274 A 5.13 ON F ACILITIES , W ORKS , OR I NSTALLATIONS C ONTAINING D ANGEROUS F ORCES TTACKS Certain facilities containing dangerous forces, such as dams, nuclear power plants, or facilities producing weapons of mass destruction, may constitute military objectives. There may be a number of reasons for their attack, such as denial of electric power to military sources, use to damage or destroy other military of a dangerous facility ( , by causing release from a dam) e.g. angerous forces to hamper the movement or -empt enemy release of the d objectives, or to pre 324 advance of U.S. or allied forces. Attack of facilities, works, or installations containing dangerous forces, such as dams, nuclear power plants, or facilities producing weapons of mass destruction, is permissible so long as it is conducted in accordance with other applicable rules, including the rules of discrimination 325 and proportionality. In light of the increased potential magnitude of incidental harm, additional precautions, such as weaponeering or timing the attack such that weather conditions would minimize dispersion of dangerous materials , may be appropriate to reduce the risk that the 326 release of these dangerous forces may pose to the civilian population. Provisions on Works and Installations Contai . Article 5.13.1 AP I ning Dangerous Forces 56 of AP I provides special rules for works and installations containing dangerous forces. For [w]orks or installations containing dangerous forces, namely dams, dykes and nuclear example, “ electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent immunity severe losses among the civilian population.” In addition, Article 56 of AP I provides from attack to combatants and military equipment stationed or placed around works and “for the sole purpose of defending the protected installations containing dangerous forces works.” 327 The United States has objected to this article of AP I. In ratifying AP I, other States 328 reservations from this article. have taken Insofar as Article 56 of AP I deviates from the 324 N For example , N AVAL A VIATION The Dambusters at Hwachon EWS , Mark L. Evans and C. Ross Bloodsworth, -Jun. 2001) (explaining the military significance of Hwachon Dam during the Korean war by noting that 22, 23 (May the enemy’s control of the facility allowed them to “flood the valley and stop further UN advances” or “[i]f they t held back the water by closing the gates, the river would be lowered to fordable depths and enable communis infiltration across the river against the exposed allied flanks.”). 325 Refer to § 5.6 (Discrimination in Conducting Attacks 5.12 (Proportionality in Conducting Attacks ). ); § 326 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the R isk of Harm to Protected Persons and Objects ). 327 See The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. OURNAL OF J MERICAN U NIVERSITY A Sofaer, Legal Adviser, United States Department of State, Jan. 22, 1987 , 2 I NTERNATIONAL L AW AND P OLICY 460, 468 (1987) (“Article 56 of Protocol I is designed to protect dams, dikes, and nuclear power plants against attacks that could result in ‘severe’ civilian losses. As its negotiating history indicates, this article would p rotect objects that would be considered legitimate military objectives under customary international law. Attacks on such military objectives would be prohibited if ‘severe’ civilian casualties might result from flooding or release of radiation. The nego tiating history throws little light on what level of civilian losses would be ‘severe.’ It is clear, however, that under this article, civilian losses are not to be balanced against the e attack is forbidden, no matter how important the military value of the target. If severe losses would result, then th target. It also appears that article 56 forbids any attack that raises the possibility of severe civilian losses, even though considerable care is taken to avoid them.”). 247

275 regular application of the distinction and proportionality rules, the U.S. view has been that it does applicable in international and non- reflect customary international law international armed not conflicts. 5.14 F RECAUTIONS TO R EDUCE THE R ISK OF H ARM TO P ROTECTED P ERSONS AND EASIBLE P BY THE O ARTY S UBJECT TO A TTACK BJECTS P Outside the context of conducting attacks (such as when conducting defense planning or arties to a conflict should also take feasible precautions to reduce the other military operations), p 329 risk of harm to protected persons and objects from the effects of enemy attacks . In particular, nsible for the safety of the civilian populations military commanders and other officials respo must take reasonable steps to separate the civilian population from military objectives and to protect the civilian population from the effects of combat. As discussed above, what precautions 330 are feasible depends greatly on the context, including operational considerations . Feasible precautions by the party subject to attack may include the following: Placing Military Objectives in D ensely P Areas . It may 5.14.1 Refraining From opulated tives, such as the armed forces, in urban or ot her be appropriate to avoid placing military objec densely populated areas, in order to reduce the risk of incidental harm to the civilian 331 population. However, i t often may not be feasible to refrain from placing military objectives in densely populated areas. Le gitimate military reasons often require locating or billeting military For example, forces may be forces in urban areas or other areas where civilians are present. take advantage of existing faci lities, such as facilities for shelter, housed in populated areas to health and sanitation, communications , or power . In some cases, especially during counter - insurgency operations or in non- international armed conflict generally , the