Abstract
There is no single authoritative reference detailing those provisions of AP I the US accepts as an accurate restatement of customary international law or other legal obligations, or that it follows as a matter of policy during armed conflict. In this paper, the author seeks to partially address that lacuna through a systematic review of official US policies, directives, publications, treaty obligations, laws, and proclamations pertinent to those provisions of AP I governing the conduct of hostilities.
Lieutenant Colonel, U.S. Marine Corps. Lieutenant Colonel Cadwalader is assigned to the faculty of the United States Naval War College International Law Department. He is writing in his personal capacity and the opinions expressed herein do not necessarily reflect those of the United States Government, the Department of Defense, or any agency thereof. The author would like to thank Professor Mike Schmitt, Professor Ken Watkin, Colonel Rick Rousseau, and Dr. Louise Arimatsu for their invaluable assistance.
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Notes
- 1.
See International Committee of the Red Cross database of State Parties to International Humanitarian Law and Other Related Treaties (hereinafter ICRC database)at: http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf.
- 2.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) Dec. 12, 1977, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I]. A companion Protocol pertains to non-international armed conflict. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II].
- 3.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GCI]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GCII]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GCIII]; Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GCIV].
- 4.
The U.S. Department of Defense uses “Law of Armed Conflict” and “Law of War” interchangeably in official publications; however, “Law of War” is the official term, see para 5.C. of Chairman of the Joint Chiefs of Staff Instruction 5810.01D, “Implementation of the DOD Law of War Program” (30 April 2010).The Department of Defense specifically rejects the term “international humanitarian law.” Ibid. at p. 2, n. 1. The author will use the term “Law of Armed Conflict” in this article.
- 5.
Dinstein 2010, at p. 16. There are 193 Member States of the United Nations (see http://www.un.org/depts/dhl/unms/whatisms.shtml).
- 6.
The Legal Adviser for the International Committee of the Red Cross has observed that the “failure to ratify by a major power such as the United States would deprive the world of a common framework for the humanitarian rules governing armed conflicts. It would hinder the development and acceptance of universal standards in a field where they are particularly needed: armed conflict.” Gasser 1987, at p. 924.
- 7.
For example, see the following ratification/accession dates: Australia—21 June 1991; Belgium—20 May 1996; Canada—20 November 1990; France—11 April 2001; Germany—14 February 1991; Italy—27 February 1986; Japan—31 August 2004; Republic of Korea—15 January 1982; Netherlands; 26 June 1987; Spain—21 April 1989; United Kingdom—28 January 1998.
States that have not become Parties to AP I include, inter alia, India, Iran, Israel, Pakistan, and Turkey. See ICRC database, supra n. 1.
- 8.
The United States Army Center for Law and Military Operations (CLAMO) compiles After Action Reports (AAR) of lessons learned from judge advocates (uniformed military attorneys) deployed in support of overseas military operations. These volumes devote significant attention to the importance of understanding and integrating the legal constrains and restraints of coalition partners into the planning process. In particular, see CLAMO 2008, at p. 331.”
- 9.
The International Court of Justice held that in the formation of customary international law, “[s]tate practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” North Sea Continental Shelf Cases Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands (1969) I.C.J. Reports, pp. 4,43 as quoted in Bellinger and Haynes 2007, at p. 445, n. 4.(emphasis in original). This article, containing the aforementioned quote from the International Court of Justice, is the published version of a letter submitted by John B. Bellinger, III, Legal Adviser US Department of State and William J. Haynes, General Counsel US Department of Defense to Dr. Jacob Kellenberger, President, International Committee of the Red Cross of 3 November 2006. The letter describes the initial reaction of the United States Government to the International Committee of the Red Cross study on customary international humanitarian law—see Henckaerts and Doswald-Beck 2005.
- 10.
These provisions are included in Articles 35 through 60 of AP I, supra n. 2.
- 11.
The degree to which official publications evince the existence of customary international law is disputed. Bellinger and Haynes 2007, at p. 445 reads “the United States is troubled by the type of practice on which the [ICRC study on customary international humanitarian law] has, in too many placed relied. The initial U.S. review of the State practice volumes suggest that the study places too much emphasis on written materials, such as military manuals and other guidelines published by States, as opposed to the actual operational practice by States during armed conflict. Although manuals provide important indications of State behavior and opinio juris they cannot be a replacement for a meaningful assessment of operational state practice in connection with actual military operations.”
- 12.
Paragraph 4.1 of Department of Defense Directive 2311.01E, “DOD Law of War Program” (9 May 2006 w/Change 1 of 15 Nov 2010)[hereinafter DOD Law of War Program], states that is Department of Defense Policy that “DOD components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.” Accordingly, although AP I is only applicable to international armed conflict, the extent to which the United States follows its rules will also have bearing in how the United States conducts hostilities in non-international armed conflict.
- 13.
Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protections of Victims of Non International Armed Conflicts, S. Treaty Doc. No. 2, 100th Cong., 1st Sess., at III (1987) [hereinafter Letter of Transmittal]. The Letter of Transmittal recommends ratification of AP II, but states the United States should not ratify AP I.
- 14.
The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict [hereinafter “CDDH”] drafted AP I and AP II, supra n. 2, over four sessions held between 1974 and 1977. The Final Act of the CDDH provides the dates the Conference was in session, the States and organizations represented, and the names and nationalities of the key officials. The Final Act is reprinted in Schindler and Toman 2004, at p. 699 et. seq. The Official Records of the CDDH are comprised of seventeen volumes [hereinafter ‘Official Records’]. Electronic copies of these volumes may be obtained at http://www.loc.gov/rr/frd/Military_Law/RC-dipl-conference-records.html.
- 15.
Aldrich 1991.
- 16.
Report of the U.S. Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law in Armed Conflicts—Fourth Session—March 17-June 10,1977 submitted to the Secretary of States by George H. Aldrich, Chairman of the Delegation on Sept 8, 1977, 30–31.[hereinafter Delegation Report].
- 17.
Ibid. at 919. The Official Records of the CCDH summarized Aldrich’s statement on the applicability of AP I to nuclear weapons as “[i]t was his Government's understanding that the rules established by the Protocol were not intended to have any effect on, and did not regulate or prohibit the use of, nuclear weapons.” Official Records, supra n. 14, at Vol. II, p. 285 [CDDH/SR. 58/Para 82]. Upon ratification of AP I, several nations expressed similar understandings. See reservations and declarations of Canada, France, Germany, Italy, The Netherlands, Spain, and the United Kingdom reprinted in Schindler and Toman 2004 at pp. 797, 800, 802, 807, 809, 813, and 816 respectively.
Paragraphs 1838 to 1862 of the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 discuss the applicability of AP 1 to nuclear weapons. The AP I Commentary concluded that during negotiations an agreement was reached not discuss nuclear weapons. Moreover, it determined the use of nuclear weapons is not specifically prohibited by AP I or other sources of international law. Rather, AP I reaffirmed existing principles and rules of international humanitarian law that “severely restrict” the use of nuclear weapons to include the prohibition against employment of weapons that cause superfluous injury or unnecessary suffering, the prohibition against indiscriminate attacks, and the obligation to distinguish between the civilian population and combatants. Sandoz et al. 1987, at paras 1852 and 1859.
- 18.
Delegation Report, supra n. 16, at p. 919. This concern was shared by other nations. For instance, in its reservations and declarations made upon ratification of AP I, the United Kingdom stated it would be entitled to take reprisals against the civilian population, civilians, or civilian objects of an adversary for the sole purpose of compelling the adverse power to cease serious and deliberate violations of Articles 51 to 55. Such reprisals require approval by the highest level of government, are only authorized after formal warnings have been disregarded, and must not be disproportionate to the violations of the adversary. Moreover, no reprisal may be taken in violation of the Geneva Conventions of 1949 and the right of reprisal terminates after the enemy discontinues their violations. See Schindler and Toman 2004, at p. 817.
- 19.
Aldrich 1991.
- 20.
Ibid. at p. 18.
- 21.
Ibid. This understanding pertains to two of the most controversial provisions of Additional Protocol I (discussed in more detail infra in the text accompanying notes 30–36), namely Articles 1(4) and 44(3). Aldrich argued that these rules have the salutary effect of protecting irregular forces fighting against occupying powers, for whom blending in with the civilian population when not engaged in hostilities is essential to their survival. Aldrich 1991 at p. 8. The full statement of the US delegation regarding this understanding can be found at Official Records, supra n. 14, at Vol. VI p. 150 [CDDH/SR. 41/Para 45].
- 22.
Aldrich 1991 at p. 18. This understanding pertains to the provision in Article 44(3)(b) that allows irregular fighters to maintain their combatant status so long as they carry their arms openly “during such time that he is visible to the enemy while he is engaged in a military deployment proceeding the launching of an attack in which he is to participate.”
The full statement of the US delegation regarding this understanding can be found at Official Records, supra n. 14, at Vol. VI, p. 150 [CDDH/SR. 41/Para 46].
- 23.
Aldrich 1991, at p. 18. This understanding pertains to Article 52(2) that states, in pertinent part, “military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” The full statement of the US delegation regarding this understanding can be found at Official Records, supra n. 14, at Vol. VI, p. 204 [CDDH/SR. 41/Annex].
- 24.
Aldrich 1991, at p. 18. This understanding recognizes that striking military objectives may cause collateral or incidental damage to civilians or civilian objects and that collateral or incidental consequences are not prohibited by the rule. The full statement of the US delegation regarding this understanding can be found at Official Records, supra note 14, at Vol. VI p. 204 [CDDH/SR. 41/Annex].
- 25.
Aldrich 1991, at p. 18. This understanding clarifies that protected property may be attacked if the adversary has improperly employed the protected property for military purposes. The full statement of the US delegation regarding this understanding can be found at Official Records, supra n. 14, at Vol. VI, p. 240–41 [CDDH/SR. 42/Annex].
- 26.
Aldrich 1991, at p. 18. Articles 51 through 58 establish rules for the protection of civilians, civilian objects, and the natural environment during military operations. This understanding emphasizes that the propriety of decisions made by commanders and their staffs under these rules are evaluated based on the information known to them at the time, and not by ex post facto information. The full statement of the US delegation regarding this understanding can be found at Official Records, supra n. 14, at Vol. VI p. 241 [CDDH/SR. 42/Annex].
- 27.
This understanding pertains to the proportionality test articulated in Articles 51(5)(b) and 57(2)(a)(iii) which require combat leaders to refrain from attacks which “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The full statement of the US delegation regarding this understanding can be found at Official Records, supra n. 14, at Vol. VI p. 241 [CDDH/SR. 42/Annex].
- 28.
Schindler and Toman 2004, at pp. 699 and 791.
- 29.
Ibid. at 817–818.
- 30.
Common Article 2 states that the Conventions “shall apply to all cases of declared war or other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”
- 31.
Letter of Transmittal, supra n. 13, at IV.
- 32.
Ibid.
- 33.
For the traditional requirements, see Article 1 to the Annex of The Hague Convention (IV) of 1907, Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Respecting the Laws and Customs of War on Land Oct. 18, 1907, 36 Stat. 2227. Similarly, see GC III, Article 4(A).
- 34.
Article 44(7) makes it clear that this rule is limited in application to irregular forces.
- 35.
Read together, AP I Article 44(3), (4), & (5) provide that an irregular fighter who falls into the hands of the enemy while failing to carry his arms openly during a deployment preceding an attack (in which he is visible to the enemy) or during a military engagement, forfeits his right to be a combatant and a prisoner of war. However, the adverse Party must nevertheless provide “protections equivalent in all respects to those accorded prisoners of war by the Third Convention and by this Protocol,” rendering the distinction to be mostly academic regarding treatment in captivity since he would enjoy protections equivalent to a bona fide prisoners of war. However, he would be susceptible to criminal penalty for his actions.
- 36.
Letter of Transmittal, supra n. 13 at IX.
- 37.
Ibid. at IV.
- 38.
Ibid. at IX. Aldrich dismissed the assertion that the impact on military operations militated against ratification. He stated that the Department of Defense was very involved in the negotiations of AP I and concurred with the decision to sign. The only real controversial issue was whether or not to reserve rights of reprisal. He concluded that “references to military considerations were made simply to buttress the decision to reject the protocol—a decision that had already been made on different, political grounds.” Aldrich 1991, at p. 11. W. Hays Parks, who took part in the Joint Chiefs of Staff review that ultimately recommended against ratification, states that such assertions are misleading. Parks 1990, at p. 76 n. 259. He said the Joint Chiefs of Staff had insufficient time to review AP I and voted in favor of signature subject to the condition of a “full military review prior to any decision as to ratification by the United States.” Ibid. at 88.
- 39.
Letter of Transmittal, supra n. 13 at IV.
- 40.
Sofaer 1987. Judge Sofaer served as Legal Adviser to the Department of State from 1985 to 1990.
- 41.
For the definition of a mercenary for the purpose of Article 47(1), see Article 47(2).
- 42.
Sofaer 1987 at p. 469.
- 43.
Article 51(6) reads “[a]ttacks against the civilian population or civilians by way of reprisal is prohibited.”
- 44.
Sofaer 1987, at p. 469.
- 45.
Sofaer 1987, at p. 468.
- 46.
Matheson 1987.
- 47.
See Ibid. at pp. 421–422.
- 48.
Ibid. at p. 422.
- 49.
Parks served as the Special Assistant for Law of War Matters in the Army Office of the Judge Advocate General from 1979 to 2003 and as the Senior Associate Deputy Counsel in the Department of Defense Office of General Counsel International Law Division from 2003 until 2010. See biography in Parks 2010a, at p. 769.
- 50.
Parks 2003, at p. 519, n. 55.
- 51.
International & Operational Law Department, The Judge Advocate General’s Legal Center & School, Operational Law Handbook (2005 ed.).
- 52.
Ibid. errata sheet dated 27 September 2004.
- 53.
- 54.
For a summary of all of Mr. Matheson’s remarks, see International and Operational Law Department 2010, at p. 232. The Documentary Supplement also contains a memorandum from W. Hays Parks, LCDR Michael F. Lohr, JAGC, USN, LtCol Dennis Yoder, USAF, and William Anderson, to Assistant General Counsel (International), OSD, Subject: 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications (8 May 1986) that provides an advisory opinion regarding which provisions of AP I are recognized as customary international law and which should be supported “for eventual conclusion in that law.” Regarding provisions governing the conduct of hostilities, this memorandum cites Articles 35(a) & (2); 40; 42; 45(3)(first sentence); 51(2); 52(1)&(2) (except the reference to “reprisals”); 57(1),2(c), &(4); 59; and, 60 as reflecting customary international law. Ibid. at 234.
- 55.
Matheson 1987, at p. 424.
- 56.
Ibid. at p. 425.
- 57.
Ibid.
- 58.
Ibid.
- 59.
Ibid.
- 60.
Ibid. at p. 425–426.
- 61.
Ibid. at p. 426.
- 62.
Ibid.
- 63.
Ibid.
- 64.
Ibid.
- 65.
Ibid.
- 66.
Ibid. at p. 426–427.
- 67.
Ibid. at p. 424.
- 68.
Ibid. at p. 425.
- 69.
Ibid.
- 70.
Ibid. at p. 426.
- 71.
Ibid. p. 426.
- 72.
Ibid. at p. 427.
- 73.
See Hague IV 1097, supra n. 33.
- 74.
The International Court of Justice held the Hague Convention (IV) of 1907 is among the seminal Geneva and Hague conventions promulgating “fundamental rules [which] are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.” See Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996) I.C.J. Rep 266 at pp. 256–57. This opinion noted that Nuremberg International Military Tribunal concluded that the regulations annexed to Hague (IV) “were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war.” Ibid. at 258 (citing Trial of the Major War Criminals, 14 November 1945–1 October 1946, Nuremberg, 1947, Vol. 1, p. 254). See Dinstein 2010, at p. 15 and Roberts and Guelff 2005 at p. 68 for additional discussion on the incorporation of Hague Convention (IV) into the body of customary international law.
- 75.
Article 39(3) states that the prohibitions listed in Article 39(1) and (2) do not affect the generally recognized rules in international law that pertain to espionage (that is gathering information about the enemy) or the use of flags in armed conflict at sea.
- 76.
GC I, Article 12 also prohibits violence against the wounded and sick.
- 77.
See discussion accompanying notes 32–36, supra.
- 78.
AP I Article 46(1); Hague IV Regulations Article 31.
- 79.
AP I Article 46(4); Hague IV Regulations Article 31.
- 80.
This rule reflects the enhanced protection provided in AP 1 to irregular fighters, particularly when they are engaged in hostilities against an occupying power. “The basic premise underling [Article 46(3)] is that resident members of organized resistance movements in occupied territories are not practicing deception simply by appearing to be civilians even while engaged in such a military operation as gathering intelligence.” Their information gathering would only arise to the level of espionage if they employed clandestine measures such as using a forged pass, concealed camera, or clandestine radio transmitter. See Bothe, Partsch, and Solf 1982, at pp. 265–266.
- 81.
Article 59(2), API provides the necessary conditions to be fulfilled by a non-defended locality.
- 82.
Additionally, with regard to the provision in Hague IV Article 27 requiring the safeguarding of places where the sick or wounded are collected, GC 1 Article 19 and AP I Article 12 protect medical units and establishments from attack.
- 83.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137 [hereinafter CCW].
- 84.
See United States Statement of Understanding reprinted in Schindler and Toman 2004, at p. 221.
- 85.
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II) as Amended on May 3, 1996, 2048 U.N.T.S. 133 [hereinafter CCW Amended Protocol II].
- 86.
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), October 10, 1980, 1342 U.N.T.S. 171 [hereinafter CCW Amended Protocol III].
- 87.
CCW Amended Protocol II, supra n. 85, Article 2(7); CCW Protocol III, supra n. 86, Article 4.
- 88.
See United States Statement of Understanding in Schindler and Toman 2004, at p. 232. Several Parties to AP I expressed their understanding that an area of land could qualify as a legitimate military objective. For example, the United Kingdom upon ratification of AP I stated “a specific area of land may be a military objective if, because of its location or other reasons specified in [AP I, Article 52], its total or partial destruction, capture or neutralisation in the circumstance ruling at the time offers a definite military advantage.” Ibid. at 816. See also similar declarations made by Canada, France, Germany, Italy, and the Netherlands Ibid. at pp 798, 801, 802, 818, and 810 respectively.
- 89.
See AP I, supra n. 2, Articles 51(2), 51(6), & 52(1).
- 90.
Schindler and Toman 2004, at p. 232.
- 91.
During the AP I negotiations, the United States delegation stated they understood the language “clearly separated” to not only require an observable distinction but also “an element of significant distance [which] should be at least sufficiently large to permit the individual military objectives to be attacked separately.” Official Records, supra note 14, at Vol. XIV, p. 307 [CDDH/III/SR. 31/Para 50].
- 92.
See AP I, supra note 2, Articles 41(3), 56(2), 57(2)(a), 58, 78(1), and 86(2).
- 93.
Of note, the more detailed definition of “feasible” in the text of CCW Amended Protocol II reflects the understanding of several Parties to AP I regarding the meaning of that term in the context of AP I. For example, the United Kingdom upon ratification of AP I stated “[t]he United Kingdom understands the term “feasible” as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Schinder and Toman 2004 at p. 816. See also similar declarations made by Canada, Germany, Italy, the Netherlands, and Spain ibid. at pp. 797, 802, 807, 810, and 813 respectively.
A United States understanding accompanying ratification of CCW Amended Protocol II reads “any decision by any military commander, military personnel, or any other person responsible for planning, authorizing, or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.” Ibid. at 231.
This yardstick for evaluating of military decisions is shared by several Parties to AP I. Upon ratification of AP I the United Kingdom declared “[m]ilitray commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.” Ibid. at 816. See also similar declarations of Australia, Austria, Belgium, Canada, Germany, Italy, the Netherlands, and New Zealand ibid. at pp. 793, 794, 796, 802, 807, 810, and 810 respectively.
- 94.
Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter 1954 Hague Convention].
- 95.
Article 18(1) to the 1954 Hague Convention, ibid. limits the scope of the Convention to situations of declared war or other armed conflict between two or more High Contracting Parties.
- 96.
For examples of cultural property provided by the Hague Convention 1954, see Article 1(a).
- 97.
Article 8 provides the prerequisite conditions for granting of special protection. Chapter II to the Regulations for the Execution of the Convention provides the mechanism by which a Party can apply for special protection from the Director-General of the United Nations Educational, Scientific, and Cultural Organization (UNESCO).
- 98.
AP 1 Article 53(b) prohibits the use of cultural property or places of worship in support of the military effort, but does not stipulate that its protected status is surrendered if it is so used. Nonetheless, given that Article 53 states that it is without prejudice to the Hague Convention of 1954, it follows that its protection is lost if it is used in support of the military effort. Thus, it may be attacked if it qualifies as a military objective per AP I Article 52 (and the attack meets the proportionality requirements of AP I Articles 51(5)(b) and 57(2)(a)(iii)). See New Rules, supra n. 80, at pp. 332–333.
- 99.
1954 Hague Convention, supra n. 94, at Article 4(2).
- 100.
Ibid. at 11(1) & (2).
- 101.
DOD Law of War Program, supra n. 12, Para 5.1.3.
- 102.
The written version of this speech can be found at Parks 2010b.
- 103.
Ibid. at p. 7.
- 104.
Ibid. at p. 9.
- 105.
“Doctrine” is defined as “[f]undamental principles by which the military forces or elements thereof guide their actions in support of national objectives. It is authoritative but requires judgment in application.” Joint Publication [hereinafter “JP”] 1-02, “Department of Defense Dictionary of Military and Associated Terms,” (8 Nov 10 as amended through 15 Nov 11) at 104.
- 106.
JP 1, “Doctrine for the Armed Forces of the United States of America” (2 May 07 incorporating Change 1 of 20 Mar 09) at I-21.
- 107.
JP 1-04, “Legal Support of Military Operations,”(17 Aug 11) [hereinafter JP 1-04].
- 108.
Ibid. at II-2.
- 109.
Ibid.
- 110.
Ibid.
- 111.
Ibid.
- 112.
JP 3-60, “Joint Targeting,” (13 Apr 07) [hereinafter JP 3-60].
- 113.
Ibid. at E-1.
- 114.
Ibid. To illustrate this concept, the military advantage of an attack on a small, minimally fortified outpost overlooking a mountain pass is not judged simply on the military assets contained therein. If the attacking force intends to use that pass to infiltrate enemy territory, the military advantage is calculated based on the need to eliminate the outpost to accomplish the larger mission. The degree of acceptable collateral damage is judged accordingly.
- 115.
Ibid. at E-2.
- 116.
Ibid. at E-3. Additionally, United States Air Force doctrine states that targetable economic objects include those which make an effective (though not necessarily direct) contribution to the adversary’s military capability. Air Force Doctrine Document 3-60, “Targeting,” 8 June 2006, incorporating Change 1 of 28 Jul 2011) at p. 91.
- 117.
JP 3-60 at E-3.
- 118.
Ibid. at E-3.
- 119.
Ibid. at E-6. Of note, the United States has expressly rejected the assertion that the prohibition against methods or means of warfare that are intended, or may be expected to cause widespread, long-term, and severe damage to the natural environment is prohibited under customary international law. See Bellinger and Haynes Letter, supra note 9, at 455–460.
- 120.
JP 3-60 at E-4.
- 121.
Ibid.
- 122.
This rule leaves open the issue of who retains the authority to cancel an attack. If not reserved to certain level of command, then any military personnel charged with executing an attack would have the authority to supplant his judgment for that of the commander who ordered the attack. In its ratification of AP I, Switzerland made the following reservation: “The provisions of Article 57(2) are binding only on battalion or group commanders and higher echelons.” Schindler and Toman 2004, supra n. 14, at p. 814.
- 123.
Department of the Army Field Manual 27-10, The Law of Land Warfare (18 July 56 incorporating Change 1 of 15 July 76).
- 124.
For example, para 3.e. of Secretary of the Navy Instruction 3300.1C, “Department of the Navy Law of War Program,”(28 May 09) references FM 27-10 as applicable law and policy. Marine Corps Reference Publication 5-12.1A, “The Law of Land Warfare”, (undated) adopts FM 27-10 verbatim.
- 125.
FM 27-10 Paragraph 39(b) defines an undefended place as “any inhabited place near or in a zone where opposing armed forces are in contact which is open for occupation by the adverse party without resistance. In order to be considered undefended, the following conditions must be fulfilled: (1) Armed forces and other combatants, as well as mobile weapons and mobile military equipment, must have been evacuated, or otherwise neutralized; (2) no hostile use shall be made of fixed military installations or establishments; (3) no acts of warfare shall be committed by the authorities or by the population; and (4) no activities in support of military activities shall be undertaken.” This definition is the same as that contained in AP I Article 59(2).
- 126.
Ibid. at Para 40(b)(1).
- 127.
Ibid. at Para 40(b)(2). This paragraph also stipulates that “the occupation of a place by medical units alone, however, is not sufficient to render it a permissible object of attack.”
- 128.
Ibid. at Para 40(b)(3).
- 129.
AP I, supra note 2, Article 57(2)(a)(i) & (ii).
- 130.
The problem with this presumption was described in the Final Report to Congress on the Conduct of the Persian Gulf War (available at www.ndu.edu/library/epubs/cpgw.pdf) which stated the “language [in AP I Article 52(3)], which is not a codification of the customary practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden for determining the precise use of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.” (emphasis added).
- 131.
For an excellent analysis of both state practice and the legal issues surrounding the wear of non-standard and enemy uniforms, see Parks, Special Forces 2003.
- 132.
GC III, supra n. 3. Paragraph 64 provides that the requirements set forth in GC III, Article 4(A)(2)(a)–(d) “are satisfied in the following fashion”:
-
a.
Command by a Responsible Person. This condition is fulfilled if the commander of the corps is a commissioned officer of the armed forces or is a person of position and authority or if the members of the militia or volunteer corps are provided with documents, badges, or other means of identification to show that they are officers, non-commissioned officers, or soldiers so that there may be no doubt that they are not persons acting on their own responsibility. State recognition, however, is not essential, and an organization may be formed spontaneously and elect its own officers.
-
b.
Fixed Distinctive Sign. The second condition, relative to the possession of a fixed distinctive sign recognizable at a distance is satisfied by the wearing of military uniform, but less than the complete uniform will suffice. A helmet or headdress which would make the silhouette of the individual readily distinguishable from that of an ordinary civilian would satisfy this requirement. It is also desirable that the individual member of the militia or volunteer corps wear a badge or brassard permanently affixed to his clothing. It is not necessary to inform the enemy of the distinctive sign, although it may be desirable to do so in order to avoid misunderstanding.
-
c.
Carrying Arms Openly. This requirement is not satisfied by the carrying of weapons concealed about the person or if the individuals hide their weapons on the approach of the enemy.
-
d.
Compliance With Law of War. This condition is fulfilled if most of the members of the body observe the laws and customs of war, notwithstanding the fact that the individual member concerned may have committed a war crime. Members of militias and volunteer corps should be especially warned against employment of treachery, denial of quarters, maltreatment of prisoners of war, wounded, and dead, improper conduct toward flags of truce, pillage, and unnecessary violence and destruction.
-
a.
- 133.
See discussion accompanying notes 32–36, supra.
- 134.
GC IV, supra n. 3.
- 135.
GC I, supra n. 3, Article 46 forbids reprisals against “the wounded, sick, personnel, buildings or equipment protected by the Convention.” GC II, supra n. 3, Article 47 forbids reprisals against “wounded, sick and shipwrecked persons, the personnel, the vessels or the equipment protected by the Convention.” GC III, supra n. 3, Article 13 forbids reprisals against prisoners of war. GC IV, supra n. 3, Article 33 forbids reprisals against civilians in occupied territory.
- 136.
FM 27-10 Paragraph 497 invests commanders with the authority to engage in reprisals. However, this authority has been superseded and the authority to order reprisals is retained at the national level. See International and Operational Law Department 2011, at p. 25.
- 137.
US Navy, US Marine Corps & US Coast Guard, NWP 1-14 M/MCWP 5-12.1/COMDTPUB P5800.7A, The Commander’s Handbook on the Law of Naval Operations [hereinafter NWP 1-14 M].
- 138.
U.S. Department of Defense rules governing legal review of weapons and weapon systems are contained Department of Defense Directive 5000.01, “The Defense Acquisition System,” (12 May 2003); Department of the Air Force Instruction 51-402, “Legal Reviews of Weapons and Cyber Capabilities,” (27 Jul 2011); Department of the Army Regulation 27-53, “Review of Legality of Weapons Under International Law,” (1 Jan 1979); and, Secretary of the Navy (SECNAV) Instruction 5000.2D, “Implementation and Operation of the Defense Acquisition System and the Joint Capabilities Integration and Development System,” (16 Oct 2008).
- 139.
See NWP 1-14 M, supra n. 137, Paragraphs 6.2.4; 6.2.4.1; 6.2.4.2; 6.2.4.3; & 6.2.5.
- 140.
See discussion accompanying n. 135–136 supra.
- 141.
See discussion accompanying n. 129–130 supra.
- 142.
This language in NWP 1-14 M is the only existing official definition of direct participation of hostilities within DoD literature. However, despite expanding on the definition in AP I, it still only provides broad outlines and leaves open the issue of how involved a civilian must be to qualify as taking a direct part in hostilities and for how long they lose their protected status if they do qualify. Recognizing the need for clarity in the field, the ICRC published an analysis in 2009. See Melzer 2009.
Addressing the Interpretive Guidance in detail is beyond the scope of this article; however, its conclusions regarding the scope of who qualifies as taking a direct participation in hostilities and how and when they could be targeted are controversial. For example, the Interpretive Guidance concludes that those who assemble or store improvised explosive devices do not qualify as taking a direct participation in hostilities. Ibid. at 54. Moreover, it concludes that civilians who take a direct part in hostilities are only susceptible to direct attack during “measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and return from the locations of its execution” thus enabling a civilian who regularly engages in hostilities to be immune from attack between his discrete belligerent acts. Ibid. at 65.
These conclusions, among others within the Interpretive Guidance, have been subject to serious criticism by prominent scholars with military experience. See e.g. Schmitt 2010; Boothby 2010; Parks 2010a; Watkin 2010.
- 143.
Of note, neither FM 27-10 nor NWP 1-14 M contain a prohibition against the starvation of civilians as a method of warfare, as is prohibited in AP I, Article 54(1). This is perhaps because of the traditionally lawful use of sieges to compel the surrender of the enemy through starvation and other privation which will necessarily impact civilians caught in the besieged location. See Dinstein 2010, at pp. 218–223.
- 144.
See AP I, supra n. 2, Article 51(7) and (8).
- 145.
See discussion accompanying n. 119 supra.
- 146.
The United States has expressly rejected the assertion that the prohibition against methods or means of warfare that are intended, or may be expected to cause widespread, long-term, and severe damage to the natural environment is prohibited. See Bellinger and Haynes 2007, at pp. 455–460.
- 147.
Military Commissions Act of 2009, Pub. L. 111-84, 123 Stat. 2574 [hereinafter “2009 MCA”] The Act superseded the Military Commission Act of 2006, Pub. L. 109-366, 120 Stat. 2600. The 2009 MCA is available at http://www.mc.mil/LEGALRESOURCES/MilitaryCommissionsDocuments/CurrentDocuments.aspx.
- 148.
2009 MCA, supra n. 147, at §948b(a). The Act defines an “unprivileged enemy belligerent” as one who does not belong to any of the categories enumerated in Article 4 of GC 3, supra note 3, and who has “engaged in hostilities against the United States or its coalition partners; has purposefully or materially supported hostilities against the United States or its coalition partners; or was part of al Qaeda at the time of the alleged offense.” Ibid. at §948a(6)&(7). The Act further defines “hostilities” as “any conflict subject to the law of war.” Ibid. at §948a(9). Thus, it confers jurisdiction over unprivileged enemy belligerents in both international and non-international armed conflict.
- 149.
Ibid at §949a(a).
- 150.
Department of Defense Manual for Military Commissions (2010 edition) [hereinafter “2010 Manual”]. The 2010 Manual is available at: http://www.mc.mil/LEGALRESOURCES/MilitaryCommissionsDocuments/CurrentDocuments.aspx.
- 151.
See ibid. at Part IV “Crimes and Elements” at pp. IV-1-26.
- 152.
Ibid. at Part IV, Para 1(a)(1)(B), p. IV-1.
- 153.
This is consistent with NWP 1-14 M, supra note 137, para 8.2 that also references “war sustaining capability” in its definition of military objectives.
- 154.
2010 Manual, supra note 150 at Para 5(17), pp. IV-14-15.
- 155.
However, “capture” is included in the definitions of perfidious conduct set forth NWP 1-14 M, supra note 137, paras 12.3 & 12.7.
- 156.
See Henckaerts and Doswald-Beck 2005, [Vol. 1] Rule 65.
- 157.
Dinstein 2010, at p. 231.
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Cadwalader, G. (2012). The Rules Governing the Conduct of Hostilities in Additional Protocol I to the Geneva Conventions of 1949: A Review of Relevant United States References. In: Schmitt, M., Arimatsu, L. (eds) Yearbook of International Humanitarian Law 2011 - Volume 14. Yearbook of International Humanitarian Law, vol 14. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-855-2_5
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