chapter 18_enforcement of law of war

5/17/2018 Chapter 18_Enforcement of Law of War

1/79

1052

XVIII Implementation and Enforcement of the Law of War

Chapter Contents

18.1 Introduction

18.2 Prudential Reasons Supporting the Implementation and Enforcement of theLaw of War18.3 Duties of Individual Members of the Armed Forces18.4 Commanders Duty to Implement and Enforce the Law of War18.5 Role of Judge Advocates and Legal Advisers

18.6 Dissemination, Study, and Other Measures to Facilitate Understanding ofDuties Under the Law of War

18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Lawof War

18.8 Considering Law of War Obligations in the Planning of Military Operations18.9 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 Party18.12 U.N. Security Council and Enforcement of the Law of War18.13 National Investigations of Alleged Violations of the Law of War

18.14 International Mechanisms to Investigate Alleged Law of War Violations18.15 Protecting Power and Other Neutral Intermediaries18.16 Compensation for Violations of the Law of War18.17 Retorsion18.18 Reprisals18.19 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 War18.22 Principles of Individual Criminal Responsibility for Crimes Under

International Law18.23 Theories of Individual Criminal Liability

18.1INTRODUCTION

This Chapter addresses the implementation and enforcement of the law of war. Itdiscusses activities that are undertaken in order to prevent violations of the law of war (such astraining and the promulgation of policies, regulations, and orders). It discusses activities to

respond to alleged violations, such as reporting, investigation, and corrective or punitivemeasures.


2/79

1053

DoD Policy on Implementing and Enforcing the Law of War. DoD policy has18.1.1addressed the policies and responsibilities for ensuring DoD compliance with the law of warobligations 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 DoDComponents and DoD contractors assigned to, or accompanying, deployed armedforces;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. armedforces.5

1See, e.g.,DODDIRECTIVE2311.01E,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 DoDcompliance with the law of war obligations of the United States.); DODDIRECTIVE 5100.77,DoD Program for theImplementation of the Law of War, I (Nov. 5, 1974) (This Directive provides policy guidance and assignsresponsibilities within the Department of Defense for a program to insure implementation of the law of war.).

2See, e.g., DODDIRECTIVE2311.01E,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 suchconflicts are characterized, and in all other military operations.); DODDIRECTIVE 5100.77,DoD Law of WarProgram, 5.3 (Dec. 9, 1998) (The Heads of the DoD Components shall: 5.3.1. Ensure that the members of theirDoD 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.); DODDIRECTIVE 5100.77,DoDLaw of War Program,E(1)(a) (Jul. 10, 1979) (The Armed Forces of the United States shall comply with the lawof war in the conduct of military operations and related activities in armed conflict, however such conflicts arecharacterized.); DODDIRECTIVE 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 militaryoperations and related activities in armed conflict however such conflicts are characterized.).

3DODDIRECTIVE2311.01E,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 DoDcontractors assigned to or accompanying deployed Armed Forces.).

4DODDIRECTIVE2311.01E,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.).

5See, 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 civilianpersonnel with the same strict regard for both the letter and spirit of the law which is required with respect to theConstitution and statutes enacted in pursuance thereof. The unwritten or customary law of war is binding upon allnations. It will be strictly observed by United States forces, subject only to such exceptions as shall have beendirected 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 betweennations 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 andprotect 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


3/79

1054

National Obligations to Implement and Enforce the Law of War. States, as Parties18.1.2to treaties, have certain obligations to implement and enforce those treaties. These obligationsmay 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 ordissemination of the text of the treaty.

Different treaties may have different mechanisms to implement and to ensure compliancewith that treaty.

18.1.2.1General Treaty Obligations to Take Appropriate Actions to Implementand Enforce the Treaty 1949 Geneva Conventions. Parties to the 1949 Geneva Conventionsundertake to respect and ensure respect for the conventions in all circumstances.6 This is ageneral obligation to take the measures that the State deems appropriate in order to fulfill itsobligations under the conventions.

18.1.2.2

General Treaty Obligations to Take Appropriate Actions to Implementand Enforce the Treaty AP III. Parties to AP III undertake to respect and to ensure respect forAP III in all circumstances.7

18.1.2.3General Treaty Obligations to Take Appropriate Actions to Implement

and Enforce the Treaty CCW Amended Mines Protocol. Parties to the CCW Amended MinesProtocol shall take all appropriate steps, including legislative and other measures, to prevent andsuppress violations of that Protocol by persons or on territory under its jurisdiction or control.8

18.1.2.4General Treaty Obligations to Take Appropriate Actions to Implementand 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 effectiveimplementation 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 oftreaties, and shall exact a like observance from neutrals.).

6GWS art. 1 (The High Contracting Parties undertake to respect and to ensure respect for the present Conventionin all circumstances.); GWS-SEAart. 1 (same); GPW art. 1 (same); GC art. 1 (same).

7AP III art. 1(1) (The High Contracting Parties undertake to respect and to ensure respect for this Protocol in allcircumstances.).

8CCWAMENDED MINES PROTOCOLart. 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 onterritory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article includeappropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armedconflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bringsuch persons to justice.).

9Optional 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 andother measures to ensure the effective implementation and enforcement of the provisions of this Protocol within itsjurisdiction.).


4/79

1055

International or Multi-National Actions to Implement and Enforce the Law of18.1.3War. States sometimes take actions on the international or multinational level to implement andenforce 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. Statesmay investigate alleged violations of the law of war through international commissions ofinquiry.10 As another example, States may establish international criminal tribunals to try enemybelligerents.11

Law of War Obligations and International Organizations. International18.1.4organizations, such as the United Nations or NATO, are not Parties to law of war treaties, suchas the 1949 Geneva Conventions. Thus, these organizations do not have obligations under thosetreaty instruments. However, the member States of international organizations are Parties tothese treaties, and as a general matter, a States obligations under law of war treaties would notbe rendered inapplicable simply because its forces are part of an international or multinationalforce or are acting through an international organization.

Application of Implementation and Enforcement Measures Outside the Context of18.1.5International Armed Conflict. Certain treaty obligations with respect to the implementation andenforcement 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 toimplement and enforce the law of war are applicable outside the context of international armedconflict. Thus, for example, many of the provisions of the Uniform Code of Military Justice maybe used to punish crimes that have been committed in the context of a non-international armedconflict or a military operation other than war.

18.2

PRUDENTIAL REASONS SUPPORTING THE IMPLEMENTATION AND ENFORCEMENT OF THE LAWOF WAR

The implementation and enforcement of the law of war have been supported by strongpractical considerations. Compliance with the law of war is not only legally required but also inthe strong self-interest of everyone subject to the law of war. 12

Reinforcing Military Effectiveness. Conducting military operations in accordance18.2.1with the law of war is not fighting with one hand tied behind ones back. Rather, law of war

10Refer to 18.14 (International Mechanisms to Investigate Alleged Law of War Violations).

11Refer to 18.20.1 (Post-World War II International Military Tribunals).

121976AIR FORCE PAMPHLET110-31 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 itgenerally serves the self-interest of everyone subject to its commands.).


5/79

1056

principles and rules are consistent with military doctrines for a profession of arms that are thebasis for effective combat operations.13

For example, various military doctrines, such as accuracy of targeting, concentration ofeffort, maximization of military advantage, conservation of resources, avoidance of excessive

collateral damage, and economy of force are not only fully consistent with compliance with thelaw 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 theimplementation and enforcement of the law of war. An undisciplined force is more likely tocommit law of war violations, such as pillaging, detainee abuse, or atrocities against the civilianpopulation.15

Encouraging Reciprocal Adherence by the Adversary. The requirement to comply18.2.2with many law of war rules (such as the obligation to treat detainees humanely) does not dependon whether the enemy complies with that rule.16

Nevertheless, reciprocity may be a critical factor in the actual observance of the law ofwar. Adherence to law of war rules in conducting military operations can encourage anadversary also to comply with those law of war rules. 17 For example, humane treatment ofenemy 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 mayhave a dramatic and negative effect on how U.S. personnel in the hands of the enemy are treatedand the degree to which the law of war is respected generally.19

13Christopher Greenwood,Historical Development and Legal Basis, inDIETER FLECK, THE HANDBOOK OF

HUMANITARIAN LAW IN ARMED CONFLICTS33 (132) (1999) (It should not be assumed, however, thathumanitarian law and military requirements will necessarily be opposed to one another. On the contrary, most rulesof humanitarian law reflect good military practice, and adherence by armed forces to those rules is likely to reinforcediscipline and good order within the forces concerned.).

141976AIR FORCE PAMPHLET110-31 1-6b (More importantly, various military doctrines, such as accuracy oftargeting, concentration of effort, maximization of military advantage, conservation of resources, avoidance ofexcessive collateral damage, and economy of force are not only fully consistent with compliance with the law ofarmed conflict but reinforce its observance. Use of excessive force is not only costly and highly inefficientand tobe avoided for those reasonsit may also be a waste of scarce resources.).

15Compare 4.18.3 (Private Persons Who Engage in Hostilities Lack of the Privileges of Combatant Status).

16Refer to 3.6 (Reciprocity and Law of War Rules).

17

1976A

IRF

ORCEP

AMPHLET110-31 10-1b (The most important relevant treaties, the 1949 Geneva Conventionsfor 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 factorin actual observanceof the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine ofreprisals.).

18Refer to 9.2.5 (Reciprocity in the Treatment of POWs).

19United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THENMT 1274 (It isalmost inevitable that the murder of innocent members of the population, including the relatives and friends of thefranc-tireurs, would generate a hatred that was bound to express itself in counterreprisals and acts of atrocity.).


6/79

1057

Maintaining Public Support and Political Legitimacy. The implementation and18.2.3enforcement of the law of war are also supported by the fact that violations of the law of war arecounterproductive to the political goals sought to be achieved by military operations.20 Forexample, violations of the law of war in counter-insurgency operations may diminish the supportof 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 otherwisesupport or participate in coalition operations. Violations of the law of war committed by oneside may encourage third parties to support the opposing side.

18.3DUTIES OF INDIVIDUAL MEMBERS OF THE ARMED FORCES

Each member of the armed services has a duty to: (1) comply with the law of war ingood faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law ofwar.

Comply With the Law of War in Good Faith. Each member of the armed forces18.3.1has 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. armedforces.

For example, certain law of war obligations only apply to commanders or to specializedunits, such as units providing medical care, conducting detention operations, or engaging in theprotection 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 thecommand 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 inapplicable 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 ofwar in good faith is met when service members: (1) perform their duties as they have beentrained and directed; and (2) apply the training on the law of war that they have received.24

201976AIR FORCE PAMPHLET110-31 1-6a (However, the application of military force has never been an end initself. In many respects, the overall political context has increased in importance in recent years although thatpolitical context has always influenced the means of destruction or tactics used in warfare. Violations of the law ofarmed 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 adversarys side, suchas the entry of the United States into World War I.).

21Refer to 1.10.2 (Force of the Law of War Under U.S. Domestic Law).

22Refer to 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

23Refer to 18.7.2.3 (Setting Higher Standards as a Matter of Policy).

24Refer to 18.6.2 (Special Instruction or Training).


7/79

1058

Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations.18.3.2Members of the armed forces must refuse to comply with clearly illegal orders to commit law ofwar violations. In addition, orders should not be construed to authorize implicitly violations oflaw of war.

18.3.2.1

Clearly Illegal Orders to Commit Law of War Violations. Therequirement to refuse to comply with orders to commit law of war violations applies to orders toperform 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 tokill defenseless persons who have submitted to and are under effective physical control wouldalso be clearly illegal.26

Subordinates are not required to screen the orders of superiors for questionable points oflegality, and may, absent specific knowledge to the contrary, presume that orders have beenlawfully issued.27

25Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship Llandovery Castle (Second CriminalSenate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in16 AJIL, 708, 721-22 (1922) (It iscertainly to be urged in favor of the military subordinates, that they are under no obligation to question the order oftheir superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such anorder is universally known to everybody, including also the accused, to be without any doubt whatever against thelaw. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the presentinstance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing elsebut a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter hasstrikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the casehere. They quickly found out the facts by questioning the occupants in the boats when these were stopped. Theycould only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry outa breach of the law. They should, therefore, have refused to obey.).

26United States v. Calley, 22 U.S.C.M.A. 534, 543-44 (C.M.A. 1973) (In the stress of combat, a member of thearmed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible ifhe guesses wrong on a question as to which there may be considerable disagreement. But there is no disagreementas to the illegality of the order to kill in this case. For 100 years, it has been a settled rule of American law that evenin war the summary killing of an enemy, who has submitted to, and is under, effective physical control, is murder.).

27United States v. von Leeb, et al.(The High Command Case), XITRIAL OF WAR CRIMINALS BEFORE THENMT510-11 (Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders areissued to be carried out. Its discipline is built upon its principle. Without it, no army can be effective and it iscertainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionablepoints of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the statewhich he serves and which are issued to him are in conformity with international law. He has the right topresume, 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 todisputable legal questions.); WINTHROP,MILITARY LAW &PRECEDENTS296-97 (But for the inferior to assume todetermine 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. Wherethe order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior hasproceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule ofobedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit ofno rational doubt of their unlawfulness. Except in such instances of palpable illegality, which must be of rareoccurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and inobeying it can scarcely fail to be held justified by a military court .).


8/79

1059

18.3.2.2Commands and Orders Should Not Be Understood as ImplicitlyAuthorizing Violations of the Law of War. Commands and orders should not be understood asimplicitly authorizing violations of the law of war where other interpretations are reasonablyavailable.28

For example, if a commander issues an order to attack a town, one should assume that theorder directs attacks on military objectives located in that area.29 Similarly, speeches bycommanders before combat operations to rally members of their command should not beunderstood to authorize implicitly law of war violations against the enemy.30

18.4COMMANDERSDUTY TO IMPLEMENT AND ENFORCE THE LAW OF WAR

Military commanders have a duty to take appropriate measures as are within their powerto control the forces under their command for the prevention of violations of the law of war.31

28SeeBasic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson PlanSecond Hour, 5b, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE27-1, The Geneva Conventions

of 1949 and Hague Convention No. IV of 1907, 11 (Aug. 29, 1975) (You should not presume that an order iscriminal. If you think it is criminal, it is probably because the order is unclear. For example, while on patrol wecapture a prisoner. On our return the patrol leader questions him. When the patrol leader finishes the questioning hetells you get rid of that man. That order is not clear. The patrol leader undoubtedly means to take the man to theDetainee Collection Point. Rather than presume that an unclear order directs you to commit a crime, ask yoursuperior for a clarification of the order. Above all, remember that if you are the leader, make your order clear andunderstandable. Dont put your subordinates in the position where they may think you are giving a criminalorder.).

29For example, Prosecutor v. Gotovina and Marka, 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 Rajis

assertion that the 2 August Order called for shelling only lawful military targets. In addition, neither WitnessKonings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction tocommence indiscriminate attacks on the Four Towns. Given that the relevant portion of the 2 August Order wasrelatively short, and did not explicitly call for unlawful attacks on the Four Towns, the text of the 2 August Ordercould not, alone, reasonably be relied upon to support a finding that unlawful artillery attacks took place.).

30For example, L.C.GREEN,SUPERIOR ORDERS INNATIONAL AND INTERNATIONAL LAW131-32 (1976) (Thecontroversy arose over Pattons prepared remarks, which included these statements: The fact we are operating inenemy 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 tofight us. Several days after the operation began, during which time the fighting was extremely fierce, a CaptainCompton, who had lost several of his men, lined up forty-three captured Germans, some of whom were wearingcivilian clothes, and had them executed by machine gun. At about the same time and in the same general location, aSergeant 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 oncharges 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 defences assertions prompted a subsequent inquiry intothe speech given by Patton in which he was ultimately exonerated after producing the prepared text of the speechand delivering it orally to a board of investigating officers. Captain Compton and Sergeant West, however, wereconvicted as charged.) (first ellipsis in original).

31SeeIn re Yamashita, 327 U.S. 1, 16 (1946) (The question, then, is whether the law of war imposes on an armycommander a duty to take such appropriate measures as are within his power to control the troops under hiscommand for the prevention of the specified acts which are violations of the law of war and which are likely toattend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personalresponsibility for his failure to take such measures when violations result. These provisions [of the Hague IVReg., the Hague X, and the 1929 GWS] plainly imposed on petitioner, who at the time specified was military


9/79

1060

For example, commanders have obligations to take appropriate measures to prevent pillage andto protect the wounded, sick, and shipwrecked within their control.32

Background on Commanders Duties to Implement and Enforce the Law of War.18.4.1The 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 thatthey operate under a responsible command.34 In addition, law of war treaties have specified thatcommanders must take appropriate measures to ensure that the provisions of those treaties areobserved.35

Discipline of Subordinates. In carrying out their duties to implement and enforce18.4.2the 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 measuresas were within his power and appropriate in the circumstances to protect prisoners of war and the civilianpopulation. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our ownmilitary tribunals.); Elihu Root, Secretary of War,Memorandum Transmitting the Record and Proceedings of theTrial of Brigadier General Jacob H. Smith, Jul. 12, 1902, reprinted inH.C. Corbin, Adjutant General, MajorGeneral, U.S. Army, General Orders, No. 80, 2, 3 Jul. 16, 1902, GENERAL ORDERS AND CIRCULARS OF THEADJUTANT GENERALS OFFICE,1902(1903) (It is the duty of a general officer whose age and experience havebrought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them theapplication of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part andsupplement their comparative inexperience by his wise control. In this General Smithhas signally failed, and forthis he has been justly convicted.).

32Refer to 5.17.4 (Pillage Prohibited); 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick,Shipwrecked, and Dead).

33In 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 violationswhich it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of warfrom brutality would largely be defeated if the commander of an invading army could, with impunity, neglect to takereasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoidedthrough the control of the operations of war by commanders who are to some extent responsible for theirsubordinates.). ConsiderAP I art. 87(1) (The High Contracting Parties and the Parties to the conflict shall requiremilitary commanders, with respect to members of the armed forces under their command and other persons undertheir control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the[Geneva] Conventions and of this Protocol.).

34Refer to 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

35See, e.g., GWS art. 45 (Each Party to the conflict, acting through its Commanders-in-Chief, shall ensure thedetailed execution of the preceding Articles and provide for unforeseen cases, in conformity with the general

principles of the present Convention.); GWS-SEAart. 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 seeto cases not covered thereby, in accordance with the instructions of their respective Governments and in conformitywith the general principles of the present Convention.).

36ConsiderAP I art. 87(3) (The High Contracting Parties and Parties to the conflict shall require any commanderwho is aware that subordinates or other persons under his control are going to commit or have committed a breachof the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of theConventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violatorsthereof.). Refer to 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).


10/79

1061

there is no absolute or automatic requirement under international law to punish particularoffenders within their armed forces in a specific way.37

Duty to Investigate Reports of Alleged Law of War Violations. Commanders18.4.3have 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

Issuance of Guidance, Training of Subordinates, and Other Preventive or18.4.4Corrective Measures. Apart from disciplinary measures, a variety of other measures may beappropriate 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 violationshave occurred, retraining personnel or revising procedures may be appropriate, particularlywhere the underlying facts or nature of the violations do not warrant punitive measures.

18.5ROLE OF JUDGE ADVOCATES AND LEGAL ADVISERS

Legal Advisers. The United States has provided for legal advisers to advise18.5.1military commanders on the law of war.40 For example, DoD policy has required that each headof a DoD component make qualified legal advisers available at all levels of command to provideadvice about law of war compliance during planning and execution of exercises and operations.41

18.5.1.1Review of Plans, Policies, Directives, and Rules of Engagement by LegalAdvisers. DoD policy has required that commanders of the combatant commands ensure that allplans, policies, directives, and rules of engagement, and those of subordinate commands and

37United States v. von Leeb, et al. (The High Command Case), XITRIALS OF WAR CRIMINALS BEFORE THENMT

524 (With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commitoffences 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 protectionbe assured by the prosecution of soldiers charged with offences against the civilian population, or whether it beassured by disciplinary measures or otherwise, is immaterial from an international standpoint.).

38Refer to 18.13 (National Investigations of Alleged Violations of the Law of War).

39ConsiderAP I art. 87(2) (In order to prevent and suppress breaches, High Contracting Parties and Parties to theconflict shall require that, commensurate with their level of responsibility, commanders ensure that members of thearmed forces under their command are aware of their obligations under the Conventions and this Protocol.).

40Consider AP I art. 82 (The High Contracting Parties at all times, and the Parties to the conflict in time of armedconflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at theappropriate 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.).41DODDIRECTIVE2311.01E,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 commandavailable 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.); DODDIRECTIVE 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 adviceabout law of war compliance during planning and execution of exercises and operations; and institute andimplement programs to comply with the reporting requirements established in section 6., below.).


11/79

1062

components, are reviewed by legal advisers to ensure their consistency with the law of war andDoD policy on the law of war.42

18.5.1.2Supervision of Administration of Programs to Address Enemy Violationsof 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 thecommands program dealing with possible, suspected, or alleged enemy violations of the law ofwar.43

18.5.1.3Review of the Acquisition of Weapons. DoD policy has required the legalreview of the intended acquisition of weapons.44

Law of War Questions During Military Operations. During military operations,18.5.2questions on the law of war from U.S. forces or coalition partners related to a specific issueshould be referred through the operational chain of command for resolution. It may also beappropriate to refer questions to either the office of the Judge Advocate General of a MilitaryDepartment, 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 ofStaff, or the DoD General Counsel.

Role of the DoD Law of War Working Group. The DoD Law of War Working18.5.3Group is a DoD internal mechanism for coordination on law of war issues. It consists ofrepresentatives of the General Counsel, Department of Defense; representatives, at the electionof each, of the General Counsel of each Military Department, the Judge Advocate General ofeach 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

42DODDIRECTIVE2311.01E,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, andrules of engagement issued by the command and its subordinate commands and components are reviewed by legaladvisers to ensure their consistency with this Directive and the law of war.); DODDIRECTIVE 5100.77,DoD Law ofWar Program, 5.8 (Dec. 9, 1998) (The Commanders of the Combatant Commands shall: [5.8.6] Ensure allplans, policies, directives, and rules of engagement issued by the command and its subordinate commands andcomponents are reviewed by legal advisers to ensure their consistency with this Directive and the law of war.).

43DODDIRECTIVE2311.01E,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 tosupervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemyviolations of the law of war.); DODDIRECTIVE5100.77,DoD Law of War Program, 5.8 (Dec. 9, 1998) (TheCommanders of the Combatant Commands shall: [5.8.3] Designate the command legal adviser to supervise theadministration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of thelaw of war.).

44Refer to 6.2 (DoD Policy of Reviewing the Legality of Weapons).

45DODDIRECTIVE2311.01E,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 theDoD Law of War Working Group, consisting of representatives, at the election by each of the GC, DoD; the GeneralCounsel of each Military Department; the Counsel to the Commandant of the Marine Corps; the Judge AdvocateGeneral of each Military Department; the Staff Judge Advocate to the Commandant of the Marine Corps; and theLegal Counsel to the Chairman of the Joint Chiefs of Staff.); DODDIRECTIVE5100.77,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 WarWorking Group consisting of representatives from the General Counsel of the Department of Defense (GC, DoD),


12/79

1063

Working Group develops and coordinates law of war initiatives and issues, manages other law ofwar matters as they arise, and provides advice to the DoD General Counsel on legal matterscovered by DoD Directive 2311.01E.46 This includes the preparation, review, and updating ofthis manual.

18.6

DISSEMINATION

,S

TUDY,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 peopleunderstand its requirements. Certain treaties require that Parties disseminate the text of thattreaty and promote its study, especially by those personnel who are assigned to implement itsobligations.

General Dissemination and Study of Treaties. Certain treaties require that Parties18.6.1disseminate the treaty and promote study of that treaty by the armed forces and the civilianpopulation.

18.6.1.1

Dissemination and Study - 1949 Geneva Conventions. Parties to 1949Geneva Conventions undertake, in time of peace, as in time of war, to disseminate the text ofthose Conventions widely as possible in their respective countries, and in particular, to includethe study of the Conventions in their programs of military and, if possible, civil instruction.47 Inaddition to the entire population of the Party to the GPW, the GPW emphasizes that Partiesarmed forces should know the principles of the GPW. 48 Similarly, the GWS and GWS-Seaemphasize that the armed fighting forces, medical personnel, and chaplains should know theprinciples of those treaties.49

the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the International and Operational Law Division ofthe Office of the Judge Advocate General of each Military Department, and the Operational Law Branch of theOffice of the Staff Judge Advocate to the Commandant of the Marine Corps.).

46DODDIRECTIVE2311.01E,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 warmatters as they arise; and provide advice to the General Counsel on legal matters covered by this Directive.); DODDIRECTIVE5100.77,DoD Law of War Program, 5.1.2 (Dec. 9, 1998) (The DoD Law of War Working Group shalldevelop and coordinate law of war initiatives and issues, manage other law of war matters as they arise, and provideadvice to the General Counsel on legal matters covered by this Directive.).

47GC art. 144 (The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the textof 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 becomeknown to the entire population.).

48GPW art. 127 (The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the textof the present Convention as widely as possible in their respective countries, and, in particular, to include the studythereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may becomeknown to all their armed forces and to the entire population.).

49GWS art. 47 (The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the textof the present Convention as widely as possible in their respective countries, and, in particular, to include the studythereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become


13/79

1064

18.6.1.2Dissemination and Study - CCW and Protocols. Parties to the CCW alsoundertake, in time of peace as in time of armed conflict, to disseminate the CCW and those of itsannexed Protocols by which they are bound as widely as possible in their respective countriesand, in particular, to include the study of these instruments in their program of militaryinstruction, 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 ofpeace as in time of armed conflict, to disseminate this Protocol as widely as possible in theirrespective countries and, in particular, to include the study of it in their program of militaryinstruction and to encourage the study of it by the civilian population, so that this instrument maybecome known to the armed forces and to the civilian population.51

18.6.1.4Dissemination and Study 1954 Hague Cultural Property Convention.Parties to the 1954 Hague Cultural Property Convention undertake, in time of peace as in time ofarmed conflict, to disseminate the text of the Convention and the Regulations for its execution aswidely as possible in their respective countries. They undertake, in particular, to include thestudy thereof in their programs of military and, if possible, civilian training, so that its principlesare made known to the whole population, especially the armed forces and personnel engaged inthe protection of cultural property.52

18.6.1.5Dissemination and Study Child Soldiers Protocol. Parties to the ChildSoldiers Protocol undertake to make the principles and provisions of the Child Soldiers Protocolwidely known and promoted by appropriate means, to adults and children alike.53

Special Instruction or Training. In addition to requirements to disseminate and to18.6.2promote the study of treaties, treaties also require States to ensure that members of the armedforces 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-SEAart. 48 (same).

50CCW art. 6 (The High Contracting Parties undertake, in time of peace as in time of armed conflict, todisseminate this Convention and those of its annexed Protocols by which they are bound as widely as possible intheir 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.).

51AP III art. 7 (The High Contracting Parties undertake, in time of peace as in time of armed conflict, todisseminate this Protocol as widely as possible in their respective countries and, in particular, to include the studythereof 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.).521954HAGUE CULTURAL PROPERTY CONVENTION art. 25 (The High Contracting Parties undertake, in time ofpeace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for itsexecution as widely as possible in their respective countries. They undertake, in particular, to include the studythereof in their programmes of military and, if possible, civilian training, so that its principles are made known to thewhole population, especially the armed forces and personnel engaged in the protection of cultural property.).

53Optional 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 thepresent Protocol widely known and promoted by appropriate means, to adults and children alike.).


14/79

1065

policy has required, as a general matter, that personnel are trained in the law of warcommensurate with their duties.54

Training may involve not only classroom instruction or individualized study, but also, forexample, unit training exercises.55

In many cases, training on law of war requirements may not be classified as law of wartraining, or may be conducted without acknowledgment that the requirements are law of warrequirements.56 Rather, it may be the case that military forces would be trained according tomilitary doctrines or regulations, which have incorporated law of war requirements and havebeen reviewed for consistency with the law of war.57

54DODDIRECTIVE2311.01E,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 thisDirective in support of the DoD Law of War Program to: 5.8.1. Provide directives, publications, instructions, andtraining 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.).

55For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIALRESEARCH981, 995-96 (2002) (The Army also maintains four permanent Combat Training Centers (CTCs). TheCTCs-at Ft. Irwin, California; Ft. Polk, Louisiana; Ft. Leavenworth, Kansas; and Hohenfels, Germany-offer avariety of combat and peace operations training for Army units. Three of the CTCs are staffed with a full-timeopposing 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 activitythat occurs during the training exercise. The Army Judge Advocate General's Corps has assigned Army judgeadvocates to serve as OCs at each of the CTCs. As part of their duties, these judge advocate OCs script eventsinvolving 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 atraining unit for the purpose of inspecting the unit's EPW holding facilities. They may also live in full-scalevillages on the battlefield, playing the role of civilians who find themselves caught up in the context of an ongoingconflict. 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. Thesevillages also include such structures as churches and historic sites. Thus, the unit also is tested on law of warcompliance 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.).

56For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIALRESEARCH981, 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 prisonerof war (EPW). Once the prisoner of war has reached an EPW collection point, or a theater EPW camp, militarypolice 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. Butthe training of each will not necessarily be listed or categorized as law of war training, since it is based on doctrineor regulations. Similarly, military medical personnel are trained to treat battlefield wounded and sick solely on thebasis of medical priority. This training may be done without acknowledgment that it is a treaty requirement. Thesame may be said for training provided to combat engineers in laying minefields. The doctrine will have beenreviewed for compliance with treaty requirements, and the mines employed will have been reviewed in compliancewith the countrys treaty obligations. The combat engineer will employ lawful mines in a manner consistent withhis or her doctrine. It is unlikely this will be classified as law of war training.).

57Refer to 18.7.2 (Reasons for Implementation Through Instructions, Regulations, and Procedures).


15/79

1066

The 1949 Geneva Conventions, the CCW Amended Mines Protocol, and the CCWProtocol V on Explosive Remnants of War each have specific provisions relating to specialinstruction or training.

18.6.2.1Special Instructions or Training - 1949 Geneva Conventions. The GPW

and GC further provide that the military or other authorities who assume responsibilities forPOWs or protected persons must possess the text of the GPW or the GC and be speciallyinstructed as to its provisions.58

18.6.2.2Special Instructions or Training - CCW Amended Mines Protocol. EachParty to the CCW Amended Mines Protocol shall require that armed forces personnel receivetraining commensurate with their duties and responsibilities to comply with the provisions of theCCW Amended Mines Protocol.59

18.6.2.3Special Instructions or Training - CCW Protocol V On ExplosiveRemnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War shallrequire that its personnel receive training consistent with the relevant provisions of this

Protocol.60

18.7INSTRUCTIONS,REGULATIONS,AND PROCEDURES TO IMPLEMENT AND ENFORCE THE LAW OFWAR

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 thelaw of war, was called Instructions for the Government of Armies of the United States in theField, and was issued as a General Order.61 Similarly, directives and regulations have beenissued to implement law of war obligations relating to detainees and to establish higher standardsas a matter of policy.62

58GPW art. 127 (Any military or other authorities, who in time of war assume responsibilities in respect ofprisoners 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 ofprotected persons, must possess the text of the Convention and be specially instructed as to its provisions.).

59CCWAMENDED MINES PROTOCOLart. 14(3) (Each High Contracting Party shall also require that its armedforces issue relevant military instructions and operating procedures and that armed forces personnel receive trainingcommensurate with their duties and responsibilities to comply with the provisions of this Protocol.).

60CCWPROTOCOL VON EXPLOSIVE REMNANTS OF WARart. 11(1) (Each High Contracting Party shall require thatits armed forces and relevant agencies or departments issue appropriate instructions and operating procedures andthat its personnel receive training consistent with the relevant provisions of this Protocol.).

61Refer to 19.3 (Lieber Code).

62For example, DODDIRECTIVE 2310.01E,DoD Detainee Program(Aug. 19, 2014); DODDIRECTIVE 2310.01E,The Department of Defense Detainee Program(Sept. 5, 2006); 1997MULTI-SERVICE DETENTION REGULATION1-1.b(This regulation implements international law, both customary and codified, relating to EPW, RP, CI, and ODswhich includes those persons held during military operations other than war. The principal treaties relevant to thisregulation are: (1) The 1949 Geneva Convention Relative to the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field (GWS). (2) The 1949 Geneva Convention Relative to the Amelioration of theCondition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GWS Sea). (3) The 1949Geneva Convention Relative to the Treatment of Prisoners of War (GPW). (4) The 1949 Geneva Convention


16/79

1067

Treaty Provisions Specifically Contemplating or Requiring Military Instructions,18.7.1Regulations, and Procedures. Law of war treaties contemplate or in some cases require that suchinstructions will be issued. In some cases, the implementation of a treaty through militaryinstructions or regulations may be understood as a part of the general requirements for States totake 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 bein conformity with the Regulations respecting the Laws and Customs of War on Land annexedto Hague IV.64

18.7.1.2Instructions, Regulations, and Procedures 1949 Geneva Conventions.The 1949 Geneva Conventions contemplate that Parties will adopt laws and regulations to ensurethe proper application of the Conventions.65 The requirement to issue implementing instructionsmay be understood as part of the general obligation of Parties to undertake to respect and toensure respect for the Conventions.66

18.7.1.3

Instructions, Regulations, and Procedures CCW Amended MinesProtocol. Each Party to the CCW Amended Mines Protocol shall require that its armed forcesissue relevant military instructions and operating procedures.67

18.7.1.4Instructions, Regulations, and Procedures 1954 Hague CulturalProperty Convention. Parties to the 1954 Hague Cultural Property Convention undertake tointroduce 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 discrepanciesbetween 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 andRegulations for the Treatment of POWs); 10.1.2 (DoD Policies and Regulations for the Treatment of Internees).

63Refer to 18.1.2 (National Obligations to Implement and Enforce the Law of War).

64HAGUE IV art. 1 (The Contracting Powers shall issue instructions to their armed land forces which shall be inconformity with the Regulations respecting the laws and customs of war on land, annexed to the presentConvention.). Cf. 1899HAGUE II art. 1 (The High Contracting Parties shall issue instructions to their armed landforces, which shall be in conformity with the Regulations respecting the Laws and Customs of War on Landannexed to the present Convention.).

65

GWS art. 48 (The High Contracting Parties shall communicate to one another through the Swiss Federal Counciland, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well asthe laws and regulations which they may adopt to ensure the application thereof.); GWS-SEAart. 49 (same); GPWart. 128 (same); GC art. 145 (same).

66Refer to 18.1.2.1 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty 1949 Geneva Conventions).

67CCWAMENDED MINES PROTOCOLart. 14(3) (Each High Contracting Party shall also require that its armedforces issue relevant military instructions and operating procedures and that armed forces personnel receive trainingcommensurate with their duties and responsibilities to comply with the provisions of this Protocol.).


17/79

1068

ensure observance of that Convention, and to foster in the members of their armed forces a spiritof respect for the culture and cultural property of all peoples.68

18.7.1.5Instructions, Regulations, and Procedures CCW Protocol V onExplosive 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 appropriateinstructions and operating procedures.69

Reasons for Implementation Through Instructions, Regulations, and Procedures.18.7.2In addition to cases in which instructions or regulations are required by a treaty, there are anumber of reasons for implementing law of war obligations through instructions, regulations, andother procedures.

18.7.2.1Re-characterizing National Obligations Into Rules for Individuals. First,

under the traditional view of international law, obligations are owed between States, and not asbetween States and individuals.70 Thus, treaty provisions may need to be re-characterized fromobligations that Parties to the treaty promise to one another into rules for individual conduct.

18.7.2.2Implementing the Rules in Non-Self-Executing Treaties. The adoption ofinstructions, regulations, or procedures may assist in the implementation of non-self-executingtreaties. When treaties or provisions of treaties are regarded as non-self-executing, suchprovisions 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 enforceableunder its domestic law and that implement the rules reflected in a treaty. Thus, because suchinstructions, regulations, or procedures are enforceable domestically, the State can enforce therules in the treaty, even though the treaty remains non-self-executing.

18.7.2.3Setting Higher Standards as a Matter of Policy. In addition, States maychoose to implement law of war obligations through instructions, regulations, and proceduresbecause they wish to set a higher standard for their armed forces as a matter of policy. Forexample, rules of engagement are often more restrictive than relevant law of war requirements.72

18.7.2.4Clarifying Ambiguities in the Law. States may choose to implement lawof war obligations through instructions, regulations, and procedures because they wish to clarify

681954HAGUE CULTURAL PROPERTY CONVENTIONart. 7 (The High Contracting Parties undertake to introduce intime of peace into their military regulations or instructions such provisions as may ensure observance of the presentConvention, and to foster in the members of their armed forces a spirit of respect for the culture and culturalproperty of all peoples.).

69CCWPROTOCOL VON EXPLOSIVE REMNANTS OF WARart. 11(1) (Each High Contracting Party shall require thatits armed forces and relevant agencies or departments issue appropriate instructions and operating procedures andthat its personnel receive training consistent with the relevant provisions of this Protocol.).

70Refer to 1.10.1.3 (Predominately Inter-State Nature of International Obligations).

71Refer to 1.10.2.1 (Force of Self-Executing and Non-Self-Executing Treaties Under U.S. Domestic Law).

72Refer to 1.6.5 (Rules of Engagement (ROE)).


18/79

1069

their interpretation of the obligations, which otherwise may not be clear because a treatyprovision is ambiguous or because the obligation is reflected in customary international law.

18.7.2.5Ensuring Detailed Requirements Are Not Neglected, and Assistance inTraining. 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 specialinstruction.73

Enforcement of Law of War Obligations Through Military Instructions,18.7.3Regulations, and Procedures. The implementation of law of war treaties and obligations throughmilitary instructions, regulations, and procedures has the effect of making such rules enforceablebecause military personnel are required to comply with duly issued instructions, regulations, andprocedures. Military personnel may be punished for failure to comply with such orders andinstructions.74 Conduct that violates the law of war has often been punished through thismechanism.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 planningof military operations. DoD policy has required the review of plans by legal advisers to ensuretheir consistency with the law of war.76

It may be especially important to consider affirmative obligations imposed by the law ofwar. For example, military commanders and planners should plan for their medical facilities toconsider needing to treat enemy wounded and sick. Similarly, the requirements to care fordetainees should also be considered. Potential responsibilities as an Occupying Power shouldalso be considered.

73Refer to 18.6.2 (Special Instruction or Training).

74Refer to 18.19.3.1 (Uniform Code of Military Justice Offenses).

75For example, United States v. Harman, 68 M.J. 325, 326 (C.A.A.F. 2010) (Contrary to her pleas, Appellant wasconvicted 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 specificationsof 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 INSTITUTE257-59 (1950) ([O]n April 9, 1945, to be exact, the Japanese government indignantly announced that theAwaMaru, on her return trip to Japan after carrying Red Cross supplies to Singapore and the Dutch East Indies, andtravelling under a guarantee of safe conduct from the United States government, had been sunk by a U.S. submarine. [T]he Navy announced that theAwa Maruhad been sunk by the U.S.S. Queenfish, commanded by CommanderCharles Elliot Loughlin, U.S. Navy, of North Wales, Pennsylvania. Loughlin was brought to trial on threecharges: Charge I. Culpable inefficiency in the performance of duty. Charge II. Disobeying the lawful order of hissuperior officer. Charge III. Negligence in obeying orders.).

76Refer to 18.5.1.1 (Review of Plans, Policies, Directives, and Rules of Engagement by Legal Advisers).


19/79

1070

18.9STATESOBLIGATIONS WITH RESPECT TO VIOLATIONS OF THE LAW OF WAR

States have certain obligations with respect to alleged violations of the law of war withintheir jurisdiction. In some cases, these obligations to address alleged violations of particulartreaties 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 respectto alleged violations of obligations in those treaties.

State Responsibility for Violations of the Law of War by Its Armed Forces. A18.9.1State may be responsible for violations of the law of war committed by persons forming part ofits armed forces.77 In particular, States are responsible for the treatment accorded protectedpersons under the GC by their agents.78 State responsibility for violations of the law of warcommitted by its armed forces or other agents results from principles of State responsibility ininternational law that are not specific to the law of war.79

State responsibility for violations of the law of war results in obligations to compensateother States for violations.80

Breaches of the 1954 Hague Cultural Property Convention. Parties to the 195418.9.2Hague Cultural Property Convention undertake to take, within the framework of their ordinarycriminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctionsupon those persons, of whatever nationality, who commit or order to be committed a breach ofthe 1954 Hague Cultural Property Convention.81

Grave Breaches of the 1949 Geneva Conventions. Parties to the 1949 Geneva18.9.3Conventions have certain obligations relating to grave breaches of the 1949 GenevaConventions. These obligations have been interpreted as declaratory of the obligations ofbelligerents under customary international law to take measures for the punishment of war

77HAGUE IV art. 3 (A belligerent party which violates the provisions of the said Regulations shall, if the casedemands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of itsarmed forces.); 1928 PAN AMERICANNEUTRALITY CONVENTIONart. 27 (A belligerent shall indemnify the damagecaused by its violation of the foregoing provisions. It shall likewise be responsible for the acts of persons who maybelong to its armed forces.). ConsiderAP I art. 91 (A Party to the conflict which violates the provisions of theConventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible forall acts committed by persons forming part of its armed forces.).

78Refer to 10.3.5 (State Responsibility for Its Agents Treatment of Protected Persons).

79See, 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) anyorgan, agency, official, employee, or other agent of a government or of any political subdivision, acting within thescope of authority or under color of such authority.).

80Refer to 18.16 (Compensation for Violations of the Law of War).

811954HAGUE CULTURAL PROPERTY CONVENTIONart. 28 (The High Contracting Parties undertake to take, withinthe framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal ordisciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach ofthe present Convention.).


20/79

1071

crimes committed by all persons, including members of a belligerents armed forces.82 Theseobligations do not affect the right of a belligerent, under customary international law, to tryenemy 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 thegrave breaches of the 1949 Geneva Conventions.84

Each Party to the 1949 Geneva Conventions shall be under the obligation to search forpersons alleged to have committed, or to have ordered to be committed, such grave breaches, andshall bring such persons, regardless of their nationality, before its own courts.85 It may also, if itprefers, and in accordance with the provisions of its own legislation, hand such persons over fortrial to another High Contracting Party concerned, provided such High Contracting Party hasmade out aprima faciecase.86

No Party to the 1949 Geneva Conventions shall be allowed to absolve itself or any otherParty of any liability incurred by itself or by another Party in respect of grave breaches of the

1949 Geneva Conventions.87

821956 FM 27-10 (Change No. 1 1976) 506 (b. Declaratory Character of Above Principles. The principlesquoted in a[provisions of GWS art. 49, GWS-Sea art. 50, GPW art. 129, and GC art. 146], above, are declaratory ofthe obligations of belligerents under customary international law to take measures for the punishment of war crimescommitted by all persons, including members of a belligerent's own armed forces.). See alsoJoyce A.C.Gutteridge, The Geneva Conventions of 1949, 26 BRITISH YEAR BOOK OF INTERNATIONAL LAW294, 305 (1949)(In accordance with the decision that there should be no attempt in the Geneva Conventions to embark, in howeverrudimentary a fashion, on the settlement of a procedure for dealing with war crimes, the Conventions do not attemptto 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.).

83Richard R. Baxter, The Geneva Conventions of 1949, 62 U.S.NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES220, 223 (1980) (It may cheer some of you to hear that the Conventions make no reference to warcrimesby that name. There was much controversy about this point at the Conference in 1949, and the upshot of itwas that each of the four Conventions contains an article specifying certain atrocious acts, such as the torturing ofprisoners and civilians, as grave breaches of the Conventions. Judicial safeguards are provided for personscharged with such acts. Of course, these specific provisions do not affect the right of a belligerent, under customaryinternational law, to try enemy personnel for war crimes other than grave breaches of the treaties.).

84GWS art. 49 (The High Contracting Parties undertake to enact any legislation necessary to provide effectivepenal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the presentConvention defined in the following Article.); GWS-SEAart. 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 havecommitted, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless oftheir nationality, before its own courts.); GWS-SEAart. 50 (same); GPW art. 129 (same); GC art. 146 (same).

86GWS art. 49 (It may also, if it prefers, and in accordance with the provisions of its own legislation, hand suchpersons over for trial to another High Contracting Party concerned, provided such High Contracting Party has madeout aprima faciecase.); GWS-SEAart. 50 (same); GPW art. 129 (same); GC art. 146 (same).

87GWS art. 51 (No High Contracting Party shall be allowed to absolve itself or any other High Contracting Partyof any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in thepreceding Article.); GWS-SEA art. 52 (same); GPW art. 131 (same); GC art. 148 (same).


21/79

1072

18.9.3.1Acts Constituting Grave Breaches. The acts constituting gravebreaches for the purpose of triggering these obligations are defined differently depending on theparticular Geneva Convention. However, all of the Conventions include as grave breaches thefollowing 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 ofthose provisions of the 1949 Geneva Conventions were themselves crimes or that the 1949Geneva 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 necessityand carried out unlawfully and wantonly.89

Grave breaches of the GPW are those involving any of the following acts, if committedagainst persons or property protected by the GPW:

willful killing;

88SeeII-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949356-57 (Mr. SINCLAIR(UnitedKingdom): The Soviet proposal to substitute in these Articles the word crime for the words grave breaches hasbeen very fully thrashed out both in the Special Committee and in the Joint Committee, and you will all have readthe results in the Reports of those Committees and in particular in the Special Report on penal sanctions. It is not aquestion as to whether or not these grave breaches are crimes, it is simply a question of finding appropriate wordsfor carrying out the intention behind these Articles which all the delegations who were responsible for framing thoseArticles were attempting to secure. That intention was to ensure that any persons who committed breaches of theseConventions would be suitably dealt with and punished according to the seriousness of the offences that theycommitted, and therefore it would have been quite inappropriate to have gone into the question of establishing a newpenal 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 remarkswhich have been made by the Delegate of the United Kingdom. I see no need for repeating the arguments. ThisConvention is clearly not a penal statute, and the term crimes is clearly inappropriate to express violations of thisConvention, which will not be crimes until they are so made by domestic penal legislation.).

89GWS art. 50 (Grave breaches to which the preceding Article relates shall be those involving any of the followingacts, if committed against persons or property protected by the Convention: wilful killing, torture or inhumantreatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, andextensive destruction and appropriation of property, not justified by military necessity and carried out unlawfullyand wantonly.); GWS-SEAart. 51 (same).


22/79

1073

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 committedagainst 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 inthe GC;

taking of hostages; and

extensive destruction and appropriation of property, not justified by military necessityand carried out unlawfully and wantonly.91

18.9.3.2Applicability of Grave Breaches Obligations to Non-International ArmedConflict. The text of the 1949 Geneva Conventions provides that grave breaches relate toviolations against persons or property protected by the Convention. Since Common Article 3of 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

90GPW art. 130 (Grave breaches to which the preceding Article relates shall be those involving any of thefollowing acts, if committed against persons or property protected by the Convention: wilful killing, torture orinhuman 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 ofwar of the rights of fair and regular trial prescribed in this Convention.).

91GC art. 147 (Grave breaches to which the preceding Article relates shall be those involving any of the followingacts, if committed against persons or property protected by the present Convention: wilful killing, torture orinhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body orhealth, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protectedperson to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair andregular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation ofproperty, not justified by military necessity and carried out unlawfully and wantonly.).


23/79

1074

of the 1949 Geneva Conventions could apply also to violations of Common Article 3.92 AnAppeals Chamber of the ICTY did not accept this view, and understood the grave breachesprovisions of the 1949 Geneva Conventions only to create obligations applicable in internationalarmed conflicts.93 U.S. law makes punishable certain conduct that constitutes a grave breach ofcommon article 3.94

Regardless of whether the obligations in the grave breaches provisions apply with respectto violations of Common Article 3, serious violations of Common Article 3 may nonetheless bepunishable.

18.9.3.3Suppression of All Acts Contrary to the Provisions of the 1949 GenevaConventions. Each High Contracting Party shall take measures necessary for the suppression ofall acts contrary to the provisions of the 1949 Geneva Conventions other than the gravebreaches.95

Such measures could include punishment of offenders. For example, if a U.S. Soldiersteals 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 anoffense under the Uniform Code of Military Justice.96

92D. Stephen Mathias, Legal Counselor, Embassy of the United States, The Hague, The Netherlands, Submission ofthe 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 the1949 Geneva Convention Relative to the Treatment of Prisoners of War defines grave breaches as any of a seriesof specified acts if committed against persons or property protected by the Convention. (This definition isincluded 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 prohibitscertain acts with respect to [p]ersons taking no active part in hostilities in cases of armed conflict not of aninternational character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons aspersons protected by the Conventions.).

93See, e.g., Prosecutor v. Tadi, ICTY Appeals Chamber, IT-94-1-AR72,Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, 71 (Oct. 2, 1995) (Article 2 refers to grave breaches of the GenevaConventions of 1949, which are widely understood to be committed only in international armed conflicts, so thereference in Article 2 would seem to suggest that the Article is limited to international armed conflicts.).

9418 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 contextof and in association with an armed conflict not of an international character;).

95GWS 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-SEAart. 50 (same); GPW art. 129 (same); GC art. 146 (same).

96See, e.g., 10 U.S.C. 903 ((a) All persons subject to this chapter shall secure all public property taken from theenemy for the service of the United States, and shall give notice and turn over to the proper authority without delayall captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapterwho(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in ordisposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage tohimself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall bepunished as a court-martial may direct.).


24/79

1075

Such measures may also be understood to include a wide range of measures, such as thepromulgation or revision of policies and regulations, administrative or corrective measures, orretraining of personnel.97

CCW Amended Mines Protocol. Each Party to the CCW Amended Mines18.9.4

Protocol shall take all appropriate steps, including legislative and other measures, to prevent andsuppress violations of the CCW Amended Mines Protocol by persons or on territory under itsjurisdiction or control.98 Such measures include appropriate measures to ensure the impositionof penal sanctions against persons who, in relation to an armed conflict and contrary to theprovisions of the CCW Amended Mines Protocol, willfully kill or cause serious injury tocivilians and to bring such persons to justice.99

Penal sanctions under Article 14 of the CCW Amended Mines Protocol only apply in asituation in which an individual: (1) knew, or should have known, that his or her action wasprohibited under the CCW Amended Mines Protocol; (2) intended to kill or cause serious injuryto a civilian; and (3) knew, or should have known, that the person he or she intended to kill orcause serious injury was a civilian.100

U.S. Federal law authorizes prosecutions for such conduct.101

War Crimes Notes on Terminology. The term w

chapter 18_enforcement of law of war

Documents

law of war18

enforcement of law

law of war obligations

dod law of war program

law of warobligations

law of warchapter contents18

lawof war18

dod program