Law of Armed Conflict Deskbook, 2015

253 Pages·2015·1.52 MB·English

LAW OF ARMED CONFLICT

DESKBOOK

INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT
The United States Army Judge Advocate General’s Legal Center and School

Charlottesville, VA

FIFTH EDITION

INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, U.S. ARMY

CHARLOTTESVILLE, VIRGINIA

LAW OF ARMED

CONFLICT DESKBOOK

Contributing Authors

LTC Ryan Dowdy, JA, USA, Chair

LTC John Cherry, USMC, Vice-Chair

LTC Josh Berry, JA, USA

LTC Thomas Bogar, JA, USAR

LTC Bradford Clark, JA, USAR

LTC Thomas Bogar, JA, USAR

MAJ Jeffrey Blank JA, USA

Maj Jason DeSon, JA, USAF

MAJ Matthew Festa, JA, USAR

MAJ Matthew Lund, JA, USA

MAJ Kristy Radio, JA, USA

MAJ Patrick Walsh, JA, USARNG

All of the faculty who have served with and before us and contributed to the
literature in the field of the Law of War
Editor and Contributing Author
LCDR David Lee, JAGC, USN
Administrative Support
Ms. Terri Thorne

FIFTH EDITION
PREFACE

This Law of Armed Conflict Deskbook is intended to replace, in a single bound volume, similar
individual outlines that had been distributed as part of the Judge Advocate Officer Graduate and
Basic Courses and departmental short courses. Together with the Operational Law Handbook
and Law of Armed Conflict Documentary Supplement, these three volumes represent the range
of international and operational law subjects taught to military judge advocates. These outlines,
while extensive, make no pretense of comprehensively covering this complex area of law. Our
audience is the beginning and intermediate level practitioner, and our hope is that this material
will provide a solid foundation upon which further study may be built.

The proponent of this publication is the International and Operational Law Department, the
Judge Advocate General’s Legal Center and School (TJAGLCS). Send comments and
suggestions to our administrative assistant, Ms. Terri Thorne, TJAGLCS-ADI, 600 Massie Road,
Charlottesville, VA 22903-1781. She can be reached at DSN 521-3370, [phone], or at
[email protected]. Ms. Thorne will connect you with the author for the particular
chapter.

NOTE: The LOAC Deskbook was edited and prepared for publication before the arrival of
the new DoD Law of War Manual on June 12, 2015. This document can be accessed at
http://www.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf. In addition, as of this
date, the arrival of FM 6-27 (the updated edition of the Law of Land Warfare, replacing
FM 27-10) is imminent. Practitioners are reminded to access both of these documents
when providing legal advice. Once FM 6-27 is published, citations referencing the old FM
27-10 will be replaced in the next edition of the LOAC Deskbook.

This Deskbook is not a substitute for official publications. Similarly, it should not be
considered to espouse or represent the “official” position of the U.S. Army, Department of
Defense, or U.S. Government. While every effort has been made to ensure that the material
contained herein is current and correct, it should be remembered that this is merely a collection
of teaching outlines, collected, bound, and distributed as a matter of instructional convenience,
intended only to introduce students to the law and point them to primary sources of that law.
Accordingly, the only proper citation to a substantive provision of this Deskbook should be
for the limited proposition of how the Army JAG School teaches its students.

LCDR David H. Lee, JAGC, USN
June 15, 2015
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL

CHARLOTTESVILLE, VIRGINIA

LAW OF ARMED CONFLICT DESKBOOK

TABLE OF CONTENTS
References iii

Abbreviations v

Introduction to Public International Law 1

History of the Law of War 7

Framework of the Law of War 19

Legal Basis for the Use of Force 29

GC I: Wounded and Sick in the Field 41

GC III: Prisoners of War 67

GC IV: Civilians on the Battlefield 89

GC IV: Occupation and Post-Conflict Governance 119

Means and Methods of Warfare 133

War Crimes and Command Responsibility 171

Human Rights 193

Comparative Law
207

Index 240

ii Table of Contents
REFERENCES
This Deskbook is intended as a teaching tool, not as a collection of law review articles. The
references which most chapters cite are common, so to avoid undue repetition, they are cited
here in full. The Short Version citation will generally be used in the chapters. Those references
which are reprinted in the Law of War Documentary Supplement are noted.
Doc
Short Version Citation
Supp?
HR Regulations Concerning the Laws and Customs of War on Land, X
annexed to Hague Convention (IV) Respecting the Laws and
Customs of War on Land, Oct. 18, 1907, T.S. 539 .
UN Charter U.N. Charter. X
GC I Geneva Convention for the Amelioration of the Condition of the X
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6
UST. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31. May also be
abbreviated as GWS.
GC II Geneva Convention for the Amelioration of the Condition of X
Wounded, Sick, and Shipwrecked Members of Armed Forces at
Sea, Aug. 12, 1949, 6 UST. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85.
May also be abbreviated as GWS(Sea).
GC III Geneva Convention, Relative to the Treatment of Prisoners of War, X
Aug. 12, 1949, 6 UST. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135. May
also be abbreviated as GPW.
GC IV Geneva Convention, Relative to the Treatment of Civilian Persons X
in Time of War, Aug. 12, 1949, 6 UST. 3516, T.I.A.S. 3365, 75
U.N.T.S. 287. May also be abbreviated as GC.
AP I Protocol Additional to the Geneva Conventions of 12 August 1949, X
and Relating to the Protection of Victims of International Armed
Conflicts, June 8, 1977, 1125 U.N.T.S. 3.
AP II Protocol Additional to the Geneva Conventions of 12 August 1949, X
and Relating to the Protection of Victims of Non-International
Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.
Abbreviations iii
Doc
Short Version Citation
Supp?
AP III Protocol Additional to the Geneva Conventions of 12 August 1949, X
and Relating to the Adoption of an Additional Distinctive Emblem,
Dec. 8, 2005.
GC I Commentary INTERNATIONAL COMMITTEE OF THE RED CROSS, GENEVA
GC II Commentary CONVENTION (I) FOR THE AMELIORATION OF THE CONDITION OF
etc. THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD:
COMMENTARY (Jean Pictet gen. ed., 1958).
AP Commentary INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON
THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA
CONVENTIONS OF 12 AUGUST 1949 (Yves Sandoz et al. eds., 1987).
G.BC Protocol for the Prohibition of the Use in War of Asphyxiating, X
Poisonous, or Other Gases, and of Bacteriological Methods of
Warfare, June 17, 1925, 26 UST. 571, 94 L.N.T.S. 65.
CWC Convention on the Prohibition of the Development, Production, X
Stockpiling and Use of Chemical Weapons and on Their
Destruction, Jan. 13, 1993, 32 I.L.M. 800.
H.CP 1954 Hague Convention for the Protection of Cultural Property in X
the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216.
1972 BW Convention on the Prohibition of the Development, Production and X
Stockpiling of Bacteriological (Biological) and Toxin Weapons
and on Their Destruction, Apr. 10, 1972, 26 UST. 583.
CCW Convention on Prohibitions or Restrictions of the Use of Certain X
Conventional Weapons Which May be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19
I.L.M. 1523.
FM 27-10 DEP'T OF THE ARMY, FIELD MANUAL 27-10, THE LAW OF LAND X
WARFARE (July 1956).
NWP 1-14M DEP'T OF THE NAVY, NAVAL WARFARE PUBLICATION 1-14M/U.S.
MARINE CORPS MCPW 5-2.1, THE COMMANDER'S HANDBOOK ON
THE LAW OF NAVAL OPERATIONS (October 1995).
iv References
Abbreviations

AP I ................................................... Additional Protocol I

AP II .................................................. Additional Protocol II

AP III................................................. Additional Protocol III

CIL .................................................... Customary International Law

CJCS .................................................. Chairman of the Joint Chiefs of Staff

GC I ................................................... Geneva Convention I

GC II.................................................. Geneva Convention II

GC III ................................................ Geneva Convention III

GC IV ................................................ Geneva Convention IV

GC…………………………………..Alternative abbreviation for GC IV

GPW………………………………...Alternative abbreviation for GC III

GWS………………………………...Alternative abbreviation for GC I

GWS(Sea)…………………………..Alternative abbreviation for GC II

HR ..................................................... Hague Regulations

IAC .................................................... International Armed Conflict

ICJ ..................................................... International Court of Justice

ICRC .................................................. International Committee of the Red Cross

IHL .................................................... International Humanitarian Law

JA ...................................................... Judge Advocate

LOAC ................................................ Law of Armed Conflict

LOW .................................................. Law of War

NIAC ................................................. Non-international Armed Conflict

POW .................................................. Prisoner of War

RCA ................................................... Riot Control Agents

ROE ................................................... Rules of Engagement

SROE ................................................. Standing Rules of Engagement

UN ..................................................... United Nations

UNSC ................................................ United Nations Security Council

UNSCR……………………………..United Nations Security Council Resolution

Abbreviations v
INTRODUCTION TO PUBLIC INTERNATIONAL LAW

I. OBJECTIVES
A. Understand the foundation of the international legal system.
B. Understand the primary sources of international law, how they are created and how
they relate to each other.
II. INTRODUCTION
A. Military operations involve complex questions related to international law.
International law provides the framework for informed operational decisions,
establishes certain limitations on the scope and nature of command options, and
imposes affirmative obligations related to the conduct of U.S. forces. Commanders
rely on Judge Advocates to understand fundamental principles of international law,
translate those principles into an operational product, and articulate the essence of the
principles when required.
B. This body of law has a broader and independent significance in the context of U.S.
law and jurisprudence because international law—among the cornerstones of our own
Constitution1—“is part of our law.”2
III. FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW
A. Definition. International law is defined as “rules and principles of general application
dealing with the conduct of States and of international organizations and with their
relations inter se, as well as some of their relations with persons, whether natural or
juridical.”3 Regulating those relations is generally viewed through two different
lenses: public and private. Public international law is that portion of international
law that deals mainly with intergovernmental relations. Private international law is
primarily concerned with the “foreign transactions of individuals and corporations.”4

1 See U.S. CONST. art I, §8 (giving Congress the power to “define and punish . . . Offences against the Law of
Nations”); art. II, §2 (giving the President authority, with the advice and consent of the Senate, to appoint
ambassadors and make treaties); art. III (providing that the judicial power extends to all cases involving treaties,
ambassadors, and maritime cases); and art. VI (listing treaties as among three sources noted as the “supreme Law of
the Land”).
2 The Paquete Habana, 175 U.S. 677, 700 (1900).
3 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 101 (1987) [hereinafter
RESTATEMENT].
4 MARK W. JANIS & JOHN E. NOYES, INTERNATIONAL LAW: CASES AND COMMENTARY 2 (1997).
1 Intro to PIL
B. States. International law developed to regulate relations between States, and States
are the focus of the international legal system. International law establishes four
criteria that must be met for an entity to be regarded as a State under the law:
1. Defined territory (which can be established even if one of the boundaries is in
dispute or some of the territory is claimed by another State);
2. Permanent population (the population must be significant and permanent even if
a substantial portion is nomadic);
3. Government (note that temporary occupation by enemy forces during war or
pursuant to an armistice does not serve to extinguish statehood even if the legal
control of the territory shifts temporarily); and,
4. Capacity to conduct international relations.5
C. Consequences of statehood. Under international law, a State has:
1. Sovereignty over its territory and general authority over its nationals;
2. Status as a legal person, with capacity to own, acquire, and transfer property, to
make contracts and enter into international agreements, to become a member of
international organizations, and to pursue, and be subject to, legal remedies; and
3. Capacity to join with other States to make international law, as customary law
or by international agreement.6
D. I nherent tension. Under international law, sovereignty is the ultimate benefit of
statehood. Inherent to sovereignty is the notion that a State should be free from
outside interference. International law, however, seeks to regulate State conduct.
States “trade” aspects of sovereignty in order to reap the benefits of the international
legal system. While this may seem natural in cases of warfare between states (or
international armed conflict), it becomes more contentious in cases of internal or non-
international armed conflict.
IV. SOURCES OF INTERNATIONAL LAW
A. Article 38 of the Charter of the International Court of Justice (ICJ)7 lists the following
sources of international law:

5 See RESTATEMENT, supra note 3 at § 201.
6 Id. at § 206.
Intro to PIL 2