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“small wars” has also been used in military doctrine to describe situations that may be
characterized as non-international armed conflicts.13 “Low-intensity conflict” and “small wars”
are not synonymous with non-international armed conflict, but there is a high degree of overlap
between those categories and non-international armed conflict.
17.1.2 Important Commonalities Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict.
17.1.2.1 Common Baseline Rules. Certain baseline rules, in particular relating to
the humane treatment of detainees, must be observed regardless of the character of the armed
conflict.14 The fact that certain baseline rules are common to international armed conflict and
non-international armed conflict means that it may be unnecessary to determine the character of
the armed conflict in order to assess whether the law has been violated.
17.1.2.2 Foundational Principles of the Law of War. The foundational principles
of the law of war are common to both international armed conflict and non-international armed
conflict.15 Thus, reference to first principles in the law of war may be most useful in assessing
the rules applicable during non-international armed conflict.16
17.1.2.3 Rules for Conducting Operations Against Unprivileged Belligerents.
Rules for conducting operations against unprivileged belligerents are found in both the law
applicable to international armed conflict and the law applicable to non-international armed
anti/counterterrorism, minor conventional wars, and narco conflict lie between those poles. Variations within each
category, overlaps, and interlocks are virtually endless.”).
13 MARINE CORPS, Small Wars Manual, ¶1-1-¶1-2 (1940), reprinted as FLEET MARINE FORCE REFERENCE
PUBLICATION 12-15 (1990) (“The ordinary expedition of the Marine Corps which does not involve a major effort in
regular warfare against a first-rate power may be termed a small war. It is this type of routine active foreign duty of
the Marine Corps in which this manual is primarily interested. Small wars represent the normal and frequent
operations of the Marine Corps. During about 85 of the last 100 years, the Marine Corps has been engaged in small
wars in different parts of the world. The Marine Corps has landed troops 180 times in 37 countries from 1800 to
1934. Every year during the past 36 years since the Spanish-American War, the Marine Corps has been engaged in
active operations in the field. … Most of the small wars of the United States have resulted from the obligation of the
Government under the spirit of the Monroe Doctrine and have been undertaken to suppress lawlessness or
insurrection. Punitive expeditions may be resorted to in some instances, but campaigns of conquest are contrary to
the policy of the Government of the United States.”).
14 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment,
1986 I.C.J. 14, 114 (¶219) (“Because the minimum rules applicable to international and to non-international
conflicts are identical, there is no need to address the question 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. The relevant principles are to be looked
for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in
each Convention, expressly refers to conflicts not having an international character.”).
15 See Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, ¶119 (Oct. 2, 1995) (“Indeed, elementary considerations of humanity and
common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between
themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is
inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil
strife.”). Refer to § 2.1 (Introduction).
16 Refer to § 17.2.2.1 (Use of Law of War Principles to Discern Rules Applicable to NIAC).
1013
conflict.17 The rules for States conducting military operations against unprivileged belligerents
in international armed conflict are not significantly different from the rules for States conducting
military operations against non-State armed groups during non-international armed conflict.
17.1.3 Important Differences Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict.
17.1.3.1 Nationality and Territoriality Exclusions in the Law of International
Armed Conflict. Certain rules applicable to international armed conflict reflect concepts (e.g.,
nationality and territory) that preclude the application of those rules to internal armed conflicts.
For example, nationals who are in the power of their State of nationality would not be provided
POW status under the GPW or protected person status under the GC.18 Thus, even if the GPW
and GC could otherwise be deemed applicable to a civil war, these exclusions based on
nationality would limit the application of many of the provisions of the GPW and GC (as a
matter of treaty law) to internal armed conflicts. In any case, it remains true that fundamental
principles guaranteeing humane treatment (e.g., Common Article 3 of the 1949 Geneva
Conventions) would apply in any such circumstances.
Similarly, it is the essence of belligerent occupation that it should be exercised over
foreign, enemy territory;19 thus, occupation law rules would not apply to internal armed
conflict.20
Certain non-international armed conflicts, however, are not internal armed conflicts.21
17.1.3.2 Prevalence of Customary Law Applicable to NIAC as Opposed to Treaty
Law. There are fewer treaty provisions that address non-international armed conflict than that
address international armed conflict.22 Put another way, practitioners are generally more likely
to encounter situations regulated by customary law in non-international armed conflict than in
17 Refer to § 4.3 (Lawful Combatants and Unprivileged Belligerents).
18 Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces); § 10.3.3.1 (A State’s Own Nationals).
19 Refer to § 11.2.2.3 (“Of the Hostile Army” - Belligerent Occupation Applies to Enemy Territory).
20 See Richard A. Baxter, Ius in Bello Interno: The Present and Future Law, in JOHN NORTON MOORE, LAW AND
CIVIL WAR IN THE MODERN WORLD 518, 531 (1974) (“Other provisions of the [Fourth Geneva] Convention apply to
‘territory of a party to the conflict’ and to ‘occupied territory.’ In internal conflict, the lawful government and the
insurgents will both maintain that there is only ‘territory of a party to the conflict.’ Territory cannot be belligerently
occupied by the lawful government or the rebels. There is no starting point which divides territory into friendly and
enemy areas, so that, when the latter type of area is occupied, it will be belligerently occupied. It surely cannot be
maintained that the insurgents should be required to treat all territory over which they exercise control as being
belligerently occupied or that the lawful government should be forced to treat territory liberated from the control of
rebels as belligerently occupied. It is of the essence of belligerent occupation that it should be exercised over
foreign, enemy territory. Such requirements as that of Article 43 of the Hague Regulations that the occupant must
respect, ‘unless absolutely prevented, the laws in force in the country’ are simply unworkable in domestic
conflict.”).
21 Refer to § 17.1.1.2 (NIAC and Internal Armed Conflict); § 17.1.1.3 (Transnational or Internationalized NIACs).
22 Refer to § 17.2.1 (Treaties That Apply to NIAC).
1014
international armed conflict. Certain guidelines may be helpful in assessing customary
international law applicable to non-international armed conflict.23
17.1.3.3 Important Substantive Differences Between the Law Applicable to
International Armed Conflict and the Law Applicable to Non-International Armed Conflict.
There are important substantive differences between the law applicable to international armed
conflict and the law applicable to non-international armed conflict, including the following three
examples.
First, the different circumstances that typically arise in non-international armed conflicts
as compared to international armed conflicts may need to be considered in applying the principle
of distinction.24
Second, States have greater latitude to compel enemy persons to switch allegiance or to
serve the State in hostilities during non-international armed conflict than States have to compel
enemy nationals during international armed conflict.25
Third, States have greater latitude to use their domestic law against enemy armed groups
in non-international armed conflict than States have to use their domestic law against enemy
forces or enemy nationals in international armed conflict.26
17.2 APPLICATION OF INTERNATIONAL LAW TO NIACS
In some cases, there may be important substantive differences between the rules
applicable in international armed conflict and the rules applicable in non-international armed
conflict.27 In some cases, only the general essence of a rule that applies during international
armed conflict applies during non-international armed conflict, as opposed to the detailed
provisions in some treaties relating to many aspects of international armed conflict.28
The extent to which the law of war rules that apply during international armed conflict
must or should apply during non-international armed conflict has not been clearly defined as the
23 Refer to § 17.2.2 (Assessing Customary International Law Applicable to NIAC).
24 Refer to § 17.5 (Principle of Distinction in NIAC).
25 Refer to § 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).
26 Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).
27 Refer to § 17.1.3.3 (Important Substantive Differences Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict).
28 See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, ¶¶126-127 (Oct. 2, 1995) (“The emergence of the aforementioned general
rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its
aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international
armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken
place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of
those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.”).
1015
law of war has developed.29 The discretion afforded States in applying law of war rules to non-
international armed conflicts results, in part, because treaty provisions applicable to international
armed conflict have been presumed not to apply to non-international armed conflict unless
explicitly made applicable. For example, in the 1949 Geneva Conventions, only Common
Article 3 applies to non-international armed conflict.30 The discretion afforded States in this
regard may also be understood to result from the wide range of circumstances that constitute
non-international armed conflict. The United States has objected to efforts to make the
applicability of the rules of international armed conflict turn on subjective and politicized criteria
that would eliminate the distinction between international and non-international conflicts.31
In the sections that follow, which reflect the practice of the U.S. armed forces in applying
the law of war to non-international armed conflict, the rules articulated may exceed the
requirements of applicable customary international law and treaty law.
17.2.1 Treaties That Apply to NIAC. Relatively few treaties have provisions that
expressly apply to non-international armed conflicts. Some treaties, however, may apply
implicitly to non-international armed conflict.
17.2.1.1 Treaties That Have Provisions That Explicitly Apply to NIAC. Certain
treaties to which the United States is a Party have provisions that explicitly apply to non-
international armed conflict. These treaties include:
• the 1949 Geneva Conventions (i.e., Common Article 3);32
• the 1954 Hague Cultural Property Convention;33
• the CCW Amended Mines Protocol;34
29 See, e.g., FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF
WAR 21 (1862) (“The application of the laws and usages of war to wars of insurrection or rebellion is always
undefined, and depends on relaxations of municipal law, suggested by humanity or necessitated by the numbers
engaged in the insurrection. The law of war, as acknowledged between independent belligerents, is, at times, not
allowed to interfere with the municipal law of rebellion, or is allowed to do so only very partially, as was the case in
Great Britain during the Stuart rebellion, in the middle of last century; at other times, again, measures are adopted in
rebellions, by the victorious party or the legitimate government, more lenient even than the international law of
war.”).
30 GC COMMENTARY 34 (“To borrow the phrase of one of the delegates, Article 3 is like a ‘Convention in
miniature’. It applies to non-international conflicts only, and will be the only Article applicable to them until such
time as a special agreement between the Parties has brought into force between them all or part of the other
provisions of the Convention.”).
31 Refer to § 3.3.4 (AP I Provision on National Liberation Movements).
32 GPW art. 3 (“In the case of armed conflict not of an international character occurring in the territory of one of the
High Contracting Parties … .”); GWS (same); GWS Sea (same); GC (same).
33 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (“In the event of an armed conflict not of an
international character occurring within the territory of one of the High Contracting Parties, each party to the
conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for
cultural property.”).
1016
• the Amended CCW, including Protocols I, III, and IV;35
• the CCW Protocol V on Explosive Remnants of War;36 and
• AP III.37
Treaties to which the United States is not a Party that have provisions applicable to
“armed conflict not of an international character” include:
• AP II;38 and
• the Rome Statute of the International Criminal Court.39
17.2.1.2 Implicit Application of Treaty Provisions to Situations in NIAC. Some
treaties may apply implicitly to certain situations in non-international armed conflict. For
example, the Genocide Convention does not expressly refer to non-international armed conflict,
but recognizes that acts of genocide are criminal “whether committed in time of peace or time of
war” and whether they are committed by “constitutionally responsible rulers, public officials or
34 CCW AMENDED MINES PROTOCOL art. 1 (“2. This Protocol shall apply, in addition to situations referred to in
Article I of this Convention, to situations referred to in Article 3 common to the Geneva Conventions of 12 August
1949. 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 similar nature, as not being armed conflicts. 3. In case of armed
conflicts not of an international character occurring in the territory of one of the High Contracting Parties, each party
to the conflict shall be bound to apply the prohibitions and restrictions of this Protocol.”).
35 CCW AMENDED art. 1 (“2. This Convention and its annexed Protocols shall also apply, in addition to situations
referred to in paragraph 1 of this Article, to situations referred to in Article 3 common to the Geneva Conventions of
12 August 1949. This Convention and its annexed Protocols shall not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being
armed conflicts. 3. In case of armed conflicts not of an international character occurring in the territory of one of the
High Contracting Parties, each party to the conflict shall be bound to apply the prohibitions and restrictions of this
Convention and its annexed Protocols.”).
36 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(3) (“This Protocol shall apply to situations resulting
from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001.”).
37 AP III art. 1 (“2. This Protocol reaffirms and supplements the provisions of the four Geneva Conventions of 12
August 1949 (‘the Geneva Conventions’) and, where applicable, of their two Additional Protocols of 8 June 1977
(‘the 1977 Additional Protocols’) relating to the distinctive emblems, namely the red cross, the red crescent and the
red lion and sun, and shall apply in the same situations as those referred to in these provisions.”).
38 AP II art. 1(1) (“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of
12 August 1949 without modifying its existing conditions of applications, shall apply to all armed conflicts which
are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol.”).
39 ROME STATUTE art. 8(2)(c) (“In the case of an armed conflict not of an international character, serious violations
of article 3 common to the four Geneva Conventions …, namely, any of the following acts committed against
persons taking no active part in the hostilities”); ROME STATUTE art. 8(2)(f) (“Paragraph 2(e) applies to armed
conflicts not of an international character … .”).
1017
private individuals.”40 Similarly, the Convention Against Torture recognizes that “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”; thus, the
state of non-international armed conflict could not be justification for torture.41
The prohibitions in Article 1 of the Chemical Weapons Convention have been interpreted
to apply to non-international armed conflict.42
In addition, the prohibitions and restrictions on acquisition and development of biological
weapons in the Biological Weapons Convention effectively prevent the use of biological
weapons by States in non-international armed conflict.43
Further, the obligations in the Child Soldiers Protocol relate implicitly to non-
international armed conflict.44
17.2.1.3 Human Rights Treaties and NIAC. During an internal non-international
armed conflict, a State would continue to be bound by applicable human rights treaty
obligations.45
The applicability of human rights treaty obligations during non-international armed
conflict may depend on a variety of factors. Such applicability depends on the terms of the
particular treaty in question, and whether the State has exercised an authorized derogation from
its provisions due to an emergency situation. The applicability of a human rights treaty
obligation with respect to an individual, such as an obligation under the International Covenant
on Civil and Political Rights, for example, may depend on whether the person is located outside
the territory of the State Party.46 In addition, law of war rules constitute the lex specialis during
situations of armed conflict, and as such, serve as the controlling body of law with regard to the
conduct of hostilities and the protection of war victims.47
17.2.2 Assessing Customary International Law Applicable to NIAC. As a consequence
of the fewer treaty provisions applicable to non-international armed conflict, many of the rules
applicable to non-international armed conflict are found in customary international law. The
40 Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 UNTS 277, 280
(“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime
under international law which they undertake to prevent and to punish.”); id. at art. 4 (“Persons committing genocide
or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible
rulers, public officials or private individuals.”).
41 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10,
1984, 1465 UNTS 85, 114. Refer to § 1.6.3.4 (Convention Against Torture).
42 Refer to § 6.8.3.2 (Prohibitions With Respect to Chemical Weapons).
43 Refer to § 6.9.1 (Biological Weapons - Prohibition on Use as a Method of Warfare).
44 Refer to § 4.20.5.2 (Child Soldiers Protocol).
45 Refer to § 1.6.3 (Human Rights Treaties).
46 Refer to § 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).
47 Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).
1018
following guidelines may be helpful in assessing the customary international law applicable to
non-international armed conflict.
17.2.2.1 Use of Law of War Principles to Discern Rules Applicable to NIAC. The
fundamental principles of the law of war also provide the foundation for the rules applicable
during non-international armed conflict.48 As during international armed conflict, the principles
of the law of war form the general guide for conduct during non-international armed conflict,
when no specific rule applies.49
However, the application of law of war principles may differ insofar as the circumstances
in international armed conflicts may often be quite different from the circumstances in non-
international armed conflicts.50
17.2.2.2 Considered Absence of a Restriction in NIAC. Under general principles
of legal interpretation, when a rule mentions specific circumstances or conditions in which it
applies, it may give rise to a presumption that the rule was not intended to apply in other related
circumstances or conditions that are not specifically mentioned.51
Thus, if a treaty addresses both international armed conflict and non-international armed
conflict, and provides for a restriction in international armed conflict but does not provide for
that restriction in non-international armed conflict, then this omission may, to some extent,
reflect States’ views that such restrictions were not applicable in non-international armed
48 Refer to § 17.1.2.2 (Foundational Principles of the Law of War).
49 Refer to § 2.1.2.2 (Law of War Principles as a General Guide).
50 Refer to § 17.5 (Principle of Distinction in NIAC).
51 See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (“But whatever view might be taken of the question of
delivering over foreign seamen in the absence of a treaty, we are of opinion that the treaty with Russia having
contained a convention upon this subject, that convention must alone be looked to in determining the rights of the
Russian authorities to the reclamation of the relator. Where the signatory powers have themselves fixed the terms
upon which deserting seamen shall be surrendered, we have no right to enlarge those powers upon the principles of
comity so as to embrace cases not contemplated by the treaty. Upon general principles applicable to the
construction of written instruments, the enumeration of certain powers with respect to a particular subject-matter is a
negation of all other analogous powers with respect to the same subject-matter. As observed by Lord Denham in
Aspdin v. Austin, ‘where parties have entered into written engagements with express stipulations, it is manifestly not
desirable to extend them by any implications; the presumption is that, having expressed some, they have expressed
all the conditions by which they intend to be bound under that instrument.’ The rule is curtly stated in the familiar
legal maxim, Expressio unius est exclusio alterius.”) (internal citations omitted); The S.S. Wimbledon, (United
Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1, at 23-24 (“Although the Kiel
Canal, having been constructed by Germany in German territory, was, until 1919, an internal waterway of the state
holding both banks, the Treaty has taken care not to assimilate it to the other internal navigable waterways of the
German Empire. A special section has been created at the end of Part XII, dealing with ports, waterways and
railways, and in this special section rules exclusively designed for the Kiel Canal have been inserted; these rules
differ on more than one point from those to which other internal navigable waterways of the Empire are subjected by
Articles 321 to 327. … The provisions relating to the Kiel Canal in the Treaty of Versailles are therefore self-
contained; if they had to be supplemented and interpreted by the aid of those referring to the inland navigable
waterways of Germany in the previous Sections of Part XII, they would lose their ‘raison d’être’, such repetitions as
are found in them would be superfluous and there would be every justification for surprise at the fact that, in certain
cases, when the provisions of Articles 321 to 327 might be applicable to the canal, the authors of the Treaty should
have taken the trouble to repeat their terms or re-produce their substance.”).
1019
conflict.52 Similarly, States negotiated and adopted AP I and AP II at the same diplomatic
conference, and the omission from AP II of restrictions present in AP I may, to some extent,
reflect States’ views that such restrictions were not applicable in non-international armed
conflict.53
17.2.2.3 Application of IAC Rules by Analogy. If an action is not prohibited by
the law of war applicable to international armed conflict, it generally would not be prohibited by
the law of war applicable to non-international armed conflict.
For example, analogous provisions of the GPW and GC may be helpful for understanding
the baseline standards in international law for detention because the baseline standards applicable
to all detainees during armed conflict (e.g., Common Article 3 of the 1949 Geneva Conventions)
are not more favorable than the treatment and protections applicable to POWs and civilian
52 See, e.g., II OFFICIAL RECORDS OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON
THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 157-58 (A/CONF.183/C.1/SR.4, ¶¶33-34) (2002)
(“33. Mr. van der Wind (Netherlands), acting as Coordinator of part 2 of the draft Statute, said that the definition
of war crimes was divided into four sections, of which sections A and B concerned norms applicable in international
armed conflict and sections C and D those applicable in internal armed conflict. … 41. Under section D,
subparagraph (f), the options were very similar to those proposed in section B, subparagraph (t), the differences in
wording stemming from the fact that the norms applicable to international armed conflict and the sources used were
somewhat different, as could be seen, for example, in options 2 and 3 which referred to armed forces or groups, and
in the reference to allowing children to take part.”).
53 See, e.g., XIV OFFICIAL RECORDS OF THE CDDH 67 (CDDH/III/SR.8, ¶¶67-72) (“Mr. ALDRICH (United States
of America) said that article 46 was important for giving general guidance to military commanders in the conduct of
their operations. … His delegation supported the amendments to article 26 of draft Protocol II in document
CDDH/III/36. It was inappropriate to include the same detailed provisions in a protocol on non-international armed
conflicts as in one on international armed conflicts.”); XIV OFFICIAL RECORDS OF THE CDDH 179
(CDDH/III/SR.20, ¶53) (Mrs. DARIIMAA (Mongolia) said that the Working Group should consider the differences
between article 28 of draft Protocol II and the corresponding article of draft Protocol I, since the practices and rules
current in international and internal law were not the same. Unless that was taken into account, the Protocol would
be inapplicable and might open the way to various forms of interference in the internal affairs of State.”); XIV
OFFICIAL RECORDS OF THE CDDH 73 (CDDH/III/SR.9, ¶14) (“Mr. BLISHCHENKO (Union of Soviet Socialist
Republics) said that he wished to reply to certain delegations which had expressed the desire to see the same
revisions in article 26 of draft Protocol II and in article 46 of draft Protocol I. He pointed out that there were
differences between international and internal conflicts. With regard to the latter, it was essential to make rules that
everyone could accept.”); XV OFFICIAL RECORDS OF THE CDDH 460 (Committee III Report, CDDH/407/Rev.1,
¶40) (“The Committee was also aided in its task by the somewhat similar word done at the third session of the
Conference by Committee I with respect to draft Protocol II. As a matter of drafting, the Committee adopted the
texts of those parts of Articles 6 and 10 of draft Protocol II which it decided to include in Article 65. The rule
applied was that the same text would be used unless there was reason for changing it inherent in the differences
between international and non-international armed conflicts.”); XI OFFICIAL RECORDS OF THE CDDH 248
(CDDH/II/SR.25, ¶¶16-18) (“Mr. IJAS (Indonesia) said that his delegation understood the concern of those who
objected to draft Protocol II on the grounds that some of its provisions interfered in the internal affairs of States and
were contrary to the principle of national sovereignty. … The provisions of Part III of draft Protocol II should not
reproduce automatically those of the corresponding part of draft Protocol I, since they are concerned with different
type of armed conflict. For example, article 16, paragraph 3 could give rise to serious problems if it was left as it
stood.”); XIV OFFICIAL RECORDS OF THE CDDH 312 (CDDH/III/SR.32, ¶15) (“Mr. WOLFE (Canada), referring to
his delegation’s amendment (CDDH/III/221), said that he thought it was dangerous to try to introduce in draft
Protocol II a notion of perfidy which was only valid in international conflicts and very difficult to apply in internal
conflicts.”).
1020
internees under the GPW and GC, respectively.54 Thus, in some instances it may be appropriate
to implement measures during detention of persons during non-international armed conflict by
analogy to the internment of POWs during international armed conflict or by analogy to the
internment of protected persons in occupied territory.55
17.2.2.4 Application of Law Enforcement Rules. The law applicable to non-
international armed conflict generally has been crafted to reflect baseline rules that States respect
even in addressing common criminals.56 Thus, if an action would be permissible under the
domestic law enforcement rules of many States, it likely would be permissible as a matter of
customary international law during non-international armed conflict.
17.2.3 Application of Humanitarian Rules and the Legal Status of the Parties to the
Conflict. The application of humanitarian rules to enemy non-State armed groups does not affect
the legal status of such groups.57 For example, a State’s decision to apply humanitarian rules in
military operations against a non-State armed group would not constitute an implicit recognition
of a government that such an armed group has purported to establish nor an implicit recognition
of the legitimacy of the armed group’s cause. Such application also would not implicitly provide
the members of the armed group with any legal immunity from prosecution.
The principle that the application of humanitarian rules to an armed group does not affect
the legal status of that armed group has been recognized in a number of treaties. For example, by
its express terms, the application of Common Article 3 of the 1949 Geneva Conventions shall not
affect the legal status of the parties to the conflict.58 Also by express treaty terms, the
application of the provisions of the CCW and its annexed Protocols to parties to a conflict that
are not High Contracting Parties that have accepted the CCW or its annexed Protocols shall not
change their legal status or the legal status of a disputed territory, either explicitly or implicitly.59
54 Refer to § 8.1.4.4 (Analogous GPW and GC Provisions).
55 Refer to § 17.17.1.1 (Non-Punitive Detention in Non-International Armed Conflict).
56 See, e.g., GWS COMMENTARY 50 (“What Government would dare to claim before the world, in a case of civil
disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was
entitled to leave the wounded uncared for, to inflict torture and mutilations and to take hostages? However useful,
therefore, the various conditions stated above may be, they are not indispensable, since no Government can object to
respecting, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few
essential rules which it in fact respects daily, under its own laws, even when dealing with common criminals.”).
57 See LIEBER CODE art. 152 (“When humanity induces the adoption of the rules of regular war toward rebels,
whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgement of
their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have no
right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own
acknowledgment of the revolted people as an independent power.”).
58 GWS art. 3 (“The application of the preceding provisions [in Article 3] shall not affect the legal status of the
Parties to the conflict.”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
59 CCW AMENDED art. 1(6) (“The application of the provisions of this Convention and its annexed Protocols to
parties to a conflict which are not High Contracting Parties that have accepted this Convention or its annexed
Protocols, shall not change their legal status or the legal status of a disputed territory, either explicitly or
implicitly.”); CCW AMENDED MINES PROTOCOL art. 1(6) (“The application of the provisions of this Protocol to
parties to a conflict, which are not High Contracting Parties that have accepted this Protocol, shall not change their
legal status or the legal status of a disputed territory, either explicitly or implicitly.”); CCW AMENDED MINES
1021
Further, by the express terms of the 1954 Hague Cultural Property Convention, its provisions
that relate to non-international armed conflict shall not affect the legal status of the parties to the
conflict.60
17.2.4 Binding Force of the Law of War on Insurgents and Other Non-State Armed
Groups. The law of war applicable in a non-international armed conflict is binding upon all
parties to the armed conflict, including State armed forces and non-State armed groups. A
variety of explanations have been offered for this principle.
Customary law of war rules are binding on a State, even if it is not a Party to a treaty
containing the rule.61 Similarly, customary law of war rules are binding on those parties to the
armed conflict that intend to make war and to claim the rights of a belligerent, even if they are
not States.62
Treaty provisions that address non-international armed conflict provide that they apply
not only to the State, but to each party to the conflict.63 In many cases, these treaty provisions
would also be binding on non-State armed groups as a matter of customary international law.64
PROTOCOL art. 12(1)(b) (“The application of the provisions of this Article to parties to a conflict which are not High
Contracting Parties shall not change their legal status or the legal status of a disputed territory, either explicitly or
implicitly.”).
60 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(4) (“The application of the preceding provisions shall not
affect the legal status of the parties to the conflict.”).
61 Refer to § 1.8 (Customary International Law).
62 See Trial of Henry Wirz, Argument of the Judge Advocate (Special Military Commission, Washington D.C., Oct.
20, 1865), reprinted in 40th Congress, House Executive Document No. 23, A Congressionally Mandated Report
Summarizing the Military Commission’s Proceedings, 722, 764 (Dec. 7, 1867) (“Whatever the form of government
may have been to which the leaders of the confederacy, so-called, aspired; whatever of wrong and injustice they
sought to embody in their system; with whatever of oppression and tyranny they sought to grind down their subjects,
the moment they asked a place among nations they were bound to recognize and obey those laws international
which are and of necessity must be applicable alike to all.”); Chacon v. Eighty-Nine Bales of Cochineal, 5 F. Cas.
390, 394 (C.C.D. Va. 1821) (Marshall, C.J.) (whether an entity “be a state or not, if she is in a condition to make
war, and to claim the character and rights of a belligerent, she is bound to respect the laws of war;”). Refer to
§ 3.4.1.2 (Non-State Armed Groups With the Intention of Conducting Hostilities).
63 See, e.g., GWS art. 3 (“In the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, … .”); 1954
HAGUE CULTURAL PROPERTY CONVENTION ART. 19(1) (“In the event of an armed conflict not of an international
character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be
bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural
property.”); CCW AMENDED MINES PROTOCOL art. 1(3) (“In case of armed conflicts not of an international
character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound
to apply the prohibitions and restrictions of this Protocol.”); CCW AMENDED art. 1(3) (“In case of armed conflicts
not of an international character occurring in the territory of one of the High Contracting Parties, each party to the
conflict shall be bound to apply the prohibitions and restrictions of this Convention and its annexed Protocols.”).
64 Special Court for Sierra Leone Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty,
SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), ¶47 (Mar. 13, 2004) (“It suffices to say, for the purpose of the
present case, that no one has suggested that insurgents are bound because they have been vested with personality in
international law of such a nature as to make it impossible for them to be a party to the Geneva Conventions.
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As a practical matter, non-State armed groups would often be bound by their State’s
treaty obligations due to the very fact that the leaders of those non-State armed groups would
claim to be the State’s legitimate representatives.65 Other practical considerations, such as the
desire to be seen as legitimate, may also contribute to their compliance with the law of war.66
17.3 SPECIAL AGREEMENTS BETWEEN PARTIES TO THE CONFLICT
Parties to a conflict may enter into agreements to bring into force law of war rules.67 For
example, pursuant to Common Article 3 of the 1949 Geneva Conventions, the parties to the
conflict should further endeavor to bring into force, by means of special agreements, all or part
of the other provisions of the 1949 Geneva Conventions.68 Similarly, pursuant to the 1954
Rather, a convincing theory is that they are bound as a matter of international customary law to observe the
obligations by common Article 3 which is aimed at the protection of humanity.”).
65 GWS COMMENTARY 51-52 (“On the other hand, what justification is there for the obligation on the adverse Party
in revolt against the established authority? At the Diplomatic Conference doubt was expressed as to whether
insurgents could be legally bound by a Convention which they had not themselves signed. But if the responsible
authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the
country, or part of the country. The ‘authority’ in question can only free itself from its obligations under the
Convention by following the procedure for denunciation laid down in Article 63. But the denunciation would not be
valid, and could not in point of fact be effected, unless the denouncing authority was recognized internationally as a
competent Government. It should, moreover, be noted that under Article 63 denunciation does not take effect
immediately.”).
66 GWS COMMENTARY 52 (“If an insurgent party applies Article 3, so much the better for the victims of the conflict.
No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchy
or brigandage are right.”). Refer to § 18.2 (Prudential Reasons Supporting the Implementation and Enforcement of
the Law of War).
67 For example, Letter from James Robertson to George Washington (May 1, 1782) (“Sir, A Commission from the
King appointing me Commander in Chief of his forces in this country having arrived by a late conveyance, I make it
one of my first cares, to convince you of my wish to carry on the war agreeable to the rules which humanity formed,
and the example of the politest nations recommended. I make this declaration of my resolution, in hope that I may
find a similar inclination in you. To effect this, let us agree to prevent or punish every breach of the rules of war
within the spheres of our command.”) and, Letter from George Washington to James Robertson (May 5, 1782)
(“Sincerely lamenting the cruel necessity, which alone can induce so distressing a measure in the present instance, I
do assure your Excellency, I am as earnestly desirous as you can be, that the war may be carried on agreeable to the
rules which humanity formed, and the example of the politest nations recommends, and shall be extremely happy in
agreeing with you to prevent or punish every breach of the rules of war within the sphere of our respective
commands.”), reprinted in THE REMEMBRANCER; OR, IMPARTIAL REPOSITORY OF PUBLIC EVENTS FOR THE YEAR
1782, PART II, 156-57.
68 GWS art. 3 (“The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.”); GWS-SEA art. 3 (same); GPW art. 3
(same); GC art. 3 (same). For example, Bosnia and Herzegovina, Agreement No. 1 of May 22, 1992, reprinted in
Marco Sassòli, Antoine A. Bouvier, Anne Quintin, III How Does Law Protect In War? Cases and Documents, Case
No. 204: Former Yugoslavia, Special Agreements Between Parties to the Conflicts, 116-17 ¶2 (Mar. 2011) (“In
accordance with the Article 3 of the four Geneva Conventions of August 12, 1949, the Parties agree to bring into
force the following provisions … . Captured combatants shall enjoy the treatment provided for by the Third Geneva
Convention.”); U.N. COMMISSION ON HUMAN RIGHTS, Report on the situation of human rights in Afghanistan
prepared by the Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human Rights
resolution 1984/55, U.N. Doc. E/CN.4/1985/21, 28-29 ¶104 (Feb. 19, 1985) (“Apparently in 1982 an agreement on
conditions for the internment of foreign prisoners was signed between the Afghan resistance movement and the
International Committee of the Red Cross (ICRC) under which the resistance expressed its intention to respect the
spirit of the provisions of the Geneva Convention relative to the Treatment of Prisoners of War. This involves the
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Hague Cultural Property Convention, the parties to the conflict shall endeavor to bring into force,
by means of special agreements, all or part of the other provisions of that Convention.69
Parties to a non-international armed conflict may wish to conclude agreements on these
and a variety of other subjects, such as:
• temporary ceasefire agreements to collect the wounded;
• agreements to permit passage of medical or other relief supplies for the civilian
population;
• agreements for the accommodation of detainees in other States;70
• agreements to establish hospital or safety zones;
• agreements for the cessation of hostilities; and
• agreements for post-conflict clearance of remnants of war.71
17.3.1 Communications Between Parties to the Conflict. The procedures that are used
for non-hostile relations between belligerents during international armed conflict may also be
applied by parties to a non-international armed conflict.72
As is the case during international armed conflict, parties to a non-international armed
conflict may agree to specific means of communication between them.
application of article 3 of the Geneva Conventions under which the parties to armed conflict can conclude
agreements or make statements specifying that they will apply all or part of the other provisions of the Conventions.
Analysing this agreement as calculated to set an example for better treatment of prisoners of war, witnesses stated
that since then the resistance movements had endeavoured to ensure that foreign prisoners were not tortured or
assassinated.”).
69 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(2) (“The parties to the Conflict shall endeavour to bring
into force, by means of special agreements, all or part of the other provisions of the present Convention.”).
70 For example, International Committee of the Red Cross, External Activities: Africa—Latin American—Asia—
Middle East—Europe, 24 INTERNATIONAL REVIEW OF THE RED CROSS 230, 239-40 (Jul.-Aug. 1984) (“Negotiations
carried out by the ICRC with, successively, the USSR, the Afghan opposition movement, Pakistan and Switzerland
led to partial success. The parties agreed to the transfer and internment in a neutral country of Soviet soldiers
detained by the Afghan opposition movements, in application, by analogy, of the Third Geneva Convention, relative
to the treatment of prisoners of war. On the basis of this agreement, the ICRC has had access to some of the Soviet
prisoners in the hands of the Afghan movements and has informed them, in the course of interviews without witness,
of the possibility for transfer by the ICRC to Switzerland, where they would spend two years under the
responsibility and watch of the Swiss government before returning to their country of origin. … To date, eleven
Soviet soldiers have accepted the proposal. The first three were transferred to Switzerland on 28 May 1982. Eight
others arrived in August and October 1982, January and October 1983, and February and April 1984. One of them
escaped to the Federal Republic of Germany in July 1983.”).
71 Refer to § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by
the Cessation of Active Hostilities).
72 Refer to § 12.3 (Methods for Communication Between Belligerents).
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17.4 A STATE’S USE OF ITS DOMESTIC LAW AND NIAC
17.4.1 Ability of a State to Use Its Domestic Law Against Non-State Armed Groups. A
fundamental principle of the international legal order is the sovereign equality of States, which
generally prohibits States from exercising sovereignty over one another.73 However, the
principle of the sovereign equality of States is not applicable in armed conflicts between a State
and a non-State armed group. A State may exercise both sovereign and belligerent rights over
non-State armed groups.74 This means that a State may use not only its war powers to combat
non-State armed groups, but it may also use its domestic law, including its ordinary criminal law,
to combat non-State armed groups.
The limits imposed by international law on a State’s action against non-State armed
groups do not alter the basic principle that the State may exercise its sovereign powers against
the non-State armed group.75
17.4.1.1 A State’s Power to Prosecute Hostile Activities. An important
consequence of the fact that States may exercise sovereignty over persons belonging to a non-
State armed group is that a State may prosecute individuals for participating in hostilities against
it. Such conduct frequently constitutes crimes under ordinary criminal law (e.g., murder, assault,
illegal destruction of property).
Although, during international armed conflict, lawful combatants are afforded certain
immunities from the enemy State’s jurisdiction,76 persons belonging to non-State armed groups
lack any legal privilege or immunity from prosecution by a State that is engaged in hostilities
against that group.
On the other hand, the non-State armed group lacks authority to prosecute members of
the State armed forces. In addition, the non-State status of the armed group would not render
inapplicable the privileges and immunities afforded lawful combatants and other State officials.
Thus, for example, members of the armed forces of a State would continue to benefit from any
privileges or immunities from the jurisdiction of foreign States that sought to exercise
73 See Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 2012 I.C.J. 99, 123
(¶57) (“The Court considers that the rule of State immunity occupies an important place in international law and
international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1,
of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal
order.”).
74 The Prize Cases, 67 U.S. 635, 673 (1863) (“Now, it is a proposition never doubted, that the belligerent party who
claims to be sovereign, may exercise both belligerent and sovereign rights, … .”).
75 CCW AMENDED art. 1(4) (“Nothing in this Convention or its annexed Protocols shall be invoked for the purpose
of affecting the sovereignty of a State or the responsibility of the Government, by all legitimate means, to maintain
or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.”).
Consider AP II art. 3(1) (“Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a
State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in
the State or to defend the national unity and territorial integrity of the State.”).
76 Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).
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jurisdiction with respect to the actions of such State armed forces in a non-international armed
conflict.77
17.4.1.2 Range of Activities Subject to Prosecution. A State may also use its
domestic law to make punishable a wide range of activity that extend beyond the activities that
constitute actual fighting against the State. For example, joining the non-State armed group,
providing material support to the armed group, failing to report the treasonous activities of the
armed group, and other conduct may be punishable under a State’s domestic law.78
17.4.1.3 Other Sovereign Authorities. In addition to the power to criminalize
certain conduct, a State may use its law and other regulatory powers in its effort to address the
threat of non-State armed groups.
For example, the State could use its authority to tax, regulate, seize, or destroy property
(e.g., weapons, vehicles, food, and medical equipment) within its jurisdiction as part of its effort
against the non-State armed group.79 The use of these sovereign powers would be subject to
domestic law restrictions, and might not depend on whether such action would be imperatively
required by the necessities of war - the standard for the seizure of destruction of enemy property
during international armed conflict.80 In any event, however, it would not be permissible for the
State to seek to starve civilians as a method of combat.81
77 For example, Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in THE DIPLOMATIC AND OFFICIAL
PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 124 (1848) (“This doubt has occasioned the President
some hesitation; but he inclines to take it for granted that the main purpose of the instruction was, to cause it to be
signified to the government of the United States that the attack upon the steamboat ‘Caroline’ was an act of public
force, done by the British colonial authorities [intended to address insurgents], and fully recognized by the queen’s
government at home; and that, consequently, no individual concerned in that transaction can, according to the just
principles of the laws of nations, be held personally answerable in the ordinary courts of law as for a private offense;
and that upon this avowal of her majesty’s government, Alexander McLeod, now imprisoned on an indictment for
murder alleged to have committed in that attack, ought to be released by such proceedings as are usual and are
suitable to the case.”).
78 For example, 18 U.S.C. § 2339B(a)(1) (“Whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15
years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as
defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section
212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism
(as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).”); 18
U.S.C. § 2382 (“Whoever, owing allegiance to the United States and having knowledge of the commission of any
treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President
or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of
misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.”).
79 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, ¶3-170 (Apr.
2009) (“Resource control measures include control of select resources to include foodstuffs, medical supplies, and
key equipment through: • Rationing or purchase permits • Registration of firearms. • Registration of automobiles
and trucks. • Export and import restrictions.”).
80 Refer to § 5.17.2 (Enemy Property - Military Necessity Standard).
81 Refer to § 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).
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17.4.2 Emergency Laws and Regulations. Many States have laws permitting the
government to alter or suspend laws (such as a declaration of martial law, and the establishment
of curfews and other controls on the movement of persons and traffic), to enact emergency
regulations (such as the establishment of monetary or trade regulations, or the rationing of food,
fuel, and other critical materials), and to take other steps to protect the public (such as the
issuance of identification cards, the development of detention rules for members of non-State
armed groups, and the establishment of special emergency courts).82
The full range of actions that a State may take under its domestic law during non-
international armed conflict would depend on the content of that law, including applicable
constitutional restrictions.83
17.4.3 Special Courts. As part of its emergency regulations, a State may establish special
or emergency courts for cases involving unprivileged belligerents or other persons suspected of
committing offenses related to the non-international armed conflict.
Such courts must be regularly constituted and afford all the judicial guarantees that are
recognized as indispensable by civilized peoples.84 Such courts may distinguish based on
82 For example, David Galula, Pacification in Algeria, 1956-1958, 21 (RAND Corporation, 2006) (“In the existing
legal framework, proclamation of martial law was the only provision in case of disturbances endangering the
security of the state. It would have entailed handing over all powers to the military authority and suspending private
and public liberties. Government and Parliament considered this step too extreme. Hence they devised a new
contingency, the so-called ‘state of emergency,’ which was declared for the first time for the Constantine area and
for Kabylia in April 1955, and was extended to all Algeria in August 1955. Parliament voted a Special Powers Act
(with the support of the Communists!), which gave the government a free hand for conducting its policy in Algeria
by decree, notably in matters pertaining to economic development, economic and social reforms, territorial
reorganization, public order, security of persons and property, and protection of the integrity of the territory. These
special powers were vested in the existing government and would lapse with the end of its incumbency; the
succeeding government would have to request an extension from the Parliament. The government in turn gave
authority to the Minister-Resident (who by then had replaced the Governor General in Algiers) to regulate
movements of persons and goods, assign places of residence, create forbidden zones, order searches, ban meetings,
control the press, dissolve associations, collect reparations for willful damage and for aid given to the rebels,
suspend or transfer civil servants, deprive elected representatives of their seats, postpone by-elections, and delegate
certain civil powers to the military. Travel between France and Algeria was made subject to strict control (at least in
theory).”); FRANK KITSON, GANGS AND COUNTER-GANGS 44 (1960) (“The legal code in Kenya in October 1952 was
not very different from that in England. Certain acts such as theft or murder were illegal and if you committed them
you were prosecuted. When the Emergency started some extra laws were made to fit the special circumstances. For
example, it became illegal to administer the Mau Mau oath or to carry arms and certain areas of the forest were
placed out of bounds. These extra laws, and there were many of them, were known as Emergency Regulations.”).
83 For example, FRANK KITSON, GANGS AND COUNTER-GANGS 289 (1960) (“No country which relies on the law of
the land to regulate the lives of its citizens can afford to see that law flouted by its own government, even in an
insurgency situation. In other words everything done by a government and its agents in combating insurgency must
be legal. But this does not mean that the government must work within exactly the same set of laws during an
insurgency as existed beforehand, because it is a function of a government when necessary. It does not mean that
the law must be administered in exactly the same way during an uprising as it was in more peaceful times, because
once again a government has the power to modify the way in which the law is administered if necessary, for the
wellbeing of the people, although the exercise of such power is usually - and rightly - subject to considerable
constitutional restraint.”).
84 Refer to § 8.16 (Criminal Procedure and Punishment).
1027
nationality.85 The procedures of such courts may deviate from those applicable during ordinary
proceedings, but deviations should be warranted by practical need.86
17.4.4 Reintegration Programs and Amnesty. States have used reconciliation and
reintegration programs during hostilities as alternatives to prosecution to seek to de-radicalize
and rehabilitate violent extremists.87
Although amnesty is normally left to the discretion of the State, AP II provides that, at
the end of hostilities, the authorities in power shall endeavor to grant the broadest possible
amnesty to persons who have participated in the armed conflict, or those deprived of their liberty
for reasons related to the armed conflict, whether they are interned or detained.88
85 For example, 10 U.S.C. § 948b (“(a) Purpose. -This chapter establishes procedures governing the use of military
commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable
by military commission.”) (emphasis added).
86 See Hamdan v. Rumsfeld, 548 U.S. 557, 632-33 (2006) (“The Government offers only a cursory defense of
Hamdan's military commission in light of Common Article 3. As Justice Kennedy explains, that defense fails
because ‘[t]he regular military courts in our system are the courts-martial established by congressional statutes.’ At
a minimum, a military commission ‘can be ‘regularly constituted’ by the standards of our military justice system
only if some practical need explains deviations from court-martial practice.’ As we have explained, no such need
has been demonstrated here.”) (internal citations omitted); id. at 645-46 (Kennedy, J., concurring) (“At a minimum a
military commission like the one at issue--a commission specially convened by the President to try specific persons
without express congressional authorization--can be ‘regularly constituted’ by the standards of our military justice
system only if some practical need explains deviations from court-martial practice. … Relevant concerns, as noted
earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not
mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional
principle that congressional statutes can be controlling, including the congressional direction that the law of war has
a bearing on the determination.”).
87 For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for
War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 131-34 (2008)
(“In Pakistan, there is a reintegration program akin to the idea of ‘it takes a village.’ Village loyalties are
paramount, and Pakistani leaders have found that returning a former combatant to his village and holding the village
responsible for his conduct is a successful way to ensure that the person does not return to violence. Under this
program, a village must agree to accept the return of the person and must pay the Government of Pakistan a
‘retainer’ equal to about $5000 that it forfeits if the individual returns to hostilities.
… The Kingdom of Saudi
Arabia uses a similar program, referred to as a ‘counseling program,’ to ‘de-radicalize’ and reintegrate former
security prisoners back into society. … Prisoners who have not committed capital crimes or killings enter the
program immediately after they are captured. Upon release, the former prisoners are then reconnected with their
families and given psychological evaluation and counseling. After a few months of rehabilitation, they are brought
into contact with moderate Islamic scholars and encouraged to enter into discussions about their beliefs. The
moderate scholars are able to counter extremist views with the Koran and other authoritative texts to explain
alternative interpretations that the former prisoner may not have heard before. Along with the counseling program,
the Saudis try to convince the former combatants that they have a stake in a peaceful and stable government by
encouraging them to marry, paying for their weddings and subsequent education for their children, and helping them
to find suitable employment and housing.”).
88 Consider AP II art. 6(5) (“At the end of hostilities, the authorities in power shall endeavour to grant the broadest
possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for
reasons related to the armed conflict, whether they are interned or detained.”).
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17.5 PRINCIPLE OF DISTINCTION IN NIAC
As discussed below, the principle of distinction applies during non-international armed
conflict. It may be important to note certain differences between the situations that typically
arise in non-international armed conflict as compared to those typically arising in international
armed conflict.
17.5.1 Discrimination in Conducting Attacks Against the Enemy in NIAC. Parties to a
conflict must conduct attacks in accordance with the principle of distinction.89
As during international armed conflict, an adversary’s failure to distinguish its forces
from the civilian population does not relieve the attacking party of its obligations to discriminate
in conducting attacks.90 On the other hand - also as during international armed conflict - such
conduct by the adversary does not increase the legal obligations on the attacking party to
discriminate in conducting attacks against the enemy. For example, even though tactics used by
non-State armed groups may make discriminating more difficult, State armed forces - though
obligated to be discriminate - are not required to take additional protective measures to
compensate for such tactics.
17.5.1.1 Increased Difficulty in Identifying Enemy Forces and Other Military
Objectives. During international armed conflict, State armed forces generally are readily
distinguishable from the civilian population. Traditionally, conventional armed forces would
often confront one another, with the civilian population of each opposing State remaining to the
rear of the lines separating their respective military forces.91 During non-international armed
conflict, however, discriminating in conducting attacks against the enemy may be more difficult
because non-State armed groups often seek to blend in with the civilian population.92
17.5.1.2 Different Support Structures for Non-State Armed Groups. In addition to
non-State armed groups, other military objectives may also be more difficult to identify because
89 Refer to § 17.7 (Rules on Conducting Attacks in NIAC).
90 Refer to § 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).
91 For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 26 (1984) (“The Falkland-Malvinas Islands' conflict provides a rare example of
hostilities conducted by both sides with particular concern for the safety of the civilian population, as there were
three civilian casualties. The instructions received both by the Argentine armed forces when disembarking on the
island of South Georgia and on the archipelago, and by the British pilots and soldiers emanated from the desire to
respect the civilian population. However, mention must also be made of the precautionary measures which were
taken by the Parties to the civilian population in accordance with Part II of the Fourth Convention.”).
92 For example, 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
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717 (“As recent events have shown, al-Qaeda has not
abandoned its intent to attack the United States, and indeed continues to attack us. … As you know, this is a conflict
with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks
against us and our allies while hiding among civilian populations. That behavior simultaneously makes the
application of international law more difficult and more critical for the protection of innocent civilians.”).
1029
non-State armed groups often do not use military infrastructure (e.g., military bases, logistics
facilities) to conduct and sustain their operations. Rather, non-State armed groups may seek to
use ostensibly civilian buildings and resources to conduct and sustain their operations. Denying
non-State armed groups such support may be particularly important to the success of military
operations and justifiable under the law of war.93
17.5.1.3 Increased Strategic Importance of Minimizing Incidental Civilian
Casualties. For various reasons, there may be an increased emphasis by State armed forces on
minimizing the risk of incidental civilian casualties, even beyond the requirements of the law of
war.
The sympathy and support of the civilian population are frequently important objectives
in non-international armed conflict.94 In order to ensure such support, commanders and their
forces may operate under rules of engagement that are more restrictive than what the law of war
requires.95
93 Christopher Paul, Colin P. Clarke, and Beth Grill, Victory Has a Thousand Fathers: Sources of Success in
Counterinsurgency, 98 (RAND Corporation, 2010) (“The ability of insurgents to replenish and obtain personnel,
materiel, financing, intelligence, and sanctuary (tangible support) perfectly predicts success or failure in the 30
COIN cases considered here. In all eight cases in which the COIN force prevailed, it also disrupted at least three
insurgent support factors, while none of the COIN forces in the 22 losing cases managed to disrupt more than
two.”); Robert Wayne Gehring, Protection of Civilian Infrastructures, 42 LAW AND CONTEMPORARY PROBLEMS 86,
95 (1978) (“The importance of those who collect funds for the insurgent organization’s operations, gather and
analyze information about government forces, procure the necessary supplies from within or without the country,
organize the delivery of the supplies to the military forces of the insurgency, and organize the recruitment of
members of the local population cannot be overestimated. While these functions may be performed by military
members of the movement, in many cases military training is not required or is not even an asset in their
performance. One experienced observer, Sir Robert Thompson, believes that so long as the supporting organization
remains intact, killing insurgents in the field is largely useless: the casualties will be replaced by new recruits. A
study of characteristics that determined the outcome in forty-four revolutions of this century found the single most
important factor was not battlefield success but whether the government was successful in interdicting the
insurgents’ supply of arms and ammunition. The government cannot rely upon success on the field of battle to bring
its ultimate victory. It must starve the insurgent military forces by uncovering and neutralizing the civilian
infrastructure supporting those military forces.”).
94 FRANK KITSON, BUNCH OF FIVE 59, 282, 289 (1977) (“The first aim of a government in an Emergency is to retain
or regain the allegiance of the population. […] There has never been much doubt that the main characteristic which
distinguishes campaigns of insurgency from other forms of war is that they are primarily concerned with the struggle
for men’s minds, since only by succeeding in such a struggle with a large enough number of people can the rule of
law be undermined and constitutional institutions overthrown.”).
95 For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted in
International Security Assistance Force - Afghanistan, Headquarters, General Petraeus Issues Updated Tactical
Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010 (“We must continue - indeed, redouble - our
efforts to reduce the loss of innocent civilian life to an absolute minimum. Every Afghan civilian death diminishes
our cause. If we use excessive force or operate contrary to our counterinsurgency principles, tactical victories may
prove to be strategic setbacks. We must never forget that the center of gravity in this struggle is the Afghan people;
it is they who will ultimately determine the future of Afghanistan ... Prior to the use of fires, the commander
approving the strike must determine that no civilians are present. 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
security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with the
previous version, does not prevent commanders from protecting the lives of their men and women as a matter of
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17.5.2 Distinguishing State Forces From the Civilian Population in NIAC. During non-
international armed conflict, as during international armed conflict, the principle of distinction
prohibits the use of protected persons or objects to shield, favor, or impede military operations.96
However, it may be important to consider certain differences in the circumstances arising in non-
international armed conflict.
17.5.2.1 Positioning Military Forces Near the Civilian Population to Win Their
Support and to Protect Them. During non-international armed conflict, insurgents or terrorists
may seek to attack the civilian population, and the use of the State’s forces to protect the civilian
population from such attacks may be a key objective of State operations in non-international
armed conflict.97 Thus, positioning military forces near the civilian population may be essential
to the protection of the civilian population, and States have not interpreted such practices to be
inconsistent with the principle of distinction.98
17.5.2.2 Role of Civilian Personnel, Including Law Enforcement Personnel, in
Addressing Non-State Armed Groups. Members of States’ civilian agencies, such as judges,
prosecutors, and police and other members of its law enforcement apparatus, often play a critical
role in addressing non-State armed groups.99 Although such personnel might be viewed by the
adversary as “military objectives” or as taking a direct part in hostilities, States have not
interpreted the principle of distinction to require the separation of such personnel from the
civilian population in non-international armed conflict.
self-defense where it is determined no other options are available to effectively counter the threat.).”) (ellipsis in
original).
96 Refer to § 17.6.3 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
97 For example, General David Petraeus, Multi-National Force - Iraq Counterinsurgency Guidance, 1 (Jun. 13,
2007) (“1. Secure the people where they sleep. Population security is our primary mission. And achieving
population security promises to be an extremely long-term endeavor - a marathon, not a sprint - so focusing on this
mission now is essential. Most extra-judicial killings occur at night and in people’s homes, while most spectacular
terrorist attacks occur during the day, where people shop, work and play - anywhere they gather publicly. These
key areas must be secured. Once secured, an area cannot be abandoned; it must be permanently controlled and
protected, 24 hours a day, or else the enemy will re-infiltrate and kill or intimidate those who have supported us.
This protection must be kept up until the area can be effectively garrisoned and controlled by Iraqi police (ideally
from the area being secured) and other security services. We can’t be everywhere - therefore you must assess your
AOR, identify priority areas, work to secure them first, and then expand into other areas.”).
98 For example, General David Petraeus, International Security Assistance Force/United States Forces-Afghanistan
Headquarters, COMISAF’s Counterinsurgency Guidance, 1 (Aug. 1, 2010) (“Live among the people. We can’t
commute to the fight. Position joint bases and combat outposts as close to those we're seeking to secure as is
feasible. Decide on locations with input from our partners and after consultation with local citizens and informed by
intelligence and security assessments.”).
99 For example, A.H. Peterson, G.C. Reinhardt and E.E. Conger, Symposium on the Role of Airpower in
Counterinsurgency and Unconventional Warfare: The Malayan Emergency, 13 (RAND Corporation, Jul. 1963)
(“COMMODORE GARRISSON: This Malayan campaign was run basically as a civilian operation by the civilian
power. The first line of defense was the civilian Police, who received more equipment than the normal police. Any
military operation had to be cleared with the civilian authority, who in effect called for military operations of a
specific nature. I think this is the first thing to bear in mind. Police provided protection of the local population
wherever possible. The true military forces went out to try to get the bandits.”).
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17.6 RESPECT AND HUMANE TREATMENT OF PERSONS TAKING NO ACTIVE PART IN HOSTILITIES
IN NIAC
All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person, honor and
convictions, and religious practices. They shall in all circumstances be treated humanely,
without any adverse distinction.100
In addition, the following prohibitions apply:
17.6.1 Prohibition on Declaring That No Quarter Be Given. It is prohibited to order that
there shall be no survivors.101
17.6.2
Prohibition on the Taking of Hostages. The taking of hostages is prohibited.102
17.6.3 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede
Military Operations. It is prohibited to use civilians, persons placed hors de combat, or other
protected persons to shield, favor, or impede military operations.103
17.6.4
Prohibition on Pillage. Pillage is prohibited.104
There is an affirmative obligation
to take measures to protect the wounded, sick, and shipwrecked from pillage, and the dead from
being despoiled.105
17.6.5 Prohibition on Acts of Terrorism. It is prohibited to commit, or threaten to
commit, acts of terrorism against persons who do not take a direct part or who have ceased to
take part in hostilities.106
100 Consider AP II art. 4(1) (“All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and
religious practices. They shall in all circumstances be treated humanely, without any adverse distinction.”).
101 Consider AP II art. 4(1) (“It is prohibited to order that there shall be no survivors.”). Refer to § 5.5.7 (Prohibition
Against Declaring That No Quarter Be Given).
102 See GWS art. 3 (prohibiting “taking of hostages;”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3
(same). Consider AP II art. 2 (prohibiting “taking of hostages;”). Refer to § 5.16.3 (Prohibition on Taking
Hostages).
103 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
104 Consider AP II art. 4(2)(g) (prohibiting pillage “at any time and in any place whatsoever” against “[a]ll persons
who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been
restricted”). Refer to § 5.17.4 (Pillage Prohibited).
105 Refer to § 17.14.3 (Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).
106 Consider AP II art. 4(2) (prohibiting with respect to all persons who do not take a direct part or who have ceased
to take part in hostilities, whether or not their liberty has been restricted, “d) acts of terrorism” and “h) threats to
commit any of the foregoing acts”). Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or
Terrorism).
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17.6.6 Prohibition on Offering of Rewards for Persons Dead or Alive. As during
international armed conflict, it is prohibited to offer a reward for enemy persons to be turned
over dead or alive.107 On the other hand, as in international armed conflict, there is no
prohibition against offering rewards for the apprehension of insurgents or for giving information
leading to the apprehension or killing of insurgents in combat.108
17.6.7 Prohibition on Collective Punishment. Collective punishments, whether
administered by a court or through administrative measures, are prohibited.109 Collective
penalties are prohibited as a general matter.110
17.7 RULES ON CONDUCTING ATTACKS IN NIAC
Parties to a conflict must conduct attacks in accordance with the principles of distinction
and proportionality. In particular, the following rules must be observed:
• Combatants may not direct attacks against civilians, civilian objects, or other protected
persons and objects.111
• The distinctive emblem must not be used while engaging in attacks.112
• Combatants must refrain from attacks in which the expected loss of life or injury to
civilians, and damage to civilian objects incidental to the attack, would be excessive in
relation to the concrete and direct military advantage expected to be gained.113
• Combatants must take feasible precautions in conducting attacks to avoid incidental harm
to civilians and civilian objects.114
107 Refer to § 5.26.3.1 (Prohibition on Offering Rewards for Enemy Persons Dead or Alive).
108 See 1958 UK MANUAL ¶116 note 1(b) (“If a government or military commander offers rewards for all or
individual armed insurgents killed or wounded by the forces engaged in quelling the insurrection, such offers are
open to the same objection as those set out above in respect of hostilities between belligerents, and are probable
unlawful. On the other hand, there is no objection to offering rewards for the apprehension of insurgents or for
giving information leading to the apprehension or killing of insurgents in combat. A State is entitled to secure the
capture of armed rebels in order that they may be tried as such, or to kill or wound them in combat. However, the
probable effect of the common Art. 3, when applicable, is to prohibit inducements being given to troops, police or
civilians, to take the law into their own hands.”).
109 Consider AP II art. 4(2) (“Without prejudice to the generality of the foregoing, the following acts against the
persons referred to in paragraph 1 [i.e., all persons who do not take a direct part or who have ceased to take part in
hostilities, whether or not their liberty has been restricted,] are and shall remain prohibited at any time and in any
place whatsoever: … b) collective punishments;”); BOTHE, PARTSCH & SOLF, NEW RULES 642 (AP II art. 4, ¶2.5)
(“Paragraph 2 (b) prohibits ‘collective punishments’. The Committee had proposed ‘collective penalties’. The
change of this wording was accepted in order to include not only penalties imposed by a court but also penalties
imposed by administrative measures.”).
110 Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).
111 Refer to § 5.6 (Discrimination in Conducting Attacks).
112 Refer to § 17.16.2 (Improper Use of the Distinctive Emblem).
113 Refer to § 5.12 (Proportionality in Conducting Attacks).
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• In conducting attacks, combatants must assess in good faith the information that is
available to them.115
• Specific rules apply to the use of certain types of weapons.116
These rules apply to all parties to a non-international armed conflict, including persons
belonging to non-State armed groups, and persons who decide to participate in hostilities of their
own initiative. However, persons who belong to non-State armed groups, or who decide to
participate in hostilities of their own initiative, may also be subject to the State’s domestic
law.117
17.7.1 AP II Rule on Works and Installations Containing Dangerous Forces. AP II
provides that works or installations containing dangerous forces, namely dams, dykes, and
nuclear 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 severe losses among the civilian population.118 The United States has objected to
this rule in the context of international armed conflict and does not view it as reflecting
customary international law in either international or non-international armed conflict insofar as
the rule deviates from the regular application of the distinction and proportionality rules.119
However, the Executive, in submitting AP II to the Senate for its advice and consent to
ratification in 1987, did not recommend a reservation from or an understanding applicable to this
provision of AP II based on an assessment that preserving the option to attack works or
installations containing dangerous forces would not be as important in internal conflicts as
preserving that option would be in international armed conflicts.120
114 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
115 Refer to § 5.4 (Assessing Information Under the Law of War).
116 Refer to § 17.13.2 (Certain Types of Weapons With Specific Rules on Use in NIAC).
117 Refer to § 17.4 (A State’s Use of Its Domestic Law and NIAC).
118 Consider AP II art. 15 (“Works or installations containing dangerous forces, namely dams, dykes and nuclear
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 severe losses among the civilian
population.”).
119 Refer to § 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).
120 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
(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 434 (1987)
(“Professor HAMILTON DESAUSSURE asked for an explanation of the apparent inconsistency between the United
States rejection of the provisions in article 56 of Protocol I, relating to dams and dykes, and the simultaneous
acceptance of article 15 of Protocol II, which contains similar provisions. Mr. MATHESON replied that the United
States military based its objections on a pragmatic, real-world estimation of the difference between the two
situations. The military perceives that in international conflicts, many situations may arise where it is important to
attack and destroy parts of an electric power grid, such as a nuclear or hydroelectric generating station. In internal
conflicts, on the other hand, such a significant real-world need will not exist. Preserving the military option in
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17.8 IMPARTIAL HUMANITARIAN ORGANIZATIONS AND HUMANITARIAN ACTIVITIES DURING
NIAC
An impartial humanitarian body, such as the International Committee of the Red Cross,
may offer its services to the parties to the conflict.121 The civilian population may, even on its
own initiative, offer to collect and care for the wounded, sick, and shipwrecked.122 Similarly, the
United Nations Educational, Scientific and Cultural Organization may offer its services to the
parties to the conflict.123
17.8.1 State Consent for Humanitarian Organizations. The activities of relief
organizations are subject to the consent of the State concerned.124
States may withhold consent for, inter alia, legitimate military reasons, but should not
arbitrarily withhold consent.125 The safety of personnel of humanitarian organizations is a
legitimate consideration for a government in consenting to their operations.
17.9 PROTECTION OF THE CIVILIAN POPULATION IN NIAC
17.9.1 Displacement of the Civilian Population. The displacement of the civilian
population shall not be ordered for reasons related to the conflict unless the security of the
civilians involved or imperative military reasons so demand.126 Should such displacements have
international conflicts where such facilities are more likely to become an object of military attack, therefore, is very
important.”).
121 GWS art. 3 (“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). Consider
AP II art. 18 (“Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red
Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional
functions in relation to the victims of the armed conflict.”).
122 Consider AP II art. 18(1) (“The civilian population may, even on its own initiative, offer to collect and care for
the wounded, sick and shipwrecked.”).
123 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(3) (“The United Nations Educational, Scientific and
Cultural Organization may offer its services to the parties to the conflict.”).
124 Consider AP II art. 18(2) (“If the civilian population is suffering undue hardship owing to a lack of the supplies
essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are
of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall
be undertaken subject to the consent of the High Contracting Party concerned.”).
125 Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE
FROM THE PRESIDENT TRANSMITTING AP II 6 (“For its part, the United States would expect that the requirement of
consent [in article 18 of AP II] by the party concerned would not be implemented in an arbitrary manner, and that
essential relief shipments would only be restricted or denied for the most compelling and legitimate reasons.”).
126 Consider AP II art. 17(1) (“The displacement of the civilian population shall not be ordered for reasons related to
the conflict unless the security of the civilians involved or imperative military reasons so demand.”).
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to be carried out, all possible measures shall be taken in order that the civilian population may be
received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition.127
Civilians shall not be compelled to leave their own territory for reasons connected with
the conflict.128 A State must not compel civilians to leave its territory for reasons connected to
the conflict, while insurgents that control territory must not compel civilians to leave the area
under their authority.129
17.9.1.1 Security of the Civilians Involved or Imperative Military Reasons.
Legitimate reasons to order the movement of the civilian population may include, for example:
• affording the civilian population greater protection from insurgents; and
• reducing the support provided to insurgents from elements of the civilian population.130
Legitimate reasons to order the movement of civilians do not include the use of individuals or
groups of civilians around military objectives as involuntary human shields.131
17.9.2 Prohibition on Starvation of Civilians as a Method of Combat. Starvation of
civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy,
remove, or render useless, for that purpose, objects indispensable to the survival of the civilian
127 Consider AP II art. 17(1) (“Should such displacements have to be carried out, all possible measures shall be
taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health,
safety and nutrition.”).
128 Consider AP II art. 17(2) (“Civilians shall not be compelled to leave their own territory for reasons connected
with the conflict.”).
129 Cf. ICRC AP COMMENTARY 1475 (¶4859) (“First, there is a question whether, within the meaning of this
provision [in article 17 of AP II], the term ‘territory’ is equivalent to country. The ICRC draft referred to ‘national
territory’. Some amendments proposed substituting the formula ‘across the frontiers of the country of origin’. It is
clear that there was never any doubt in anyone's mind that the phrase was intended to refer to the whole of the
territory of a country. However, the text states that it is prohibited to compel civilians to leave ‘their own territory’.
In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by
Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive
part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel
civilians to leave the area under their authority.”).
130 For example, Lt. Col. Jerome F. Bierly and Timothy W. Pleasant, Malaya—A Case Study, MARINE CORPS
GAZETTE 46, 48 (Jul. 1990) (“The Briggs Plan called for the movement of the general population into protected
areas. In all, a total of 410 villages were eventually moved into areas fortified against guerrilla attacks. This served
two purposes: It helped to protect the populace from the attacks, and at the same time it cut off the majority of the
food supply to the guerillas. Also, the Chinese population, from which the guerillas drew most of their support, was
provided a situation in which they could participate in the local government and establish a degree of economic
prosperity they had not previously enjoyed.”).
131 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
1036
population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops,
livestock, drinking water installations and supplies, and irrigation works.132
17.9.2.1 Starvation of Enemy Forces Not Prohibited. It is only actions that are for
the purpose of starving civilians as a method of combat that are prohibited under this rule;
measures to starve enemy forces are not prohibited.133 For example, States may institute general
food control programs that involve the destruction of crops and the adequate provision of the
civilian population with food.134
Military action intended to starve enemy forces, however, must not be taken where it is
expected to result in incidental harm to the civilian population that is excessive in relation to the
military advantage anticipated to be gained.135
Feasible precautions to reduce the risk of harm to the civilian population or other
reasonable measures to mitigate the burden to the civilian population may also be warranted
when seeking to starve enemy forces.136
17.10 PROTECTION OF CHILDREN IN NIAC
17.10.1 General Protection and Care of Children. Children shall be provided with the
care and aid they require.137
Children shall receive an education, including religious and moral education, in keeping
with the wishes of their parents, or in the absence of parents, of those responsible for their
care.138
All appropriate steps shall be taken to facilitate the reunion of families temporarily
separated.139
132 Consider AP II art. 14 (“Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to
attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian
population, such as food stuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water
installations and supplies and irrigation works.”).
133 Refer to § 5.20.1 (Starvation - Distinction).
134 For example, R.W. Komer, The Malayan Emergency in Retrospect: Organization of A Successful
Counterinsurgency Effort, 59 (RAND Corporation, Feb. 1972) (“In order to force the insurgents to make supply
their major concern, the GOM turned to sizable food denial campaigns as the preferred form of security force
operations. By July 1953 no less than 77 such operations had been mounted in the state of Negri Sembilan alone. …
It did not take much ‘seepage’ to feed a guerrilla who could subsist on a daily ration of a handful of rice. But he
could store without detection only about six to eight weeks’ supply, and the number of people, time, and effort
involved in a ‘food lift’ from village to jungle edge to deep jungle was such as to make the lift vulnerable to
discovery.”).
135 Refer to § 5.20.2 (Starvation - Proportionality).
136 Refer to § 5.20.2 (Starvation - Proportionality).
137 Consider AP II art. 4(3) (“Children shall be provided with the care and aid they require, … .”).
138 Consider AP II art. 4(3)(a) (“they shall receive an education, including religious and moral education, in keeping
with the wishes of their parents, or in the absence of parents, of those responsible for their care;”).
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Measures shall be taken, if necessary, and whenever possible with the consent of their
parents or persons who by law or custom are primarily responsible for their care, to remove
children temporarily from the area in which hostilities are taking place to a safer area within the
country and ensure that they are accompanied by persons responsible for their safety and well-
being.140
The death penalty shall not be pronounced on persons who were under the age of
eighteen years at the time of the offense and shall not be carried out on pregnant women or
mothers of young children.141
17.10.2 Children and Participation in Non-International Armed Conflict. Children who
have not attained the age of fifteen years shall neither be recruited in the armed forces or groups
nor allowed to take part in hostilities.142 Children who are captured and who have taken a direct
part in hostilities remain entitled to the special protections afforded to children.143
The use or recruitment of child soldiers is an offense in U.S. law.144 The United States
has additional obligations as a Party to the Child Soldiers Protocol.145
17.11 PROTECTION OF CULTURAL PROPERTY IN NIAC
17.11.1 Application of Certain Provisions of the 1954 Hague Cultural Property
Convention. In the event of an armed conflict not of an international character occurring within
the territory of one of the Parties to the 1954 Hague Cultural Property Convention, each party to
the conflict shall be bound to apply, as a minimum, the provisions of the 1954 Hague Cultural
Property Convention that relate to respect for cultural property.146
139 Consider AP II art. 4(3)(b) (“all appropriate steps shall be taken to facilitate the reunion of families temporarily
separated;”).
140 Consider AP II art. 4(3)(e) (“[M]easures shall be taken, if necessary, and whenever possible with the consent of
their parents or persons who by law or custom are primarily responsible for their care, to remove children
temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they
are accompanied by persons responsible for their safety and well-being.”).
141 Refer to § 8.16.2.4 (Limitations on the Death Penalty).
142 Consider AP II art. 4(3)(c) (“[C]hildren who have not attained the age of fifteen years shall neither be recruited in
the armed forces or groups nor allowed to take part in hostilities;”); ROME STATUTE art. 8(2)(e)(vii) (defining “war
crime” to include “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or
using them to participate actively in hostilities” in non-international armed conflict).
143 Consider AP II art. 4(3)(d) (“the special protection provided by this Article to children who have not attained the
age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of
sub-paragraph c) and are captured;”).
144 Refer to § 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).
145 Refer to § 4.20.5 (Child Soldiers); § 17.2.1.2 (Implicit Application of Treaty Provisions to Situations in NIAC).
146 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (“In the event of an armed conflict not of an
international character occurring within the territory of one of the High Contracting Parties, each party to the
conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for
cultural property.”).
1038
17.11.2 Obligations to Respect Cultural Property. The obligation to respect cultural
property includes essentially negative duties, i.e., duties to refrain from acts of hostility directed
against cultural property and duties to refrain from the use of cultural property in support of
military operations where such use is not imperatively necessary.147
For example, parties to a conflict must not direct acts of hostility against cultural
property, its immediate surroundings, or appliances in use for its protection, unless such action is
required by imperative military necessity.148
In addition, no use should be made of cultural property, its immediate surroundings, or
appliances in use for its protection, for purposes that are likely to expose it to destruction or
damage in the event of armed conflict, unless such action is required by imperative military
necessity.149
17.12 USE OF CAPTURED OR SURRENDERED ENEMY PERSONNEL IN NIAC
In contrast to the rules during international armed conflict, State forces may use captured
or surrendered enemy personnel in operations against enemy non-State armed groups. The
cooperation of enemy personnel may not, however, be procured through illegal methods.
17.12.1 Compelling Captured or Surrendered Enemy Personnel to Take Part in the
Conflict. During international armed conflict, it is prohibited to compel the nationals of the
hostile party to take part in the operations of war directed against their own country.150
Additional restrictions apply with respect to POWs, retained personnel, protected persons in the
home territory of a belligerent, and protected persons in occupied territory.151
These rules, however, do not apply during non-international armed conflict. Under
international law, a State may compel its nationals to serve in its armed forces and to fight
against non-State armed groups.152 For example, in contrast to POWs, captured insurgents who
147 Refer to § 5.18.2 (Respect and Safeguarding of Cultural Property). Consider AP II art. 16 (“Without prejudice to
the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14
May 1954, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places
of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military
effort.”).
148 Refer to § 5.18.5 (Refraining From Any Act of Hostility).
149 Refer to § 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or
Damage).
150 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
151 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 7.9.5.6 (No Other Compulsory Duties);
§ 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).
152 Refer to § 4.5.2.4 (Draftees).
1039
are nationals of that State could be required to serve in that State’s armed forces or to take part in
operations directed against their former comrades.153
17.12.2 Methods of Gaining Cooperation. Inhumane treatment or other illegal methods
(such as threats to commit unlawful acts) may not be used to gain the cooperation of captured
enemy persons.154
However, a combination of threats of criminal punishment and inducements (e.g.,
amnesty, monetary rewards) may be used to seek to gain the cooperation of captured enemy
persons.155 For example, law enforcement authorities often use the cooperation of members of
criminal gangs or conspiracies to thwart and to prosecute the other participants or leaders in that
criminal enterprise.156
153 For example, Donald A. MacCuish and Spencer C. Tucker, Pseudoforces, in ENCYCLOPEDIA OF INSURGENCY
AND COUNTERINSURGENCY: A NEW ERA OF MODERN WARFARE 452 (2013) (“Pseudoforces are military units made
up of former insurgents who have been turned to work with counterinsurgency forces against their former
colleagues. This is possible because insurgent rank and filers are generally not as committed as their ideologically
bound leaders. Pseudoforces are a tremendous advantage in counterinsurgency operations. They can identify
certain of the insurgents, are well familiar with the operational terrain and the villagers, and understand what
motivates the insurgents and their supporters. They are of immense importance. Pseudoforces have played a role in
virtually every insurgency since World War II (1939-1945). … During the Dhofar campaigns in Oman (1970-1975),
the British made extensive use of pseudoforces, employing some 1,600 in 21 different units based on tribal
affiliations. The Portuguese also made extensive use of pseudoforces during the insurgencies in their African
territories. Notable among these were the Flechas (‘Arrows’) in Angola.”); MAJOR LAWRENCE M. GREENBERG, THE
HUKBALAHAP INSURRECTION: A CASE STUDY OF A SUCCESSFUL ANTI-INSURGENCY OPERATION IN THE PHILIPPINES
- 1946-1955 125 (1986) (“On the island of Panay, the Philippine Army tried a variation of the ‘Force X’ concept to
break the local guerrilla structure. Accompanied by three military intelligence agents, a group of twenty former
Huks were infiltrated into the island’s interior. After three months of gathering information, establishing their cover
as a bona fide Huk unit, and gaining the confidence of the island’s Huk leadership, they hosted a ‘by invitation only’
barbecue for the Panay High Command. Between the ribs and potato salad, the covert government force sprang an
ambush that killed or captured nearly all the Panay commanders and crippled the organization on the island for the
duration of the campaign.”).
154 Refer to § 8.2 (Humane Treatment of Detainees); § 8.2.4 (Threats to Commit Inhumane Treatment).
155 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-19 (¶1-104) (Dec. 2006)
(“Nothing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters
among the public are deserting or providing information to government authorities. Counterinsurgents may attract
deserters or informants by arousing fear of prosecution or by offering rewards.”).
156 For example, Benjamin Weiser, Terrorist Has Cooperated With U.S. Since Secret Guilty Plea in 2011, Papers
Show, THE NEW YORK TIMES, Mar. 25, 2013 (“A Somali terrorist with ties to Al Qaeda whose capture and
interrogation aboard a United States naval ship in 2011 fueled debate about the Obama administration’s
counterterrorism tactics secretly pleaded guilty in Manhattan and has been cooperating with the authorities, court
documents released on Monday show. The terrorist, Ahmed Abdulkadir Warsame, served as a military commander
with the Shabab in Somalia and worked as a liaison with Al Qaeda’s branch in Yemen, including brokering a deal
for the Shabab to buy weapons directly from the Qaeda group, the government has said. The newly unsealed court
papers show Mr. Warsame pleaded guilty in a closed court proceeding in Manhattan in December 2011, about five
months after he was brought to New York. After the plea, he met weekly with the government for hours at a time,
disclosing intelligence information about his Shabab and Qaeda co-conspirators, who included ‘high-level
international terrorist operatives,’ prosecutors said in one highly redacted letter dated March 2012.”).
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17.13 WEAPONS IN NIAC
17.13.1 Prohibited Weapons in NIAC. The use of the following types of weapons is
prohibited during non-international armed conflict:
• weapons calculated to cause superfluous injury;157
• inherently indiscriminate weapons;158
• poison, poisoned weapons, poisonous gases, and other chemical weapons;159
• biological weapons;160
• weapons that injure by fragments that are non-detectable by X-rays;161
• certain types of mines, booby-traps, and other devices;162 and
• blinding lasers.163
17.13.2 Certain Types of Weapons With Specific Rules on Use in NIAC. Certain types
of weapons are subject to specific rules that apply to their use by the U.S. armed forces in non-
international armed conflict. These weapons include:
• mines, booby-traps, and other devices (except certain specific classes of prohibited
mines, booby-traps, and other devices);164
• incendiary weapons;165
• laser weapons (except blinding lasers);166 and
• explosive ordnance.167
157 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
158 Refer to § 6.7 (Inherently Indiscriminate Weapons).
159 Refer to § 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).
160 Refer to § 6.9 (Biological Weapons).
161 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).
162 Refer to § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).
163 Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).
164 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).
165 Refer to § 6.14 (Incendiary Weapons).
166 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
167 Refer to § 6.19 (Explosive Ordnance).
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17.14 PROTECTION OF THE WOUNDED, SICK, SHIPWRECKED, AND DEAD IN NIAC
17.14.1 Respect, Protection, Humane Treatment, and Medical Care of the Wounded,
Sick, and Shipwrecked. All the wounded, sick, and shipwrecked, whether or not they have taken
part in the armed conflict, shall be respected and protected.168
17.14.1.1 Types of Persons Who Are Considered Wounded, Sick, and
Shipwrecked in NIAC. The wounded, sick, and shipwrecked in non-international armed conflict
may be understood to include:
• persons who have been rendered unconscious or otherwise have been incapacitated
because of their wounds, sickness, or shipwreck;169
• persons who have surrendered as a consequence of their health; and170
• persons who have been shipwrecked (i.e., helpless persons in distress at sea or stranded
on the coast) from any cause, including forced landings at sea by or from aircraft.171
Of course, any person who commits hostile acts or attempts to evade capture forfeits
protection as someone who is placed hors de combat.172
17.14.1.2 Meaning of “Respect and Protection” of the Wounded, Sick, and
Shipwrecked. The wounded, sick, and shipwrecked must be respected and protected at all times.
This means that they should not be knowingly attacked, fired upon, or unnecessarily interfered
with.173
Certain persons, however, are deemed to have accepted the risk of harm due to deliberate
proximity to military objectives; thus, expected incidental harm to such persons would be
understood not to prohibit attacks under the proportionality rule, even if such persons become
wounded, sick, or shipwrecked.174
168 Consider AP II art. 7(1) (“All the wounded, sick and shipwrecked, whether or not they have taken part in the
armed conflict, shall be respected and protected.”).
169 Refer to § 5.10.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or
Shipwreck).
170 Refer to § 5.10.3 (Persons Who Have Surrendered).
171 Compare § 7.3.1.2 (Shipwrecked).
172 Refer to § 5.10 (Persons Placed Hors de Combat).
173 Compare § 7.3.3 (Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked).
174 Compare § 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives);
§ 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
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The respect and protection afforded the wounded, sick, and shipwrecked do not
immunize them from search, or other necessary security measures, or capture and detention, even
if they are receiving medical care.175
Booby-trapping the wounded or sick is expressly prohibited.176
17.14.2 Humane Treatment and Practicable Medical Care and Attention. In all
circumstances, the wounded, sick, and shipwrecked shall be treated humanely and shall receive,
to the fullest extent practicable and with the least possible delay, the medical care and attention
required by their condition.177 There shall be no distinction among them founded on any
grounds other than medical ones.178
17.14.3 Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and
Dead. Whenever circumstances permit, and particularly after an engagement, all possible
measures shall be taken, without delay, to search for and collect the wounded, sick, and
shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and
to search for the dead, prevent their being despoiled, and decently dispose of them.179
The obligations to search for, collect, and take affirmative steps to protect the wounded,
sick, and shipwrecked are subject to practical limitations; military commanders are to judge what
is possible, and to what extent they can commit their personnel to these duties.180
17.14.3.1 Mistreatment and Booby-Trapping of the Dead Prohibited. The
mistreatment of the dead is prohibited.181 In addition, the dead may not be booby-trapped.182
175 Compare § 7.3.3.2 (Search and Other Security Measures Not Prohibited); § 7.3.3.3 (Capture of Wounded, Sick,
and Shipwrecked Not Prohibited).
176 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).
177 Consider AP II art. 7(2) (“In all circumstances they shall be treated humanely and shall receive, to the fullest
extent practicable and with the least possible delay, the medical care and attention required by their condition.”).
178 Consider AP II art. 7(2) (“There shall be no distinction among them founded on any grounds other than medical
ones.”).
179 Consider AP II art. 8 (“Whenever circumstances permit, and particularly after an engagement, all possible
measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them
against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being
despoiled, and decently dispose of them.”).
180 Compare § 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the
Wounded, Sick, and Shipwrecked).
181 For example, Karen Parrish, Panetta Orders Investigation of Video, Vows Accountability, AMERICAN FORCES
PRESS SERVICE, Jan. 12, 2012 (“Defense Secretary Leon E. Panetta released a statement today strongly condemning
the actions of a small group of Marines depicted in a video that began circulating online yesterday. The video shows
four Marines apparently urinating over three enemy corpses in Afghanistan. The secretary’s statement said he has
seen the footage and finds the behavior depicted in it ‘utterly deplorable.’ ‘I condemn it in the strongest possible
terms,’ Panetta said. ‘I have ordered the Marine Corps and ISAF commander [Marine Corps] Gen. John Allen to
immediately and fully investigate the incident. This conduct is entirely inappropriate for members of the United
States military and does not reflect the standards or values our armed forces are sworn to uphold. Those found to
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17.15 PROTECTION OF MEDICAL AND RELIGIOUS PERSONNEL AND MEDICAL TRANSPORTS IN
NIAC
17.15.1 Protection of Medical and Religious Personnel. Medical and religious personnel
shall be respected and protected and shall be granted all available help for the performance of
their duties. They shall not be compelled to carry out tasks that are not compatible with their
humanitarian mission.183
17.15.1.1 Types of Persons Who Are Considered Medical and Religious
Personnel in NIAC. Medical and religious personnel include those persons who are exclusively
(e.g., permanently) engaged in those duties.184 For example, persons who intermittently take a
direct part in hostilities are not considered medical and religious personnel.185
17.15.1.2 Meaning of “Respect and Protection” of Medical and Religious
Personnel. The respect and protection accorded to medical and religious personnel mean that
they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging
their proper functions.186
Certain medical and religious personnel, however, are deemed to have accepted the risk
of harm due to their deliberate proximity to military objectives; thus, expected incidental harm to
such persons would be understood not to prohibit attacks under the proportionality rule.187
The respect and protection afforded medical and religious personnel do not immunize
them from search, or from other necessary security measures, or from capture and detention.188
AP II and applicable treaties to which the United States is a Party (such as the 1949 Geneva
Conventions) do not afford medical and religious personnel belonging to non-State armed groups
retained personnel status if captured.
17.15.2 Protection of Medical Units and Transports. Medical units and transports shall
be respected and protected at all times and shall not be the object of attack.189 The protection to
which medical units and transports are entitled shall not cease unless they are used to commit
have engaged in such conduct will be held accountable to the fullest extent.’”). Compare § 7.7.1.1 (No
Disrespectful or Degrading Treatment of the Dead).
182 Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).
183 Consider AP II art. 9(1) (“Medical and religious personnel shall be respected and protected and shall be granted
all available help for the performance of their duties. They shall not be compelled to carry out tasks which are not
compatible with their humanitarian mission.”).
184 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).
185 Refer to § 5.9.3 (“Taking a Direct Part in in Hostilities”).
186 Compare § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).
187 Compare § 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives);
§ 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
188 Compare § 7.8.2.2 (Search and Other Security Measures Not Prohibited); § 7.8.2.3 (Capture Not Prohibited).
189 Consider AP II art. 11(1) (“Medical units and transports shall be respected and protected at all times and shall not
be the object of attack.”).
1044
hostile acts, outside their humanitarian function. Protection may, however, cease only after a
warning has been given setting, whenever appropriate, a reasonable time-limit, and after such
warning has remained unheeded.190
17.15.2.1 Types of Units and Vehicles That Are Considered Medical Units and
Transports. Medical units and transports include those units and vehicles that are exclusively
(e.g., permanently) engaged in those activities.191 For example, units and transports that
intermittently are used in hostilities are not considered medical units and transports.
17.15.2.2 Meaning of “Respect and Protection” of Medical Units and Transports.
The respect and protection accorded to medical units and transports mean that they must not
knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper
functions.192
Certain medical units and transports, however, are deemed to have accepted the risk of
harm due to their deliberate proximity to military objectives; thus, expected incidental harm to
such medical units and transports would be understood not to prohibit attacks under the
proportionality rule.193
The respect and protection afforded medical units and facilities does not immunize them
from search or capture.194
17.16 DISPLAY OF THE DISTINCTIVE EMBLEM IN NIAC
Under the direction of the competent authority concerned, the distinctive emblem of the
red cross, red crescent, or red lion and sun on a white ground shall be displayed by medical and
religious personnel and medical units, and on medical transports. It shall be respected in all
circumstances. It shall not be used improperly.195
These rules also apply to the distinctive emblem of the red crystal.196
190 Consider AP II art. 11(2) (“The protection to which medical units and transports are entitled shall not cease
unless they are used to commit hostile acts, outside their humanitarian function. Protection may, however, cease
only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning
has remained unheeded.”).
191 Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).
192 Compare § 7.10.1 (Meaning of “Respect and Protection” of Military Medical Units and Facilities).
193 Compare § 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives);
§ 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
194 Compare § 7.10.1.2 (Search Not Prohibited); § 7.10.1.3 (Capture Not Prohibited).
195 Consider AP II art. 12 (“Under the direction of the competent authority concerned, the distinctive emblem of the
red cross, red crescent or red lion and sun on a white ground shall be displayed by medical and religious personnel
and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used
improperly.”).
196 Refer to § 7.15.1.3 (Red Crystal); § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).
1045
17.16.1 Display of the Emblem Under the Direction of the Competent Authority
Concerned. The display of the distinctive emblem is under the direction of the competent
authority concerned, which authority may authorize the removal or obscuring of the distinctive
emblem for tactical purposes, such as camouflage.197 Similarly, it would be appropriate for the
distinctive emblem to be removed if it is assessed that enemy forces will fail to respect the
emblem and seek to attack medical personnel; display of the emblem in such circumstances
would be deemed not to be feasible.198
17.16.2 Improper Use of the Distinctive Emblem. Improper use of the distinctive
emblem includes use: (1) while engaging in attacks; (2) in order to shield, favor, or protect one’s
own military operations; or (3) to impede enemy military operations.199
17.17 DETENTION IN NIAC
17.17.1 State Authority to Detain. Law of war treaties have not limited the scope of
whom a State may detain for reasons related to a non-international armed conflict, but have
prescribed humane treatment for such persons.200 A State’s authority to conduct detention
operations has often been understood as incident to the legal basis of the State to engage in
operations against the non-State armed group.201
The precise legal requirements for a detention regime established by a State in non-
international armed conflict would likely depend a great deal on its domestic law.
17.17.1.1 Non-Punitive Detention in Non-International Armed Conflict. Non-
punitive detention may be conducted on a variety of legal theories under international law.202
For example, although enemy non-State armed groups would not be entitled to POW status, a
State may detain persons belonging to enemy armed groups, by analogy to the detention of
POWs in international armed conflict. Similarly, although persons would not be protected
persons under the GC, a State may detain persons for security reasons, by analogy to the
197 Compare § 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem).
198 Refer to § 5.3.3.2 (What Precautions Are Feasible).
199 Refer to § 5.24 (Improper Use of Certain Signs).
200 AP II art. 5(1) (“In addition to the provisions of Article 4, the following provisions shall be respected as a
minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are
interned or detained:”).
201 Refer to § 8.1.3.1 (Detention Authority).
202 For example, FRANK KITSON, GANGS AND COUNTER-GANGS 45 (1960) (“There was one other legal means of
getting at the Mau Mau. This was for the Police to submit a dossier giving a full list of all that was known against a
person to the Governor, who could then sign an order for detention during the Emergency providing he was satisfied
that such action was necessary in the interests of maintaining public order. This was a good idea as far as it went but
the Governor could only sign a comparatively limited number. Certainly the system could not take care of all the
committee members of all the committees though it was satisfactory for the most senior ones. It was an advance in
another way, in that it all but recognized the status of prisoner of war by saying to a man ‘You are not a criminal but
you are on the wrong side. You must be restrained until this trouble is over.’ It was of course contrary to the
principles of British justice but it was merciful. In its extended form later in the Emergency it saved thousands of
loyalist lives by reducing the number of Mau Mau, and probably saved many Mau Mau lives by locking up people
who would otherwise have joined the gangs and been killed by the Security Forces.”).
1046
detention of protected persons in international armed conflict or occupation. Other legal
rationales for the detention of persons in non-international armed conflict also may be available.
17.17.1.2 Punitive Detention in Non-International Armed Conflict. During non-
international armed conflict, a State could also detain persons pursuant to its criminal law. For
example, persons who support enemy non-State armed groups could be sentenced to a variety of
offenses (e.g., murder, criminal conspiracy, treason or other offenses against the State, material
support to terrorism or terrorist organizations).
17.17.2 Detention by Non-State Armed Groups. Non-State armed groups typically
would lack domestic legal authority to conduct detention operations. Their actions may be
subject to prosecution under domestic statutes making punishable kidnapping, hostage taking,
false imprisonment, interference with State officials, etc. Nonetheless, detention during non-
international armed conflict by non-State armed groups is not prohibited by international law. In
any case, non-State armed groups that conduct detention operations must provide humane
treatment to detainees.
17.17.3 Humane Treatment and Other Applicable Requirements. All persons (including
those belonging to the State or those belonging to non-State armed groups) who are detained by
the adverse party are entitled to the protections of Common Article 3 of the 1949 Geneva
Conventions, including humane treatment.203 Although detainees are afforded humane
treatment, they do not receive POW status.204
Chapter VIII addresses the baseline rules for the humane treatment of detainees that
apply to all U.S. military operations, including those in non-international armed conflict.205
17.18 NON-INTERVENTION AND NEUTRAL DUTIES IN NIAC
17.18.1 Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-
State Armed Groups Against Other States. Under international law, principles of friendly
relations and non-intervention require States to refrain from supporting non-State armed groups
in hostilities against other States.206
203 Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).
204 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 646 (AP II art. 5, ¶2.3) (“It must be emphasized in this
connection that Protocol II does not confer a special status on members of the armed forces of either side captured
by the adverse party similar to the status of a prisoner of war in an international armed conflict. The rebel does not
enjoy any privilege with regard to acts committed during the rebellion.”); ICRC AP COMMENTARY 1386 (¶4570)
(“Protocol II, following the example of common Article 3, does not grant a special status to members of the armed
forces or armed groups who have fallen into enemy hands. They are not legally prisoners of war entitled to special
protection; this is why it is so important that the rules laid down in this article [5 of AP II] establish minimum
guarantees.”).
205 Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).
206 See, e.g., Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, annex to U.N. GENERAL ASSEMBLY
RESOLUTION 2625 (XXV), U.N. Doc. A/RES/2625(XXV) (1970) (“Every State has the duty to refrain from
organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion
into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or
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These are closely analogous to the duties that neutral States have under the law of
neutrality to refrain from supporting military operations against belligerents.207
In particular, States are required to take all reasonable steps to ensure that their territory is
not used by non-State armed groups for purposes of armed activities—including planning,
threatening, perpetrating, or providing material support for armed attacks—against other States
and their interests.208 The failure to fulfill this duty may have consequences in regard to whether
other States that are threatened by these armed activities must seek the consent of that State
before taking action in self-defense in that State’s territory.209
Violations of law of war treaties applicable to non-international armed conflict by a State
generally have not been understood to provide an independent basis in international law for a
non-belligerent State to intervene against the violating State in that conflict.210
17.18.2 Duty of Belligerent States to Respect the Sovereignty of Other States. States that
are engaged in hostilities against non-State armed groups must respect the sovereignty of other
States.211 In general, States must obtain the consent of a territorial State before conducting
military operations against a non-State armed group in that State’s territory.212
participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its
territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a
threat or use of force.”).
207 See, e.g., Christopher Greenwood, International law and the ‘war on terrorism,’ 78 INTERNATIONAL AFFAIRS
301, 313 (2002) (“By allowing Al-Qa’ida to operate from the territory which it controlled, the Taliban—and thus
Afghanistan—violated the general duty of a state under international law not to allow its territory to be used as a
base for attacks on other states. … At the very least, its position was analogous to that of a neutral state which
allows a belligerent to mount military operations from its territory: even though it is not responsible for those
operations, it exposes itself to the risk of lawful military action to put a stop to them. Similarly, where a state allows
terrorist organizations to mount concerted operations against other states from its territory and refuses to take the
action required by international law to put a stop to such operations, the victims of those operations are entitled to
take action against those terrorists.”); H. Lauterpacht, Revolutionary Activities by Private Persons Against Foreign
States, 22 AJIL 105, 127 (1928) (“The nearest approach to what is believed to be the true juridical construction of
the state’s duty to prevent organized hostile expeditions from proceeding in times of peace against a friendly state
will be found in the law of neutrality. … The two situations being closely analogous, it is only natural that they are
regulated in Great Britain and in the United States in the same legal enactments. The law of hostile expeditions is
nothing else than the law of neutrality in relation to an actual or impending civil war.”).
208 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“9. States are required to take all reasonable steps
to ensure that their territory is not used by nonstate actors for purposes of armed activities—including planning,
threatening, perpetrating, or providing material support for armed attacks—against other states and their interests.”).
209 Refer to § 17.18.2 (Duty of Belligerent States to Respect the Sovereignty of Other States).
210 See, e.g., CCW AMENDED art. 1(5) (“Nothing in this Convention or its annexed Protocols shall be invoked as a
justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or
external affairs of the High Contracting Party in the territory of which that conflict occurs.”). Consider AP II art.
2(2) (“Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any
reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the
territory of which that conflict occurs.”). Refer to § 1.11.4.4 (Humanitarian Intervention).
211 See, e.g., Jeh Charles Johnson, General Counsel, Department of Defense, National Security Law, Lawyers, and
Lawyering in the Obama Administration, Feb. 22, 2012, 2012 DIGEST OF UNITED STATES PRACTICE IN
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The consent of the territorial State, however, is not necessary when the U.N. Security
Council has authorized the military operations.213
In addition, the United States has expressed the view that consent is not required when
the territorial State is unwilling or unable to prevent its territory from being used by non-State
armed groups as a base for launching attacks.214 Other States have also expressed this view.215
INTERNATIONAL LAW 575, 577 (“Third: there is nothing in the wording of the 2001 AUMF or its legislative history
that restricts this statutory authority to the ‘hot’ battlefields of Afghanistan.
… The legal point is important because,
in fact, over the last 10 years al Qaeda has not only become more decentralized, it has also, for the most part,
migrated away from Afghanistan to other places where it can find safe haven. However, this legal conclusion too
has its limits. It should not be interpreted to mean that we believe we are in any ‘Global War on Terror,’ or that 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 limits on our ability to act unilaterally, and on the way in
which we can use force in foreign territories.”); 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 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717-18 (“As recent events
have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.
Thus, in this ongoing armed conflict, the United States has the authority under international law, and the
responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such
as high-level al-Qaeda leaders who are planning attacks. … Of course, whether a particular individual will be
targeted in a particular location will depend upon considerations specific to each case, including those related to the
imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states
to suppress the threat the target poses.”).
212 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“Subject to the following paragraphs, a state may
not take armed action in self-defense against a nonstate actor in the territory or within the jurisdiction of another
state (‘the third state’) without the consent of that state. The requirement for consent does not operate in
circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed
force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.”).
213 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“The requirement for consent does not operate in
circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed
force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.”). 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).
214 See, e.g., Samantha J. Power, Letter dated 23 September 2014 from the Permanent Representative of the United
States of America to the United Nations addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014)
(“ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the
United States and our partners in the region and beyond. States must be able to defend themselves, in accordance
with the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the
United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or
unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not
confront these safe havens effectively itself.”); John B. Bellinger, III, Department of State Legal Adviser, Legal
Issues in the War on Terrorism, Oct. 31, 2006, 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW
1104, 1109-10 (“Let me be very clear here: I am not suggesting that, because we remain in a state of armed conflict
with al Qaida, the United States is free to use military force against al Qaida in any state where an al Qaida terrorist
may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter,
though, a state must be responsible for preventing terrorists from using its territory as a base for launching attacks.
And, as a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use
military force in self-defense to address that threat.”); Abraham Sofaer, The Sixth Annual Waldemar A. Solf Lecture
in International Law: Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 108 (1989)
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It may be unnecessary for a belligerent State to seek consent when there is a strong,
reasonable, and objective basis for concluding that the seeking of consent would be likely to
undermine materially the effectiveness of the action against the non-State armed group (e.g.,
reasons of disclosure, delay, incapacity to act) or would increase the risk of armed attack,
vulnerability to future attacks, or other development that would give rise to an independent
imperative to act in self-defense.216
(“The United States in fact supported the legality of a nation attacking a terrorist base from which attack on its
citizens are being launched, if the host country is either unwilling or unable to stop the terrorists from using its
territory for that purpose.”).
215 For example, Michael Grant, Letter dated 31 March 2015 from the Chargé d’affaires a.i. of the Permanent
Mission of Canada to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2015/221
(Mar. 31, 2015) (“ISIL also continues to pose a threat not only to Iraq, but also to Canada and Canadians, as well as
to other countries in the region and beyond. In accordance with the inherent rights of individual and collective self-
defence reflected in Article 51 of the United Nations Charter, States must be able to act in self-defence when the
government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its
territory.”); Russian Federation President V.V. Putin, Statement of Sept. 11, 2002, annexed to Sergey Lavrov, Letter
dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations
addressed to the Secretary-General, U.N. Doc. S/2002/1012 (Sept. 11, 2002) (“The Russian Federation firmly
adheres to its international obligations and respects the sovereignty and integrity of other States, but it demands the
same attitude towards itself. If the Georgian leadership is unable to establish a security zone in the area of the
Georgian-Russian border, continues to ignore United Nations Security Council resolution 1373 (2001) of 28
September 2001, and does not put an end to the bandit sorties and attacks on adjoining areas in the Russian
Federation, we reserve the right to act in accordance with Article 51 of the Charter of the United Nations, which lays
down every Member State’s inalienable right of individual or collective self-defence. … None of this will be
necessary, no measures or special operations will be needed if the Georgian leadership actually controls its own
territory, carries out international obligations in combating international terrorism and prevents possible attacks by
international terrorists from its territory against the territory of the Russian Federation.”); Hayati Güven, Letter
Dated 24 July 1995 from the Charge D’affaires A.I. of the Permanent Mission of Turkey to the United Nations
Addressed to the President of the Security Council, U.N. Doc. S/1995/605 (Jul. 24, 1995) (“As Iraq has not been
able to exercise its authority over the northern part of its country since 1991 for reasons well known, Turkey cannot
ask the Government of Iraq to fulfil its obligation, under international law, to prevent the use of its territory for the
staging of terrorist acts against Turkey. Under these circumstances, Turkey’s resorting to legitimate measures which
are imperative to its own security cannot be regarded as a violation of Iraq’s sovereignty. No country could be
expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of a
terrorist organization based and operating from a neighbouring country, if that country is unable to put an end to
such attacks. The recent operations of limited time and scope were carried out within this framework, as explained
to the world public.”); Statement of Mr. Blum, representative of Israel, in U.N. Doc. S/PV.2292 ¶¶54-56 (“Members
of the [Security] Council need scarcely be reminded that under international law, if a State is unwilling or unable to
prevent the use of its territory to attack another State, that latter state is entitled to take all necessary measures in its
own defence. The Government of Israel is in fact exercising the inherent right of self-defence enjoyed by every
sovereign State, a right also preserved under Article 51 of the Charter of the United Nations. Israel’s response to
PLO terror is what any self-respecting sovereign State would do in similar circumstances. I must stress that Israel’s
actions are specifically directed against concentrations of PLO terrorists in Lebanon.”).
216 Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“In such circumstances, in addition to the preceding
requirements, there must also be a strong, reasonable, and objective basis for concluding that the seeking of consent
would be likely to materially undermine the effectiveness of action in self-defense, whether for reasons of
disclosure, delay, incapacity to act, or otherwise, or would increase the risk of armed attack, vulnerability to future
attacks, or other development that would give rise to an independent imperative to act in self-defense.”).
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17.18.3 States’ Support to Other States in Hostilities Against Non-State Armed Groups.
International law does not prohibit States from assisting other States in their armed conflicts
against non-State armed groups. To the extent those States intend to conduct hostilities or
actually do so, they may incur obligations under the law of war.217 For example, a State that is
conducting detention operations would have obligations to treat detainees (e.g., persons
belonging to non-State armed groups) humanely regardless of whether it considers itself a party
to the non-international armed conflict.
17.18.4 Liability of Private Individuals for Supporting Non-State Armed Groups. Private
individuals who support non-State armed groups that are preparing for, or engaged in, hostilities
against a State may be subject to prosecution. Such conduct may be criminalized under a variety
of domestic laws relating to treason, hostile expeditions against other States, material support to
terrorism, or piracy.218
The State that is threatened by such activities may prosecute such individuals for treason
or other offenses against the State.
States in which such conduct occurs may seek to prosecute such conduct for a variety of
reasons, including its duties under international law to refrain from materially supporting
hostilities against another State, and to repress terrorism or piracy.
217 Refer to § 3.4 (When Jus in Bello Rules Apply).
218 Refer to § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).
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XVIII - Implementation and Enforcement of the Law of War
Chapter Contents
18.1 Introduction
18.2 Prudential Reasons Supporting the Implementation and Enforcement of the
Law of War
18.3 Duties of Individual Members of the Armed Forces
18.4 Commanders’ Duty to Implement and Enforce the Law of War
18.5 Role of Judge Advocates and Legal Advisers
18.6 Dissemination, Study, and Other Measures to Facilitate Understanding of
Duties Under the Law of War
18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law
of War
18.8 Considering Law of War Obligations in the Planning of Military Operations
18.9 States’ Obligations With Respect to Violations of the Law of War
18.10 Methods for Responding to Violations of the Law of War by the Enemy
18.11 Protests and Demands to the Offending Party
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
18.14 International Mechanisms to Investigate Alleged Law of War Violations
18.15 Protecting Power and Other Neutral Intermediaries
18.16 Compensation for Violations of the Law of War
18.17 Retorsion
18.18 Reprisals
18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law
of War
18.20 Prosecution in International and Hybrid Courts
18.21 Limits on the Punishment of Individuals Under the Law of War
18.22 Principles of Individual Criminal Responsibility for Crimes Under
International Law
18.23 Theories of Individual Criminal Liability
18.1 INTRODUCTION
This Chapter addresses the implementation and enforcement of the law of war. It
discusses activities that are undertaken in order to prevent violations of the law of war (such as
training and the promulgation of policies, regulations, and orders). It discusses activities to
respond to alleged violations, such as reporting, investigation, and corrective or punitive
measures.
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18.1.1 DoD Policy on Implementing and Enforcing the Law of War. DoD policy has
addressed the policies and responsibilities for ensuring DoD compliance with the law of war
obligations of the United States.1 It has been DoD policy that:
• Members of the DoD Components comply with the law of war during all armed conflicts,
however such conflicts are characterized, and in all other military operations;2
• The law of war obligations of the United States are observed and enforced by the DoD
Components and DoD contractors assigned to, or accompanying, deployed armed
forces;3
• An effective program to prevent violations of the law of war is implemented by the DoD
Components.4
These policies follow a longer tradition of compliance with the law of war by U.S. armed
forces.5
1 See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶1 (May 9, 2006, Certified Current as of Feb. 22,
2011) (“This Directive: 1.1. Reissues Reference (a) to update the policies and responsibilities ensuring DoD
compliance with the law of war obligations of the United States.”); DOD DIRECTIVE 5100.77, DoD Program for the
Implementation of the Law of War, ¶I (Nov. 5, 1974) (“This Directive provides policy guidance and assigns
responsibilities within the Department of Defense for a program to insure implementation of the law of war.”).
2 See, e.g., DOD DIRECTIVE 2311.01E, DoD Law 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
conflicts are characterized, and in all other military operations.”); DOD DIRECTIVE 5100.77, DoD Law of War
Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: 5.3.1. Ensure that the members of their
DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized,
and with the principles and spirit of the law of war during all other operations.”); DOD DIRECTIVE 5100.77, DoD
Law of War Program, ¶E(1)(a) (Jul. 10, 1979) (“The Armed Forces of the United States shall comply with the law
of war in the conduct of military operations and related activities in armed conflict, however such conflicts are
characterized.”); DOD DIRECTIVE 5100.77, DoD Program for the Implementation of the Law of War, ¶V(A) (Nov. 5,
1974) (“The Armed Forces of the United States will comply with the law of war in the conduct of military
operations and related activities in armed conflict however such conflicts are characterized.”).
3 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.2 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(“The law of war obligations of the United States are observed and enforced by the DoD Components and DoD
contractors assigned to or accompanying deployed Armed Forces.”).
4 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.3 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(“An effective program to prevent violations of the law of war is implemented by the DoD Components.”).
5 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶7 (“In consequence, treaties relating to the law of war have a force
equal to that of laws enacted by the Congress. Their provisions must be observed by both military and civilian
personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the
Constitution and statutes enacted in pursuance thereof. … The unwritten or customary law of war is binding upon all
nations. It will be strictly observed by United States forces, subject only to such exceptions as shall have been
directed by competent authority by way of legitimate reprisals for illegal conduct of the enemy (see par. 497).”);
U.S. Navy Regulations Article 0505 (1948) (“Observance of International Law. 1. In the event of war between
nations with which the United States is at peace, a commander shall observe, and require his command to observe,
the principles of international law. He shall make every effort consistent with those principles to preserve and
protect the lives and property of citizens of the United States wherever situated. 2. When the United States is at war,
he shall observe, and require his command to observe, the principles of international law and the rules of humane
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18.1.2 National Obligations to Implement and Enforce the Law of War. States, as Parties
to treaties, have certain obligations to implement and enforce those treaties. These obligations
may be written as a general obligation to undertake to respect and to ensure respect for the treaty.
In addition, treaties may provide for more specific obligations to help implement and
enforce their provisions, such as obligations with respect to violations of the treaty or
dissemination of the text of the treaty.
Different treaties may have different mechanisms to implement and to ensure compliance
with that treaty.
18.1.2.1 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty - 1949 Geneva Conventions. Parties to the 1949 Geneva Conventions
undertake to respect and ensure respect for the conventions in all circumstances.6 This is a
general obligation to take the measures that the State deems appropriate in order to fulfill its
obligations under the conventions.
18.1.2.2 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty - AP III. Parties to AP III undertake to respect and to ensure respect for
AP III in all circumstances.7
18.1.2.3 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty - CCW Amended Mines Protocol. Parties to the CCW Amended Mines
Protocol shall take all appropriate steps, including legislative and other measures, to prevent and
suppress violations of that Protocol by persons or on territory under its jurisdiction or control.8
18.1.2.4 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty - Child Soldiers Protocol. Each Party to the Child Soldiers Protocol
shall take all necessary legal, administrative, and other measures to ensure the effective
implementation and enforcement of the provisions of this Protocol within its jurisdiction.9
warfare. He shall respect the rights of neutrals as prescribed by international law and by pertinent provisions of
treaties, and shall exact a like observance from neutrals.”).
6 GWS art. 1 (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention
in all circumstances.”); GWS-SEA art. 1 (same); GPW art. 1 (same); GC art. 1 (same).
7 AP III art. 1(1) (“The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all
circumstances.”).
8 CCW AMENDED MINES PROTOCOL art. 14 (“1. Each High Contracting Party shall take all appropriate steps,
including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on
territory under its jurisdiction or control.
2. The measures envisaged in paragraph I of this Article include
appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed
conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring
such persons to justice.”).
9 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
art. 6(1), May 25, 2000, 2173 UNTS 222, 238 (“Each State Party shall take all necessary legal, administrative and
other measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its
jurisdiction.”).
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18.1.3 International or Multi-National Actions to Implement and Enforce the Law of
War. States sometimes take actions on the international or multinational level to implement and
enforce the law of war.
For example, NATO Standardization Agreements might specify common procedures to
implement obligations under the 1949 Geneva Conventions for the treatment of POWs. States
may investigate alleged violations of the law of war through international commissions of
inquiry.10 As another example, States may establish international criminal tribunals to try enemy
belligerents.11
18.1.4 Law of War Obligations and International Organizations. International
organizations, such as the United Nations or NATO, are not Parties to law of war treaties, such
as the 1949 Geneva Conventions. Thus, these organizations do not have obligations under those
treaty instruments. However, the member States of international organizations are Parties to
these treaties, and as a general matter, a State’s obligations under law of war treaties would not
be rendered inapplicable simply because its forces are part of an international or multinational
force or are acting through an international organization.
18.1.5 Application of Implementation and Enforcement Measures Outside the Context of
International Armed Conflict. Certain treaty obligations with respect to the implementation and
enforcement of the law of war may not apply outside the context of international armed conflict.
Nonetheless, many of the domestic law, policies, and regulations that are used to
implement and enforce the law of war are applicable outside the context of international armed
conflict. Thus, for example, many of the provisions of the Uniform Code of Military Justice may
be used to punish crimes that have been committed in the context of a non-international armed
conflict or a military operation other than war.
18.2 PRUDENTIAL REASONS SUPPORTING THE IMPLEMENTATION AND ENFORCEMENT OF THE LAW
OF WAR
The implementation and enforcement of the law of war have been supported by strong
practical considerations. Compliance with the law of war is not only legally required but also in
the strong self-interest of everyone subject to the law of war.12
18.2.1 Reinforcing Military Effectiveness. Conducting military operations in accordance
with the law of war is not fighting with one hand tied behind one’s back. Rather, law of war
10 Refer to § 18.14 (International Mechanisms to Investigate Alleged Law of War Violations).
11 Refer to § 18.20.1 (Post-World War II International Military Tribunals).
12 1976 AIR FORCE PAMPHLET 110-31 ¶1-6 (“The law of armed conflict developed from an amalgam of social,
political and military considerations. The primary basis for the law, and the principal reason for its respect, is that it
generally serves the self-interest of everyone subject to its commands.”).
1055
principles and rules are consistent with military doctrines for a profession of arms that are the
basis for effective combat operations.13
For example, various military doctrines, such as accuracy of targeting, concentration of
effort, maximization of military advantage, conservation of resources, avoidance of excessive
collateral damage, and economy of force are not only fully consistent with compliance with the
law of war, but also reinforce its observance. Use of indiscriminate and excessive force is costly,
highly inefficient, and a waste of scarce resources.14
Similarly, the necessity of discipline for an effective armed force reinforces the
implementation and enforcement of the law of war. An undisciplined force is more likely to
commit law of war violations, such as pillaging, detainee abuse, or atrocities against the civilian
population.15
18.2.2 Encouraging Reciprocal Adherence by the Adversary. The requirement to comply
with many law of war rules (such as the obligation to treat detainees humanely) does not depend
on whether the enemy complies with that rule.16
Nevertheless, reciprocity may be a critical factor in the actual observance of the law of
war. Adherence to law of war rules in conducting military operations can encourage an
adversary also to comply with those law of war rules.17 For example, humane treatment of
enemy persons detained by U.S. forces can encourage enemy forces to treat detained U.S.
persons humanely.18 Conversely, the maltreatment of detained personnel by U.S. forces may
have a dramatic and negative effect on how U.S. personnel in the hands of the enemy are treated
and the degree to which the law of war is respected generally.19
13 Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 33 (¶132) (1999) (“It should not be assumed, however, that
humanitarian law and military requirements will necessarily be opposed to one another. On the contrary, most rules
of humanitarian law reflect good military practice, and adherence by armed forces to those rules is likely to reinforce
discipline and good order within the forces concerned.”).
14 1976 AIR FORCE PAMPHLET 110-31 ¶1-6b (“More importantly, various military doctrines, such as accuracy of
targeting, concentration of effort, maximization of military advantage, conservation of resources, avoidance of
excessive collateral damage, and economy of force are not only fully consistent with compliance with the law of
armed conflict but reinforce its observance. Use of excessive force is not only costly and highly inefficient—and to
be avoided for those reasons—it may also be a waste of scarce resources.”).
15 Compare § 4.18.3 (Private Persons Who Engage in Hostilities - Lack of the Privileges of Combatant Status).
16 Refer to § 3.6 (Reciprocity and Law of War Rules).
17 1976 AIR FORCE PAMPHLET 110-31 ¶10-1b (“The most important relevant treaties, the 1949 Geneva Conventions
for the Protection of War Victims, are not formally conditioned on reciprocity. … Yet reciprocity is an implied
condition in other rules and obligations including generally the law of armed conflict. It is moreover a critical factor
in actual observance of the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine of
reprisals.”).
18 Refer to § 9.2.5 (Reciprocity in the Treatment of POWs).
19 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1274 (“It is
almost inevitable that the murder of innocent members of the population, including the relatives and friends of the
franc-tireurs, would generate a hatred that was bound to express itself in counterreprisals and acts of atrocity.”).
1056
18.2.3 Maintaining Public Support and Political Legitimacy. The implementation and
enforcement of the law of war are also supported by the fact that violations of the law of war are
counterproductive to the political goals sought to be achieved by military operations.20 For
example, violations of the law of war in counter-insurgency operations may diminish the support
of the local population. Violations of the law of war may also diminish the support of the
populace in democratic States, including the United States and other States that would otherwise
support or participate in coalition operations. Violations of the law of war committed by one
side may encourage third parties to support the opposing side.
18.3 DUTIES OF INDIVIDUAL MEMBERS OF THE ARMED FORCES
Each member of the armed services has a duty to: (1) comply with the law of war in
good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of
war.
18.3.1 Comply With the Law of War in Good Faith. Each member of the armed forces
has a duty to comply with the law of war in good faith.21 This duty of individual service
members rests within a broader framework of law of war implementation by the U.S. armed
forces.
For example, certain law of war obligations only apply to commanders or to specialized
units, such as units providing medical care, conducting detention operations, or engaging in the
protection of cultural property.
Similarly, individual service members are not expected to be experts in the law of war;
service members should ask questions through appropriate channels and consult with the
command legal adviser on issues relating to the law of war.
In addition, law of war requirements have also been incorporated into domestic law,
policy, regulations, and orders.22 Moreover, in most cases, the requirements and standards in
applicable policies, regulations, and orders will exceed the requirements of the law of war.23
Thus, in practice, the obligation of individual service members to comply with the law of
war in good faith is met when service members: (1) perform their duties as they have been
trained and directed; and (2) apply the training on the law of war that they have received.24
20 1976 AIR FORCE PAMPHLET 110-31 ¶1-6a (“However, the application of military force has never been an end in
itself. In many respects, the overall political context has increased in importance in recent years although that
political context has always influenced the means of destruction or tactics used in warfare. Violations of the law of
armed conflict have been recognized as counterproductive to the political goals sought to be achieved. For example,
they may arouse public opinion and induce neutrals to become involved in the conflict on the adversary’s side, such
as the entry of the United States into World War I.”).
21 Refer to § 1.10.2 (Force of the Law of War Under U.S. Domestic Law).
22 Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).
23 Refer to § 18.7.2.3 (Setting Higher Standards as a Matter of Policy).
24 Refer to § 18.6.2 (Special Instruction or Training).
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18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations.
Members of the armed forces must refuse to comply with clearly illegal orders to commit law of
war violations. In addition, orders should not be construed to authorize implicitly violations of
law of war.
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The
requirement to refuse to comply with orders to commit law of war violations applies to orders to
perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal.
For example, orders to fire upon the shipwrecked would be clearly illegal.25 Similarly, orders to
kill defenseless persons who have submitted to and are under effective physical control would
also be clearly illegal.26
Subordinates are not required to screen the orders of superiors for questionable points of
legality, and may, absent specific knowledge to the contrary, presume that orders have been
lawfully issued.27
25 Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle” (Second Criminal
Senate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922) (“It is
certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of
their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an
order is universally known to everybody, including also the accused, to be without any doubt whatever against the
law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present
instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else
but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter has
strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case
here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They
could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out
a breach of the law. They should, therefore, have refused to obey.”).
26 United States v. Calley, 22 U.S.C.M.A. 534, 543-44 (C.M.A. 1973) (“In the stress of combat, a member of the
armed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible if
he guesses wrong on a question as to which there may be considerable disagreement. But there is no disagreement
as to the illegality of the order to kill in this case. For 100 years, it has been a settled rule of American law that even
in war the summary killing of an enemy, who has submitted to, and is under, effective physical control, is murder.”).
27 United States v. von Leeb, et al. (The High Command Case), XI TRIAL OF WAR CRIMINALS BEFORE THE NMT
510-11 (“Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are
issued to be carried out. Its discipline is built upon its principle. Without it, no army can be effective and it is
certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable
points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state
which he serves and which are issued to him are in conformity with international law. … He has the right to
presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly
determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to
disputable legal questions.”); WINTHROP, MILITARY LAW & PRECEDENTS 296-97 (“But for the inferior to assume to
determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule,
amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where
the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has
proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of
obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of
no rational doubt of their unlawfulness. Except in such instances of palpable illegality, which must be of rare
occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in
obeying it can scarcely fail to be held justified by a military court … .”).
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18.3.2.2 Commands and Orders Should Not Be Understood as Implicitly
Authorizing Violations of the Law of War. Commands and orders should not be understood as
implicitly authorizing violations of the law of war where other interpretations are reasonably
available.28
For example, if a commander issues an order to attack a town, one should assume that the
order directs attacks on military objectives located in that area.29 Similarly, speeches by
commanders before combat operations to rally members of their command should not be
understood to authorize implicitly law of war violations against the enemy.30
18.4 COMMANDERS’ DUTY TO IMPLEMENT AND ENFORCE THE LAW OF WAR
Military commanders have a duty to take appropriate measures as are within their power
to control the forces under their command for the prevention of violations of the law of war.31
28 See Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson Plan—
Second Hour, ¶5b, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva Conventions
of 1949 and Hague Convention No. IV of 1907, 11 (Aug. 29, 1975) (“You should not presume that an order is
criminal. If you think it is criminal, it is probably because the order is unclear. For example, while on patrol we
capture a prisoner. On our return the patrol leader questions him. When the patrol leader finishes the questioning he
tells you ‘get rid of that man.’ That order is not clear. The patrol leader undoubtedly means to take the man to the
Detainee Collection Point. … Rather than presume that an unclear order directs you to commit a crime, ask your
superior for a clarification of the order. Above all, remember that if you are the leader, make your order clear and
understandable. Don’t put your subordinates in the position where they may think you are giving a criminal
order.”).
29 For example, Prosecutor v. Gotovina and Markač, ICTY Appellate Chamber, IT-06-09-A, Judgment, ¶77 (Nov.
16, 2012) (“More specifically, the Trial Chamber relied on the Impact Analysis to discount Witness Rajčić’s
assertion that the 2 August Order called for shelling only lawful military targets. In addition, neither Witness
Konings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction to
commence indiscriminate attacks on the Four Towns. Given that the relevant portion of the 2 August Order was
relatively short, and did not explicitly call for unlawful attacks on the Four Towns, the text of the 2 August Order
could not, alone, reasonably be relied upon to support a finding that unlawful artillery attacks took place.”).
30 For example, L.C. GREEN, SUPERIOR ORDERS IN NATIONAL AND INTERNATIONAL LAW 131-32 (1976) (“The
controversy arose over Patton’s prepared remarks, which included these statements: ‘The fact we are operating in
enemy country does not permit us to forget our American tradition of respect for private property, non-combatants,
and women. …Attack rapidly, ruthlessly, viciously and without rest, and kill even civilians who have the stupidity to
fight us.’ Several days after the operation began, during which time the fighting was extremely fierce, a Captain
Compton, who had lost several of his men, lined up forty-three captured Germans, some of whom were wearing
civilian clothes, and had them executed by machine gun. At about the same time and in the same general location, a
Sergeant West (of another company) shot and killed thirty-six Germans whom he was escorting to the prisoner-of-
war cage in the rear. When General Patton learned of these incidents, he ordered both men court-martialed on
charges of premeditated murder. At their trials, the two men asserted as a defence the orders issued by General
Patton on June 27, 1943 in his preparatory speech. … The defence’s assertions prompted a subsequent inquiry into
the speech given by Patton in which he was ultimately exonerated after producing the prepared text of the speech
and delivering it orally to a board of investigating officers. Captain Compton and Sergeant West, however, were
convicted as charged.”) (first ellipsis in original).
31 See In re Yamashita, 327 U.S. 1, 16 (1946) (“The question, then, is whether the law of war imposes on an army
commander a duty to take such appropriate measures as are within his power to control the troops under his
command for the prevention of the specified acts which are violations of the law of war and which are likely to
attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when violations result. … These provisions [of the Hague IV
Reg., the Hague X, and the 1929 GWS] plainly imposed on petitioner, who at the time specified was military
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For example, commanders have obligations to take appropriate measures to prevent pillage and
to protect the wounded, sick, and shipwrecked within their control.32
18.4.1 Background on Commander’s Duties to Implement and Enforce the Law of War.
The law of war presupposes that its violation is to be avoided through the control of the
operations of war by commanders who are to some extent responsible for their subordinates.33
One of the requirements for armed forces to receive the privileges of combatant status is that
they operate under a responsible command.34 In addition, law of war treaties have specified that
commanders must take appropriate measures to ensure that the provisions of those treaties are
observed.35
18.4.2 Discipline of Subordinates. In carrying out their duties to implement and enforce
the law of war, commanders may use disciplinary or penal measures.36 Under international law,
commanders have discretion about how to implement and enforce their law of war obligations;
governor of the Philippines as well as commander of the Japanese forces, an affirmative duty to take such measures
as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian
population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own
military tribunals.”); Elihu Root, Secretary of War, Memorandum Transmitting the Record and Proceedings of the
Trial of Brigadier General Jacob H. Smith, Jul. 12, 1902, reprinted in H.C. Corbin, Adjutant General, Major
General, U.S. Army, General Orders, No. 80, 2, 3 Jul. 16, 1902, GENERAL ORDERS AND CIRCULARS OF THE
ADJUTANT GENERAL’S OFFICE, 1902 (1903) (“It is the duty of a general officer whose age and experience have
brought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them the
application of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part and
supplement their comparative inexperience by his wise control. In this General Smith has signally failed, and for
this he has been justly convicted.”).
32 Refer to § 5.17.4 (Pillage Prohibited); § 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick,
Shipwrecked, and Dead).
33 In re Yamashita, 327 U.S. 1, 15 (1946) (“It is evident that the conduct of military operations by troops whose
excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations
which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war
from brutality would largely be defeated if the commander of an invading army could, with impunity, neglect to take
reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided
through the control of the operations of war by commanders who are to some extent responsible for their
subordinates.”). Consider AP I art. 87(1) (“The High Contracting Parties and the Parties to the conflict shall require
military commanders, with respect to members of the armed forces under their command and other persons under
their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the
[Geneva] Conventions and of this Protocol.”).
34 Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).
35 See, e.g., GWS art. 45 (“Each Party to the conflict, acting through its Commanders-in-Chief, shall ensure the
detailed execution of the preceding Articles and provide for unforeseen cases, in conformity with the general
principles of the present Convention.”); GWS-SEA art. 46 (same). Consider HAGUE X art. 19 (“The Commanders-
in-chief of the belligerent fleets must see that the above Articles are properly carried out; they will have also to see
to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity
with the general principles of the present Convention.”).
36 Consider AP I art. 87(3) (“The High Contracting Parties and Parties to the conflict shall require any commander
who is aware that subordinates or other persons under his control are going to commit or have committed a breach
of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the
Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators
thereof.”). Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).
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there is no absolute or automatic requirement under international law to punish particular
offenders within their armed forces in a specific way.37
18.4.3 Duty to Investigate Reports of Alleged Law of War Violations. Commanders
have a duty to investigate reports of alleged law of war violations committed by persons under
their command or against persons to whom they have a legal duty to protect.38
18.4.4 Issuance of Guidance, Training of Subordinates, and Other Preventive or
Corrective Measures. Apart from disciplinary measures, a variety of other measures may be
appropriate to prevent or address violations of the law of war by subordinates. For example,
commanders should ensure that members of the armed forces under their command are,
commensurate with their duties, aware of their duties under the law of war.39 After violations
have occurred, retraining personnel or revising procedures may be appropriate, particularly
where the underlying facts or nature of the violations do not warrant punitive measures.
18.5 ROLE OF JUDGE ADVOCATES AND LEGAL ADVISERS
18.5.1 Legal Advisers. The United States has provided for legal advisers to advise
military commanders on the law of war.40 For example, DoD policy has required that each head
of a DoD component make qualified legal advisers available at all levels of command to provide
advice about law of war compliance during planning and execution of exercises and operations.41
18.5.1.1 Review of Plans, Policies, Directives, and Rules of Engagement by Legal
Advisers. DoD policy has required that commanders of the combatant commands ensure that all
plans, policies, directives, and rules of engagement, and those of subordinate commands and
37 United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT
524 (“With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit
offences against the indigenous population, this obligation as a matter of International Law is considered doubtful.
The duty imposed upon a military commander is the protection of the civilian population. Whether this protection
be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it be
assured by disciplinary measures or otherwise, is immaterial from an international standpoint.”).
38 Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War).
39 Consider AP I art. 87(2) (“In order to prevent and suppress breaches, High Contracting Parties and Parties to the
conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the
armed forces under their command are aware of their obligations under the Conventions and this Protocol.”).
40 Consider AP I art. 82 (“The High Contracting Parties at all times, and the Parties to the conflict in time of armed
conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the
appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be
given to the armed forces on this subject.”).
41 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(“The Heads of the DoD Components shall: … [¶5.7.3] Make qualified legal advisers at all levels of command
available to provide advice about law of war compliance during planning and execution of exercises and operations;
and institute and implement programs to comply with the reporting requirements established in section 6.”); DOD
DIRECTIVE 5100.77, DoD Law of War Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: …
[¶5.3.3] “Ensure that qualified legal advisers are immediately available at all levels of command to provide advice
about law of war compliance during planning and execution of exercises and operations; and institute and
implement programs to comply with the reporting requirements established in section 6., below.”).
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components, are reviewed by legal advisers to ensure their consistency with the law of war and
DoD policy on the law of war.42
18.5.1.2 Supervision of Administration of Programs to Address Enemy Violations
of the Law of War. DoD policy has required that commanders of the combatant commands
designate a command legal adviser to supervise the administration of those aspects of the
command’s program dealing with possible, suspected, or alleged enemy violations of the law of
war.43
18.5.1.3 Review of the Acquisition of Weapons. DoD policy has required the legal
review of the intended acquisition of weapons.44
18.5.2 Law of War Questions During Military Operations. During military operations,
questions on the law of war from U.S. forces or coalition partners related to a specific issue
should be referred through the operational chain of command for resolution. It may also be
appropriate to refer questions to either the office of the Judge Advocate General of a Military
Department, the Staff Judge Advocate to the Commandant of the Marines Corps, the General
Counsel of a Military Department, the Legal Counsel to the Chairman of the Joint Chiefs of
Staff, or the DoD General Counsel.
18.5.3 Role of the DoD Law of War Working Group. The DoD Law of War Working
Group is a DoD internal mechanism for coordination on law of war issues. It consists of
representatives of the General Counsel, Department of Defense; representatives, at the election
of each, of the General Counsel of each Military Department, 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.45 The DoD Law of War
42 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.11 (May 9, 2006, Certified Current as of Feb. 22,
2011) (“The Commanders of the Combatant Commands shall: …[¶5.11.8] Ensure all plans, policies, directives, and
rules of engagement issued by the command and its subordinate commands and components are reviewed by legal
advisers to ensure their consistency with this Directive and the law of war.”); DOD DIRECTIVE 5100.77, DoD Law of
War Program, ¶5.8 (Dec. 9, 1998) (“The Commanders of the Combatant Commands shall: … [¶5.8.6] Ensure all
plans, policies, directives, and rules of engagement issued by the command and its subordinate commands and
components are reviewed by legal advisers to ensure their consistency with this Directive and the law of war.”).
43 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.11 (May 9, 2006, Certified Current as of Feb. 22,
2011) (“The Commanders of the Combatant Commands shall: … [¶5.11.5] Designate the command legal adviser to
supervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemy
violations of the law of war.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶5.8 (Dec. 9, 1998) (“The
Commanders of the Combatant Commands shall: … [¶5.8.3] Designate the command legal adviser to supervise the
administration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of the
law of war.”).
44 Refer to § 6.2 (DoD Policy of Reviewing the Legality of Weapons).
45 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22,
2011) (“The General Counsel of the Department of Defense (GC, DoD) shall: Supervise and assign a chair for the
DoD Law of War Working Group, 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.”); DOD DIRECTIVE 5100.77, DoD Law of War Program,
¶5.1.2 (Dec. 9, 1998) (“The General Counsel of the Department of Defense shall: Establish a DoD Law of War
Working Group consisting of representatives from the General Counsel of the Department of Defense (GC, DoD),
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Working Group develops and coordinates law of war initiatives and issues, manages other law of
war matters as they arise, and provides advice to the DoD General Counsel on legal matters
covered by DoD Directive 2311.01E.46 This includes the preparation, review, and updating of
this manual.
18.6 DISSEMINATION, STUDY, AND OTHER MEASURES TO FACILITATE UNDERSTANDING OF DUTIES
UNDER THE LAW OF WAR
A basic step in implementing and enforcing the law of war is to ensure that people
understand its requirements. Certain treaties require that Parties disseminate the text of that
treaty and promote its study, especially by those personnel who are assigned to implement its
obligations.
18.6.1 General Dissemination and Study of Treaties. Certain treaties require that Parties
disseminate the treaty and promote study of that treaty by the armed forces and the civilian
population.
18.6.1.1 Dissemination and Study - 1949 Geneva Conventions. Parties to 1949
Geneva Conventions undertake, in time of peace, as in time of war, to disseminate the text of
those Conventions widely as possible in their respective countries, and in particular, to include
the study of the Conventions in their programs of military and, if possible, civil instruction.47 In
addition to the entire population of the Party to the GPW, the GPW emphasizes that Parties’
armed forces should know the principles of the GPW.48 Similarly, the GWS and GWS-Sea
emphasize that the armed fighting forces, medical personnel, and chaplains should know the
principles of those treaties.49
the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the International and Operational Law Division of
the Office of the Judge Advocate General of each Military Department, and the Operational Law Branch of the
Office of the Staff Judge Advocate to the Commandant of the Marine Corps.”).
46 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22,
2011) (“The DoD Law of War Working Group shall develop and coordinate law of war initiatives and issues;
support the research, preparation, review, and updating 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.”); DOD
DIRECTIVE 5100.77, DoD Law of War Program, ¶5.1.2 (Dec. 9, 1998) (“The DoD Law of War Working Group shall
develop and coordinate law of war initiatives and issues, manage other law of war matters as they arise, and provide
advice to the General Counsel on legal matters covered by this Directive.”).
47 GC art. 144 (“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text
of the present Convention as widely as possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become
known to the entire population.”).
48 GPW art. 127 (The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text
of the present Convention as widely as possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become
known to all their armed forces and to the entire population.”).
49 GWS art. 47 (“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text
of the present Convention as widely as possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become
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18.6.1.2 Dissemination and Study - CCW and Protocols. Parties to the CCW also
undertake, in time of peace as in time of armed conflict, to disseminate the CCW and those of its
annexed Protocols by which they are bound as widely as possible in their respective countries
and, in particular, to include the study of these instruments in their program of military
instruction, so that those instruments may become known to their armed forces.50
18.6.1.3 Dissemination and Study - AP III. Parties to AP III undertake, in time of
peace as in time of armed conflict, to disseminate this Protocol as widely as possible in their
respective countries and, in particular, to include the study of it in their program of military
instruction and to encourage the study of it by the civilian population, so that this instrument may
become known to the armed forces and to the civilian population.51
18.6.1.4 Dissemination and Study - 1954 Hague Cultural Property Convention.
Parties to the 1954 Hague Cultural Property Convention undertake, in time of peace as in time of
armed conflict, to disseminate the text of the Convention and the Regulations for its execution as
widely as possible in their respective countries. They undertake, in particular, to include the
study thereof in their programs of military and, if possible, civilian training, so that its principles
are made known to the whole population, especially the armed forces and personnel engaged in
the protection of cultural property.52
18.6.1.5 Dissemination and Study - Child Soldiers Protocol. Parties to the Child
Soldiers Protocol undertake to make the principles and provisions of the Child Soldiers Protocol
widely known and promoted by appropriate means, to adults and children alike.53
18.6.2 Special Instruction or Training. In addition to requirements to disseminate and to
promote the study of treaties, treaties also require States to ensure that members of the armed
forces who have duties under those treaties are trained commensurate with those duties. DoD
known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.”);
GWS-SEA art. 48 (same).
50 CCW art. 6 (“The High Contracting Parties undertake, in time of peace as in time of armed conflict, to
disseminate this Convention and those of its annexed Protocols by which they are bound as widely as possible in
their respective countries and, in particular, to include the study thereof in their programmes of military instruction,
so that those instruments may become known to their armed forces.”).
51 AP III art. 7 (“The High Contracting Parties undertake, in time of peace as in time of armed conflict, to
disseminate this Protocol as widely as possible in their respective countries and, in particular, to include the study
thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so
that this instrument may become known to the armed forces and to the civilian population.”).
52 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 25 (“The High Contracting Parties undertake, in time of
peace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for its
execution as widely as possible in their respective countries. They undertake, in particular, to include the study
thereof in their programmes of military and, if possible, civilian training, so that its principles are made known to the
whole population, especially the armed forces and personnel engaged in the protection of cultural property.”).
53 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
art. 6(2), May 25, 2000, 2173 UNTS 222, 238 (“States Parties undertake to make the principles and provisions of the
present Protocol widely known and promoted by appropriate means, to adults and children alike.”).
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policy has required, as a general matter, that personnel are trained in the law of war
commensurate with their duties.54
Training may involve not only classroom instruction or individualized study, but also, for
example, unit training exercises.55
In many cases, training on law of war requirements may not be classified as “law of war”
training, or may be conducted without acknowledgment that the requirements are law of war
requirements.56 Rather, it may be the case that military forces would be trained according to
military doctrines or regulations, which have incorporated law of war requirements and have
been reviewed for consistency with the law of war.57
54 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.8 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(“The Secretaries of the Military Departments shall develop internal policies and procedures consistent with this
Directive in support of the DoD Law of War Program to: … 5.8.1. Provide directives, publications, instructions, and
training so the principles and rules of the law of war will be known to members of their respective Departments.
Such knowledge will be commensurate with each individual's duties and responsibilities.”).
55 For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIAL
RESEARCH 981, 995-96 (2002) (“The Army also maintains four permanent Combat Training Centers (CTCs). The
CTCs-at Ft. Irwin, California; Ft. Polk, Louisiana; Ft. Leavenworth, Kansas; and Hohenfels, Germany-offer a
variety of combat and peace operations training for Army units. Three of the CTCs are staffed with a full-time
opposing force (the OPFOR), which ‘engages’ the training unit, as well as an observer-controller (OC) contingent.
The OCs observe the mission, mentor the training unit's commanders and soldiers, and direct some of the activity
that occurs during the training exercise. The Army Judge Advocate General's Corps has assigned Army judge
advocates to serve as OCs at each of the CTCs. As part of their duties, these judge advocate OCs script events
involving civilians, who, in turn, interact with the personnel of the unit being trained. These civilians, or role-
players, serve critical training functions. For example, they may play the part of ICRC personnel who visit a
training unit for the purpose of inspecting the unit's EPW holding facilities. They may also live in full-scale
‘villages’ on the battlefield, playing the role of civilians who find themselves caught up in the context of an ongoing
conflict. The judge advocate observer-controllers monitor the training unit's interaction with these civilians,
ensuring that commanders, staff, and individual soldiers understand and meet their law of war obligations. These
‘villages’ also include such structures as churches and historic sites. Thus, the unit also is ‘tested’ on law of war
compliance as it relates to targeting and weaponeering considerations. Experience has shown this type of hands-on,
realistic law of war training to be exceptionally effective.”).
56 For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIAL
RESEARCH 981, 982-83 (2002) (“Other training may cover law of war topics, or address law of war obligations,
without necessarily referring to the law of war. An example is teaching a soldier how to handle an enemy prisoner
of war (EPW). Once the prisoner of war has reached an EPW collection point, or a theater EPW camp, military
police personnel working in each will go about their assigned duties to process and care for the prisoner of war. In
all likelihood each soldier handling an EPW will have received training relative to his or her assigned duties. But
the training of each will not necessarily be listed or categorized as ‘law of war training,’ since it is based on doctrine
or regulations. Similarly, military medical personnel are trained to treat battlefield wounded and sick solely on the
basis of medical priority. This training may be done without acknowledgment that it is a treaty requirement. The
same may be said for training provided to combat engineers in laying minefields. The doctrine will have been
reviewed for compliance with treaty requirements, and the mines employed will have been reviewed in compliance
with the country’s treaty obligations. The combat engineer will employ lawful mines in a manner consistent with
his or her doctrine. It is unlikely this will be classified as law of war training.”).
57 Refer to § 18.7.2 (Reasons for Implementation Through Instructions, Regulations, and Procedures).
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The 1949 Geneva Conventions, the CCW Amended Mines Protocol, and the CCW
Protocol V on Explosive Remnants of War each have specific provisions relating to special
instruction or training.
18.6.2.1 Special Instructions or Training - 1949 Geneva Conventions. The GPW
and GC further provide that the military or other authorities who assume responsibilities for
POWs or protected persons must possess the text of the GPW or the GC and be specially
instructed as to its provisions.58
18.6.2.2 Special Instructions or Training - CCW Amended Mines Protocol. Each
Party to the CCW Amended Mines Protocol shall require that armed forces personnel receive
training commensurate with their duties and responsibilities to comply with the provisions of the
CCW Amended Mines Protocol.59
18.6.2.3 Special Instructions or Training - CCW Protocol V On Explosive
Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War shall
require that its personnel receive training consistent with the relevant provisions of this
Protocol.60
18.7 INSTRUCTIONS, REGULATIONS, AND PROCEDURES TO IMPLEMENT AND ENFORCE THE LAW OF
WAR
The law of war has traditionally been implemented through military instructions,
regulations, and procedures. For example, the Lieber Code, one of the first codifications of the
law of war, was called “Instructions for the Government of Armies of the United States in the
Field,” and was issued as a General Order.61 Similarly, directives and regulations have been
issued to implement law of war obligations relating to detainees and to establish higher standards
as a matter of policy.62
58 GPW art. 127 (“Any military or other authorities, who in time of war assume responsibilities in respect of
prisoners of war, must possess the text of the Convention and be specially instructed as to its provisions.”); GC art.
144 (“Any civilian, military, police or other authorities, who in time of war assume responsibilities in respect of
protected persons, must possess the text of the Convention and be specially instructed as to its provisions.”).
59 CCW AMENDED MINES PROTOCOL art. 14(3) (“Each High Contracting Party shall also require that its armed
forces issue relevant military instructions and operating procedures and that armed forces personnel receive training
commensurate with their duties and responsibilities to comply with the provisions of this Protocol.”).
60 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (“Each High Contracting Party shall require that
its armed forces and relevant agencies or departments issue appropriate instructions and operating procedures and
that its personnel receive training consistent with the relevant provisions of this Protocol.”).
61 Refer to § 19.3 (Lieber Code).
62 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program (Aug. 19, 2014); DOD DIRECTIVE 2310.01E,
The Department of Defense Detainee Program (Sept. 5, 2006); 1997 MULTI-SERVICE DETENTION REGULATION §1-
1.b (“This regulation implements international law, both customary and codified, relating to EPW, RP, CI, and ODs
which includes those persons held during military operations other than war. The principal treaties relevant to this
regulation are:
(1) The 1949 Geneva Convention Relative to the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (GWS). (2) The 1949 Geneva Convention Relative to the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GWS Sea). (3) The 1949
Geneva Convention Relative to the Treatment of Prisoners of War (GPW). (4) The 1949 Geneva Convention
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18.7.1 Treaty Provisions Specifically Contemplating or Requiring Military Instructions,
Regulations, and Procedures. Law of war treaties contemplate or in some cases require that such
instructions will be issued. In some cases, the implementation of a treaty through military
instructions or regulations may be understood as a part of the general requirements for States to
take appropriate actions to implement and enforce their obligations under that treaty.63
18.7.1.1 Instructions, Regulations, and Procedures - Hague Conventions on Land
Warfare. Parties to Hague IV shall issue instructions to their armed land forces, which shall be
in conformity with the “Regulations respecting the Laws and Customs of War on Land” annexed
to Hague IV.64
18.7.1.2 Instructions, Regulations, and Procedures - 1949 Geneva Conventions.
The 1949 Geneva Conventions contemplate that Parties will adopt laws and regulations to ensure
the proper application of the Conventions.65 The requirement to issue implementing instructions
may be understood as part of the general obligation of Parties to undertake to respect and to
ensure respect for the Conventions.66
18.7.1.3 Instructions, Regulations, and Procedures - CCW Amended Mines
Protocol. Each Party to the CCW Amended Mines Protocol shall require that its armed forces
issue relevant military instructions and operating procedures.67
18.7.1.4 Instructions, Regulations, and Procedures - 1954 Hague Cultural
Property Convention. Parties to the 1954 Hague Cultural Property Convention undertake to
introduce in time of peace into their military regulations or instructions such provisions as may
Relative to the Protection of Civilian Persons in Time of War (GC), and In the event of conflicts or discrepancies
between this regulation and the Geneva Conventions, the provisions of the Geneva Conventions take precedence.”).
Refer to § 8.1.2 (DoD Policies and Regulations Regarding the Treatment of Detainees); § 9.1.3 (DoD Policies and
Regulations for the Treatment of POWs); § 10.1.2 (DoD Policies and Regulations for the Treatment of Internees).
63 Refer to § 18.1.2 (National Obligations to Implement and Enforce the Law of War).
64 HAGUE IV art. 1 (“The Contracting Powers shall issue instructions to their armed land forces which shall be in
conformity with the Regulations respecting the laws and customs of war on land, annexed to the present
Convention.”). Cf. 1899 HAGUE II art. 1 (“The High Contracting Parties shall issue instructions to their armed land
forces, which shall be in conformity with the ‘Regulations respecting the Laws and Customs of War on Land’
annexed to the present Convention.”).
65 GWS art. 48 (“The High Contracting Parties shall communicate to one another through the Swiss Federal Council
and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as
the laws and regulations which they may adopt to ensure the application thereof.”); GWS-SEA art. 49 (same); GPW
art. 128 (same); GC art. 145 (same).
66 Refer to § 18.1.2.1 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty
- 1949 Geneva Conventions).
67 CCW AMENDED MINES PROTOCOL art. 14(3) (“Each High Contracting Party shall also require that its armed
forces issue relevant military instructions and operating procedures and that armed forces personnel receive training
commensurate with their duties and responsibilities to comply with the provisions of this Protocol.”).
1067
ensure observance of that Convention, and to foster in the members of their armed forces a spirit
of respect for the culture and cultural property of all peoples.68
18.7.1.5 Instructions, Regulations, and Procedures - CCW Protocol V on
Explosive Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War
shall require that its armed forces and relevant agencies or departments issue appropriate
instructions and operating procedures.69
18.7.2 Reasons for Implementation Through Instructions, Regulations, and Procedures.
In addition to cases in which instructions or regulations are required by a treaty, there are a
number of reasons for implementing law of war obligations through instructions, regulations, and
other procedures.
18.7.2.1 Re-characterizing National Obligations Into Rules for Individuals. First,
under the traditional view of international law, obligations are owed between States, and not as
between States and individuals.70 Thus, treaty provisions may need to be re-characterized from
obligations that Parties to the treaty promise to one another into rules for individual conduct.
18.7.2.2 Implementing the Rules in Non-Self-Executing Treaties. The adoption of
instructions, regulations, or procedures may assist in the implementation of non-self-executing
treaties. When treaties or provisions of treaties are regarded as “non-self-executing,” such
provisions do not constitute enforceable domestic law even though the State has ratified them,
but require further implementing action by the ratifying State.71
However, a State may adopt instructions, regulations, or procedures that are enforceable
under its domestic law and that implement the rules reflected in a treaty. Thus, because such
instructions, regulations, or procedures are enforceable domestically, the State can enforce the
rules in the treaty, even though the treaty remains non-self-executing.
18.7.2.3 Setting Higher Standards as a Matter of Policy. In addition, States may
choose to implement law of war obligations through instructions, regulations, and procedures
because they wish to set a higher standard for their armed forces as a matter of policy. For
example, rules of engagement are often more restrictive than relevant law of war requirements.72
18.7.2.4 Clarifying Ambiguities in the Law. States may choose to implement law
of war obligations through instructions, regulations, and procedures because they wish to clarify
68 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7 (“The High Contracting Parties undertake to introduce in
time of peace into their military regulations or instructions such provisions as may ensure observance of the present
Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural
property of all peoples.”).
69 CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (“Each High Contracting Party shall require that
its armed forces and relevant agencies or departments issue appropriate instructions and operating procedures and
that its personnel receive training consistent with the relevant provisions of this Protocol.”).
70 Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).
71 Refer to § 1.10.2.1 (Force of Self-Executing and Non-Self-Executing Treaties Under U.S. Domestic Law).
72 Refer to § 1.6.5 (Rules of Engagement (ROE)).
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their interpretation of the obligations, which otherwise may not be clear because a treaty
provision is ambiguous or because the obligation is reflected in customary international law.
18.7.2.5 Ensuring Detailed Requirements Are Not Neglected, and Assistance in
Training. In cases in which treaty requirements are detailed and extensive, the promulgation of
military instructions may also help ensure that treaty requirements are not omitted or neglected.
Similarly, the promulgation of military instructions also assists in conducting training or special
instruction.73
18.7.3 Enforcement of Law of War Obligations Through Military Instructions,
Regulations, and Procedures. The implementation of law of war treaties and obligations through
military instructions, regulations, and procedures has the effect of making such rules enforceable
because military personnel are required to comply with duly issued instructions, regulations, and
procedures. Military personnel may be punished for failure to comply with such orders and
instructions.74 Conduct that violates the law of war has often been punished through this
mechanism.75
18.8 CONSIDERING LAW OF WAR OBLIGATIONS IN THE PLANNING OF MILITARY OPERATIONS
Military commanders and planners should consider law of war obligations in the planning
of military operations. DoD policy has required the review of plans by legal advisers to ensure
their consistency with the law of war.76
It may be especially important to consider affirmative obligations imposed by the law of
war. For example, military commanders and planners should plan for their medical facilities to
consider needing to treat enemy wounded and sick. Similarly, the requirements to care for
detainees should also be considered. Potential responsibilities as an Occupying Power should
also be considered.
73 Refer to § 18.6.2 (Special Instruction or Training).
74 Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).
75 For example, United States v. Harman, 68 M.J. 325, 326 (C.A.A.F. 2010) (“Contrary to her pleas, Appellant was
convicted at a general court-martial, with officer and enlisted members, of conspiracy to maltreat subordinates;
dereliction of duty by failing to protect Iraqi detainees from abuse, cruelty, and maltreatment; and four specifications
of maltreatment under Articles 81, 92, and 93, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892,
893 (2006).”); Rear Admiral Richard G. Voge, Too Much Accuracy, PROCEEDINGS OF THE U.S. NAVAL INSTITUTE
257-59 (1950) (“[O]n April 9, 1945, to be exact, the Japanese government indignantly announced that the Awa
Maru, on her return trip to Japan after carrying Red Cross supplies to Singapore and the Dutch East Indies, and
travelling under a guarantee of safe conduct from the United States government, had been sunk by a U.S. submarine.
… [T]he Navy announced that the Awa Maru had been sunk by the U.S.S. Queenfish, commanded by Commander
Charles Elliot Loughlin, U.S. Navy, of North Wales, Pennsylvania. … Loughlin was brought to trial on three
charges: Charge I. Culpable inefficiency in the performance of duty. Charge II. Disobeying the lawful order of his
superior officer. Charge III. Negligence in obeying orders.”).
76 Refer to § 18.5.1.1 (Review of Plans, Policies, Directives, and Rules of Engagement by Legal Advisers).
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18.9 STATES’ OBLIGATIONS WITH RESPECT TO VIOLATIONS OF THE LAW OF WAR
States have certain obligations with respect to alleged violations of the law of war within
their jurisdiction. In some cases, these obligations to address alleged violations of particular
treaties may be understood as part of the general obligations to implement and enforce those
treaties. In other cases, law of war treaties impose specific requirements on States with respect
to alleged violations of obligations in those treaties.
18.9.1 State Responsibility for Violations of the Law of War by Its Armed Forces. A
State may be responsible for violations of the law of war committed by persons forming part of
its armed forces.77 In particular, States are responsible for the treatment accorded protected
persons under the GC by their agents.78 State responsibility for violations of the law of war
committed by its armed forces or other agents results from principles of State responsibility in
international law that are not specific to the law of war.79
State responsibility for violations of the law of war results in obligations to compensate
other States for violations.80
18.9.2 Breaches of the 1954 Hague Cultural Property Convention. Parties to the 1954
Hague Cultural Property Convention undertake to take, within the framework of their ordinary
criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions
upon those persons, of whatever nationality, who commit or order to be committed a breach of
the 1954 Hague Cultural Property Convention.81
18.9.3 Grave Breaches of the 1949 Geneva Conventions. Parties to the 1949 Geneva
Conventions have certain obligations relating to grave breaches of the 1949 Geneva
Conventions. These obligations have been interpreted as declaratory of the obligations of
belligerents under customary international law to take measures for the punishment of war
77 HAGUE IV art. 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the case
demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its
armed forces.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 27 (“A belligerent shall indemnify the damage
caused by its violation of the foregoing provisions. It shall likewise be responsible for the acts of persons who may
belong to its armed forces.”). Consider AP I art. 91 (“A Party to the conflict which violates the provisions of the
Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for
all acts committed by persons forming part of its armed forces.”).
78 Refer to § 10.3.5 (State Responsibility for Its Agents’ Treatment of Protected Persons).
79 See, e.g., I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 96 (§207) (1987) (“A
state is responsible for any violation of its obligations under international law resulting from action or inaction by (a)
the government of the state, (b) the government or authorities of any political subdivision of the state, or (c) any
organ, agency, official, employee, or other agent of a government or of any political subdivision, acting within the
scope of authority or under color of such authority.”).
80 Refer to § 18.16 (Compensation for Violations of the Law of War).
81 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 28 (“The High Contracting Parties undertake to take, within
the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or
disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of
the present Convention.”).
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crimes committed by all persons, including members of a belligerent’s armed forces.82 These
obligations do not affect the right of a belligerent, under customary international law, to try
enemy personnel for war crimes other than grave breaches of the 1949 Geneva Conventions.83
Parties to the 1949 Geneva Conventions undertake to enact any legislation necessary to
provide effective penal sanctions for persons committing, or ordering to be committed, any of the
grave breaches of the 1949 Geneva Conventions.84
Each Party to the 1949 Geneva Conventions shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed, such grave breaches, and
shall bring such persons, regardless of their nationality, before its own courts.85 It may also, if it
prefers, and in accordance with the provisions of its own legislation, hand such persons over for
trial to another High Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case.86
No Party to the 1949 Geneva Conventions shall be allowed to absolve itself or any other
Party of any liability incurred by itself or by another Party in respect of grave breaches of the
1949 Geneva Conventions.87
82 1956 FM 27-10 (Change No. 1 1976) ¶506 (“b. Declaratory Character of Above Principles. The principles
quoted in a [provisions of GWS art. 49, GWS-Sea art. 50, GPW art. 129, and GC art. 146], above, are declaratory of
the obligations of belligerents under customary international law to take measures for the punishment of war crimes
committed by all persons, including members of a belligerent's own armed forces.”). See also Joyce A.C.
Gutteridge, The Geneva Conventions of 1949, 26 BRITISH YEAR BOOK OF INTERNATIONAL LAW 294, 305 (1949)
(“In accordance with the decision that there should be no attempt in the Geneva Conventions to embark, in however
rudimentary a fashion, on the settlement of a procedure for dealing with war crimes, the Conventions do not attempt
to provide for the trial of ‘grave breaches’ thereof by any international tribunal, but contemplate only trial and
sentence by the regularly constituted courts of parties to the conflict.”).
83 Richard R. Baxter, The Geneva Conventions of 1949, 62 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW
STUDIES 220, 223 (1980) (“It may cheer some of you to hear that the Conventions make no reference to war
crimes—by that name. There was much controversy about this point at the Conference in 1949, and the upshot of it
was that each of the four Conventions contains an article specifying certain atrocious acts, such as the torturing of
prisoners and civilians, as ‘grave breaches’ of the Conventions. Judicial safeguards are provided for persons
charged with such acts. Of course, these specific provisions do not affect the right of a belligerent, under customary
international law, to try enemy personnel for war crimes other than ‘grave breaches’ of the treaties.”).
84 GWS art. 49 (“The High Contracting Parties undertake to enact any legislation necessary to provide effective
penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present
Convention defined in the following Article.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
85 GWS art. 49 (“Each High Contracting Party shall be under the obligation to search for persons alleged to have
committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
86 GWS art. 49 (“It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such
persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made
out a prima facie case.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
87 GWS art. 51 (“No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party
of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the
preceding Article.”); GWS-SEA art. 52 (same); GPW art. 131 (same); GC art. 148 (same).
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18.9.3.1 Acts Constituting Grave Breaches. The acts constituting “grave
breaches” for the purpose of triggering these obligations are defined differently depending on the
particular Geneva Convention. However, all of the Conventions include as grave breaches the
following acts against persons protected by the respective Convention:
• willful killing;
• torture or inhuman treatment, including biological experiments; and
• willfully causing great suffering or serious injury to body or health.
The term “grave breaches” was deliberately chosen so as not to indicate that violations of
those provisions of the 1949 Geneva Conventions were themselves crimes or that the 1949
Geneva Conventions created an international penal code.88
Grave breaches of the GWS and GWS-Sea are those involving any of the following acts,
if committed against persons or property protected by the GWS or GWS-Sea:
• willful killing; torture or inhuman treatment, including biological experiments;
• willfully causing great suffering or serious injury to body or health; and
• extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly.89
Grave breaches of the GPW are those involving any of the following acts, if committed
against persons or property protected by the GPW:
• willful killing;
88 See II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 356-57 (“Mr. SINCLAIR (United
Kingdom): The Soviet proposal to substitute in these Articles the word ‘crime’ for the words ‘grave breaches’ has
been very fully thrashed out both in the Special Committee and in the Joint Committee, and you will all have read
the results in the Reports of those Committees and in particular in the Special Report on penal sanctions. It is not a
question as to whether or not these grave breaches are crimes, it is simply a question of finding appropriate words
for carrying out the intention behind these Articles which all the delegations who were responsible for framing those
Articles were attempting to secure. That intention was to ensure that any persons who committed breaches of these
Conventions would be suitably dealt with and punished according to the seriousness of the offences that they
committed, and therefore it would have been quite inappropriate to have gone into the question of establishing a new
penal code in these Articles. For that reason the proposal in the present Soviet amendment has been rejected
throughout this Conference. … Mr. YINGLING (United States of America): I associate myself with the remarks
which have been made by the Delegate of the United Kingdom. I see no need for repeating the arguments. This
Convention is clearly not a penal statute, and the term ‘crimes’ is clearly inappropriate to express violations of this
Convention, which will not be crimes until they are so made by domestic penal legislation.”).
89 GWS art. 50 (“Grave breaches to which the preceding Article relates shall be those involving any of the following
acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman
treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and
extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly.”); GWS-SEA art. 51 (same).
1072
• torture or inhuman treatment, including biological experiments;
• willfully causing great suffering or serious injury to body or health;
• compelling a POW to serve in the forces of the hostile Power; and
• willfully depriving a POW of the rights of fair and regular trial prescribed in the GPW.90
Grave breaches of the GC are those involving any of the following acts, if committed
against persons or property protected by the GC:
• willful killing;
• torture or inhuman treatment, including biological experiments;
• willfully causing great suffering or serious injury to body or health;
• unlawful deportation or transfer or unlawful confinement of a protected person;
• compelling a protected person to serve in the forces of a hostile Power;
• willfully depriving a protected person of the rights of fair and regular trial prescribed in
the GC;
• taking of hostages; and
• extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly.91
18.9.3.2 Applicability of Grave Breaches Obligations to Non-International Armed
Conflict. The text of the 1949 Geneva Conventions provides that grave breaches relate to
violations “against persons or property protected by the Convention.” Since Common Article 3
of the 1949 Convention protects persons against some of the acts described as grave breaches,
the United States took the position that the obligations created by the grave breaches provisions
90 GPW art. 130 (“Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or
health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of
war of the rights of fair and regular trial prescribed in this Convention.”).
91 GC art. 147 (“Grave breaches to which the preceding Article relates shall be those involving any of the following
acts, if committed against persons or property protected by the present Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or
health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected
person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly.”).
1073
of the 1949 Geneva Conventions could apply also to violations of Common Article 3.92 An
Appeals Chamber of the ICTY did not accept this view, and understood the grave breaches
provisions of the 1949 Geneva Conventions only to create obligations applicable in international
armed conflicts.93 U.S. law makes punishable certain conduct that constitutes a “grave breach of
common article 3.”94
Regardless of whether the obligations in the grave breaches provisions apply with respect
to violations of Common Article 3, serious violations of Common Article 3 may nonetheless be
punishable.
18.9.3.3 Suppression of All Acts Contrary to the Provisions of the 1949 Geneva
Conventions. Each High Contracting Party shall take measures necessary for the suppression of
all acts contrary to the provisions of the 1949 Geneva Conventions other than the grave
breaches.95
Such measures could include punishment of offenders. For example, if a U.S. Soldier
steals the money that has been impounded from POWs and appropriates it for his or her own use,
the theft would not constitute a grave breach of the 1949 Geneva Conventions, but would be an
offense under the Uniform Code of Military Justice.96
92 D. Stephen Mathias, Legal Counselor, Embassy of the United States, The Hague, The Netherlands, Submission of
the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in
the Case of The Prosecutor of the Tribunal v. Dusan Tadic, 35-36 (Jul. 17, 1995) (“For example, Article 130 of the
1949 Geneva Convention Relative to the Treatment of Prisoners of War defines ‘grave breaches’ as any of a series
of specified acts ‘if committed against persons or property protected by the Convention.’ (This definition is
included almost verbatim in Article 2 of the Tribunal Statute.) There is no special definition or usage in the Third
Geneva Convention of the phrase ‘persons protected by the Convention.’ Insofar as Common Article 3 prohibits
certain acts with respect to ‘[p]ersons taking no active part in hostilities’ in cases of armed conflict not of an
international character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons as
persons protected by the Conventions.”).
93 See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, ¶71 (Oct. 2, 1995) (“Article 2 refers to ‘grave breaches’ of the Geneva
Conventions of 1949, which are widely understood to be committed only in international armed conflicts, so the
reference in Article 2 would seem to suggest that the Article is limited to international armed conflicts.”).
94 18 U.S.C. § 2441 (“(c) Definition.— As used in this section the term “war crime” means any conduct— …(3)
which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context
of and in association with an armed conflict not of an international character;”).
95 GWS art. 49 (“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary
to the provisions of the present Convention other than the grave breaches defined in the following Article.”); GWS-
SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
96 See, e.g., 10 U.S.C. § 903 (“(a) All persons subject to this chapter shall secure all public property taken from the
enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay
all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter
who—(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or
disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to
himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be
punished as a court-martial may direct.”).
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Such measures may also be understood to include a wide range of measures, such as the
promulgation or revision of policies and regulations, administrative or corrective measures, or
retraining of personnel.97
18.9.4 CCW Amended Mines Protocol. Each Party to the CCW Amended Mines
Protocol shall take all appropriate steps, including legislative and other measures, to prevent and
suppress violations of the CCW Amended Mines Protocol by persons or on territory under its
jurisdiction or control.98 Such measures include appropriate measures to ensure the imposition
of penal sanctions against persons who, in relation to an armed conflict and contrary to the
provisions of the CCW Amended Mines Protocol, willfully kill or cause serious injury to
civilians and to bring such persons to justice.99
Penal sanctions under Article 14 of the CCW Amended Mines Protocol only apply in a
situation in which an individual: (1) knew, or should have known, that his or her action was
prohibited under the CCW Amended Mines Protocol; (2) intended to kill or cause serious injury
to a civilian; and (3) knew, or should have known, that the person he or she intended to kill or
cause serious injury was a civilian.100
U.S. Federal law authorizes prosecutions for such conduct.101
18.9.5 War Crimes - Notes on Terminology. The term “war crime” has been used in
different ways in different contexts. In contemporary parlance, the term “war crime” is most
often used to mean serious violations of the law of war.
97 Refer to § 18.4.4 (Issuance of Guidance, Training of Subordinates, and Other Preventive or Corrective Measures);
§ 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions); § 18.7 (Instructions,
Regulations, and Procedures to Implement and Enforce the Law of War).
98 Refer to § 18.1.2.3 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty
- CCW Amended Mines Protocol).
99 CCW AMENDED MINES PROTOCOL art. 14 (“1. Each High Contracting Party shall take all appropriate steps,
including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on
territory under its jurisdiction or control.
2. The measures envisaged in paragraph I of this Article include
appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed
conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring
such persons to justice.”).
100 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United States understands that - … (B) Article 14 of the Amended Mines Protocol (insofar as
it relates to penal sanctions) shall apply only in a situation in which an individual - (i) knew, or should have known,
that his action was prohibited under the Amended Mines Protocol; (ii) intended to kill or cause serious injury to a
civilian; and (iii) knew or should have known, that the person he intended to kill or cause serious injury was a
civilian.”).
101 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term
of years, or both, and if death results to the victim, shall also be subject to the penalty of death. … (c) Definition.—
As used in this section the term “war crime” means any conduct— … (4) of a person who, in relation to an armed
conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-
Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the
United States is a party to such Protocol, willfully kills or causes serious injury to civilians.”).
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18.9.5.1 War Crimes - Any Violation of the Law of War. In some cases, the term
“war crime” has been used as a technical expression for a violation of the law of war by any
person; i.e., under this usage, any violation of the law of war is a war crime.102 This has been
longstanding U.S. military doctrine.103
Any violation of the law of war by members of the armed forces of a State could be made
punishable by that State through its domestic law, including military law applicable to its armed
forces. For example, under military law, violations of the law of war may be made punishable
through military orders to comply with law of war requirements.104 Commanders may also
impose non-judicial punishment or take adverse administrative action to address minor
violations.105
18.9.5.2 War Crimes - Serious Violations of the Law of War. Sometimes the term
“war crime” is used to refer to particularly serious violations of the law of war. For example,
this is generally the usage when the term “war crime” is defined for the purposes of a particular
criminal statute.106
This usage of “war crime” is understood to exclude minor violations of the law of war.
For example, if during an international armed conflict, military medical personnel perform their
duties while wearing an armlet displaying the distinctive emblem affixed to their right arm -
rather than to their left arm, as specified by Article 40 of the GWS, these personnel may be said
to be violating the law of war. However, under this usage of “war crime,” such violations
generally would not be regarded as a “war crime.”
102 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
the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280,
288 (“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there
shall be individual responsibility:- … (b) War crimes: namely, violations of the laws or customs of war. Such
violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other
purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on
the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or
devastation not justified by military necessity;”).
103 See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 20-4, Inspections and Investigations:
War Crimes ¶3.a (May 18, 1968) (“Every violation of the law of war is a war crime”); 1956 FM 27-10 (Change No.
1 1976) ¶499 (“The term ‘war crime’ is the technical expression for a violation of the law of war by any person or
persons, military or civilian. Every violation of the law of war is a war crime.”). Cf. 1958 UK MANUAL ¶624
(“The term ‘war crime’ is the technical expression for violations of the laws of warfare, whether committed by
members of the armed forces or by civilians.”).
104 Refer to § 18.7.3 (Enforcement of Law of War Obligations Through Military Instructions, Regulations, and
Procedures).
105 Refer to § 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions).
106 See, e.g., 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war
crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. … (c)
Definition.— As used in this section the term “war crime” means any conduct— … .”).
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18.9.5.3 War Crimes - Serious Violations of Domestic Law Applicable During
Armed Conflict. The term “war crime” has also been used to describe offenses, such as
espionage and unprivileged belligerency, that although not prohibited by international law, are
properly liable to punishment by the belligerent against which they are directed.107 Generally,
this usage does not prevail today, although practitioners may find this usage in older sources.
18.10 METHODS FOR RESPONDING TO VIOLATIONS OF THE LAW OF WAR BY THE ENEMY
In the event of violation of the law of war, it may be possible for the injured State to
resort to remedial action of the following types:
• publication of the facts, with a view to influencing public opinion against the offending
belligerent;
• protests and demands to the offending party,108 including demands for compensation or
the punishment of enemy persons who have violated the law;109
• solicitation of the good offices, mediation, or intervention of neutral States for the
purpose of making the enemy observe the law of war;110
• petition to the U.N. Security Council;111
• punishment of captured offenders as war criminals, either through national or
international tribunals;112
• retorsion;113 and
• reprisals.114
107 1958 UK MANUAL ¶624 (“The term ‘war crime’ is the technical expression for violations of the laws of warfare,
whether committed by members of the armed forces or by civilians. It has also been customary to describe as war
crimes such acts as espionage and so-called war treason which, although not prohibited by international law, are
properly liable to punishment by the belligerent against which they are directed. However, the accuracy of the
description of such acts as war crimes is doubtful.”). Refer to § 4.19.4.1 (Unprivileged Belligerency and the Law of
War - Notes on Terminology).
108 Refer to § 18.11 (Protests and Demands to the Offending Party).
109 Refer to § 18.11.2 (Demands for Redress).
110 Refer to § 18.15 (Protecting Power and Other Neutral Intermediaries).
111 Refer to § 18.12 (U.N. Security Council and Enforcement of the Law of War).
112 Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War); § 18.20
(Prosecution in International and Hybrid Courts).
113 Refer to § 18.17 (Retorsion).
114 Refer to § 18.18 (Reprisals).
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18.11 PROTESTS AND DEMANDS TO THE OFFENDING PARTY
An initial step in responding to law of war violations by the enemy is to issue a formal or
informal complaint to the offending party.
18.11.1 Method of Transmitting Protests and Demands. In view of the lack of diplomatic
relations between States involved in an armed conflict, complaints cannot normally be made
through the usual diplomatic channels. However, other methods are available, depending on the
degree of publicity required. The traditional method of complaining by parlementaire directly to
the commander of the offending forces remains, although modern communications have meant
that the message is more likely now to be transmitted through electronic means.115
Complaints also may be made through the Protecting Power, an impartial humanitarian
organization performing the duties of a Protecting Power, or a Neutral State.116
18.11.2 Demands for Redress. In addition to demands to cease committing violations,
protests may also include demands for redress by the offending party. For example, a State may
demand that a national investigation or international investigation be conducted.117 A State may
demand financial compensation or other reparations.118 Similarly, a State may demand that
offending individuals be held accountable for their offenses through judicial or other
processes.119
18.12 U.N. SECURITY COUNCIL AND ENFORCEMENT OF THE LAW OF WAR
In some cases, the U.N. Security Council has determined that situations involving
violations of the law of war constitute a threat to international peace and security.120 The U.N.
Security Council may take a variety actions to respond to such threats.
115 2004 UK MANUAL ¶16.6 (“In view of the lack of diplomatic relations between states involved in an armed
conflict, complaints cannot normally be made through the usual diplomatic channels. However, other methods are
available, depending on the degree of publicity required. The traditional method of complaining under the
protection of a flag of truce remains, although modern communications have meant that the message is more likely
now to be transmitted by radio or television. Complaints may be made also through neutral states, whether or not
the complainant also seeks their good offices to mediate with a view to making the adverse party observe the law of
armed conflict.”); 1956 FM 27-10 (Change No. 1 1976) ¶ 495b (“In the event of violation of the law of war, the
injured party may legally resort to remedial action of the following types: … b. Protest and demand for
compensation and/or punishment of the individual offenders. Such communications may be sent through the
protecting power, a humanitarian organization performing the duties of a protecting power, or a neutral state, or by
parlementaire direct to the commander of the offending forces.”).
116 Refer to § 18.15 (Protecting Power and Other Neutral Intermediaries).
117 Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War); § 18.14 (International
Mechanisms to Investigate Alleged Law of War Violations).
118 Refer to § 18.16 (Compensation for Violations of the Law of War).
119 Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).
120 U.N. SECURITY COUNCIL RESOLUTION 808, U.N. Doc S/RES/808 (Feb. 22, 1993) (“Expressing once again its
grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the
territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of ‘ethnic
cleansing’, Determining that this situation constitutes a threat to international peace and security.”); U.N. SECURITY
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18.12.1 Investigation by the U.N. Security Council Under the Charter of the United
Nations. Under the Charter of the United Nations, the U.N. Security Council may investigate
any dispute, or any situation that might lead to international friction or give rise to a dispute, in
order to determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security.121 This authority of the U.N. Security Council
to investigate situations includes any such situations that involve violations of the law of war.
The U.N. Security Council has provided for the establishment of commissions of inquiry
or commissions of experts to report on violations of the law of war.122
18.12.2 Determining Liability and Determining That Compensation Should Be Paid. The
U.N. Security Council may, in appropriate cases, affirm that States are liable for violations of
international law and establish mechanisms to facilitate the payment of compensation for such
violations.123
COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (“Expressing once again its grave concern at the
reports indicating that genocide and other systematic, widespread and flagrant violations of international
humanitarian law have been committed in Rwanda, Determining that this situation continues to constitute a threat to
international peace and security,”).
121 U.N. CHARTER art. 34 (“The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or
situation is likely to endanger the maintenance of international peace and security.”).
122 For example, U.N. SECURITY COUNCIL RESOLUTION 780, U.N. Doc S/RES/780 (Oct. 6, 1992) (“Requests the
Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyse
the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further
information as the Commission of Experts may obtain through its own investigations or efforts, of other persons or
bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the
evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law
committed in the territory of the former Yugoslavia.”); U.N. SECURITY COUNCIL RESOLUTION 935, U.N. Doc
S/RES/935 (Jul. 1, 1994) (“Requests the Secretary-General to establish, as a matter of urgency, an impartial
Commission of Experts to examine and analyse information submitted pursuant to the present resolution, together
with such further information as the Commission of Experts may obtain through its own investigations or the efforts
of other persons or bodies, including the information made available by the Special Rapporteur for Rwanda, with a
view to providing the Secretary-General with its conclusions on the evidence of grave violations of international
humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide.”); U.N.
SECURITY COUNCIL RESOLUTION 1564, U.N. Doc S/RES/1564 (Sept. 18, 2004) (“Requests that the Secretary-
General rapidly establish an international commission of inquiry in order immediately to investigate reports of
violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether
or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that
those responsible are held accountable, calls on all parties to cooperate fully with such a commission, and further
requests the Secretary-General, in conjunction with the Office of the High Commissioner for Human Rights, to take
appropriate steps to increase the number of human rights monitors deployed to Darfur.”).
123 See, e.g., U.N. COMPENSATIONS COMMISSION GOVERNING COUNCIL, Report and Recommendations Made by the
Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), U.N. Doc.
S/AC.26/1996/R.27/Annex, 22 ¶ 68 (Dec. 18, 1996) (“The Security Council having determined, under Chapter VII
of the Charter, that compensation in accordance with international law should be provided to foreign Governments,
nationals and corporations for any direct loss, damage or injury sustained by them as a result of Iraq’s unlawful
invasion and occupation of Kuwait, in order to restore international peace and security, the issue of Iraq’s liability
has been resolved by the Security Council and constitutes part of the law applicable before the Commission.”); id. at
¶67 (“According to paragraph 16 of Security Council resolution 687 (1991), which under article 31 of the Rules
forms part of the law applicable before the Commission, ‘Iraq . . . is liable under international law for any direct
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18.12.3 Authorizing the Use of Force. The U.N. Security Council has authorized the use
of force in order to protect civilians who are being attacked in violation of the law of war.124
18.12.4 Authorizing International Criminal Tribunals. The U.N. Security Council has
established international criminal tribunals for the purpose of prosecuting serious violations of
international humanitarian law. The U.N. Security Council has exercised this authority to create
the International Criminal Tribunal for the Former Yugoslavia and the International Criminal
Tribunal for Rwanda.125
The Rome Statute of the International Criminal Court provides that the International
Criminal Court may exercise its jurisdiction with respect to crimes when a situation is referred to
the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations.126 The U.N. Security Council has referred situations in Darfur and Libya to the
Prosecutor of the International Criminal Court.127 The United States has objected to certain
loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign
Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.’ The
Panel notes that, when making resolution 687 (1991), the Security Council acted under Chapter VII of the United
Nations Charter, i.e., it exercised its powers under that Chapter to maintain and restore international peace and
security.”).
124 U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc S/RES/1973 ¶4 (Mar. 17, 2011) (“Authorizes 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, and requests the Member States concerned to inform the Secretary-General immediately of the measures
they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the
Security Council.”); U.N. SECURITY COUNCIL RESOLUTION 1270, U.N. Doc S/RES/1270 ¶14 (Oct. 22, 1999)
(“Acting under Chapter VII of the Charter of the United Nations, decides that in the discharge of its mandate
UNAMSIL may take the necessary action to ensure the security and freedom of movement of its personnel and,
within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical
violence, taking into account the responsibilities of the Government of Sierra Leone and ECOMOG;”).
125 U.N. SECURITY COUNCIL RESOLUTION 827, U.N. Doc S/RES/827 (May 25, 1993) (“Acting under Chapter VII of
the Charter of the United Nations, ... 2. Decides hereby to establish an international tribunal for the sole purpose of
prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of
the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the
restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-
mentioned report;”); U.N. SECURITY COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (“Acting
under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of the
Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting
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 neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute
of the International Criminal Tribunal for Rwanda annexed hereto;”).
126 ROME STATUTE art. 13(b) (“The Court may exercise its jurisdiction with respect to a crime referred to in article 5
in accordance with the provisions of this Statute if: A situation in which one or more of such crimes appears to have
been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the
United Nations;”).
127 U.N. SECURITY COUNCIL RESOLUTION 1593, U.N. Doc S/RES/1593 (Mar. 31, 2005) (“Decides to refer the
situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.”); U.N. SECURITY
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aspects of the jurisdiction of the International Criminal Court, and there are certain restrictions in
U.S. domestic law on support to the International Criminal Court.128
18.12.5 U.N. Security Council Role in Certain Treaties.
18.12.5.1 U.N. Security Council Role in the Biological Weapons Convention and
ENMOD Convention. The Biological Weapons Convention and the ENMOD Convention
provide that Parties to the treaties may lodge a complaint with the Security Council, when a
Party believes that another Party is in breach of its obligations deriving from the provisions of
that treaty.129 These treaties provide that each Party undertakes to cooperate with any
investigation that the Security Council may initiate.130 In addition, these treaties impose an
additional obligation on Parties to provide or support assistance to Parties that request assistance
if the Security Council has made an appropriate decision.131
18.12.5.2 U.N. Security Council and the Chemical Weapons Convention. The
Chemical Weapons Convention provides that the Conference of the States Parties shall, in cases
of particular gravity, bring the issue, including relevant information and conclusions, to the
attention of the U.N. General Assembly and the U.N. Security Council.132
COUNCIL RESOLUTION 1970, U.N. Doc S/RES/1970 (Feb. 26, 2011) (“Decides to refer the situation in the Libyan
Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;”).
128 Refer to § 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).
129 BIOLOGICAL WEAPONS CONVENTION art. 6(1) (“Any State Party to this Convention which finds that any other
State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint
with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming
its validity, as well as a request for its consideration by the Security Council.”); ENMOD Convention art. 5(3) (“Any
State Party to this Convention which has reason to believe that any other State Party is acting in breach of
obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the
United Nations. Such a complaint should include all relevant information as well as all possible evidence
supporting its validity.”).
130 BIOLOGICAL WEAPONS CONVENTION art. 6(2) (“Each State Party to this Convention undertakes to co-operate in
carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the
Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall
inform the States Parties to the Convention of the results of the investigation.”); ENMOD CONVENTION art. 5(4)
(“Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security
Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the
complaint received by the Council. The Security Council shall inform the States Parties of the results of the
investigation.”).
131 BIOLOGICAL WEAPONS CONVENTION art. 7 (“Each State Party to this Convention undertakes to provide or
support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests,
if the Security Council decides that such Party has been exposed to danger as a result of violation of the
Convention.”); ENMOD CONVENTION art. 5(5) (“Each State Party to this Convention undertakes to provide or
support assistance, in accordance with the provisions of the Charter of the United Nations, to any State Party which
so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of
violation of the Convention.”).
132 CHEMICAL WEAPONS CONVENTION art. 12(4) (“The Conference shall, in cases of particular gravity, bring the
issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and
the United Nations Security Council.”).
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18.12.5.3 U.N. Security Council Role in the Statute of the International Court of
Justice. Under the Statute of the International Court of Justice, a party to a case may have
recourse to the Security Council if an opposing party fails to perform the obligations incumbent
upon it under a judgment rendered by the Court.133
18.13 NATIONAL INVESTIGATIONS OF ALLEGED VIOLATIONS OF THE LAW OF WAR
The duties to implement and enforce the law of war also imply duties to investigate
reports of alleged violations of the law of war.134 In addition to taking measures to meet the
requirements of DoD policy, commanders may also take other measures they deem appropriate
to ensure appropriate investigation and reporting of alleged violations of the law of war within
their command.135
18.13.1 DoD Policy on Reporting Law of War Violations. DoD policy has required the
reporting of possible, suspected, or alleged violations of the law of war for which there is
credible information, or conduct during military operations other than war that would constitute a
violation of the law of war if it occurred during armed conflict (“reportable incidents”).136 Such
133 ICJ STATUTE art. 94(2) (“If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”).
134 See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1271 (“A
commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime,
and protecting lives and property within the area of his command. His responsibility is coextensive with his area of
command. He is charged with notice of occurrences taking place within that territory. He may require adequate
reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise
inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails to
require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his
own dereliction as a defense. … Want of knowledge of the contents of reports made to him is not a defense. Reports
to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of
such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a
dereliction of duty which he cannot use in his own behalf.”).
135 For example, Defense Legal Policy Board, Report of the Subcommittee on Military Justice in Combat Zones, 54
(May 30, 2013) (“In 2009, USCENTCOM issued two fragmentary orders (FRAGOs) related to LOAC incident
reports and ‘legal reporting.’ USCENTCOM issued the FRAGOs because of perceived ‘lack of timely notifications
and spotty recurring reports.’ The FRAGOs established timeline requirements for reports and described the
information expected to be included in LOAC reports. For example, the FRAGOs required reporting units with
knowledge of a suspected LOAC violation to transmit information to USCENTCOM within two hours through the
Service component and operational chains of command, irrespective of accuracy or detail. Follow-up was also
required within 24-48 hours with expanded information. The FRAGOs also required formal and informal
investigations to be forwarded to the USCENTCOM Staff Judge Advocate as soon as available and before
submission to organizations outside the USCENTCOM area of responsibility (AOR). The FRAGOs mandated that
initial and subsequent reports contain the ‘5 W’s’ of the incident and additional, operationally relevant data.
Further, the FRAGOs clarified the USCENTCOM requirement for weekly Judge Advocate activity reports, and
mandated that ARCENT (Army Central) maintain a generic email address to receive LOAC reports.”).
136 DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶3.2 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(“Reportable Incident. A possible, suspected, or alleged violation of the law of war, for which there is credible
information, or conduct during military operations other than war that would constitute a violation of the law of war
if it occurred during an armed conflict.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶3.2 (Dec. 9, 1998)
(“Reportable Incident. A possible, suspected, or alleged violation of the law of war.”).
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