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6-27 | 18 | Chapter 1
NON-INTERNATIONAL ARMED CONFLICT
1-15. A non-international armed conflict (NIAC) is an armed conflict not between States, such as a
conflict between a State and a non-State armed group or a conflict between two non-State armed
groups (Common Article 3 to GWS, GWS Sea, GPW, and GC). In assessing whether a NIAC exists, thus
triggering the applicable LOAC rules, situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence, and other acts of a similar nature do not amount to armed conflict (see DOD
Law of War Manual, 3.4.2.2).
1-16. “Armed conflict not of an international character” for the purpose of applying the obligations in
Common Article 3 of the 1949 Geneva Conventions was not specifically defined in those conventions. There
is a range of views on what constitutes an “armed conflict not of an international character” for this purpose.
The intensity of the conflict and the organization of the parties are criteria that have been assessed to
distinguish between a NIAC and “internal disturbances and tensions.” A variety of factors have been
considered in assessing these criteria and in seeking to distinguish between armed conflict and internal
disturbances and tensions.
1-17. The minimum (baseline) legal standard for humane treatment in armed conflict, regardless of the
characterization of the conflict, is reflected in Common Article 3, as set forth in Figure 1-1 on page 1-5. As
such, the Department of Defense applies the standards articulated in Common Article 3 in the treatment of
all detainees (see, Department of Defense Directive [DODD] 2310.01E, Department of Defense Detainee
Program). Additional humane treatment protections and fundamental guarantees may also apply to persons
in the hands of opposing forces depending on the context, particularly in international armed conflicts—for
example, the United States applies out of a sense of legal obligation the principles set forth in Article 75 of
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflict (“Additional Protocol I”)(June 8, 1977) [AP I], to any individual it detains
in an international armed conflict. |
6-27 | 19 | General Background and Basic Principles of the Law of Armed Conflict
Article 3
In the case of armed conflict not of an international character occurring in the territory
of one of the High Contracting Parties, each Party to the conflict shall be bound to
apply, as a minimum, the following provisions:
(1)Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a)violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b)taking of hostages;
(c)outrages upon personal dignity, in particular, humiliating and degrading
treatment;
(d)the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2)The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross,
may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the
Parties to the conflict.
Figure 1-1. Common Article 3
PRINCIPLES OF THE LAW OF ARMED CONFLICT
1-18. When no specific rule applies, the principles of LOAC form the general guide for conduct during war
(see DOD Law of War Manual, 2.1.2.2). States acknowledged this idea in treaty law in the Preamble to Hague
IV, a provision commonly known as the “Martens Clause,” set forth in Figure 1-2 on page 1-6, for its
association with Russian representative Fyodor Martens, who first proposed the clause in the preamble to the
1899 Hague Convention II on the Laws and Customs of War on Land). (For other treaties using some form
of the Martens Clause, see also GWS art. 63; GWS Sea art. 62; GPW Art. 142; GC art. 158; 1980 United
Nations Convention on Conventional Weapons [CCW] preamble; AP I art. 1(2); Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts (“Additional Protocol II”) (June 8, 1977) [AP II] preamble.). |
6-27 | 20 | Chapter 1
Martens Clause
Until a more complete code of the laws of war has been issued, the High Contracting
Parties deem it expedient to declare that, in cases not included in the Regulations
adopted by them, the inhabitants and the belligerents remain under the protection and
the rule of the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and the dictates of the
public conscience.
Figure 1-2. Martens Clause
OVERVIEW
1-19. Three interdependent principles—military necessity, humanity, and honor—provide the foundation for
other derivative LOAC principles—most importantly, distinction and proportionality—as well as most of the
treaty and customary rules of LOAC. Paragraphs 1-23 through 1-48 explain the principles of military
necessity, humanity, honor, distinction, and proportionality. See table 1-1.
Table 1-1. Application of basic LOAC principles
+
Principle Alternate Names Paragraphs Summary
Military Necessity 1-23 to 1-27 Justifies the use of all measures
required to defeat the enemy as
quickly and efficiently as possible that
are not prohibited by the law of
armed conflict.
Humanity Humanitarian Principle; 1-28 to 1-30 Basis of protection for civilians; forbids
Unnecessary Suffering; inflicting suffering, injury, damage, or
Superfluous Injury destruction unnecessary to accomplish
a legitimate military purpose.
Honor Chivalry 1-31 to 1-33 Demands a certain amount of fairness
and a certain mutual respect between
opposing forces.
Distinction Discrimination 1-34 to 1-43 Distinguishing between combatants
and military objectives on the one hand
and civilians and civilian objects on the
other in offense and defense.
Proportionality 1-44 to 1-48 Requires commanders to refrain from
attacks in which the expected loss or
injury to civilians and damage to
civilian objects incidental to such
attacks would be excessive in relation
to the concrete and direct military
advantage expected to be gained. It
also underlies the requirement to take
feasible precautions to reduce the risk
of harm to civilians, other protected
persons and civilian objects.
1-20. LOAC principles provide the foundation for the specific LOAC rules. These principles, however, are
not as specific as rules, and thus interpretations of how principles apply to a given situation may vary.
Nonetheless, understanding LOAC principles helps legal practitioners (1) interpret specific treaty or
customary rules, (2) apply these rules to novel or complex situations, and (3) understand how LOAC operates
as a coherent system to regulate the conduct of hostilities. This section therefore illustrates the operation of
the general principles by briefly discussing some specific rules. For information about applying the specific
rules, the reader should look to pertinent sections in later chapters that discuss those rules. |
6-27 | 21 | General Background and Basic Principles of the Law of Armed Conflict
1-21. LOAC principles work as interdependent and reinforcing parts of a coherent system. Military necessity
justifies certain actions necessary to defeat the enemy as quickly and efficiently as possible that are not
prohibited by LOAC. Conversely, humanity forbids certain actions unnecessary to achieve that object.
Distinction underpins the parties’ responsibility to comport their behavior with military necessity, humanity,
and proportionality by requiring parties to a conflict to recognize and respect certain legal categories:
principally, the distinctions between combatants and civilians, and between military objectives and civilian
objects. Proportionality requires that even when actions may be justified by military necessity, such actions
cannot result in excessive civilian loss. Lastly, honor supports the entire system and gives parties confidence
in it, and provides legitimacy to the entire endeavor.
1-22. LOAC principles are consistent with military doctrine that are the basis for effective combat
operations, and the ethical standards of the military profession. Commanders can use LOAC principles to
guide them in making difficult decisions and judgments in military operations. For example, a commander
might consider whether there is a legitimate military purpose for an action; the proposed course of action is
unreasonable or excessive; or, are there precautions that can be taken to avoid unnecessary suffering.
MILITARY NECESSITY
Military Necessity
Military necessity permits a belligerent, subject to the laws of war, to apply any amount
and kind of force to compel the complete submission of the enemy with the least possible
expenditure of time, life, and money.
List Case, World War II
1-23. Military necessity is the principle that justifies the use of all measures needed to defeat the enemy
as quickly and efficiently as possible that are not prohibited by LOAC (see DOD Law of War Manual,
2.2; see Lieber Code, articles 15 and 16 for historical reference).
Military Necessity as Justification
1-24. Military necessity justifies actions, such as seizing persons and destroying property. Thus, military
necessity underlies LOAC concepts that explain when persons and property may be the object of attack, such
as the concepts of “direct participation in hostilities” (see paragraphs 2-11 to 2-21) and “military objective”
(see paragraphs 2-29 to 2-57). Military necessity may justify not only violence and destruction, but also
alternative means of subduing the enemy. Military necessity also permits certain incidental harms that
inevitably result from the actions it justifies. Military necessity may justify the use of overwhelming force to
defeat enemy forces because the object of war is not simply to prevail, but to prevail as quickly and efficiently
as possible. Military necessity does not require commanders to use the minimum force necessary in a given
situation; such an interpretation of military necessity would prolong the fighting and increase suffering.
Military Necessity and the Law of Armed Conflict Rules
1-25. Military necessity does not justify actions that are prohibited by LOAC. In particular, military necessity
cannot justify departures from LOAC because States have crafted LOAC specifically with war’s exigencies
in mind. Prohibitions in LOAC may be understood to reflect States’ determinations that those prohibited acts
are always militarily unnecessary or otherwise inappropriate or unlawful.
1-26. Although military necessity cannot justify actions that have been prohibited by LOAC (see, for
example, GC art. 49 (prohibiting forcible population transfers from occupied territory)), some LOAC rules
expressly incorporate military necessity. For example, certain LOAC rules specify that departures from what
would otherwise be the rule are permissible when absolutely or imperatively necessary (see, for example,
GWS art. 8 (restricting activities of protecting power representatives); GC art. 42 (interning protected
persons), and art. 53 (destruction of property during occupation); HR art. 23(g) (seizing enemy property)). In
such cases, military necessity must not be conflated with military convenience. As another example, certain
LOAC rules may direct that persons comply with an obligation, but only to the extent feasible or consistent
with military necessity (see, for example, GWS art. 30 (repatriating retained personnel); GC art. 108 (limiting
relief shipments)). |
6-27 | 22 | Chapter 1
Evaluating Military Necessity
1-27. LOAC seeks to ameliorate any difficulties in applying military necessity in three ways. First, in
evaluating military necessity, one may consider the broader imperatives of winning the war as quickly and
efficiently as possible and not be restricted to considering only the demands of the specific situation. Second,
LOAC recognizes that certain types of actions are militarily necessary per se. For example, an attack on
enemy combatants is generally lawful. Third, in what is commonly called the Rendulic Rule, LOAC
recognizes that commanders must assess the military necessity of an action based on the information available
to them at the relevant time; they cannot be judged based on information that subsequently comes to light.
HUMANITY
1-28. Humanity is the LOAC principle that forbids inflicting suffering, injury, or destruction
unnecessary to accomplish a legitimate military purpose. Humanity is sometimes referred to as the
principle of avoiding unnecessary suffering or the principle of avoiding superfluous injury. Commanders
should exercise leadership to ensure that Soldiers and Marines under their command know that cruelty and
the infliction of unnecessary suffering will not be tolerated.
Humanity and Military Necessity
1-29. Humanity is related to military necessity, and these principles logically complement one another.
Although military necessity justifies certain actions necessary to defeat the enemy as quickly and efficiently
as possible that are not prohibited by LOAC, military necessity cannot justify actions that are not necessary
to achieve this purpose, such as cruelty or wanton violence. Moreover, once a military purpose has been
achieved, inflicting more suffering is unnecessary and must be avoided. Thus, for example, if an enemy has
been incapacitated (rendered hors de combat) by being severely wounded or captured, no military purpose is
served by continuing to attack that incapacitated enemy. Enemies who are hors de combat may not be made
the object of attack and must be treated humanely (see generally Common Article 3). Similarly, humanity is
the source of the immunity from attack that the civilian population and civilian objects receive because they
make no contribution to military action.
Humanity and the Law of Armed Conflict Rules
1-30. Humanity animates LOAC rules focused on humanitarian concerns, including: fundamental safeguards
for persons who fall into the hands of the enemy; protections for civilians and civilian objects (see GC section
II, art. 53; consider AP I, parts II and III); protections for military medical personnel, units, and transports
(see GWS art. 36-40; consider AP I art. 12, 15, 21-30); protection for enemy wounded and sick, as well as
respect for the dead (see GWS); restrictions on weapons that may cause superfluous injury or unnecessary
suffering to combatants (see HR art. 23(e); consider AP I art. 35); and, prohibitions on weapons that are
indiscriminate by nature, or restrictions on weapons that are indiscriminate in their effects on civilians and
civilian objects, without special precautions (see CCW; consider AP I art. 51). Humanity is given further
effect with the development of the derivative principles of distinction and proportionality.
HONOR
1-31. Honor is a core Army and Marine Corps value. Honor, also called chivalry, demands a certain
amount of fairness in offense and defense, and a certain mutual respect between opposing forces. While
the word “chivalry” is often associated with a specific historical context—a code of ethics or conduct for
knights in Europe during the Middle Ages—honor draws from warriors’ codes from a variety of cultures and
time periods (see DOD Law of War Manual, 2.6.1). Honor is a matter of carrying out, acting, and living out
other core values, such as respect, duty, loyalty, selfless service, integrity, and personal courage, in everything
Soldiers and Marines do. It has been vital to the development of LOAC and continues to give LOAC vitality
today. Honor also requires adherence to LOAC regardless of the enemy’s level of compliance.
Certain Amount of Fairness
1-32. Honor requires a certain amount of fairness in offense and defense. Honor forbids resorting to means,
expedients, or conduct that would constitute a breach of trust. Honor reflects the idea that parties to a conflict |
6-27 | 23 | General Background and Basic Principles of the Law of Armed Conflict
must accept that certain limits exist on their ability to conduct hostilities (HR art. 22). The principle of honor
does not address what those limits are, as much as require that parties accept that certain legal limits exist.
Thus, honor gives rise to rules that help enforce and give effect to LOAC. Honor requires persons to make
good faith efforts to comply with LOAC. In addition to shaping the rules that require parties to a conflict to
make efforts to comply with LOAC, honor also underlies rules that require parties to refrain from taking
advantage of their opponent’s adherence to the law by falsely claiming the law’s protections. For example,
enemies must deal with one another in good faith in their non-hostile relations. Additionally, even in the
conduct of hostilities, parties may not engage in treacherous or perfidious killing or wounding of enemy
persons. As another example, misuse of a flag of truce is prohibited. If parties could take advantage of their
opponent’s adherence to LOAC, this would discourage parties from complying with LOAC. Honor, however,
does not forbid parties from using ruses and other lawful deceptions against which the enemy ought to take
measures to protect itself.
Certain Mutual Respect
1-33. Honor demands a certain mutual respect between opposing military forces. Opposing military forces
should respect one another outside of the fighting because they share a profession and they fight one another
on behalf of their respective parties and not out of a personal hostility. Honor thus underlies rules that relate
to prisoners of war (POWs). For example, POWs and their captors should treat one another with respect. In
addition, honor helps establish the requirements for entitlement to POW status or other privileges afforded
lawful combatants. For example, an armed group must, among other things, be organized under a responsible
command and conduct its operations in accordance with LOAC in order for its members to receive POW
status upon capture during international armed conflict.
DISTINCTION
1-34. Distinction, sometimes called discrimination, is the LOAC principle that obliges parties to a
conflict to distinguish between combatants and the civilian population and to distinguish between
military objectives and protected property and places. Distinction is a principle that is derivative of both
military necessity and humanity.
1-35. Distinction developed over time as States increasingly departed from the practice of war between entire
peoples, and instead treated war as a contention between their professional military forces. Distinction
requires parties to a conflict to recognize and respect a framework of legal categories for persons and objects,
each category with different rights, duties, and liabilities. Principally, distinction separates those taking part
in hostilities (whom military necessity justifies as permissible to attack), such as the armed forces, and those
taking no active part in hostilities (whom military necessity and humanity protect as unnecessary to attack),
such as the civilian population. By requiring parties to recognize and respect different legal categories that
derive from military necessity and humanity, distinction seeks to confine the fighting between opposing
armed forces and thereby spare the civilian population as much as possible. Distinction also helps parties
comport with proportionality and thereby reduces incidental harm.
1-36. Distinction encompasses two interdependent sets of duties. Parties must recognize and respect
categories by discriminating in the use of force against the enemy, and by distinguishing a party’s own
persons and objects (See DOD Law of War Manual, 2.5).
Discrimination in Conducting Attacks Against the Enemy
1-37. Distinction requires parties to a conflict to discriminate in their use of force against the enemy. On the
one hand, consistent with military necessity, parties may attack enemy combatants and other military
objectives. On the other hand, consistent with military necessity and humanity, parties may not make
civilians, civilian objects, and other protected persons and objects the object of an attack. Moreover, persons
using force must exercise reasonable care in discriminating between legitimate and illegitimate objects of
attack (see DOD Law of War Manual, 2.5.2). |
6-27 | 24 | Chapter 1
Distinguishing a Party’s Own Persons and Objects
1-38. Distinction gives rise to three different types of rules that obligate a party to assist its opponent in
discriminating between protected and unprotected persons and objects, principally between a party’s armed
forces and the civilian population. Parties to a conflict must take certain measures, in offense or defense: (1)
to ensure military forces are identifiable from civilians and civilian objects; (2) to separate, as feasible, their
military objectives from civilians and civilian objects; and, (3) to refrain from misusing civilians and civilian
objects to shield military forces or military objectives (see DOD Law of War Manual, 2.5.3; consider AP I
art. 58).
1-39. To ensure military forces are identifiable from civilians and civilian objects, parties must not disguise
their armed forces as civilians or as other protected categories in order to kill or wound opposing forces (see
DOD Law of War Manual, 2.5.3.1; consider AP I, art. 37). Further, some rules obligate parties to mark
protected persons and objects, such as marking hospitals with a red cross, to help them receive the protections
of that status (consider AP I art. 18). Additionally, medical personnel should identify (or distinguish)
themselves as noncombatants to ensure they receive protection from direct attack to which they are entitled.
Conversely, certain rules incentivize parties to a conflict to identify certain persons and objects as
unprotected. For example, members of organized resistance movements must, among other requirements,
wear fixed, distinctive signs visible at a distance and carry arms openly to distinguish themselves from the
civilian population in order for their group to receive POW status upon capture (GPW art. 4A(2)).
1-40. Distinction also creates obligations for parties to a conflict to take feasible measures to separate
civilians and civilian objects from military objectives in order to reduce the risk that the opposing party to a
conflict will incidentally harm the civilian population and other protected persons and objects. Accordingly,
military commanders must take reasonable steps to separate their military units from the civilian population
and civilian objects, as far as military requirements permit, such as by evacuating civilians from danger areas.
Thus, distinction seeks not only to reduce the risk that civilians will be erroneously attacked, but also to
reduce the risk of other incidental harm to civilians, regardless of the attacker’s subjective intent.
1-41. Although the duty to separate depends largely on what is feasible, parties to a conflict in all cases must
not use protected persons or objects as a shield to protect military objectives, whether by hiding a military
objective or by exploiting an adversary’s adherence to proportionality considerations.
Misconceptions about Distinction
1-42. Distinction seeks to ensure that protected and unprotected categories are distinct from one another, not
distinct in the abstract. For example, using camouflage is consistent with distinction because foliage is not a
protected category and because civilians generally do not wear camouflage. Similarly, U.S. forces have worn
nonstandard uniforms to blend with local forces while remaining distinct from the civilian population.
Furthermore, distinction addresses the different rights, duties, and liabilities of different categories; it does
not mandate that a particular person or object must fall within a particular category. For example, a combatant
generally may take a civilian object and use it for military purposes, thereby turning it into a military
objective, consistent with distinction. Similarly, persons with medical training or who provide medical care
on the battlefield are not necessarily noncombatants and need not be identified as such. Rather, a State may
reserve the ability to use these persons as combatants (who are liable to attack) by refraining from designating
them as protected medical personnel (see DOD Law of War Manual, 2.5.4).
Reinforcing Duties
1-43. Discriminating in conducting attacks against the enemy and distinguishing one’s own persons and
objects reinforce one another. A party is not relieved of its obligations to discriminate in conducting attacks
by the failures of its adversary to distinguish the adversary’s military objectives from protected persons and
objects. Nonetheless, the practical ability of a party to discriminate in conducting attacks often depends on
the degree to which its enemy has distinguished its military objectives from protected persons and objects.
For example, if enemy forces intermingle with civilians, an opposing party may be less able to avoid
incidentally harming the civilian population. Similarly, if enemy forces do not respect the Red Cross or other
distinctive emblem, but instead specifically attack persons wearing it, the party receiving these attacks is less
likely to distinguish its medical personnel and transports (see DOD Law of War Manual, 2.5.5). |
6-27 | 25 | General Background and Basic Principles of the Law of Armed Conflict
PROPORTIONALITY
1-44. Proportionality is the LOAC principle requiring combatants to refrain from attacks in which the
expected loss or injury to civilians and damage to civilian objects incidental to such attacks would be
excessive in relation to the concrete and direct military advantage expected to be gained. It also
underlies the requirement to take feasible precautions to reduce the risk of harm to civilians, other protected
persons and civilian objects. In other words, even when a party to the conflict is justified in targeting a
particular military objective, that party must not cause incidental harm to civilians or to civilian objects
excessive in relation to the concrete and direct military advantage expected to be gained from targeting the
military objective. The principle of proportionality complements the principle of distinction and, like
distinction, derives from and applies both military necessity and humanity.
1-45. Proportionality most often refers to the jus in bello (the law related to the conduct of hostilities)
requirement to avoid excessive harm to civilians incidental to attacks, often referred to as “collateral
damage.” It is this jus in bello proportionality principle, which underlies the requirement to take feasible
precautions, that is discussed here and addressed in this publication. It is a different standard from the
proportionality principle in the jus ad bellum (the law related to the use of force) principle of proportionality
(see para. 1-2), which is beyond the scope of this publication.
1-46. In war, incidental harm to the civilian population and civilian objects is unfortunate, but inevitable.
Thus, the proportionality standard does not require that no incidental harm results from attacks. Rather, the
combatants must determine whether, in engaging in offensive or defensive operations, his or her actions 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 to be gained (consider AP I art. 51(5)(b), 57(2)(b)). Under LOAC, judgments of proportionality
often involve difficult and subjective comparisons. Recognizing these difficulties, States have declined to
use the term proportionality in LOAC treaties because it could incorrectly imply that equilibrium or a precise
comparison between considerations is possible (see DOD Law of War Manual, 2.4.1.2).
Justification in Acting
1-47. Proportionality is implicated in cases in which one is justified in acting. For example, an attack on a
military objective that incidentally damages civilian property would raise proportionality considerations. On
the other hand, where there is no justification for acting, such as an unlawful attack directed against the
civilian population, a proportionality analysis would not be necessary to reach the conclusion that the attack
was unlawful (see DOD Law of War Manual, 2.4.1.1).
Excessive Harm
1-48. Proportionality generally weighs the justification for acting against the expected harms to determine
whether the latter is excessive compared with the former. In war, incidental harm to the civilian population
and civilian objects is unfortunate and tragic, but inevitable. Thus, the proportionality standard does not
require that no incidental harm results from attacks. Rather, combatants must refrain from attacks in which
the expected harm of loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, would be excessive in relation to the concrete and direct military advantage anticipated to be gained
(see DOD Law of War Manual, 2.4.1.2; consider AP I art. 51(5)(b), 57(2)(b)). Under LOAC, judgments of
proportionality often involve difficult and subjective comparisons. Often an equilibrium or a precise
comparison between considerations is not possible.
.
CLASSES OF PERSONS
1-49. This section addresses different classes of persons under LOAC. In the past, a citizen or national of a
State at war, as one of the constituents of a State that is engaged in hostilities, could be subjected to the
hardships of war by an enemy State (see “Lieber Code” arts. 21-24). As civilization has advanced and
certainly today, however, consistent with the principles of military necessity and humanity, military
operations generally may not be directed against civilians (see DOD Law of War Manual, 5.2.2). Thus, under |
6-27 | 26 | Chapter 1
the principle of distinction, LOAC recognizes that the population of a State that is a party to a conflict is
generally divided into two classes—combatants and civilians, which correspond generally to the armed forces
and the civilian population. Both classes have distinct rights, duties, and liabilities. No person can exercise
the distinct rights afforded both classes at the same time. For example, a person cannot exercise the
combatant’s right to attack enemy forces while also claiming the civilian’s right not to be made the object of
attack.
1-50. Thus, in order to help protect the civilian population from the effects of armed conflict, LOAC
distinguishes between combatants and civilians, as well as persons directly participating in hostilities and
persons taking no part in hostilities. The line between these classes is not always clear, and certain categories
of persons are not easily characterized as falling within one of these categories. Nonetheless, the principle of
distinction continues to be of the utmost importance in LOAC and underlies many of the rules discussed in
this section. This section discusses the identification as well as the rights, duties, and liabilities of various
classes of people under LOAC—primarily combatants and civilians, but also certain subcomponents within
each of these classes that are subject to rules different from the general treatment of each primary class, such
as certain humanitarian personnel, certain civilian supporters of the armed forces, two categories of
“unlawful” or “unprivileged” belligerents, and military attachés and diplomatic representatives of neutral
States.
LAWFUL COMBATANTS
1-51. Three classes of persons qualify as lawful combatants, often referred to as privileged combatants:
* Members of the armed forces of a State party to a conflict, including members of the regular armed
forces of a de facto government or authority not formally recognized by the opposing power, aside
from certain categories of medical and religious personnel (GPW art. 4A(1) and 4A(3));
* Members of militia or volunteer corps that are not part of the armed forces of a State but belong
to a State party to the conflict, and that meet the following four requirements: commanded by a
person responsible for his subordinates; having a fixed distinctive sign recognizable at a distance;
carrying their arms openly; and conducting their operations in accordance with LOAC
(GPW 4A(2)); and
* Inhabitants of an area who participate in a kind of popular uprising to defend against foreign
invaders, known as a levée en masse (GPW 4A(6)).
The United States does not accept the Additional Protocol I definition of lawful combatants. A principle U.S.
objection to the Additional Protocol I definition is the extent to which it would grant combatant status to
individuals who fail to comply with the requirements of GPW for status as a member of a militia or volunteer
corps that belong to a State (GPW art. 4A(2)) and thereby undermine the protection of the civilian population.
Many U.S. partners that are States Parties to Additional Protocol I, however, are bound by this definition of
lawful combatants (as defined in AP I art. 43-44), to the extent they have not taken a reservation, declaration,
or understanding limiting the application of this definition.
Rights, Duties, and Liabilities of Lawful Combatants
1-52. Lawful combatants have a special legal status, which affords certain rights, duties, and liabilities. They
may lawfully engage in hostilities and are liable to be made the object of attack by lawful combatants from
enemy armed forces. Lawful combatants must conduct their operations in accordance with LOAC. They have
the right to POW status if they fall into the power of the enemy during international armed conflict. Such
lawful combatants also have legal immunity from foreign domestic law (combatant immunity) for belligerent
acts done under military authority and in accordance with LOAC.
Nationality and Combatant Status
1-53. Members of enemy armed forces may include nationals of neutral or non-belligerent States. Nationals
of a neutral or non-belligerent State who are members of the armed forces of a belligerent State should be
treated like other members of that State’s armed forces. However, the special privileges international law
affords lawful combatants do not apply between nationals and their own State. For example, provisions of
the GPW recognize that nationals of the detaining power are not POWs (GPW art. 87). Thus, international |
6-27 | 27 | General Background and Basic Principles of the Law of Armed Conflict
law does not prevent a State from punishing its nationals whom it may capture among the ranks of enemy
forces. For example, under U.S. law, not only may U.S. nationals who join enemy forces be subject to attack
or detention by U.S. forces, they may also be tried for treason (18 U.S.C. § 2381).
CIVILIANS
1-54. In general, a civilian is a member of the civilian population—that is an individual who is neither part
of nor associated with an armed force or group, nor otherwise engaging in hostilities. For example, any person
who belongs to any of the combatant categories referred to in GPW Article 4(A)(1), (2), and (3) (these
categories are discussed in paragraphs 3-16 to 3-25), are not civilians. For most purposes, the term “civilian”
does not include unprivileged belligerents.
1-55. Like combatants, members of the civilian population also have certain rights, duties, and liabilities
under LOAC. Civilians may not be made the object of attack, and feasible precautions must be taken to
reduce the risk of harm to them. Civilians are generally treated consistent with the GC and many qualify for
protections established for protected persons under the convention (GC art. 4). Civilians generally may be
temporarily detained when militarily necessary and may be interned for imperative reasons of security. In all
circumstances, they are entitled to humane treatment. Civilians lack the combatant’s privilege and may be
punished by an enemy State for engaging in hostilities against it.
Civilians and the Conduct of Hostilities
1-56. Civilians who take a direct part in hostilities forfeit their protection from being made the object of
attack (see DOD Law of War Manual, 5.8; consider AP I art. 51(3); AP II, art. 13(3)). Civilians might be
killed incidentally in military operations; however, the principle of proportionality requires that the expected
incidental harm to civilians may not be excessive in relation to the concrete and direct military advantage
anticipated from an attack, and underlies the requirement that feasible precautions must be taken to avoid
harming civilians during military operations. Private persons who join a non-State armed group or otherwise
engage in hostilities forfeit the corresponding protections of civilian status and may be liable to treatment in
one or more respects as unprivileged belligerents.
Civilians and Detention
1-57. In general, civilians may be subject to non-violent measures of control and security that are justified
by military necessity, such as searches or temporary detention. Belligerents or Occupying Powers may take
necessary security measures in relation to civilians, including internment or assigned residence for imperative
reasons of security (GC arts. 42, 78). Civilians who are interned or confined to assigned residences during
international armed conflict or occupation generally are classified as protected persons under the GC and
receive a variety of protections. Chapter 5 addresses, in detail, the treatment of civilian internees during
international armed conflict and occupation. In all circumstances, detained civilians must be treated
humanely.
Civilians’ Liability Under an Enemy State’s Domestic Law
1-58. Unlike combatants, civilians generally lack any special immunity from the domestic law of the enemy
State. Private persons who engage in hostilities or provide support to the enemy may be punished by an
opposing State for their conduct pursuant to a conviction following a fair trial. Moreover, a State that is an
Occupying Power has additional authority over enemy civilians that extend beyond the ability to punish their
unauthorized participation in hostilities. Note, however, the special cases of diplomats, persons authorized to
accompany the armed forces, members of the merchant marine, crews of civil aircraft, and participants in a
levée en masse, who might have certain immunities from foreign domestic law.
MIXED CASES
1-59. Certain classes of persons do not fit neatly within the dichotomy of the armed forces and the peaceful
civilian population, that is, combatants and civilians. These classes may be classified into three groups:
certain humanitarian personnel; certain civilian supporters of the armed forces; and, unprivileged
belligerents. Each of these classes has some attributes of combatant status and some attributes of civilian |
6-27 | 28 | Chapter 1
status; in certain respects these classes are treated like combatants, but in other respects they are treated like
civilians.
CERTAIN HUMANITARIAN PERSONNEL
1-60. Certain categories of medical and religious personnel, both members of the armed forces and civilians,
have humanitarian duties that involve participation in hostilities (without committing acts harmful to the
enemy), but also provide them with special protections:
* Military medical and religious personnel (GWS art. 24, 33);
* Authorized staff of voluntary aid societies (GWS art. 26);
* Staff of a recognized aid society of a neutral country (GWS art. 27); and
* Auxiliary medical personnel (GWS art. 25).
CERTAIN CIVILIAN SUPPORTERS OF THE ARMED FORCES
1-61. Certain categories of persons are not members of the armed forces and do not have combatant
immunity, but are nonetheless authorized to support the armed forces in the fighting (see, for example,
Department of Defense Instruction [DODI] 3020.41 [discussing contractors authorized to accompany the
force]) and are entitled to POW status if captured during an international armed conflict:
* Persons authorized to accompany the armed forces but who are not members thereof (GPW art.
4A(4)); and
* Members of the crews of merchant marine vessels or civil aircraft (GPW art. 4A(5)).
UNPRIVILEGED BELLIGERENTS
1-62. In addition to distinguishing between combatants and the civilian population, LOAC distinguishes
between privileged and unprivileged belligerents. Persons who are not members of the armed forces as
described in GPW (art. 4) but who engage in hostilities deprive themselves of many of the privileges attaching
to the members of the civilian population. As the U.S. Supreme Court stated in Ex Parte Quirin, “Lawful
combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful
combatants are likewise subject to capture and detention, but in addition they are subject to trial and
punishment by military tribunals for acts which render their belligerency unlawful.” (317 U.S. 1 [1942])
Unprivileged belligerents are persons who, by engaging in hostilities, have incurred the corresponding
liabilities of combatant status (for example, being subject to attack or detention), but who are not
entitled to the distinct privileges of combatant status (for example, combatant immunity and POW
status upon capture).
Unprivileged Belligerents as a Category in Treaty Law
1-63. Although States have defined categories of lawful combatants in treaties (HR art. 1; GWS art. 13;
GPW art. 4), States have seldom explicitly recognized in treaties, much less affirmatively defined, legal
categories of unprivileged belligerents (see HR art. 29-31; GC art. 5; consider AP I art. 46). States have
generally refrained from doing so because LOAC treaties have been understood to reflect restrictions on the
conduct of hostilities by States, and States have been reluctant to agree to restrictions on their ability to
respond to unprivileged enemy belligerents, or to afford such persons the distinct privileges afforded civilians
or lawful combatants. Thus, the concept of unprivileged belligerency has primarily been understood in
opposition to the rights, duties, and liabilities of lawful combatants and civilians, and as a necessary
implication of creating these two latter legal categories (see, for example, 10 U.S.C. § 948a). Unprivileged
belligerents have been viewed either as combatants who have forfeited the privileges of combatant status by
engaging in spying or sabotage, or as civilians who have forfeited certain protections of civilian status by
joining armed groups that fail to qualify as lawful combatants or by otherwise engaging in acts of hostility
against the opposing armed forces. |
6-27 | 29 | General Background and Basic Principles of the Law of Armed Conflict
Cases of Doubt With Respect to POW Status
1-64. During an international armed conflict, should there be any doubt as to whether persons suspected of
committing a belligerent act and having fallen into the hands of the enemy are entitled to POW status, such
persons shall be treated as POWs pending the determination of their status by a competent tribunal
(GPW art. 5).
Types of Unprivileged Belligerents
1-65. As set forth in the following paragraphs (1-65 through 1-71), unprivileged belligerents assume the
liabilities of both combatant and civilian status. They may generally be classified into two categories:
* Persons who initially qualify as combatants, but who forfeit those privileges by engaging in
spying, sabotage, and other secretive, hostile acts behind enemy lines.
* Persons who never qualified as combatants but who, by engaging in hostilities (such as joining an
armed group), have forfeited one or more of the protections of civilian status.
1-66. Persons engaging in spying, sabotage, and other secretive, hostile acts behind enemy lines are persons
who may have initially qualified as combatants (that is, by falling into one of the three categories in paragraph
1-50) but who have acted so as to forfeit the privileges of combatant status by engaging in spying or sabotage
while acting clandestinely or on false pretenses (HR art. 29). Private persons engaging in acts of hostility are
persons who never qualified as combatants, but who, by engaging in hostilities, have forfeited some of the
protections of civilian status (see sections 1-85 through 1-92 below for further discussion of when engaged
in hostilities may result in an individual being liable for treatment in one or more respects and as an
unprivileged belligerent). For example, persons who join armed groups that fail to qualify as combatants are
not entitled to the privileges of combatant status, but have incurred the corresponding liabilities of combatant
status by virtue of their membership in such groups.
1-67. These two classes of unprivileged belligerents generally receive the same treatment. However, a legal
distinction between them—State authorization—may be important. For example, combatants who spy regain
their entitlement to the privileges of combatant status upon returning to friendly lines, but the private
individuals who spy cannot regain a status to which they were never entitled.
Rights, Duties, and Liabilities of Unprivileged Belligerents
1-68. Unprivileged belligerents have certain rights, duties, and liabilities. In general, unprivileged
belligerents lack the distinct privileges afforded to lawful combatants and civilians, and receive the liabilities
of both classes. Unprivileged belligerents may be made the object of attack by enemy combatants. They,
however, must be afforded fundamental guarantees of humane treatment if hors de combat. Unprivileged
belligerents may be punished by enemy States for their engagement in hostilities if they are convicted after
a fair trial.
Treatment of Unprivileged Belligerents
1-69. Although unprivileged belligerents have not been recognized and protected in treaty law to the same
extent as civilians and lawful combatants, basic guarantees of humane treatment protect even unprivileged
belligerents (Common Article 3; consider AP I art. 75; consider AP II art. 4-6). Moreover, some treaty
protections apply to certain unprivileged belligerents (see, for example, Common Article 3; GC art. 5). In
some cases, U.S. practice has, as a matter of domestic law or policy, afforded unprivileged belligerents more
favorable treatment than they would be entitled to receive under international law (see paragraph 5-3).
Nonetheless, U.S. practice has also recognized that unprivileged belligerents should not be afforded the
distinct privileges afforded lawful combatants, nor should they receive all of the protections afforded civilians
under LOAC.
Unprivileged Belligerents and the Conduct of Hostilities
1-70. Although unprivileged belligerents lack the right to engage in hostilities, they must observe the same
duties as lawful combatants during their conduct of hostilities. In addition, unprivileged belligerents are
subject to the same liabilities that combatants have in the conduct of hostilities—that is, they may be made |
6-27 | 30 | Chapter 1
the object of attack by combatants of opposing armed forces. Nevertheless, unprivileged belligerents who are
hors de combat may not be made the object of attack and must be treated humanely.
Unprivileged Belligerents and Detention
1-71. Unprivileged belligerents generally may be detained for engaging in hostilities or for other imperative
reasons of security. The DOD practice has been to review periodically the detention of all persons not
afforded POW status or treatment. Unprivileged belligerents who are detained in order to prevent their further
participation in hostilities generally should be released when hostilities have ended. In some cases, continued
detention in connection with criminal proceedings may be appropriate.
Necessary Security Measures
1-72. An offended State may take necessary security measures with regard to unprivileged belligerents. Since
they have engaged in hostilities, unprivileged belligerents (or persons suspected of being unprivileged
belligerents) may be denied certain privileges to which they might otherwise be entitled under LOAC. For
example, the rights of unprivileged belligerents who are entitled to protected person status under the GC
would be subject to derogation for security reasons (see GC art. 5). Belligerents may take necessary security
measures, such as measures to ensure that captured spies do not collect or pass along information.
Unprivileged belligerents who are protected by the GC should be afforded its full protections when feasible.
Unprivileged Belligerents’ Liability for Participation in Hostilities
1-73. Although international law affords lawful combatants a certain privilege or immunity from
prosecution, unprivileged belligerents lack any such protection. Unprivileged belligerents are thus exposed
fully to the consequences of engaging in hostilities against a State. A State may punish unprivileged enemy
belligerents provided it meets applicable requirements, such as a fair trial (HR art. 30).
Unprivileged Belligerency—as a War Crime
1-74. In contemporary parlance, spying and other forms of unprivileged belligerency generally are not
referred to as “LOAC violations” or “war crimes.” For example, since spying is permissible under LOAC in
the sense that belligerents are not prohibited from employing spies, these activities are punishable by
domestic law, but not prohibited under international law. This usage of terminology generally prevails. In
some cases, however, offenses of unprivileged belligerency have been characterized as violations of LOAC
(see, for example, Ex Parte Quirin, referenced in paragraph 1-62). For example, spying and other acts of
unprivileged belligerency have been called offenses against the law of nations or LOAC because the
punishment of these offenders is a recognized incident or exercise of a belligerent’s war powers under LOAC.
The difference in these characterizations may be traced to different definitions of war crime that have been
used over time and different definitions of LOAC. If one views LOAC as only containing prohibitions, the
punishment of unprivileged belligerents, like all exercises of the war powers, emanates from the domestic
law of the belligerent State. On the other hand, if one views LOAC as also including sources of authority,
the punishment of unprivileged belligerents is also grounded in the international LOAC. Although the
relationship between unprivileged belligerency and LOAC has been characterized in different ways, it is
well-accepted that States may punish unprivileged enemy belligerents under their domestic law.
SPIES, SABOTEURS, AND OTHER PERSONS ENGAGING IN SECRETIVE, HOSTILE ACTS
BEHIND ENEMY LINES
1-75. Spying, committing sabotage, and engaging in other secretive, hostile acts behind enemy lines have a
dual character under LOAC; commanders are permitted to employ persons who engage in these activities,
but these activities are punishable by the enemy State. Commanders may employ spies and saboteurs
consistent with LOAC. However, any person, including individuals who would otherwise receive the
privileges of lawful combatants, who engages in spying, sabotage, or other secretive, hostile acts behind
enemy lines (for example, spying while disguised as a civilian or member of the enemy force without properly
identifying themselves as members of a hostile force) is regarded as an unprivileged belligerent while doing |
6-27 | 31 | General Background and Basic Principles of the Law of Armed Conflict
so. While engaging in these activities, these persons forfeit entitlement to the privileges of combatant status
and may be punished after a fair trial if captured (see DOD Law of War Manual, 4.17).
Spies
1-76. A person may be considered a spy when, (1) acting clandestinely or under false pretenses, (2) in the
zone of operations of a belligerent, (3) he or she obtains, or endeavors to obtain, information, (4) with the
intention of communicating it to a hostile party (HR art. 29; see also Uniform Code of Military Justice
[UCMJ] art. 106). During war, any person—military or civilian—whose actions meet all of these elements
may be considered a spy under LOAC. The following discussion elaborates upon the elements of spying.
Acting Clandestinely or Under False Pretenses
1-77. Acting clandestinely or under false pretenses means deliberately concealing or misrepresenting one’s
identity and conduct (see DOD Law of War Manual, 4.17.2.1; consider AP I art. 46(3)). For example,
members of the armed forces may meet this element when they wear disguises, such as civilian clothes or
enemy uniforms in an attempt to conceal their true identities as members of the opposing armed forces.
Soldiers and Marines who act openly, such as by wearing the uniform of the armed forces to which they
belong, do not meet this element (consider AP I art. 46(2)). For example, a ground reconnaissance team or
couriers who wear their normal military uniforms would not meet this element. In addition, observers on
military reconnaissance aircraft are not regarded as acting clandestinely or under false pretenses.
In the Zone of Operations of a Belligerent
1-78. A person must engage in acts of espionage in the zone of operations controlled by a belligerent to be
considered a spy. “Zone of operations” has been construed broadly to include areas supporting the war effort.
A person, however, who engages in surveillance or information gathering from outside territory controlled
by a hostile party would not meet this element and would not be considered a spy.
Obtains, or Endeavors to Obtain, Information
1-79. A person may be punished as a spy regardless of whether he or she succeeds in obtaining information
or in transmitting it to the enemy. Nevertheless, a person must obtain or attempt to obtain information to be
considered a spy. For example, airmen who parachute into enemy territory after their aircraft has been
disabled and disguise themselves in civilian clothing simply to avoid capture would not be spies.
With the Intention of Communicating It to the Hostile Party
1-80. A person must act with the intention of communicating the sought-after information to a hostile party
to the conflict to be considered a spy within the meaning of this rule. Nevertheless, people who seek to send
information to a State not involved in the conflict may still commit acts punishable by the offended State and
their conduct may fall within the broader category of secretive, hostile acts behind enemy lines.
Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines
1-81. In addition to spies, other persons acting clandestinely or under false pretenses (for example, wearing
a disguise) with a hostile purpose behind enemy lines are treated like spies under LOAC. They, too, lose the
privileges of combatant status while engaged in those activities behind enemy lines. For example, saboteurs
acting clandestinely or under false pretenses in the zone of operations of a belligerent are treated as spies.
Activities besides sabotage that are helpful to one side’s war effort done behind the other side’s lines may be
punished as well, often under the rubric of war treason, secretly entering the lines, or activities hostile to the
security of the State. These kinds of activities almost necessarily take on the character of spying because the
person who conducts these activities would also take that opportunity to collect intelligence. Indeed, these
actions are often reported as spying even though the actual purpose of these activities may not be to gain or
transmit intelligence but to take other sorts of actions that would further the conflict. Thus, a belligerent’s
presence with a hostile purpose on territory controlled by an opposing State, while operating clandestinely
or under false pretenses, suffices to make that person liable to treatment as a spy under LOAC (see DOD
Law of War Manual, 4.17.3). |
6-27 | 32 | Chapter 1
1-82. Under LOAC, belligerents may employ spies and saboteurs. Spying and sabotage are not prohibited
by LOAC. For example, spying and sabotage are not prohibited by the 1949 Geneva Conventions, nor defined
as a grave breach of those conventions. Similarly, spying and sabotage are not war crimes punishable under
the statutes of international criminal tribunals. In addition, LOAC treaties that regulate, but do not prohibit,
spying recognize implicitly that belligerents may use these methods of warfare (see HR art. 24, 29-31;
consider AP I, art. 46). Although spying and sabotage are not prohibited by LOAC, acting clandestinely or
under false pretenses (out of uniform) could, in some circumstances, constitute “feigning a protected status”
(such as that of a civilian), one of the elements of perfidy. Persons engaged in these activities and commanders
who employ them should take special care not to commit perfidy (i.e., wounding or killing the enemy while
engaged in “feigning a protected status.”).
Spying and Sabotage – Forfeiture of the Privileges of Combatant Status
1-83. Although LOAC allows belligerents to employ spies, saboteurs, and other persons engaged in secretive
hostile activities behind enemy lines, LOAC also permits belligerents to take additional measures to defend
against these persons. These individuals, by acting clandestinely or under false pretenses, fail to distinguish
themselves as combatants generally must do. Thus, persons entitled to privileges of combatant status,
including POW status, forfeit their entitlement to those privileges while engaged in spying, sabotage, or other
hostile, secretive activities behind enemy lines. Although not explicitly reflected in the GPW, this
understanding was the general understanding at the 1949 Diplomatic Conference of Geneva and is reflected
in other treaties (HR art. 31; consider AP I art. 46(1)), cases, military manuals, and scholarly works.
Liability for Previous Acts of Espionage
1-84. Persons who qualify for the privileges of combatant status, engage in spying, and then return to friendly
lines incur no responsibility or liability for previous acts of espionage (HR art. 31). Persons who have never
qualified for the privileges of combatant status would not benefit from this rule because they cannot regain a
status that they never held.
PRIVATE PERSONS WHO ENGAGE IN ACTS OF HOSTILITY
1-85. Like it treats spying and sabotage, international law does not generally prohibit private acts of hostility,
but does recognize that opposing States may punish persons who commit these acts. Nonetheless, private
persons engaging in hostilities have been described in some contexts as having committed a war crime, a
violation of international law, or a violation of LOAC. In more recent times, private persons committing acts
of hostility are often punished as committing acts of terrorism. The unauthorized use of violence by private
persons to achieve political ends is contrary to the principles of democratic States. Moreover, States have
obligations under international law to repress terrorism, especially when conducted on their territory against
other States.
1-86. In general, private persons who engage in acts of hostility forfeit many of the protections to which
members of the civilian population are entitled and may be liable to treatment as unprivileged belligerents.
Loss of Protections Afforded Civilians
1-87. Taking military action (such as detention) to address the threat posed by civilians engaged in hostilities
can be justified by military necessity. The forfeiture of many of the protections of civilian status is also
reflected in the principle that a person cannot exercise the distinct rights of both a civilian and a combatant
at the same time.
Denial of Combatant Status
1-88. Private persons who engage in hostilities are not entitled to the privileges of combatant status and may
be punished, after a fair trial. LOAC does not condone the unprivileged belligerent, for example, a farmer by
day and guerilla by night. The denial of the privileges of combatant status to private persons engaging in
hostilities is justified principally on the basis that such persons lack the principal qualification for entitlement
to the privileges of combatant status—State authorization to engage in hostilities. Denying private persons
who engage in hostilities the privileges of combatant status is also justified on humanitarian grounds. Private |
6-27 | 33 | General Background and Basic Principles of the Law of Armed Conflict
persons who engage in hostilities risk undermining the protections afforded to civilians. Further, private
persons who engage in hostilities generally have not been trained in LOAC and are not subject to the same
disciplinary regime as members of the armed forces.
Engaging in Hostilities or Direct Part in Hostilities
1-89. A number of different formulations may be used to describe when a person has engaged in hostilities
so as to deprive that person of a protection that they might otherwise be afforded by LOAC. For example,
Common Article 3 of the 1949 Geneva Conventions requires humane treatment for persons no longer taking
an “active part in the hostilities.” The GPW contemplates interim POW protections for persons “having
committed a belligerent act” (GPW art. 5). The GWS explains that the protection afforded medical units
“shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy”
(GWS art. 21). Additional Protocol I, which is not binding on the United States, provides that civilians forfeit
their protection from being made the object of attack “for such time as they take a direct part in hostilities”
(consider AP I art. 51(3)). Although these terms often refer to the same conduct, the context in which each
term is applied is important, and the scope of each term may depend on the particular legal rule in question.
In general, this publication uses the phrase engaging in hostilities to describe those actions that deprive a
person of many of the protections of civilian status under LOAC and reserves the use of the phrase “direct
part in hostilities” specifically for activity with which civilians forfeit their protection from being made the
object of attack, in contrast to other protections (see paragraph 2-13, et. seq).
Activities That Constitute Engaging in Hostilities by Private Persons
1-90. Certain activities, when done by private persons, constitute engaging in hostilities, and may make those
who engage in them liable to treatment by the enemy State as unprivileged belligerents.
Being Part of a Non-State Armed Group
1-91. Joining a Non-State armed group is a form of engaging in hostilities that makes private persons liable
to treatment in one or more respects as unprivileged belligerents. Such armed groups may be described as
insurgents, or terrorist groups. Non-State armed groups exist in both international and non-international
armed conflicts; in either case they are generally unprivileged belligerents, but in an international armed
conflict, they might qualify as lawful combatants if they fall into one of the categories discussed above in
paragraph 1-51.
1-92. Whether a person has joined a Non-State armed group can be a difficult factual question. Non-State
armed groups may not use formal indicia of membership (for example, uniforms or identity cards) or
members of these groups may seek to conceal their affiliation. Circumstantial or functional information may
be appropriate to use to assess whether a person has joined a private armed group. In addition, these armed
groups may rely on individuals who are not formally members of the groups but are functionally part of those
organizations (for more information on insurgents see FM 3-24, Insurgencies and Countering Insurgencies
(2014)). These individuals may be regarded as part of the group constructively, even if not members in fact.
Other Hostile Acts
1-93. In addition to joining Non-State armed groups, other hostile acts can make a person liable to treatment
in one or more respects as an unprivileged belligerent under LOAC. For example, private persons who bear
arms against enemy personnel or who attempt to kill or injure enemy personnel may become liable to being
made the object of attack. Spying, sabotage, and other hostile activities behind enemy lines, may also make
private persons who perform them liable to prosecution for such conduct.
MILITARY ATTACHÉS AND DIPLOMATIC REPRESENTATIVES OF NEUTRAL STATES
1-94. Military attachés and diplomatic representatives of neutral States who establish their identity as such
and are accompanying an army in the field, whether within the territory of the enemy or in territory occupied
by it, are generally not detained provided that they take no part in hostilities or provided that temporary
detention is not necessary for security reasons or for their own protection. They may be ordered out of the
theater of military operations and, if necessary, transferred to the custody of representatives of their respective |
6-27 | 34 | Chapter 1
countries. Only if such personnel refuse to quit the theater of military operations may they be interned.
Commanders should work through command channels to ensure consultation with the Department of State
regarding the appropriate disposition of such persons.
SOURCES OF THE LAW OF ARMED CONFLICT
1-95. LOAC is derived from two principal sources:
* Treaties (or Conventions), such as the Hague and Geneva Conventions. (See Appendix for a non-
exhaustive list of treaties binding on the United States, and other treaties not binding on the United
States.)
* Customary International Law. Some of LOAC is not created through a treaty. Customary
international law results from a general and consistent practice of States followed from a sense of
legal obligation, which is known as opinio juris.
TREATIES
1-96. A treaty is generally defined as an international agreement concluded between States in written form
and governed by international law. Treaties often go by different terms, such as Conventions or Protocols,
but regardless of how titled, all treaties in force are legally binding on States Parties as a matter of
international law. The Department of State publishes an annual listing of treaties that are in force for the
United States.
1-97. States sometimes need to enact domestic legislation to implement treaty provisions. Although such
implementing legislation is not international law, it may help interpret treaty provisions or reflect a State’s
interpretation of those provisions. A State’s domestic law, however, cannot excuse that State’s
noncompliance with a treaty obligation as a matter of international law.
1-98. If there is doubt as to the applicability of a specific U.S. treaty obligation, the commander should seek
legal advice from a judge advocate. Judge advocates should refer specific questions through their operational
chain of command for resolution to ensure that there are common understandings of the applicability of treaty
obligations during military operations. See table 1-2 for a non-exhaustive list of treaties.
Table 1-2. Treaties
Law of armed conflict treaties to which the United States is a party
Treaty Name Reference/Citation
Washington Convention Regarding the Rights of Neutrals at Sea of October 10 Stat. 1105, TS 300,
31, 1854 11 Bevans 1214
Hague Convention for the Exemption of Hospital Ships in Time of War, from 35 Stat. 1854, TS 459,
the Payment of all Dues and Taxes Imposed for the Benefit of the State of 1 Bevans 430
December 21, 1904
Hague Convention III of October 18, 1907, Relative to the Opening of 36 Stat. 2259, TS 538
Hostilities
Hague Convention IV of October 18, 1907, Respecting the Laws and Customs 36 Stat. 2277, TS 539,
of War on Land (Hague IV), and the Annex thereto, entitled Regulations 36 Stat. 2295, TS 539
Respecting the Laws and Customs of War on Land (HR).
Hague Convention V of October 18, 1907, Respecting the Rights and Duties 36 Stat. 2310, TS 540
of Neutral Powers and Persons in Case of War on Land (Hague V).
Hague Convention VIII of October 18, 1907, Relative to the Laying of 36 Stat. 2322, TS 541,
Automatic Submarine Contact Mines (Hague VIII). 1 Bevans 669
Hague Convention IX of October 18, 1907, Concerning Bombardment by 36 Stat. 2351, TS 542
Naval Forces in Time of War (Hague IX).
Hague Convention XI of October 18, 1907, Relative to Certain Restrictions 36 Stat. 2396, TS 544,
with Regard to the Exercise of the Right of Capture in Naval War (Hague XI). 1 Bevans 711
Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties 36 Stat. 2415, TS 545,
of Neutral Powers in Naval War (Hague XIII). 1 Bevans 723 |
6-27 | 35 | General Background and Basic Principles of the Law of Armed Conflict
Table 1-2. Treaties (continued)
Law of armed conflict treaties to which the United States is a party (continued)
Treaty Name Reference/Citation
Procès-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of 3 Bevans 298
the Treaty of London of April 22, 1930 (London Protocol).
Treaty on the Protection of Artistic and Scientific Institutions and Historic 49 Stat. 3267, TS
Monuments of April 15, 1935 899, 3 Bevans 254,
167 LNTS 279
(Roerich Pact)
Geneva Convention for the Amelioration of the Condition of the Wounded and 6 UST 3114, T.I.A.S.
Sick in Armed Forces in the Field of August 12, 1949 (GWS). 3362, 75 UNTS 31
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and 6 UST 3217, T.I.A.S.
Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (GWS Sea). 3363, 75 UNTS 85
Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 6 UST 3216, T.I.A.S.
1949 (GPW). 3364, 75 UNTS 135
Geneva Convention Relative to the Protection of Civilian Persons in Time of War 6 UST 3516, T.I.A.S.
of August 12, 1949 (GC). 3365, 75 UNTS 287
Hague Convention for the Protection of Cultural Property in the Event of Armed 249 UNTS 240
Conflict of May 14, 1954 (1954 Hague Cultural Property Convention).
Convention on Prohibitions or Restrictions on the Use of Certain Conventional 1342 UNTS 137
Weapons Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects of October 10, 1980, its Protocols I, II, III, IV, and V, its
Amended Protocol II, and its extended scope of application (CCW).
Optional Protocol to the Convention on the Rights of the Child on the Optional Protocol on
involvement of Children in Armed Conflict, May 25, 2000 Children in Armed
Conflict
Protocol additional to the Geneva Conventions of 12 August 1949, and relating AP III
to the Adoption of an Additional Distinctive Emblem (Protocol III), December 8,
2005
Arms control agreements to which the United States is a party that are of direct relevance to the
law of armed conflict
Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, 26 UST 571, T.I.A.S.
Poisonous or Other Gases, and of Bacteriological Methods of Warfare of June 8061, 94 LNTS 65
17, 1925 (1925 Geneva Gas Protocol)
Convention on the Prohibition of Development, Production and Stockpiling of 26 UST 583, T.I.A.S.
Bacteriological (Biological) and Toxin Weapons and on Their Destruction of April 8062, 1015 UNTS
10, 1972 163 (BWC)
Convention on the Prohibition of Military or Any Other Hostile Use of 31 UST 333, TIAS
Environmental Modification Techniques of May 18, 1977 9614 (ENMOD
Convention)
Convention on the Prohibition of the Development, Production, Stockpiling and CWC
Use of Chemical Weapons and on Their Destruction of January 13, 1993
Law of armed conflict treaties signed but not ratified by the United States
Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and AP I
Relating to the Protection of Victims of International Armed Conflicts of June 8,
1977
Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and AP II
Relating to the Protection of Victims of Non-International Armed Conflicts of
June 8, 1977 |
6-27 | 36 | Chapter 1
Table 1-2. Treaties (continued)
Law of armed conflict or relevant arms control treaties or documents of mainly historical value
Treaty Name Reference/Citation
Law of armed conflict or relevant arms control treaties to which the United States has neither
signed nor ratified
Hague Declaration (IV, 3) Concerning Expanding Bullets of July 29, 1899 187 Consol. T.S. 459
Hague Convention VI Relating to the Status of Enemy Merchant Ships at the 205 Consol. T.S. 305
Outbreak of Hostilities of October 18, 1907
Hague Convention VII Relating to the Conversion of Merchant Ships into 205 Consol. T.S. 319
Warships of October 18, 1907
First Protocol to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict of May 14, 1954
Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and Their Destruction of September 18, 1997
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict of March 26, 1999
Convention on Cluster Munitions of May 30, 2008
Rome Statute of the International Criminal Court of July 17, 1998 Rome Statute
(The United States originally signed the Rome Statute on December 31, 2000,
but effectively withdrew its signature in May 2002).
St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive 1868 St. Petersburg
Projectiles under 400 Grams Weight of December 11, 1868 Declaration
Hague Declaration IV, 1 to Prohibit for the Term of Five Years the Launching of 32 Stat. 1839, 1
Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature Bevans 270
of July 29, 1899
Hague Declaration IV, 2 Concerning Asphyxiating Gases of July 29, 1899 187 Consol. T.S. 453
Hague Convention II with Respect to the Laws and Customs of War on Land, 32 Stat. 1803, TS
with Annex of Regulations of July 29, 1899 403, 1 Bevans 247
(1899 Hague II)
Hague Convention X for the Adaptation to Maritime Warfare of the Principles of 36 Stat. 2371, 205
the Geneva Convention of October 18, 1907 Consol. T.S. 359
Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives 36 Stat. 2439, TS 546
from Balloons of October 18, 1907
Washington Treaty Relating to the Use of Submarines and Noxious Gases in 1922 Washington
Warfare of February 6, 1922 Treaty
Hague Rules of Air Warfare of February 17, 1923 1923 Hague Air Rules
Geneva Convention Amelioration of the Condition of the Wounded and Sick of 47 Stat. 2074; Treaty
Armies in the Field of July 27, 1929 Series 847 (1929
GWS)
Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 47 Stat. 2021; Treaty
1929 Series 846 (1929
GPW)
AP Additional Protocol Consol. T.S. Consolidated Treaty Service LNTS League of Nations Treaty Service Stat
United States Statutes at Large TIAS Treaties and Other International Acts Series TS Treaty Series UNTS
United Nations Treaty Series
ADDITIONAL PROTOCOL I
1-99. Additional Protocol I is a significant LOAC treaty that the United States has not ratified. Adopted in
1977, Additional Protocol I contains rules on the conduct of hostilities during international armed conflict.
The United States signed Additional Protocol I in 1977 but decided not to ratify it. On January 29, 1987,
President Reagan informed the Senate he would not submit Additional Protocol I for the Senate’s advice and
consent to ratification. Although the United States expressed that Additional Protocol I “is fundamentally |
6-27 | 37 | General Background and Basic Principles of the Law of Armed Conflict
and irreconcilably flawed” and there were major objections to certain provisions of Additional Protocol I
(for example, arts. 1(4), 43(1), 44(3), among others), President Reagan also noted “this agreement has certain
meritorious elements,” and the United States would support “the positive provisions of Protocol I that could
be of real humanitarian benefit if generally observed by parties to international armed conflicts.” Letter of
Transmittal for Additional Protocol II, President Ronald W. Reagan, to the Senate of the United States, 23
Weekly Compilation of Presidential Documents, 91 (Jan. 29, 1987) (quoting a passage in the letter addressing
AP I). Consistent with this approach, for example, the Obama Administration announced, “[a]lthough the
Administration continues to have significant concerns with Additional Protocol I,” the United States
“choose[s] out of a sense of legal obligation to treat the principles set forth in Article 75 [of AP I] as applicable
to any individual it detains in an international armed conflict[.]” New Actions on Guantanamo and Detainee
Policy Fact Sheet, March 2011. http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-
actions-guant-namo-and-detainee-policy.
1-100. While the United States is not bound by Additional Protocol I, U.S. practice is consistent with much
of the protocol and many of its provisions support principles that the United States espouses. Further, U.S.
Armed Forces have often fought as a multinational partner in armed conflicts alongside countries who are
parties to Additional Protocol I. In those conflicts, U.S. military forces, as a matter of practice, have acted
consistent with many of its provisions. In addition, later treaties to which the United States is a party have
incorporated some Additional Protocol I provisions. For example, Additional Protocol I’s definition of
military objective is essentially the same as the definition in CCW protocols. (Compare AP I art. 52(2) with
CCW Amended Protocol II art. 2(6) and CCW Protocol III art. 1(3)). This publication references AP I
provisions, some of which are consistent with U.S. practice. Unless explicitly noted, no determinations are
made about whether any of these provisions reflect customary international law. For more information about
DOD views with regard to particular AP I provisions, judge advocates should refer to the DOD Law of War
Manual (DOD Law of War Manual, 19.20.1).
CUSTOMARY INTERNATIONAL LAW
1-101. Customary international law results from a general and consistent practice of States followed from
a sense of legal obligation (opinio juris). Unlike a treaty provision, which is readily accessible in an
identifiable document that sets forth an agreed-upon, codified rule, it can be difficult to identify and assess
evidence of State practice and opinio juris when seeking to determine whether State actions in a particular
area have resulted in a rule of customary international law. As with issues of treaty applicability and
interpretation, questions on customary international law should be referred to judge advocates, and judge
advocates should refer specific questions through their operational chain of command for resolution to ensure
that there are common understandings of the customary international law requirements during military
operations.
1-102. Customary law often may be ascertained using subsidiary means, such as judicial decisions, official
statements by governments, and the teachings of the most highly qualified publicists of various nations.
Discretion is necessary in weighing sources, however, as some sources are more reliable than others.
1-103. The customary LOAC applies to all cases of declared war or any other armed conflict, even if a party
to the conflict does not recognize the state of war. The customary LOAC also applies to all cases of
occupation of foreign territory by the exercise of armed force, even if the occupation meets with no armed
resistance. It is also important to understand that customary international law applicable in an international
armed conflict may, in certain respects, be different from customary international law applicable in a non-
international law armed conflict.
THE LAW OF ARMED CONFLICT AS U.S. LAW
1-104. Army and Marine Corps personnel should treat and observe all treaties in force for the United States
as federal law. Similarly, Army and Marine Corps personnel should treat and observe customary LOAC as
part of U.S. law. |
6-27 | 38 | Chapter 1
PROTECTING POWERS AND HUMANITARIAN ORGANIZATIONS
1-105. LOAC contemplates protecting powers, which are neutral or non-belligerent States having
humanitarian roles in armed conflict. The Geneva Conventions of 1949 specifically provide for protecting
powers and contemplate the activities of humanitarian organizations.
PROTECTING POWERS
1-106. The Geneva Conventions of 1949 contain certain common provisions regarding the safeguarding of
the interests of belligerents by nations designated as “Protecting Powers” (GWS art. 8; GWS Sea art. 8; GPW
art. 8; GC art. 9).
APPOINTMENT
1-107. The appointment of a protecting power is a decision made by authorities at the national level. This
appointment requires agreement between the belligerent States. The protecting power should be a neutral or
non-belligerent with respect to the conflict. The 1949 Geneva Conventions contemplate that when
appointment of a protecting power is not possible, States will use the International Committee of the Red
Cross (ICRC) or other impartial humanitarian organizations to assume the humanitarian functions performed
by a protecting power (GWS art. 10; GWS Sea art. 10; GPW art. 10; GC art. 11). However, protecting powers
are rarely appointed specifically for the purposes of implementing the Geneva Conventions, and the ICRC
has often performed the humanitarian functions of a protecting power under the 1949 Geneva Conventions.
ACTIVITIES
1-108. A protecting power assists and verifies a belligerent’s compliance with the 1949 Geneva
Conventions, including with respect to detention. For example, delegates of the protecting power visit
interned persons and hear concerns that they raise. A protecting power also facilitates communication
between opposing belligerents regarding treaty implementation (GPW art. 11). The protecting power’s
activities are conducted with the consent of the State on whose territory it serves and the State whose facilities
it visits. In addition, the protecting power must ensure that its delegation does not exceed its humanitarian
responsibilities and takes into account the imperative necessities of security of the State wherein it carries
out its duties (GWS art. 8; GWS Sea art. 8; GPW art. 8; GC art. 9).
RESTRICTION ON REPRESENTATIVES OF THE PROTECTING POWERS
1-109. A belligerent may impose legitimate security restrictions on the activities of the delegates or
representatives of the protecting powers working in its territories or facilities. However, belligerents may
only restrict the activities of the representatives or delegates of the protecting powers “as an exceptional and
temporary measure when this is rendered necessary by imperative military necessities” (GWS art. 8; GWS
Sea art. 8; GPW art. 126; GC art. 143). For example, a commander may postpone a visit by protecting power
representatives to a POW camp for security or humanitarian reasons, such as tactical movement of its own
forces, or to protect protecting power personnel from explosive remnants of war being cleared from recent
military operations along the route to the POW camp.
INTERNATIONAL COMMITTEE OF THE RED CROSS AND OTHER IMPARTIAL HUMANITARIAN
ORGANIZATIONS
1-110. The 1949 Geneva Conventions contemplate that the ICRC and other impartial humanitarian
organizations may, subject to the consent of the parties to the conflict concerned, provide humanitarian aid
and seek to ensure the protection of war victims in armed conflict (GWS art. 9; GWS Sea art. 9; GPW art. 9;
GC art. 10).
IMPARTIAL
1-111. The humanitarian organization must remain impartial; impartiality distinguishes these organizations
from humanitarian organizations that have an allegiance to a party to the conflict (such as the American Red |
6-27 | 39 | General Background and Basic Principles of the Law of Armed Conflict
Cross, which is a voluntary aid society under GWS art. 26). Impartial humanitarian organizations must also
act within the terms of their humanitarian mission. In addition, these organizations must refrain from acts
harmful to either side, such as direct participation in the conflict. Performing their humanitarian function is
not direct participation, however, even if it assists one side or the other by providing medical relief.
ACCESS
1-112. States may control access to their territory, and belligerents may control access to their military
operations. The entry of the ICRC or other non-governmental organizations into a State’s sovereign territory,
or into a theater of military operations, is subject to the consent of relevant States and exceptions for
imperative military necessity (GWS art. 9; GWS Sea art. 9; GPW art. 9, 10; GC art. 10, 11; consider AP I
art. 71(1)). States may attach conditions to their consent, including necessary security measures. But
commanders have discretion, based on legitimate military reasons, to deny requests from impartial
humanitarian organizations for military support, including classified or sensitive information, or dedicated
security. Amended CCW Protocol II, for example, provides for protecting humanitarian organization
personnel from the effects of mined areas “so far as possible” (CCW Amended Protocol II art. 12).
SPECIAL STATUS OF THE ICRC
1-113. The Geneva Conventions explicitly recognize the special position of the ICRC among impartial
humanitarian organizations (GPW art. 125; GC art. 142). Similarly, Congress has specifically authorized—
and the President has designated—the ICRC to be extended the same privileges and immunities that are
afforded public international organizations in which the United States participates (22 United States Code
[USC] § 288f-3). The President has also recognized the role of the ICRC in visiting individuals detained in
armed conflict (see Executive Order 13491). The ICRC does important work in visiting detainees, facilitating
communication between detainees and their families, organizing relief operations, and undertaking similar
humanitarian activities during armed conflict; it also provides confidential reports to the detaining power to
facilitate humane treatment of detainees. As a practical matter, good relations with ICRC representatives in
the field are essential to conducting detainee operations. In common practice the ICRC fulfills the functions
of a central information agency for POWs and civilian internees during armed conflict (GPW art. 123; GC
art. 140). In addition, the ICRC often issues policy proposals or non-binding interpretive guidance on a
variety of international law issues; but, although sometimes influential, these are not binding on States. In
some cases, the United States has not accepted the ICRC’s proposals or interpretations and instead expressed
opposing views.
END OF HOSTILITIES AND LOAC RULES
1-114. In general, LOAC rules for the conduct of hostilities cease to apply when hostilities have ended.
Hostilities end when opposing parties decide to end hostilities and actually do so, that is, when neither the
intent-based nor conduct-based tests for when armed conflict exists are met (see paragraphs 1-11 through 1-
15). Parties to a conflict often have negotiated peace treaties to end hostilities, while armistice agreements
are negotiated merely to suspend hostilities (see generally paragraphs 7-65 to 7-121 [armistices]). In addition,
the UN Security Council may require certain steps leading to the end of hostilities (see DOD Law of War
Manual, 12.14). In drafting and interpreting agreements to end hostilities, it is important to understand the
rules normally applicable to the cessation of hostilities. Agreements for cessation of hostilities may refer to
provisions in the Geneva Conventions or other LOAC instruments. These agreements may modify or
supplement the rules normally applicable to the cessation of hostilities, for example, by specifying precisely
when a legal obligation is triggered or satisfied.
1-115. Under LOAC, certain duties that have arisen during hostilities may continue after hostilities have
ended. For example, POWs are protected from the moment of capture until their final release and repatriation
(GPW art. 5). Also, duties under occupation law may continue after hostilities have ended (GC art. 6).
1-116. Certain obligations are triggered at the end of hostilities. For example, the end of hostilities triggers
obligations regarding the marking of minefields, demining, or clearance of unexploded ordnance (see DoD
Law of War Manual, 6.12.12 and 6.20.5). In addition, detainees, in general, must be released and returned to
the party to the conflict to which they belong (see GPW art. 118; GC art. 133). |
6-27 | 40 | Chapter 1
HUMAN RIGHTS LAW
1-117. Human rights treaties address primarily the obligations of governments with respect to the rights of
individuals, including their own nationals, within its territory and subject to its jurisdiction. For example,
governments must refrain from subjecting individuals to arbitrary detention, to arbitrary deprivation of life,
or to torture or cruel, inhuman, or degrading treatment or punishment. As a general matter, human rights
treaties have been described as primarily applicable to the relationship between a State and individuals in
peacetime. Some human rights treaties provide for derogation from certain provisions in emergency
situations, as defined within the treaty. Law of war treaties have been described as chiefly concerned with
the conditions particular to armed conflict and the relationship between a State and nationals of the enemy
State. Law of war treaties generally do not provide for derogation because necessity is not a basis for
derogating from law of war rules.
1-118. LOAC and human rights treaties contain many provisions that complement one another and are in
many respects mutually reinforcing. In some circumstances, the rules in LOAC and the rules in human rights
treaties law appear to conflict. Many of these apparent conflicts are resolved by the principle that LOAC is
lex specialis during situations of armed conflict and, as such, is the controlling body of law with regard to
the conduct of hostilities and the protection of war victims. For example, the right to challenge the lawfulness
of an arrest before a court provided in the International Covenant on Civil and Political Rights (ICCPR) in
Article 9 would appear to conflict with the generally recognized authority under LOAC to detain certain
persons without judicial process or criminal charge. However, the United States has understood Article 9 of
the ICCPR not to affect a State’s authority to detain combatants until the end of hostilities as permitted by
the GPW.
1-119. A situation of armed conflict does not automatically suspend nor does LOAC automatically displace
the application of all international human rights obligations. For example, although the UN Convention
Against Torture was not intended to supersede the prohibitions against torture already contained in customary
international law and LOAC remains the controlling body of law in armed conflict, a time of war, however,
does not suspend the operation of the Convention Against Torture. Furthermore, during armed conflict,
human rights treaties would clearly be controlling with respect to matters that are within their scope of
application that are not addressed by LOAC. For example, a time of war does not suspend the operation of
the ICCPR with respect to matters within its scope of application. Participation in armed conflict generally
would not excuse a State Party to the ICCPR from respecting and ensuring the right and opportunity of every
citizen to vote and to be elected at genuine periodic elections, except when derogated in times of public
emergency that threatens the life of the nation and the existence of which is officially proclaimed (see ICCPR
art. 4). Finally, in conducting operations with coalition partners, it may be important to consider that some
States may have different perspectives on the applicability of obligations under human rights treaties to
particular situations. Such differences may result from different legal interpretations or from the fact that the
other State is a Party to different human rights treaties than the United States. For example, the European
Court of Human Rights – as well as some European States – have construed certain obligations under the
European Convention on Human Rights (ECHR) as applicable to their military forces abroad during
occupation.
TRAINING THE LAW OF ARMED CONFLICT
1-120. The Geneva Conventions require State Parties “to respect and to ensure respect” for the Conventions
(Common Article 1 to GWS, GWS Sea, GPW and GC). The Geneva Conventions also require dissemination,
training, and study of the Conventions by the military forces and the civilian population (GWS art. 47; GWS
Sea art. 48; GPW art. 127; GC art. 144). Military or civilian personnel responsible for persons protected by
the conventions should receive instruction commensurate with their duties and responsibilities and have
copies of the appropriate conventions available to them (see, for example, GPW art. 127). |
6-27 | 41 | Chapter 2
Conduct of Hostilities
This chapter addresses application of the basic LOAC principles of military necessity,
humanity, distinction, proportionality, and honor on the battlefield. Among other
things, it sets forth LOAC rules on the means and methods of warfare, targeting,
deception, perfidy, general rules related to the conduct of hostilities, and the process to
ensure the legality of U.S. weapons, weapon systems, and munitions.
PRACTICAL GUIDANCE FOR ADHERING TO LOAC
Soldiers and Marines must comply with LOAC, but they are not expected to be legal experts. They
should refer LOAC questions to judge advocates. Questions that arise during military operations that cannot
be resolved at lower levels should be referred through the operational chain of command for resolution (see
DOD Law of War Manual, 18.3.1.2). In an armed conflict the Parties’ right to adopt means of injuring the
enemy is not unlimited (HR art. 22; consider AP I art. 35(1)). LOAC regulates the conduct of hostilities
through principles and rules concerning the means and methods of warfare. The terms means of warfare and
methods of warfare are not synonymous. In general, means of warfare refers to weapons or devices used to
conduct warfare, while methods of warfare refer to how warfare is conducted.
Soldiers and Marines should rely on training and doctrine as LOAC is fundamentally consistent with
military doctrine that is the basis for effective military operations. For example, the legal principle of
proportionality is consistent with the military concept of economy of force.
In U.S. military operations, Rules of Engagement (ROE) are generally reviewed by judge advocates
for consistency with LOAC, and ROE often impose greater restrictions than LOAC. Conforming to ROE
will therefore assist Soldiers and Marines in LOAC compliance. Under the Standing Rules of Engagement,
“[u]nit commanders always retain the inherent right and obligation to exercise unit self-defense in response
to a hostile act or demonstrated hostile intent” (CJCSI 3121.01B). LOAC does not waive this inherent right
of unit self-defense.
DISTINCTION BETWEEN MEANS AND METHODS OF WARFARE
In an armed conflict the right of parties to a conflict to choose means of injuring the enemy is not
unlimited (HR art. 22; consider AP I art. 35(1)). LOAC regulates the conduct of hostilities through principles
and rules concerning the means and methods of warfare. The terms “means of warfare” and “methods of
warfare” are not synonymous. In general, “means of warfare” refer to weapons or devices used to conduct
warfare, while “methods of warfare” refer to how warfare is conducted.
For example, an analysis of a means of warfare might consider the legality of an artillery projectile;
that is, the way in which the projectile is designed to kill or injure enemy combatants. Conversely, a method
of warfare analysis might consider the way in which the artillery projectile may be employed, particularly
where employment may have an adverse effect on the civilian population.
PROTECTION OF CIVILIANS
A fundamental objective of LOAC is to protect civilians—including individuals (if not taking a direct
part in hostilities) and the general population—from the harmful effects of hostilities. In general, civilians
may not be the object of direct (intentional) attack (DOD Law of War Manual, 5.5; consider AP I art. 51(2)).
LOAC attempts to protect civilians by requiring combatants to apply the principles of distinction and
proportionality, including by taking feasible precautions to avoid incidental harm to civilians when making |
6-27 | 42 | Chapter 2
decisions during armed conflicts. Commanders and their staffs utilize the risk management process to make
informed decisions. Commanders should consider risk to mission, resources, and civilians.
PROTECTION OF CIVILIANS: A SHARED RESPONSIBILITY
The protection of civilians is a responsibility shared among all belligerents. Parties conducting attacks
have two duties in particular: First, they must take feasible precautions to reduce the risk of harm to protected
persons and objects. Second, they must refrain from attacks in which the expected harm to civilians and
civilian objects would be excessive in relation to the concrete and direct military advantage expected to be
gained (DOD Law of War Manual, 5.11, 5.12, and 5.14; consider AP I, art. 57(2)). Military commanders and
other officials responsible for the safety of the civilian population have responsibilities as well. They must
take feasible precautions to reduce the risk of harm to protected persons and objects for which they are
responsible. Feasible precautions are those precautions that are practicable or practically possible, taking into
account all circumstances ruling at the time, including humanitarian and military considerations
(CCW Protocol III art. 1, para. 5).
Military commanders attacking enemy military objectives must make reasonable efforts to reduce the
risk of harm to the civilian population when conducting an attack. Military commanders do this by taking
feasible precautions to reduce risk to protected persons and object. Military commanders must refrain from
attacks that are disproportionate (where the expected harm to civilians and civilian objects would be excessive
in relation to the concrete and direct military advantage expected to be gained). Military commanders may
consider all relevant facts and circumstances, including the risk to forces under their command, the integrity
of their command, and their mission in weighing the decision to use military force in any situation when
military forces and civilians are intermingled.
Military commanders and other officials responsible for the safety of the civilian population must, to
the extent feasible, separate the civilian population from military objectives to protect the civilian population
from the effects of combat. Examples of how to do this may include evacuating civilians from known danger
areas and constructing and using air raid shelters (DOD Law of War manual, 5.14; consider AP I art. 58).
The civilian population and individual civilians must not be used to shield military objectives or
operations from attack (DOD Law of War Manual, 5.16; consider AP I art. 51(7)). The party controlling
civilians and civilian objects has the primary responsibility for the protection of civilians and civilian objects,
as it has the greater opportunity to minimize risk of harm to civilians. Civilians may also share in the
responsibility to take precautions for their own protection. Nonetheless, the military commander engaged in
the attack of that military objective remains obligated to take feasible precautions to reduce the risk of harm
to protected persons and objects.
CIVILIANS TAKING A DIRECT PART IN HOSTILITIES
LOAC does not expressly prohibit civilians from taking a direct part in hostilities, but it does provide
that civilians who do take a direct part in hostilities forfeit protection from being directly attacked (DOD Law
of War Manual, 5.8; consider AP I art. 51(3); AP II, art. 13(3)). Civilians who have ceased to take a direct
part in hostilities may not be made the object of attack, but could still be subject to detention for their previous
hostile acts. Such civilians generally do not enjoy the combatant’s privilege—that is, they do not have
combatant immunity, and, if captured, they may be prosecuted for their belligerent acts under the domestic
law of the capturing State.
Civilians engaging in belligerent acts not only forfeit their immunity from direct attack, they also make
it more difficult for military personnel to apply the principle of distinction and thereby can put other civilians
at greater risk.
In the context of when civilians may be directly targeted, neither treaty law nor customary international
law provides a definition of the phrase “direct part in hostilities.” At a minimum, it includes actions that are,
by their very nature and purpose, intended to cause actual harm to the enemy. Taking a direct part in hostilities
extends beyond merely engaging in combat and also includes certain acts that are an integral part of combat
operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain
combat operations. Taking a direct part in hostilities, however, does not encompass the general support that |
6-27 | 43 | Conduct of Hostilities
members of the civilian population provide to their State’s war effort, such as working in a munitions factory
far from the battlefield or buying war bonds.
Whether an act constitutes taking a direct part in hostilities is likely to depend on the context. The
following considerations may be relevant (see DOD Law of War Manual, 5.8.3):
* The degree to which the act causes harm to the opposing party’s persons or objects, such as:
Whether the act is the proximate or “but for” cause of death, injury, or damage to persons or
objects belonging to the opposing party; or
The degree to which the act is likely to adversely affect the military operations or military
capacity of the opposing party.
* The degree to which the act is connected to the hostilities, such as:
The degree to which the act is temporally or geographically near the fighting; or
The degree to which the act is connected to military operations.
* The specific purpose underlying the act, such as:
Whether the activity is intended to advance the interests of one party to the conflict to the
detriment of the opposing party.
* The military significance of the activity to the party’s war effort, such as:
The degree to which the act contributes to a party’s military action against the opposing party;
Whether the act is of comparable or greater value to a party’s war effort than acts that are
commonly regarded as taking a direct part in hostilities; or
Whether the act poses a significant threat to the opposing party.
* The degree to which the activity is viewed inherently or traditionally as a military one, such as:
Whether the activity involves making decisions on the conduct of hostilities, such as
determining the use or application of combat power; or
Whether the act is traditionally performed by military forces in conducting military operations
against the enemy (including combat, combat support, and combat service support functions
of military forces).
EXAMPLES OF TAKING A DIRECT PART IN HOSTILITIES
The following acts are generally considered taking a direct part in hostilities, which deprives civilians
who perform them of the protection against direct attack. These examples are illustrative and not exhaustive
(See DOD Law of War Manual, 5.8.3.1).
* Taking up or bearing arms against the opposing party, or otherwise personally trying to kill, injure,
or capture personnel or damage materiel belonging to the opposing party, such as:
Defending military objectives against enemy attack (for example, manning an antiaircraft gun
or acting as a bodyguard for an enemy combatant);
Acting as a member of a weapons crew;
Engaging in an act of sabotage; or
Emplacing mines or improvised explosive devices.
* Preparing for, moving to, and exfiltrating from combat operations.
* Planning, authorizing, or implementing a combat operation against the opposing party, even if that
person does not personally use weapons or otherwise employ destructive force in connection with
the operation.
* Providing or relaying information of immediate use in combat operations, such as:
Acting as an artillery spotter or member of a ground observer corps or otherwise relaying
information to be used to direct an airstrike or mortar attack; and
Acting as a guide or lookout for combatants conducting military operations.
* Supplying weapons and ammunition, whether to conventional armed forces or armed non-state
groups, or assembling weapons (such as improvised explosive devices) in close geographic or
temporal proximity to their use, such as: |
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Delivering ammunition to the front lines; or
Outfitting and preparing a suicide bomber to conduct an attack.
EXAMPLES OF ACTS NOT CONSIDERED TAKING A DIRECT PART IN HOSTILITIES
The following acts are generally not considered taking a direct part in hostilities that would deprive
civilians who perform them of protection against direct attack. These examples are illustrative and not
exhaustive.
* Expressing mere sympathy or moral support for a party’s cause;
* Making general contributions to a State’s war effort (for example, buying war bonds or paying
taxes to the government that will ultimately be used to fund the armed forces);
* Providing police services (for example, police officers maintaining public order against common
criminals during armed conflict);
* Engaging in independent journalism or public advocacy (for example, opinion journalists writing
columns supporting or criticizing a State’s war effort);
* Working in a munitions factory or other factory supplying weapons, materiel, or other goods
useful to the armed forces of a State but not in geographic or temporal proximity to military
operations; or
* Providing medical care or other impartial humanitarian assistance.
Although performing these activities does not make a person liable to direct attack, performing these
activities does not immunize a person from attack if that person through other activity takes a direct part in
hostilities or is otherwise lawfully made the object of attack (see DOD Law of War Manual, 5.8.3.2).
DURATION OF LIABILITY TO ATTACK
Civilians who have taken a direct part in hostilities must not be directly attacked after they have
permanently ceased their participation because the military necessity for attacking them has passed. The
assessment of whether a person has permanently ceased direct participation in hostilities must be based on a
good faith assessment of the available information. For example, a civilian might engage in an isolated
instance of taking a direct part in hostilities. This isolated instance is likely to involve multiple acts because
taking a direct part in hostilities includes deploying or moving to a position of attack and exfiltrating from an
attack. If this participation, however, was an isolated instance that will not be repeated, then no military
necessity for attacking that person exists after that individual has ceased taking a direct part in hostilities.
Accordingly, the civilian must not be made the object of attack after he or she has ceased taking a direct part
in hostilities. Other legal consequences from this participation may continue, however. For example, civilians
often may be detained, interned, or prosecuted because of these actions.
LOAC, as applied by the United States, gives no “revolving door” protection; that is the off-and-on
protection in a case where a civilian repeatedly forfeits and regains his or her protection from being made the
object of attack in the time period between instances of taking a direct part in hostilities (DOD Law of War
Manual, 5.8.4.2). Thus, civilians who are assessed to be engaged in a pattern of taking a direct part in
hostilities may be made the object of attack without waiting for them to begin their next instance of taking a
direct part in hostilities. A “revolving door” of protection would place these civilians who take a direct part
in hostilities on a better footing than lawful combatants, who may be made the object of attack even when
not taking a direct part in hostilities. The United States has strongly objected to efforts to give the so-called
“farmer by day, guerilla by night” greater protections than those afforded to lawful combatants. Adoption of
such a rule would risk diminishing the protection of the civilian population.
CIVILIANS WHO TAKE A DIRECT PART IN HOSTILITIES AND THE LAW OF ARMED
CONFLICT
Although the concept of direct participation in hostilities may be discussed in contexts besides
targeting, such as in the context of criminal liability or detention, “taking a direct part in hostilities” for
targeting purposes often differs significantly from the standards used for assessing whether a civilian may be
detained or prosecuted. For example, domestic criminal statutes prohibiting support to enemy armed groups |
6-27 | 45 | Conduct of Hostilities
generally criminalize a much broader range of acts than those acts constituting “direct participation in
hostilities” for targeting purposes.
HUMAN SHIELDS
An adversary’s use of human shields can present complex moral, ethical, legal, and policy
considerations. The use of civilians as human shields violates the rule that protected persons may not be used
to shield, favor, or impede military operations (see DOD Law of War Manual, 5.16; consider AP I art. 51(7)).
The party that employs human shields in an attempt to shield military objectives from attack assumes
responsibility for their injury, although the attacker may share this responsibility if they fail to take feasible
precautions in conducting its attack. If civilians are used as human shields, provided they are not taking a
direct part in hostilities, they must be considered as civilians in determining whether a planned attack would
be excessive, and feasible precautions must be taken to reduce the risk of harm to them. However, the enemy
use of voluntary human shields may be considered as a factor in assessing the legality of an attack. Based on
the facts and circumstances of a particular case, the commander may determine that person characterized as
voluntary human shields are taking a direct part in hostilities (see DOD Law of War Manual, 5.12.3.4).
The use of human shields to intentionally shield military objectives should not be understood to
prohibit an attack under LOAC. LOAC should not be interpreted in a way that would perversely encourage
the use of human shields and allow violations by the defending force to increase the legal obligations of the
attacking force. Policy, practice, or mission-specific rules of engagement may provide additional guidance
in this area.
TARGETING AND MILITARY OBJECTIVES
In armed conflict, one of the most difficult tasks for Soldiers and Marines under LOAC is conducting
an attack and making targeting decisions. Parties to a conflict must conduct attacks in accordance with the
principles of distinction and proportionality. Accordingly, LOAC authorizes combatants to make military
objectives the object of an attack, but prohibits directing an attack against civilians not taking a direct part in
hostilities, the civilian population as such, civilian objects, or other protected persons or objects (see DOD
Law of War Manual, 5.4.2; consider API arts. 51(2) and 52(1)).
TARGETING
The LOAC principle of distinction obligates each party to a conflict, in its use of force and conduct of
military operations, to distinguish between military objectives on the one hand and the civilian population
and other protected persons and civilian objects on the other. The principle of distinction applies to each party
to a conflict, whether its armed forces are engaged in offensive or defensive operations.
The principle of distinction does not guarantee the safety of the civilian population or civilian objects.
The risk of injury to civilians or damage to civilian objects increases if either are intermingled with military
objectives, whether unintentionally or intentionally.
Military operations may range from operations occurring in regions nearly devoid of civilians or
civilian objects (such as deserts) to operations in urban areas, where members of the civilian population are
likely to be found and the presence of civilian objects is certain. Similarly, an area normally free of civilians
suddenly may become heavily populated due to an influx of displaced persons who are fleeing the effects of
military operations elsewhere.
Military commanders must be prepared for the possibility of an intermingling of civilians with military
objectives or that some military objectives (in particular, roads and bridges) are objects commonly used by
both the civilian population and military forces. Neither the mere presence of civilians nor intermingling or
common use renders a military objective immune from attack. An object used concurrently for civilian and
military purposes is liable to attack if it is a military objective (see paragraph 2-36 on “Dual-Use Objects”
and paragraphs 2-29 through 2-57 on “Military Objectives” generally). Nor does intermingling or concurrent
use preclude otherwise lawful military options under consideration by military planners. Intermingling or
concurrent use are factors, however, that military commanders and their staffs must consider in planning and
executing military operations through the LOAC principle of proportionality. |
6-27 | 46 | Chapter 2
Military commanders based or operating in urban terrain, or in the vicinity of the civilian population,
should take reasonable steps to separate military units from the civilian population and civilian objects (see
DOD Law of War Manual, 5.14; consider AP I art. 58). This duty does not preclude positioning, locating, or
billeting military forces in urban terrain or other areas where civilians are present when the command has
legitimate military reasons for doing so. For example, troops may be housed in populated areas for health
and sanitation purposes, and to take advantage of pre-existing communications facilities.
In addition, an urban area may become a military objective if it has become a manmade obstacle to
impede or prevent enemy forces’ maneuver or advance. Civilian objects that combatants occupy or utilize
can become military objectives, and belligerent forces may target them lawfully while they are military
objectives. LOAC, however, prohibits positioning military forces among the civilian population when
military necessity does not warrant the increased risk to the civilian population or this positioning is
undertaken solely for the purpose of utilizing the civilian population to shield military forces from attack.
MILITARY OBJECTIVES
An attack may be directed only against a military objective (see DOD Law of War Manual, 5.5). A
military objective refers to certain persons and objects during hostilities 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. Military objectives may be attacked wherever they are located outside of neutral territory, subject
to other LOAC considerations, such as proportionality. Certain classes of persons and objects are
categorically recognized as military objectives, provided the persons are not hors de combat. Apart from
these classes that are categorically military objectives, other objects are assessed as to whether they meet the
definition of “military objective” (DOD Law of War Manual, 5.6).
Certain classes of persons are military objectives and may be made the object of attack. These classes
of persons include: combatants, such as personnel in military ground, air, and naval units, or unprivileged
belligerents, provided they are not hors de combat; and civilians taking a direct part in hostilities. The
following classes of persons are not military objectives: military medical and religious personnel, unless they
commit acts harmful to the enemy; military medical units, unless they have forfeited their protected status;
combatants placed hors de combat; and parlementaires (see paragraphs 7-17 to 7-40 on parlementaires).
“Military objective” is a treaty term synonymous with an object that constitutes a “lawful target.” A
military objective, in so far as objects are concerned, is defined in certain treaties as “any object which by its
nature, location, purpose or use makes 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” (CCW Amended Protocol II art. 2.6; CCW Protocol III art. 1.3; consider AP I, art. 52(2)). The
components of this definition are examined more closely in paragraphs 2-39 through 2-57. This definition
may be viewed as a way of evaluating whether military necessity exists to attack an object. It may also be
applied outside the context of conducting attacks to assess whether the seizure or destruction of an object is
justified by military necessity.
Military objectives may be attacked in any manner consistent with LOAC. The definition sets forth
objective, simple criteria to consider whether an object is a lawful target that may be seized or attacked when
military necessity exists. By its language, the treaty definition of military objective is concerned only with
objects, not individuals. This definition of military objective is relevant and applicable to objects other than
military bases and equipment, which are per se military objectives. Military bases and equipment (other than
military medical and religious facilities) may be attacked at any time, wherever located, as lawful targets,
without analyzing whether they are military objectives (subject to targeting precautions to protect civilians
not taking a direct part in hostilities and civilian objects).
Likewise, a combatant (such as a member of a military ground, air, or naval unit, or an unprivileged
belligerent) is a military objective who may be attacked at any time (subject to targeting precautions to protect
civilians not taking a direct part in hostilities and civilian objects), wherever located, regardless of the activity
in which he or she is engaged at the time, provided he or she is not hors de combat. Civilians taking a direct
part in hostilities are also military objectives and similarly may be made the object of attack. |
6-27 | 47 | Conduct of Hostilities
As seen in the list of traditional military objectives in paragraph 2-56, military objectives are not
limited to military bases, units, equipment, or forces, but can include other objects that make an effective
contribution to an opposing party’s ability to wage war.
The term “military target” is a more limited term, as well as redundant, and should not be used.
Moreover, the term “civilian target” is an oxymoron and should not be used inasmuch as a civilian object is
not a military objective and therefore is immune from intentional attack. If sufficient military necessity exists
to justify attacking an object because that objects meets the definition of military objective, then imperative
military necessity would also exist to justify seizing or destroying that object by measures short of attack (see
paragraphs 2-189 through 2-194).
Dual-Use Object
Sometimes, “dual-use” is used to describe objects that are used by both the armed forces and the
civilian population, such as power stations or communications facilities. From the legal perspective, however,
such objects are either military objectives or they are not; there is no intermediate legal category of “dual
use.” If an object is a military objective, it is not a civilian object and may be made the object of attack. When
the attack on a military objective will impact the civilian population or civilian objects, commanders must
conduct a proportionality analysis (see DOD Law of War Manual, 5.6.1.2).
Objectives That Are Not Enemy Military Bases or Equipment
Insofar as objects are concerned, if the objective is not an enemy military base, military equipment,
other type of object that is categorically recognized as a military object, such as military facilities or objects
containing military objectives, applying the definition of military objective requires a two-part test. Both
parts must apply before an object that is normally a civilian object may be considered a military objective:
(1)that the object somehow “makes an effective contribution to military action”; and (2) that attacking the
object, in the circumstances ruling at the time, offers a definite military advantage (see DOD Law of War
Manual, 5.6.5).
Generally, the reason why the object meets the first part of the definition also satisfies the second part
of the definition. In other words, attacking the object in the circumstances ruling at the time would offer a
definite military advantage because it could preclude the object from effectively contributing to the enemy’s
military action. The two parts are not necessarily connected, however, because the concept of definite military
advantage is broader than simply denying the adversary the benefit of an object’s effective contribution to its
military operations. These broader aspects of “military advantage” also may be relevant in evaluating whether
an attack is expected to be excessive under the principle of proportionality.
By Its Nature, Location, Purpose, or Use Makes an Effective Contribution to Military Action
The first part of the test is whether the object, by its nature, location, purpose, or use makes an effective
contribution to the enemy’s military action.
Nature, Location, Purpose, or Use. The nature, location, purpose, or use of the object may contribute
to the object making an effective contribution to the enemy’s military action. The issue is whether, in total,
an effective contribution is made; one factor alone need not provide the effective contribution. In addition,
nature, location, purpose, or use need not be viewed as mutually exclusive concepts; rather, these concepts
may be understood to overlap.
Nature refers to the type of object and may be understood to refer to objects that are per se military
objectives. For example, military equipment and facilities, by their nature, make an effective contribution to
military action. On the other hand, “nature” also may be understood to refer to objects that because of their
intrinsic nature may be used for military purposes.
Location includes areas that are militarily important because they must be captured from or denied to
an enemy, or because the enemy must be made to surrender or retreat from them. An area of land, such as a
mountain pass, or a like route through or around a natural or manmade obstacle, may be a military objective.
A town, village, or city may become a military objective, even if it does not contain military objectives, if its |
6-27 | 48 | Chapter 2
seizure is necessary (for example, to protect a vital line of communications) or for other legitimate military
reasons.
Use refers to the object’s present function. For example, using an otherwise civilian building to billet
combatant forces makes the building a military objective. Similarly, using civilian equipment and facilities
for military purposes, such as using them as a command and control center or a communications station,
would result in such objects becoming military objectives because they provide an effective contribution to
the enemy’s military action.
Purpose means the intended or possible use in the future. A decision to classify an object as a military
objective does not depend on its present use. The potential or intended future use of an otherwise civilian
object for military purposes may make it a military objective. For example, runways at a civilian airport could
qualify as military objectives because they may be subject to immediate military use in the event runways at
military air bases have been rendered unserviceable or inoperable.
Makes an Effective Contribution to Military Action. The words “nature, location, purpose, or use”
allow for wide discretion, but whether an object is a military objective is subject to qualifications stated later
in the definition, that is, it “must make an effective contribution to military action” and its destruction,
capture, or neutralization must offer a “definite military advantage.” “Effective contribution” and “military
advantage” do not have to have a geographical connection between them. Attacks on military objectives in
the enemy rear and diversionary attacks away from the area of military operations as such (the “contact
zone”) are lawful.
Military action is used in the ordinary sense of the words and is not intended to encompass a limited
or specific military operation. Military action has a broad meaning and is understood to mean the general
prosecution of the war. To be a military objective does not require that the attack of the object provide
immediate tactical or operational gains or that the object make an effective contribution to a specific military
operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an
opposing force is sufficient. Although terms such as war fighting, war supporting, and war sustaining are not
explicitly reflected in the treaty definition of military objective, the United States has interpreted the military
objective definition to include these concepts.
Whose Total or Partial Destruction, Capture, or Neutralization, in the Circumstances Ruling at
the Time, Offers a Definite Military Advantage
In addition to the object making an effective contribution to the adversary’s military action, the attack
of the object must also, in the circumstances ruling at the time, offer a definite military advantage for the
object to be considered a military objective.
Capture or Neutralization. The definition of military objective incorporates considerations beyond
whether an object’s destruction is justified. It also incorporates considerations of whether the object’s capture
or neutralization would offer a military advantage. “Capture” refers to the possibility that seizure during the
attack (rather than destruction) would confer a military advantage. For example, a city may be a military
objective and thereby captured because of its strategic location. “Neutralization” refers to a military action
that denies an object to the enemy without capturing or destroying it. For example, a specific area of land
may be neutralized by emplacing landmines on or around it, and thus denying it to the enemy.
The phrase “in the circumstances ruling at the time” is essential. For example, if enemy forces have
taken up position in a building that otherwise would be regarded as a civilian object, such as a school or retail
store, the building has become a military objective. The circumstances ruling at the time—that is, the military
use of the building—permits its attack. If, however, enemy military forces abandon the building, the change
of circumstances precludes its attack if it no longer satisfies the definition of a military objective.
Definite Military Advantage. “Definite” means a concrete and perceptible military advantage, rather
than one that is merely hypothetical or speculative. A military commander may regard this requirement as
met in seeking to attack, capture or neutralize objects with a common purpose in order to deny their use to
the enemy. An example is the attack of all bridges on lines of communication the enemy is using, or may use
as alternate lines of communication, in order to reinforce or resupply the enemy’s forces. The advantage need
not be immediate. For example, the military advantage in the attack of an individual bridge may not be seen |
6-27 | 49 | Conduct of Hostilities
immediately (particularly if, at the time of the attack, no military traffic is in the area), but can be established
by the overall effort to deny the enemy use of bridges in order to isolate enemy military forces on the
battlefield.
Military advantage refers to the advantage anticipated from an attack when considered as a whole, and
not only from its isolated or particular parts. Similarly, military advantage is not restricted to immediate
tactical gains but may be assessed in the full context of war strategy. It may involve a variety of
considerations, including the security of the attacking force. The definite military advantage offered by
damaging, destroying, or neutralizing the object may result from denying the enemy the ability to use this
object in its military operations (that is, to benefit from the object’s effective contribution to the military
action). For example, the attack or capture of objects with a common military purpose, such as bridges used
or available for use in lines of communication, would offer a definite military advantage.
The military advantage from an attack is broader than only denying the enemy the benefit of that
object’s contribution to its military action. For example, in a diversionary attack, the military advantage to
be gained from attacking an object would result from diverting the enemy’s resources and attention. The
military advantage from an attack may involve a variety of other considerations, including improving the
security of the attacking force. The military advantage from an attack may result from harm to enemy forces’
morale. Diminishing the morale of the civilian population and their support for the war effort does not provide
a definite military advantage, but its incidental effect is not illegal.
Doubt as to Status of a Person or Object as a Military Objective
Attacks may not be launched against a civilian or civilian object based on merely hypothetical or
speculative considerations regarding its possible current status as a military objective. In assessing whether
a person or object that normally does not have any military purpose or use is a military objective, commanders
and other decision-makers must make the decision in good faith based on the information available to them
in light of the circumstances ruling at the time (DOD Law of War Manual, 5.4.3.2).
In the context of conducting attacks, Additional Protocol I reflects a presumption in favor of civilian
status in cases of doubt. Article 52(3) of AP I provides that “[i]n case of doubt whether an object which is
normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is
being used to make an effective contribution to military actions, it shall be presumed not to be so used.”
Article 50(1) of AP I provides that “[i]n case of doubt whether a person is a civilian, that person shall be
considered to be a civilian.” In applying the API rules on “doubt,” some Parties to API have interpreted it to
mean “substantial doubt” (DOD Law of War Manual, 5.4.3.2). The Department of Defense has expressed it
concerns with these AP I articles, as under customary international law no legal presumption of civilian status
exists for persons or objects, nor is there any rule inhibiting commanders or other military personnel from
acting based on the information available to him or her in doubtful cases (DOD Law of War Manual, 5.4.3.2).
The Army and Marine Corps, as a matter of practice due to operational and policy reasons, generally take a
more restrictive view than required under LOAC. In cases of doubt whether a person or object is a military
objective, Soldiers and Marines should consider that person or object as a civilian or civilian object.
Doubt frequently exists in combat, often induced by lawful acts of enemy deception. Although
technology has advanced, the ability of military commanders to gain a greater intelligence estimate of “what
is [or may be] on the other side of the hill” often is limited, and doubt is seldom removed entirely.
Accordingly, a commander will make a measured decision, in good faith based upon information available
and the prevailing circumstances ruling at that time.
PERSONS AND OBJECTS OFTEN REGARDED AS MILITARY OBJECTIVES
Following is a list of persons and objects, including military bases, units, and equipment, that have
often been regarded as military objectives. The first two are exclusively military in nature and therefore are
always military objectives. The remaining objects may become military objectives if they meet the definition
set forth in paragraph 2-31:
* Military ground, air, and naval equipment (other than medical units, equipment, or transport), to
include vehicles, ships, weapons, munitions, and supplies. |
6-27 | 50 | Chapter 2
* Military ground, air, and naval units and army, air, and naval bases (other than medical facilities
and POW camps), whether used for training, billeting, or staging, or for offensive or defensive
purposes, to include headquarters, command and control centers, defense ministries, or
intelligence establishments.
* Facilities used by enemy leaders as headquarters for military operations or otherwise to command
military operations. In some cases, enemy leaders themselves may be made the object of attack.
* Communications objects (such as facilities, networks, and equipment), that could be used for
command and control of military operations or intelligence gathering.
* Economic objects associated with military operations or with war-supporting or war-sustaining
industries, to include power sources and oil refining and distribution facilities and objects
associated with petroleum, oil, and lubricant products (including production, transportation,
storage, and distribution facilities).
* Transportation objects, to include facilities (for example, port facilities and airfields) and
equipment that could be part of lines of communication (for example, highways, railroads,
waterways, and bridges connecting military forces with logistics depots and storage areas).
* Geographic areas or features of land that are military significant, to include road networks; known
or suspected enemy avenues of approach or withdrawal; mountain passes, hills, defiles, and
bridgeheads; and villages, towns, or cities whose seizure or defense is militarily important.
The following persons and objects are not military objectives and so are protected from being made
the object of attack, so long as those protections have not been forfeited:
* Individual civilians and the civilian population as such;
* Military medical personnel and chaplains (see Chapter 4 for rules governing these personnel);
* Individuals who are hors de combat;
* Civilian objects or other protected objects, that is, all objects that are not military objectives;
* Medical units, transport, and equipment (see Chapter 4 for rules governing these objects); and
* Undefended villages, towns, and cities (see paragraphs 2-122 through 2-129).
COMBATANTS
In general, combatants, whether privileged or unprivileged, may be made the object of attack at all
times regardless of their activity, provided they have not been placed hors de combat.
ARMED FORCES AND GROUPS AND LIABILITY TO BEING MADE THE OBJECT OF ATTACK
Membership in the armed forces or belonging to armed groups, that is, affiliation with these groups,
makes a person liable to being made the object of attack regardless of whether he or she is taking a direct
part in hostilities. Moreover, the individual, as an agent of the hostile group, may be assigned a combat role
at any time, even if the individual normally performs other functions for the group. Thus, with limited
exceptions, combatants may be made the object of attack at all times, regardless of the activities in which
they are engaged. For example, enemy combatants who are standing in a mess line, engaging in recreational
activities, or sleeping remain the lawful object of attack. Exceptions include personnel who are hors de
combat (see paragraphs 2-106 through 2-116) and provisions for communication with the enemy and special
agreements with the enemy (see Chapter 7).
CATEGORIES OF PERSONS WHO ARE COMBATANTS FOR THE PURPOSE OF ASSESSING
THEIR LIABILITY TO ATTACK
For the purpose of assessing liability to attack, the following categories of persons are enemy
combatants who may be made the object of attack based on their affiliation with armed forces or armed
groups:
* Members of the armed forces of a State and members of the regular armed forces of a government
or authority not recognized, except for full-time medical and religious personnel;
* Members of militia and volunteer corps; |
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* Participants in a levée en masse;
* Persons belonging to non-state armed groups (see paragraphs 2-61 through 2-65); and
* Leaders whose responsibilities include the operational command and control of the armed forces
of a State or of a non-State armed group (see paragraphs 2-66 through 2-67).
PERSONS BELONGING TO NON-STATE ARMED GROUPS
In some cases, formal or direct information may indicate an individual has membership in an armed
group (for example, information that an individual has sworn allegiance to the group). This may include—
* Adopting a rank, title, or style of communication;
* Taking an oath of loyalty to the group or the group’s leader;
* Wearing a uniform or other clothing, adornments, or body markings that identify members of the
group; or
* Possessing documents issued by or belonging to the group identifying the individual as a member,
such as an identity card or membership list.
Other Indicia of Membership
Although in some cases members of non-State armed groups may wear distinctive emblems and
devices, in many cases members of these groups seek to conceal their affiliation with that group. In such
cases, the following may indicate that a person is a member of a non-State armed group:
* Acting at the direction of the group or within its “command structure”;
* Performing a function for the group that is analogous to a function normally performed by a
member of a State’s armed forces;
* Taking a direct part in hostilities, with the frequency, intensity, and duration of such participation
as important factors in assessing the strength of this indicator;
* Accessing facilities, such as safe-houses, training camps, or bases used by the group that outsiders
would not be permitted to access;
* Traveling along specific clandestine routes used by those groups; or
* Traveling with members of the group in remote locations or while the group conducts operations.
Functional or Constructive Membership
Some non-State armed groups might not be organized with a formal command structure, as generally
is required for POW status. Such groups may lack a formal distinction between those members and non-
members who nonetheless participate in the hostile activities of the group. An individual who is integrated
into the group may be deemed to be functionally or constructively part of the group, even if not formally a
member of the group. The integration of the individual into the non-State armed group and the inference that
the individual shares the group’s intention to commit hostile acts distinguishes such an individual from others
who are merely sympathetic to the group’s goals but have not taken steps to otherwise integrate with the
group.
The following may indicate that an individual is functionally or constructively a member of a non-
State armed group:
* Following directions issued by the group or its leaders;
* Taking a direct part in hostilities on behalf of the group on a sufficiently frequent or intensive
basis; or
* Performing tasks on behalf of the group similar to those provided in a combat, combat support, or
combat service support role in the armed forces of a State.
Dissociation or Renunciation
A person may not be made the object of attack based on affiliation with a non-State armed group if
that affiliation clearly has been severed. Relevant factors that may be used in determining when an individual
has unambiguously ceased to be a member of a non-State armed group may include: |
6-27 | 52 | Chapter 2
* Whether the individual has formally ceased to be a member of the group such as by filing relevant
paperwork or by otherwise formally renouncing any allegiance to the group;
* Whether concrete and verifiable facts or persuasive indicia demonstrate that the individual has
affirmatively returned to peaceful pursuits, such as by participating in a reconciliation program or
swearing an oath of loyalty to the government; and
* The amount of time that has passed since the person participated in the activities of the group in
question, if coupled with other indicia of dissociation or renunciation.
LEADERS
Military leaders may be subject to attack on the same basis as members of the armed forces. Leaders
of non-State armed groups are subject to attack on the same basis as members of the group. Enemy leaders
who are not members of an armed force or armed group (including Heads of State, civilian officials, and
political leaders) may be made the object of attack if their responsibilities include the operational command
or control of the armed forces or the armed group. For example, as the commander-in-chief of the U.S. armed
forces, the President would be a legitimate target in wartime, as is, for example, the prime minister of a
constitutional monarchy. Attacks against them would not constitute assassination. In contrast, the reigning
monarch of a constitutional monarchy with an essentially ceremonial role in State affairs may not be made
the object of attack.
In addition to leaders who have a role in the operational chain of command, leaders taking a direct part
in hostilities also may be made the object of attack. Planning or authorizing a combat operation is an example
of taking a direct part in hostilities. As a matter of practice, attacks on the national leadership of an enemy
State have often been avoided on the basis of comity and to help ensure that authorities exist with whom
peace agreements may be concluded.
PROPORTIONALITY IN CONDUCTING ATTACKS – EXCESSIVE
INCIDENTAL HARM AND FEASIBLE PRECAUTIONS
In accordance with the principle of proportionality, combatants must not exercise the right to engage
in attacks against military objectives in an unreasonable or excessive way. Therefore, when conducting an
attack, combatants must exercise due regard to reduce the risk of incidental harm to the civilian population
and other persons and objects that may not be made the object of attack. In particular, the following rules
apply: (1) combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians,
and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and
direct military advantage anticipated to be gained (DOD Law of War Manual, 5.12; consider AP I, art,
51(5)(b)); and (2) combatants must take feasible precautions in planning and conducting attacks to reduce
the risk of harm to civilians and other persons and objects protected from being made the object of attack
(DOD Law of War Manual, 5.11; consider AP I, art. 57).
GENERAL NOTES ON APPLYING PROPORTIONALITY IN CONDUCTING ATTACKS
In conducting attacks, the principle of proportionality imposes duties that apply when civilians or
civilian objects are expected to be harmed from attacks on military objectives. It would not impose
obligations intended to reduce the risk of harm to military objectives when civilians or civilian objects are
not expected to be harmed.
LOSS OF LIFE, INJURY, AND DAMAGE TO PROPERTY
In conducting attacks on military objectives, the prohibition on attacks expected to cause excessive
incidental harm addresses the expected incidental loss of civilian life, injury to civilians, and damage to
civilian property. The expected loss of civilian life, injury to civilians, and damage to civilian objects is
generally understood to mean such immediate or direct harms foreseeably resulting from the attack. Lesser
forms of harm, such as mere inconveniences or temporary disruptions to civilian life need not be considered
in applying the proportionality rule. Similarly, remote harms that could result from the attack do not need to
be considered in a proportionality analysis. For example, the death of enemy combatants may cause economic |
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and emotional harm to their family; such loss would not need to be considered in the proportionality analysis.
Similarly, the possibility that munitions might not detonate as intended and might injure civilians much later
after the attack would not need to be considered in the attacker’s proportionality analysis because the harm
is too remote (See DOD Law of War Manual, 5.12.1.2 and 5.12.1.3).
PROPORTIONALITY IN TARGETING—HARM TO BE CONSIDERED
The principle of proportionality imposes duties that apply to the protection of persons and objects that
may not be made the object of attack. Harm to certain categories of persons and objects are not considered
in applying the prohibition on attacks expected to cause excessive incidental harm, such as military objectives
and military medical and religious personnel and military medical units and facilities.
Incidental Harm—Military Objectives
The principle of proportionality does not impose an obligation to reduce the risk of harm to military
objectives. For example, an attack against an enemy combatant might also injure other enemy combatants
who were not the specific targets of the attack. There is no obligation under the principle of proportionality
to reduce the likelihood of harm to other enemy combatants or other military objectives, even if such harm
was an unintended result of the attack (see DOD Law of War Manual, 5.10.1.1).
Incidental Harm—Military Medical and Religious Personnel
Military medical units and facilities and medical and religious personnel, due to their presence among
or in proximity to combatant elements actually engaged are excluded from the proportionality analysis. These
units, facilities and personnel are deemed to have accepted the risk of harm due to their proximity to military
operations, but feasible precautions must be taken to reduce the risk of their harm.
Since it is accepted that the defender may employ these persons to support military operations near or
within military objectives, the attacker is not required to assess those persons as incidental harm in its
proportionality analysis. These persons need not be considered as incidental harm in a proportionality
analysis because the obligation of the attacker is related to the corresponding obligation of the defender to
take feasible precautions to reduce incidental harm. If these persons could have the effect of prohibiting
attacks by the attacking force, then the defending force that added such persons to its forces would be
unlawfully using the presence of such persons to shield its operations or its military objectives from attack.
If that were the case, the defending force would then have a corresponding obligation not to employ these
persons near its forces so as to reduce incidental harm and instead to remove them from areas of military
operations.
Excluded From Incidental Harm—Harm Resulting from Enemy Action, or Beyond the Control
of Either Party
The harm caused by the attacking forces’ actions in conducting the attack must be considered. Persons
or objects harmed through action directly attributable to enemy action, or beyond the control of either party,
would be excluded from the attacking force’s proportionality analysis. For example, civilians injured or killed
in the crash of an attacking aircraft downed by enemy air defenses or by enemy air defense measures, such
as spent surface-to-air measures or antiaircraft projectiles, would not be considered in the attacking force’s
proportionality analysis. Similarly, the risk to the civilian population from the legitimate deception activities
of the defending force, such as jamming, obscurants, or chaff, would need not be considered by the attacking
force, although the defending force should consider such risks as part of its obligations to take feasible
precautions in defense (see DOD Law of War Manual, 5.12.1.4).
“EXCESSIVE”
Under the principle of proportionality, the potential attack against enemy combatants or other military
objectives is prohibited when the expected incidental harm is excessive in relation to the concrete and direct
military advantage expected to be gained. The weighing or comparison between the expected incidental harm
and the anticipated military advantage does not necessarily lend itself to empirical analyses. On the one hand,
striking an ammunition dump or a terrorist training camp would not be prohibited because a farmer is plowing |
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a field in the area. On the other hand, an extraordinary military advantage would be necessary to justify an
operation posing risks of collateral death or injury to thousands of civilians (see DOD Law of War Manual,
5.12.3).
Civilian Workers Who Support Military Operations In or On Military Objectives
In general, reasonable steps must be taken to separate the civilian population from military objectives.
However, sometimes civilian personnel work in or on military objectives in order to support military
operations. Provided such civilian workers are not taking a direct part in hostilities, those determining
whether a planned attack is excessive must consider such workers, and feasible precautions must be taken to
reduce the risk of harm to them (see DOD Law of War Manual, 5.12.3.3).
Use of Human Shields
An adversary’s use of human shields can present complex moral, ethical, legal and policy
considerations. The use of human shields violates the rule that protected persons may not be used to shield,
favor, or impede military operations. If civilians are being used as human shields, provided they are not
taking a direct part in hostilities, they must be considered as civilians in determining whether a planned attack
would be excessive and feasible precautions must be taken to reduce the risk of harm to them. However, the
enemy use of voluntary human shields may be considered as a factor in assessing the legality of an attack.
Based on the facts and circumstances of a particular case, the commander may determine that persons
characterized as voluntary human shields are taking a direct part in hostilities (see DOD Law of War Manual,
5.12.3.4).
“CONCRETE AND DIRECT MILITARY ADVANTAGE EXPECTED TO BE GAINED”
The expected military advantage gained from an attack must be “concrete and direct.” The
considerations in assessing a “definite military advantage” in the definition of “military objective” are also
relevant in assessing the “concrete and direct military advantage expected to be gained” (see paragraphs 2-
47 through 2-52). The military advantage does not need to be “immediate,” but it may not be merely
hypothetical or speculative. Similarly, military advantage is not restricted to immediate tactical gains, but
may be assessed in the full context of the war strategy. The military advantage anticipated from an attack is
intended to refer to an attack considered as a whole, rather than only to isolated or particular parts of an
attack.
Military advantage may involve a variety of considerations. Examples include: denying the enemy the
ability to benefit from an object’s effective contribution to its military action (perhaps by keeping the enemy
from using this object in its military operations); improving the security of the attacking force; and diverting
the enemy’s resources or attention.
The military advantage expected to be gained from an attack might not be readily apparent to the enemy
or to outside observers because, for example, the expected military advantage might depend on the
commander’s strategy or assessments of classified information.
FEASIBLE PRECAUTIONS IN PLANNING AND CONDUCTING ATTACKS TO REDUCE THE RISK
OF INCIDENTAL HARM
In planning and conducting attacks, combatants must take feasible precautions to reduce the risk of
incidental harm (see DOD Law of War Manual, 5.11; consider AP I art. 57). What precautions are feasible
depends greatly on the context, including operational considerations. Examples of precautions in conducting
attacks that may be feasible sometime include: warning before attack, adjusting the timing of the attack,
selecting certain weapons to use in the attack, assessing the risk to civilians, identifying zones in which
military objectives are more likely to be present or civilians are more likely to be absent, and canceling or
suspending an attack based on new information that raises concerns of expected civilian casualties (see DOD
Law of War Manual, 5.11). |
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Warning Before Attack
Unless circumstances do not permit, effective advance warning must be given of an attack that may
affect the civilian population (see DOD Law of War Manual, 5.11.5; HR art. 26; Hague IX art. 6; consider
AP I art. 57(2)(c)).
Effective Advance Warning
LOAC has no set form for warnings. Warnings may be general, communicated to the national
leadership of the enemy State, or delivered to the civilian population through military information support
operations (MISO), to advise the civilian population of risk of injury if they remain near military objectives.
Giving the specific time and place of an attack is not required. Warnings have been used by U.S. forces
conducting bombardments in prior conflicts, such as World War II, the Korean War, the 1990-1991 Gulf
War, the 2003 Iraq War, and the armed conflict against al Qaeda, the Taliban, and associated forces.
That May Affect the Civilian Population
The purpose of warning is to facilitate the protection of the civilian population so that it can take
measures to avoid the dangers inherent in military operations. If the civilian population will not be affected,
then there is no obligation to provide a warning to facilitate their protection.
Unless Circumstances Do Not Permit
A warning is not required if circumstances do not permit. Such circumstances include legitimate
military reasons, such as exploiting the element of surprise in order to provide for mission accomplishment
and preserve the attacking force.
Adjusting the Timing of the Attack
Adjusting the timing of an attack may reduce the risk of incidental harm (see DOD Law of War Manual,
5.11.3; consider AP I art. 57(2)(b)). For example, attacking a military objective when civilians are less likely
to be present may be appropriate. Similarly, waiting until enemy forces have departed from populated areas
before attacking such forces may be appropriate in order to reduce the risk of incidental harm to civilians and
civilian objects.
Selecting Weapons (Weaponeering)
Depending on the circumstances, the use of certain weapons rather than others may lower the risk of
incidental harm while offering the same or superior military advantage in neutralizing or destroying a military
objective. For example, employing incendiary weapons may be advantageous in attacking an adversary’s
repository of biological weapons so as to prevent the biological agents from adversely affecting the civilian
population. Similarly, under certain circumstances, using precision-guided munitions may be advantageous
to minimize the risk of incidental harm.
As with other precautions, the decision on which weapon to use will be subject to many practical
considerations, including effectiveness, cost, and the need to preserve capabilities for other engagements. For
example, a commander may decide not to use precision-guided munitions because he or she determines it is
necessary to preserve that capability for another engagement.
LAWFULNESS OF CERTAIN METHODS OF WAGING WARFARE
This section examines LOAC rules governing attacks against military objectives, attacks that could
unleash dangerous forces, protections for undefended population centers, starvation, and environmental
concerns. |
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ATTACK OF ENEMY MILITARY OBJECTIVES AND PERSONNEL
Combatants may conduct assaults, bombardments, and other attacks, but a number of rules govern
these operations. Parties to a conflict must conduct attacks in accordance with the principles of distinction
and proportionality. In particular, the following rules must be observed:
* Combatants may make military objectives the object of attack, but may not direct attacks against
civilians, civilian objects, or other protected persons and objects. (Civilians directly participating
in the hostilities, however, may be made the object of attack.) This applies the principle of
distinction.
* Combatants may not conduct attacks that are expected to result in incidental harm to civilians or
civilian objects that is excessive in relation to the concrete and direct military advantage
anticipated to be gained. This applies the principle of proportionality.
* Combatants must take feasible precautions in planning and conducting attacks to reduce the risk
of harm to civilians and other persons and objects protected from being made the object of attack.
* Combatants must assess in good faith the information that is available to them when conducting
attacks.
* Combatants may not kill or wound by acts of perfidy (discussed in paragraphs 2-152 through 2-
153). This applies the principle of honor.
Specific rules apply to the use of certain types of weapons. For instance, the Amended Mines Protocol
(CCW Amended Protocol II), places restrictions on the use of anti-personnel landmines, booby-traps, and
other devices. Similarly, CCW Protocol III places restrictions on the use of incendiary weapons. The
Department of Defense helps ensure that its armed forces only have legal weapons available for use by having
a policy that requires a legal review on the acquisition or procurement of all new U.S. weapons, munitions,
and weapons systems (see paragraphs 2-201 through 2-216).
Failure of Defender to Separate or Distinguish Does Not Relieve Attacker of the Duty to
Discriminate in Conducting Attacks
A party that is subject to attack might fail to take feasible precautions to minimize the harm to civilians,
such as by separating the civilian population from military objectives. In some cases, a party to the conflict
might attempt to use the presence or movement of the civilian population or individual civilians in order to
shield military objectives from seizure or attack. When enemy persons engage in such behavior, commanders
should continue to seek to discriminate in conducting attacks and to take feasible precautions to reduce the
risk of harm to the civilian population and civilian objects. This enemy conduct, however, will diminish the
ability to discriminate and to reduce the risk of harm to the civilian population.
Permissible Location of Attacks
In general, attacks may be conducted against military objectives wherever located outside neutral
territory. Attacks, however, may not be conducted in special zones established by agreement between the
belligerents, such as hospital, safety, or neutralized zones.
Attacks on military objectives in the enemy rear areas or diversionary attacks away from the current
theaters or zones of active military operations are lawful. LOAC does not require that attacks on enemy
military personnel or objectives be conducted near on-going fighting, in a theater of active military
operations, or in a theater of active armed conflict. For policy or operational reasons, military orders, such as
applicable rules of engagement, may limit the locations where attacks may be conducted.
Force That May Be Applied
In the absence of expected harm to civilians and civilian objects or of the wanton destruction that is
not justified by military necessity, LOAC imposes no limit on the degree of force that may be directed against
enemy military objectives, including enemy military personnel. For example, LOAC does not require
combatants to apply a use-of-force continuum or to employ the least harmful means, such as by attempting
to capture enemy combatants before using deadly force against them. In addition, combatants need not warn
enemy combatants before attacking, and combatants need not offer opponents an opportunity to surrender |
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before carrying out an attack. In particular, the following practices are not prohibited: surprise attacks
(paragraph 2-97); attacks on retreating forces (paragraph 2-98); harassing fires (paragraph 2-99); and attacks
on specific individuals (paragraph 2-100).
Surprise Attacks
LOAC does not prohibit the use of surprise to conduct attacks, such as the use of surprise in ambushes,
sniper attacks, air raids, and attacks by special operations forces carried out behind enemy lines. LOAC does
not require that an enemy combatant be warned before being attacked. Rather, warning requirements only
apply with respect to the civilian population and other certain protected units, vessels, and facilities, such as
military medical facilities (see paragraphs 2-83 through 2-86).
Attacks on Retreating Forces
Enemy combatants remain liable to attack when retreating. Retreat is not the same as surrender.
Retreating forces remain dangerous as the enemy force may recover to counterattack, consolidate a new
defensive position, or assist the war effort in other ways. Retreat also may be a ruse. Retreating enemy
combatants may have the same amount of force brought to bear upon them as an attacking military force,
and a military commander is under no obligation to limit force directed against enemy combatants because
they are, or appear to be, in retreat.
Harassing Fires
Although attacks to terrorize the civilian population are prohibited, harassing fires against enemy
combatants are not prohibited. Harassing fires are delivered on enemy locations for the purpose of disturbing
enemy forces’ rest, curtailing their movement, or lowering their morale.
Attacks on Specific Individuals
Military operations may be directed against specific enemy combatants. Often U.S. forces have
conducted such operations (for example, the attacks against Osama bin Laden and Abu Musab Al Zarqawi).
Siege
It is lawful to besiege enemy forces, i.e., to encircle them with a view towards inducing their
surrender by cutting them off from reinforcements, supplies, and communications with the outside world.
The conduct of a siege or encirclement may require the imposition of measures of control to ensure that
outsiders may not deliver supplies to the enemy. Thus, the right to conduct a siege or encirclement impliedly
recognizes the authority of the military commander to exercise control, such as stopping, searching, and
diverting traffic) over civilians and other persons in the immediate vicinity of military operations (DOD Law
of War Manual, 5.19.1).
A force besieging enemy forces may bar all communications and access between the besieged place
and the outside. LOAC, however, requires belligerent States to make reasonable, good-faith efforts to
conclude local agreements for the removal of wounded, sick, infirm and aged persons, children, and maternity
cases from the besieged or encircled area and to permit the passage of ministers of all religions, medical
personnel, and medical equipment to such areas (GC art. 17). In the past, it was permissible, but an extreme
measure, to refuse to allow civilians to leave a besieged locality and to use force to drive any who attempted
to flee back into the besieged locality. However, such actions are now prohibited because they are
inconsistent with the duty to take feasible precautions for the protection of civilians (see DOD Law of War
Manual, 5.19.4.1).
Denial of Quarter Prohibited
It is forbidden to declare that no quarter will be given (see HR art. 23(d)). This means that it is
prohibited to order that legitimate offers of surrender will be refused or that detainees, such as unprivileged
belligerents, will be summarily executed. Moreover, it also is prohibited to conduct hostilities on the basis
that there shall be no survivors, or to threaten the adversary with the denial of quarter. |
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Obligation of Combatants to Distinguish Themselves When Conducting Attacks
Combatants have an obligation to distinguish themselves that include, but not limited to, when they
conduct attacks. For example, militia and volunteer corps must wear fixed, distinctive insignia recognizable
at a distance, including when they are conducting attacks. In addition, combatants may not kill or wound by
resort to perfidy. Combatants may not fight in the enemy’s uniform. Lastly, because they fail to distinguish
themselves as enemy combatants, persons engaged in spying or sabotage lack combatant immunity and so
risk penalties under the domestic law of enemy States.
Although military personnel generally conduct military operations while wearing uniforms or other
distinctive emblems, there may be occasions, such as a surprise attack by enemy forces, when they are unable
to dress in their uniforms before resisting the enemy’s assault. Military personnel may resist an attack so long
as they are not wearing the enemy’s uniform and do not kill or wound treacherously, such as by deliberately
seeking to feign civilian status or other protected status while fighting. For example, military personnel who
resist the attack and do not purposefully seek to conceal their status as combatants commit no violation of
LOAC and remain entitled to the privileges of combatant status. The normal wear of uniforms or other
distinctive emblems, however, should resume as soon as practicable because such wear helps protect the
civilian population from erroneous attack by helping to distinguish military forces from the civilian
population. In addition, combatants may employ non-standard uniforms (for example Special Operations
Forces may do this to blend in with the indigenous forces they advise, while distinguishing themselves from
the civilian population).
Persons Placed Hors de Combat
Persons, including combatants placed hors de combat (“out of the battle”; see DOD Law of War
Manual, 5.9; consider AP I art. 41) may not be made the object of attack. Persons placed hors de combat
include the following categories of persons who are incapable of defending themselves, provided they abstain
from any hostile act and do not attempt to escape:
* Persons in the power of an adverse party (paragraph 2-107);
* Persons not yet in custody, who have surrendered (paragraphs 2-108 through 2-112);
* Persons who have been rendered unconscious or otherwise incapacitated by wounds, sickness, or
shipwreck (paragraph 2-113); and
* Persons parachuting from aircraft in distress (paragraph 2-114).
Persons in the Power of an Adverse Party. Persons in the power of an adverse party include all
persons detained by an adverse party, such as POWs, unprivileged belligerents, retained personnel, and
civilian internees. As with other categories of persons placed hors de combat, detainees must refrain from
hostile acts or attempts to escape in order to be considered hors de combat.
Persons Who Have Surrendered. Persons who are not in custody, but who have surrendered are hors
de combat and may not be made the object of attack. In order to make a person hors de combat, the surrender
must be genuine (paragraph 2-109); clear and unconditional (paragraph 2-110); and under circumstances in
which it is feasible for the opposing party to accept the surrender (paragraphs 2-111 through 2-112).
Genuine
The offer to surrender must be genuine. In addition to being legally ineffective, feigning the intent
to surrender can constitute perfidy if it is done to kill or wound the adversary.
Clear and Unconditional
The offer to surrender must be clear and unconditional. Any arms being carried should be laid down.
All hostile acts or resistance, or manifestations of hostile intent, including efforts to escape or to destroy
items, documents, or equipment to prevent their capture by the enemy, would need to cease immediately for
the offer to be clear and unconditional. Raising one’s hands above one’s head to show that one is not preparing
to fire a weapon or engage in combat is often a sign of surrender. Waving a white flag technically is not a
sign of surrender, but signals a desire to negotiate. The surrender must be “at discretion,” that is, |
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unconditional (see HR art. 23(c)). A person who offers to surrender only if certain demands are met would
not be hors de combat until that offer has been accepted.
Under Circumstances in Which It Is Feasible to Accept
For an offer to surrender to render a person hors de combat, it must be feasible for the opposing
party to accept that offer. The feasibility of accepting the surrender refers to whether it is practical and safe
for the opposing force to take custody of the surrendering persons in the circumstances. For example, suppose
Soldiers manning an antiaircraft gun shoot at an enemy aircraft and then raise their hands to surrender seconds
before a second aircraft attacks their position. In these circumstances, it would not be feasible for the crew
of the attacking aircraft to land and accept their surrender. The antiaircraft gun crew would not be hors de
combat. Similarly, combatants 50 yards from an enemy defensive position in the midst of an infantry assault
by their unit could not throw down their weapons and raise their arms to surrender and reasonably expect the
defending enemy unit will be able to accept and accomplish their surrender while resisting the ongoing assault
by other members of the unit still attacking. Under these circumstances, the combatants are not hors de
combat.
Although the feasibility of accepting surrender includes consideration of whether it is feasible to
take custody of the persons offering to surrender, this does not include consideration of whether it is feasible
to care for detainees after taking custody. Offers to surrender may not be refused because it would be
militarily inconvenient or impractical to guard or care for detainees.
Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck.
Persons who have been rendered unconscious or otherwise incapacitated by wounds, sickness, or
shipwreck such that they are no longer capable of fighting are hors de combat. Shipwrecked persons are those
in distress at sea or stranded on the coast who are also helpless. Shipwrecked persons must be in need of
assistance and care, and they must refrain from any act of hostility. These persons continue to be considered
shipwrecked during rescue provided they continue to refrain from any hostile act. However, persons
swimming in waters as part of a combat operation (for example, special forces wearing SCUBA gear) may
be made the object of attack. Those rendered unconscious do not include persons who simply fall asleep.
Sleeping combatants may generally be made the object of attack.
Persons Parachuting From an Aircraft in Distress
In general, persons, such as aircrew or embarked passengers, who parachute from an aircraft in
distress, are treated as though they are hors de combat, that is, they may not be made the object of attack.
This protection is provided because a person descending by parachute is temporarily hors de combat just like
someone who is shipwrecked or unconscious. This protection does not extend to persons who commit hostile
acts or attempt to evade capture, and to persons deploying into combat by parachute (consider AP I art. 42).
No Hostile Acts or Attempts to Evade Capture
As with other categories of persons hors de combat, the protection from being made the object of
attack is forfeited if the persons engage in hostile acts or attempt to evade capture. Routine “slipping” to steer
a parachute or similar actions to facilitate a safe parachute landing does not constitute acts of evasion.
Persons Deploying Into Combat by Parachute
Persons deploying into combat by parachute may be attacked throughout their descent and upon
landing. Persons deploying into combat by parachute may include special operations or reconnaissance
personnel, combat control teams, or airborne forces (in other words, specialized combat forces trained to
arrive at military objectives by parachute drops). Persons deploying into combat by parachute may be
attacked even if they deploy from an aircraft in distress (for example, when the enemy has attacked the
aircraft to resist the assault). Airborne forces, however, may parachute from an aircraft in distress outside the
context of an airborne assault. Under this circumstance, they would not be “deploying into combat” and
would be hors de combat while descending by parachute. |
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ATTACKS ON FACILITIES, WORK, OR INSTALLATIONS CONTAINING DANGEROUS FORCES
Certain facilities containing dangerous forces, such as dams, nuclear power plants, or facilities
producing weapons of mass destruction, may constitute military objectives. A commander may have a
number of reasons to attack them, such as denial of electric power to military sources, use of the forces
contained therein to damage or destroy other military objectives (such as lines of communication), or to pre-
empt enemy release of the dangerous forces to hamper the movement or advance of friendly forces.
Attacks of facilities, works, or installations containing dangerous forces, such as dams, nuclear
power plants, or facilities producing weapons of mass destruction, are permissible so long as they are
conducted in accordance with other applicable rules, including the principles of distinction and
proportionality. In light of the increased potential magnitude of incidental harm, additional precautions, such
as weaponeering or timing the attack so that weather conditions would minimize dispersion of dangerous
materials, may be appropriate to reduce the risk that the release of these dangerous forces may pose to the
civilian population. In order to facilitate the identification of such objects, Parties to AP I may mark them
with a special sign consisting of a group of three bright orange circles placed on the same axis, as depicted
in figure 2-1. However, the United States has objected to Article 56 of AP I as not reflecting customary
international law (see DOD Law of War Manual, 5.13.1).
Figure 2-1. Special AP I sign for works and installations containing dangerous forces
Special Considerations
In light of the risks posed by attacks impacting these objectives, a commander should take additional
care when contemplating an attack on a facility, work, or installation containing dangerous forces, or even
an object located nearby. After determining whether the object under consideration for attack is a military
objective, the commander should consider the following as part of the analysis of the risks of incidental
damage to civilian objects and injury to the civilian population:
* The risk of release of the potentially dangerous materials or forces contained within the objective
as a result of its attack, or of an attack on military objectives within its immediate vicinity;
* The expected or anticipated risk to the civilian population in the event dangerous materials or
forces are released; and
* Methods by which these two risks can be minimized in the event an attack is authorized.
The fact that the materials or forces contained within a military objective may be released as a result
of the attack does not immunize it from attack.
Military Objectives Within the Vicinity
Enemy military objectives, including military forces and equipment, remain legitimate targets if
present in the vicinity of objects containing dangerous forces. This includes military personnel and equipment
dedicated to defense of objects containing dangerous forces. These military objectives may be attacked
subject to the principle of proportionality, including the special considerations noted in the prior paragraph. |
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UNDEFENDED VILLAGES, TOWNS, OR CITIES
Attack, by whatever means, of villages, towns, or cities that are undefended is prohibited (HR art.
25; consider AP I art. 59). Undefended villages, towns, or cities may be captured, however.
An undefended town, village, or city is any such inhabited place near or in a zone where opposing
military forces are in contact with one another that contains no military objectives and is open for immediate
physical occupation by enemy military forces without resistance. The term “undefended city” (or town or
village, or any other populated area), sometimes referred to as an “open city,” does not include a city that has
military objectives within it but lacks the means by which to defend them from attack (such as anti-air
defenses) (HR art. 25).
Although there is no explicit treaty requirement that a city be declared undefended before achieving
that status, the practice has been to make such declarations to the opposing party (see DOD Law of War
Manual, 5.15.3.2). Historically, a village, town, or city might seek undefended status as military forces
advanced upon it and the opposing military forces present within it withdrew. Undefended status would
essentially surrender the village, town, or city to the advancing force; this would minimize injury to the
inhabitants and damage to civilian objects within the locality. This protection of civilian interests remains the
primary purpose for designating a locality as undefended.
An undefended town, village, or city may be established through negotiations with opposing forces,
or unilaterally by the party to the conflict in control of it. If the latter, the intent and actions of that party
should be communicated to opposing military forces through a declaration to avoid attack on the populated
areas that are being designated as undefended. Belligerents may refuse to recognize a declaration that a city
is undefended if they assess that it does not satisfy all of the necessary conditions, although they should notify
the opposing belligerent of that decision. Absent or until acceptance, military objectives in the locality
unilaterally designated as undefended remain subject to attack. Agreement to the undefended designation
may be accomplished by a commander with the authority to enforce the corresponding obligations, such as
an immediate military commander, theater commander, or by national level authorities.
Conditions
The area in question must be open and accessible for immediate, unconditional physical occupation
by opposing military ground forces. The location may not be defended by artillery or naval gun fire from
the flanks or rear, by aircraft, minefields, or any other form of military resistance. A party to the conflict
may not declare a city or other population center to be undefended if it is far behind the area of ground
conflict and impossible for opposing ground forces to occupy physically. For a populated area to be entitled
to be regarded as undefended, each of the following criteria must be satisfied:
* All opposing force combatants, as well as their mobile weapons and mobile military equipment,
must have been evacuated.
* No hostile use of fixed military installations or establishments within the city, town, or village
may be made.
* The local civilian authorities and the civilian population must not commit hostile acts against the
occupying military force.
* No activities in support of military operations may be undertaken.
Loss of Status
A village, town, or city that fails to fulfill the conditions above will not be entitled to undefended
status, or, if granted, will lose that status if these conditions are not fulfilled. Persons and objects within that
city, however, may still receive other protections for civilians and civilian objects.
A locality designated as undefended does not lose that status due to the presence of civilian police
forces to maintain local law and order, enemy military medical units and medical personnel, or enemy
wounded and sick. |
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Actions of Occupying Force
If the occupying military force acts in a manner consistent with the conditions necessary to maintain
undefended status, the city, town, or village will remain undefended for the purpose of protecting it against
military operations by all parties to the conflict. The occupying force, however, does have the authority
unilaterally to use the city, town, or village for military operations, including establishment of defenses to
prevent its recapture by the enemy. If it does so, the locality will lose its undefended status and military
objectives within the city may be subject to attack and the city itself subject to capture by opposing ground
forces.
STARVATION
Starvation is a legitimate method of war, but it must be conducted in accordance with the principles
of discrimination and proportionality, as well as other LOAC rules. It is a legitimate method to starve enemy
forces in order to lead to the speedier defeat of the enemy or its submission with fewer friendly force
casualties. For example, it is not prohibited to destroy food intended as sustenance for enemy forces with a
view towards weakening them and diverting their resources. Enemy forces, for the purpose of this rule, means
those persons constituting military objectives (see paragraph 2-60 for categories of persons subject to attack).
Starvation specifically directed against the enemy civilian population, however, is prohibited (consider AP I
art. 54). For example, it would be prohibited to destroy food or water supplies for the purpose of denying
sustenance to the civilian population.
In this regard, it is prohibited to attack, destroy, remove, or render useless objects indispensable to
the survival of the civilian population of an enemy nation, such as foodstuffs, agricultural areas for the
production of foodstuffs, crops, livestock, drinking water installations, and supplies for irrigation works, for
the purpose of denying their sustenance value to the civilian population (consider AP I art. 54(2)).
This rule would not prohibit attacks that are carried out for specific purposes other than to deny food
and water. For example, this rule would not prohibit the destroying of a field of crops to prevent it from being
used as concealment by the enemy forces or destroying a supply route that is used to move military supplies
but that is also used to supply the civilian population with food, subject to the principle of proportionality,
including taking feasible precautions.
These prohibitions may not apply if these objects may be, or are, used by enemy military forces.
Restrictions on starvation do not prohibit measures being taken if their purpose is to deny consumption of
food or water by enemy military forces. Military action intended to starve enemy forces must not be taken
when it is expected to result in incidental harm to the civilian population that is excessive in relation to the
military advantage expected to be gained pursuant to the principle of proportionality.
Similarly, public utilities (such as electric power grids) may be attacked to deny power to enemy
military forces and installations (for example, an integrated air defense system or national command, control,
communications, computers, and intelligence assets) even though such attacks may adversely affect the
supply of power to the civilian population or civilian objects, or the provision of sustenance for the civilian
population (for example, water). Commanders authorizing such attacks should determine the anticipated
effect of those attacks on the civilian population to ensure that such effects are not excessive compare to the
military advantage expected to be gained. Commanders should also consider taking precautions to ensure
that the civilian population is not left with inadequate water supplies. The poisoning of the water supply is
prohibited under all circumstances (HR art. 23(a)).
PROTECTION OF THE ENVIRONMENT IN WARTIME
Wanton destruction of the environment is prohibited.
Specific Prohibition
The poisoning of the water supply is prohibited under all circumstances (HR art. 23(a)). |
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Damage Incidental to Combat Operations Not Prohibited
The general premise in paragraph 2-135 must be viewed in light of the fact that combat has definite
adverse effects on the natural environment. Routine conventional military operations involving the
employment of air, ground, and naval forces that may cause damage to the environment are not activities
prohibited by LOAC.
Environmental Modification Convention
The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques (ENMOD Convention), an arms control agreement, prohibits military or other
hostile use of environmental modification techniques that have “widespread, long-lasting or severe effects as
a means of destruction or damage or injury to another State.”
Environmental modification technique refers to any method of warfare for changing—through
the deliberate manipulation of natural processes—the dynamics, composition, or structure of the Earth
(to include its biota, lithosphere, hydrosphere, and atmosphere) or outer space. Examples of
environmental effects likely to be widespread, long-lasting, or severe could include inducement of a tidal
wave and seeding of clouds to induce rainfall.
An action that constitutes an environmental modification technique would only violate the ENMOD
Convention if the action yielded a level of damage meeting one of three criteria as defined in the ENMOD
Convention. The ENMOD Convention defines these three criteria as follows:
* Widespread encompasses an area on the scale of several hundred square kilometers.
* Long-lasting means lasting for a period of months, or approximately a season.
* Severe involves serious or significant disruption or harm to human life, natural and economic
resources, or other assets.
As is the case with LOAC prohibitions set forth above, conventional military means or methods of
warfare are not techniques calculated to cause the form of damage prohibited by the ENMOD Convention.
AP I Provisions on Environmental Protection
There are two provisions of AP I that specifically address the protection of the environment.
Article 35(3) of AP I prohibits the employment of means or methods of warfare that are intended , or may be
expected to cause widespread, long-term and severe damage to the natural environment. Article 55 of AP I
provides that care shall be taken to protect the natural environment against such widespread, long-term, and
severe damage and prohibits means and methods of warfare which are intended or expected to cause such
damage and prejudice the health and survival of the population. Article 55 further prohibits attacks against
the natural environment by way of reprisal.
The United States has not accepted these provisions and repeatedly expressed the view that they are
overly broad and ambiguous and do not constitute customary international law. These provisions fail to
acknowledge that the use of such weapons is prohibited only if their use would cause incidental injury to the
civilian population that is clearly excessive in relation to the concrete and direct overall military advantage
anticipated (see DOD Law of War Manual, 6.10.3.1).
Post-Conflict Battlefield Clean-Up
The environmental effects of conventional armed conflict have the potential to last long after the
conflict’s conclusion, posing ongoing risks to innocent civilians, and the civilian population as a whole, if
permitted to remain. The primary responsibility for cleaning up the battlefield of the so-called “remnants of
war” (such as unexploded ordnance) lies with the government that controls the territory in which the remnants
remain (CCW Protocol V art. 3). Others, such as international organizations and nongovernmental
organizations, may offer and provide assistance. |
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GOOD FAITH, PERFIDY, AND OTHER UNLAWFUL ACTS, AND
LAWFUL DECEPTION AND RUSES OF WAR
The principle of honor underlies rules concerning good faith, perfidy, certain unlawful acts, and
lawful deception and ruses of war. These rules permit certain types of deception to facilitate the conduct of
hostilities while limiting other types of deception—killing or wounding by resort to perfidy—to help prevent
acts that would undermine protections afforded under LOAC and unduly frustrate efforts to restore peace.
GOOD FAITH
Absolute good faith between the parties to an armed conflict is essential. Breaches of good faith may
undermine the protections LOAC affords to protected persons and objects; impair non-hostile relations
between opposing belligerents; and damage or even destroy the basis for a restoration of peace short of the
complete annihilation of one belligerent by another.
Breaches of good faith may put civilians, persons who are hors de combat, or other protected persons
or objects at greater risk of harm from a practical viewpoint. This is so because an adversary will find it
difficult to respect such protected persons and objects if it believes or suspects its enemy is abusing claims
to protection under LOAC in order to achieve a military advantage.
Breaches of good faith also impair non-hostile relations between opposing belligerents during armed
conflict by diminishing the legitimate activities that depend upon a degree of mutual respect and trust between
hostile forces. Examples of these legitimate activities include effecting surrender or collecting the dead,
wounded, and sick (enemy or friendly) on the battlefield. Military commanders may find it more difficult to
ensure that their forces comply with LOAC when treacherous acts by the enemy have resulted in casualties
among their own forces.
Breaches of good faith also damage, and may destroy, the basis for restoration of peace short of the
complete annihilation of one belligerent by another. A degree of mutual respect and trust is essential for the
negotiation of cease-fires, truces, surrenders, and other agreements necessary to bring an end to hostilities.
The line between those acts that good faith permits and those that good faith prohibits may appear
indistinct and has varied according to State practice. Good faith prohibits: killing or wounding by resort to
perfidy; misusing certain signs, including, fighting in the enemy’s uniform; feigning non-hostile relations in
order to seek a military advantage; and compelling nationals of a hostile party to take part in military
operations directed against their own State.
PERFIDY
Acts of perfidy are acts that invite the confidence of enemy persons to lead them to believe that they
are entitled to, or are obligated to accord, protections under LOAC with the intent to betray that confidence.
Perfidy involves specific requirements: a killing or wounding of the enemy; the intent (mens rea) to act
treacherously (i.e., the intent to kill or wound) (HR art. 23(b)); an entitlement or obligation under LOAC;
and a nexus in time (that is, immediate tactical advantage) between the treacherous action and the killing or
wounding.
The key element in perfidy is the false claim to protections under LOAC in order to secure a military
advantage to kill or wound an opponent (see DOD Law of War Manual, 5.22.1; consider AP I art. 37).
2-1. Examples of killing or wounding by resort to perfidy include:
* Feigning of intent to negotiate under a flag of truce and then attacking the opponent.
* Feigning surrender and then attacking in order to gain an immediate tactical advantage over enemy
forces.
* Feigning that one is wounded, sick, or dead, and then attacking the opponent.
* Feigning of civilian status to obtain an advantage over enemy forces to kill or wound them.
Any combatant feigning surrender and then attacking is taking advantage of the rule that their enemy must
give them quarter. Combatants, who feign death or injury to lure their enemy near them so they may attack
them, engage in acts of perfidy. However, any combatant who feigns death in the hope of evading capture |
6-27 | 65 | Conduct of Hostilities
has not engaged in perfidy. That individual’s act is one of survival or avoidance of capture rather than an act
undertaken in order to kill or wound the enemy as a result of the enemy’s compliance with LOAC. A civilian
who may be regarded as taking a direct part in hostilities, such as a civilian authorized to drive a supply truck
in the area of operations, is subject to attack but has not engaged in perfidy. The criteria for determining when
a civilian is taking a direct part in hostilities are separate from determinations of perfidy.
Flag of Truce
A means of initiating negotiations between opposing forces is the display of a white flag, also called
a flag of truce. The white flag, when used by military forces, only indicates a desire to communicate with the
enemy and has no other significance in LOAC on land. Displaying the flag of truce may indicate the party
hoisting it desires to open negotiations with a view to an armistice or surrender. It is important to determine,
with reasonable certainty, whether the flag is hoisted by authority of the enemy commander, on behalf of the
entire force under his or her command, or whether the flag is hoisted simply by an individual or small party
of combatants. (HR art. 32-34; see also Chapter 7).
The mere display of a flag of truce, without more communication, does not necessarily mean that
the unit, or the person waving it, is prepared to surrender. Display of a flag of truce may simply indicate that
the party hoisting it desires to communicate with a view to negotiating a cease-fire, such as to enable forces
to collect the wounded off the battlefield.
An opposing force is not required to cease firing merely because a flag of truce has been displayed.
Nor is it necessarily a violation of LOAC if the individual displaying the flag of truce is wounded or killed
while endeavoring to communicate with opposing forces. The burden is upon the party displaying a flag of
truce to communicate their intentions clearly and unequivocally. To indicate that the hoisting of a white flag
is authorized by competent authority on behalf of the unit, its appearance must be accompanied or followed
promptly by a cessation of all hostile acts or resistance, or other manifestations of hostile intent. This includes
ceasing efforts to escape or to destroy items, documents, or equipment in the custody or charge of the party
hoisting the white flag. A commander authorizing the display of a flag of truce should promptly send a
representative (sometimes referred to as a parliamentary or parlementaire) to communicate the commander’s
intent (see paragraphs 7-17 through 7-40 on parlementaires).
The improper use of a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend
hostilities is strictly prohibited and is an act of perfidy if used to then kill or wound the enemy. Improper use
of a flag of truce includes its employment while engaging in attacks or in order to shield, favor, protect, or
otherwise impede military operations. Flags of truce may not be used surreptitiously to obtain military
information or merely to obtain time to effect a retreat or withdrawal, secure reinforcements or resupply, or
feign surrender in order to carry out a surprise attack on the enemy. Abuse of a flag of truce endangers its
future recognition and may justify subsequent rejection of a flag of truce. Isolated instances of abuse of a flag
of truce, however, generally will not permit rejection of subsequent displays of the flag absent an express
order by competent authority. For Army and Marine forces, this generally would be the theater commander.
Deceptive Use of Enemy Flags, Insignia, or Military Uniforms
LOAC prohibits the improper use by military forces of enemy flags, military emblems, insignia, or
uniforms (see DOD Law of War Manual, 5.23). The use of enemy uniforms is permitted under some
circumstances, but not for others. The general rule is subject to the following considerations is paragraphs 2-
159 through 2-163.
Customary Practice
In general, the use of enemy flags, military emblems, insignia, or uniforms is prohibited during
combat, but is permissible outside of combat, such as when collecting intelligence in enemy territory or
seeking to evade detection by the enemy.
Spying
Soldiers or Marines captured by an opposing party behind its lines while wearing its uniform may
subject them to being treated as spies. |
6-27 | 66 | Chapter 2
Escaping Prisoners of War
Escaping POWs may wear enemy military uniforms to facilitate their escape from a POW camp to
return to friendly lines, but must not engage in combat while in the enemy’s uniform (see DOD Law of War
Manual, 5.23.1.4).
Personnel Evading Capture
Military personnel, such as aircrew downed behind enemy lines, may use enemy military uniforms
or civilian clothing as permissible acts of deception to evade capture. Evading personnel must not engage in
combat while in the enemy’s uniform. Those who are not escaping POWs who are using enemy uniforms to
evade capture or to escape, however, may be liable to treatment as spies or saboteurs if caught behind enemy
lines.
Use of Enemy Codes, Passwords, and Countersigns
The prohibition on misuse of enemy flags, emblems, insignia, and uniforms refers only to concrete
visual objects rather than enemy codes, passwords, and countersigns. Enemy codes, passwords, and
countersigns may be used as a ruse to aid military operations. Use of these measures is permissible because
enemy military forces are expected to take measures to guard against the use of their codes, passwords, and
countersigns by their adversaries.
Certain Signs and Symbols Specially Protected Against Improper Use
Certain signs, symbols, or signals reflect a status that receives special protection under LOAC and
thus these signs may not be improperly used. They may not be used: (1) while engaging in attacks; (2) in
order to shield, favor, or protect one’s own military operations; or (3) to impede enemy military operations.
Thus, their use may be improper even when that use does not involve killing or wounding, and they may not
be used to facilitate espionage (except for signs, emblems, or uniforms of a neutral or non-belligerent State).
Paragraphs 2-165 through 2-170 describe the types of signs subject to this broader rule against improper use.
Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State
During international armed conflict, the use of signs, emblems, or uniforms of a neutral or other
nation not a party to the conflict is prohibited. LOAC recognizes exceptions, however, concerning espionage
and warfare at sea.
Distinctive Emblems of the Geneva Convention
The distinctive emblems of the Red Cross, Red Crescent, and Red Crystal (as well as the Red Lion
and Sun, which is currently not in use) are symbols that identify military medical and religious personnel,
medical units, and medical transports, or certain other categories of persons engaged in humanitarian work
as personnel and objects entitled to special protection. These emblems may not be used except to identify
these protected persons and objects. Any unauthorized use is prohibited (see DOD Law of War Manual,
7.15.4).
Markings for POW or Civilian Internee Camps
Only POW camps under the GPW should be marked using internationally agreed-upon symbols,
such as the PW or PG designation (GPW art. 23). Only civilian internee camps under the GC should be
marked with an IC designation (GC art. 83).
Markings for Hospital, Safety, or Neutralized Zones
Markings that distinguish hospital, safety, or neutralized zones established under the 1949 Geneva
Conventions may not be used for other purposes. |
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Distinctive and Visible Signs to Identify Civilian Objects as Such
Certain distinctive and visible signs that are intended to identify to the enemy that an object is
protected as a civilian object under LOAC must not be used by that party for other purposes.
Markings for Cultural Property
The distinctive emblem for cultural property may not be used for other purposes.
FEIGNING NON-HOSTILE RELATIONS
Feigning non-hostile relations between belligerents diminishes the legitimate activities that depend
upon a degree of mutual respect and trust between hostile forces and therefore is prohibited. (See paragraphs
2-146 through 2-150 on good faith; see generally Chapter 7).
LAWFUL DECEPTION AND RUSES OF WAR
Deception involves those measures designed to mislead the enemy by manipulation, distortion, or
falsification of information to induce it to react in a manner prejudicial to its interests. Ruses of war are lawful
acts of deception. Ruses of war are acts that are intended to mislead an adversary or induce it to act recklessly,
but that do not infringe upon LOAC and, moreover, are not perfidious because they do not invite the
confidence of an adversary with respect to protection under that law with the intent to kill or wound (see
DOD Law of War Manual, 5.25.1).
Ruses of war are methods, resources, and techniques that can be used either to convey false
information or deny information to opposing forces. They include physical, technical, or administrative
means. Legitimate deception activities include, but are not limited to, using surprise, ambush, camouflage,
deceptive lighting, decoys, flares, obscurants, chaff, aerosol material, or dissemination devices; feigning
flights, attacks, or withdrawals; simulating quiet or inactivity; using small forces to simulate larger units;
transmitting false or misleading messages; intensifying or minimizing message traffic; using enemy codes,
signals, or passwords; deliberately planting false information; using dummy material; removing unit
identification from units, equipment, or personnel; and using electronic warfare measures.
Ruses are acts intended to mislead an adversary or induce it to act recklessly. Ruses may be used for
a variety of purposes, such as:
* To facilitate surprise attacks or ambushes by:
Misleading the enemy as to the planned targets or locations of military operations;
Using “bait” to lead the enemy into a trap; or
Distracting or disorienting the enemy;
* To induce enemy forces to waste their resources;
* To induce enemy forces to surrender by falsely alleging military superiority;
* To provoke friendly fire among enemy forces; or
* To cause confusion among enemy forces.
Ruses do not infringe on LOAC. Misusing a protected sign or symbol would not constitute a ruse
because it would violate LOAC. Similarly, although fighting in the enemy’s uniform would not be perfidy
because enemy military personnel are not generally protected by LOAC in this regard, fighting in the enemy’s
uniform also would not be a lawful ruse or deception because such action would infringe upon the rule against
improper use of the enemy’s uniform.
Ruses are not perfidious because they do not invite the confidence of an adversary with respect to
protection under LOAC with the intent to kill or wound that adversary.
Examples of Ruses
Often ruses of war operate by misleading the enemy as to the identity, strength, position, or
disposition of one’s own forces. Ruses of war include, but are not limited to: |
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* Using decoys or dummy materials, such as dummy weapons, equipment, and buildings;
* Feigning activity or inactivity, such as:
Simulating quiet; and
Feigning flights, retreats, attacks, marches, movements (for example, approaching a
destination indirectly), supply movements, operations, withdrawals, or camps;
* Mimicking other types of forces, such as:
Using small forces to simulate larger units;
Units of one type pretending to be units of another type;
Removing unit identification from units, equipment, or personnel; and
Individuals or units dressing like and mimicking the appearance of enemy friendly forces
without engaging in combatant acts;
* Using camouflage or deceptive lighting;
* Removing or altering identifying information, such as moving identifying landmarks;
* Planting false information in a manner that allows enemy forces to intercept it, such as through
the use of:
False messages among one’s own forces;
Intensifying or minimizing message traffic; or
Bogus messages, dispatches, or newspapers;
* Lying in the course of a POW intelligence interrogation on questions when no obligation to answer
correctly exists;
* Feigning enemy military status by using enemy flags, insignia, or military uniforms outside of
combat; or
* Using enemy codes, signals, or passwords.
Examples of Other Deceptions That Are Not Prohibited
Certain deceptions may not meet the definition of “ruses” because they may invite the confidence
of an adversary with respect to protection under LOAC. Nevertheless, LOAC does not prohibit some of these
deceptions even though, in some cases, they may expose the persons performing them to liability under an
enemy State’s domestic law. These include:
* Feigning incapacitation or death in order to escape the enemy, such as:
Soldiers who feign death in the hope they will be let alone by enemy forces, permitting them
to then take evasive actions to return to friendly forces without engaging the enemy; and
An aircraft crew that feigns loss of control and the appearance that the aircraft is about to
crash in order to dissuade further enemy attack and to break contact with enemy forces.
* Feigning civilian status to facilitate spying or sabotage, such as false use of journalist credentials;
and
* Using an informal ceasefire for the purpose of collecting wounded and dead to withdraw unseen
by the enemy.
PROHIBITION AGAINST COMPELLING ENEMY NATIONALS TO
TAKE PART IN MILITARY OPERATIONS DIRECTED AGAINST
THEIR OWN FORCES OR STATE
During international armed conflict, it is prohibited to compel nationals of the hostile party to take
part in military operations directed against their own country or forces, even if they were in the belligerent’s
service before the commencement of the war (see HR art. 23). Underlying this prohibition is the principle
that States must not compel persons to commit treason or otherwise violate their allegiance to their country.
Additional restrictions are applicable with respect to POWs, retained personnel, and protected persons (see,
for example, GPW art. 52, prohibiting POWs from being employed in dangerous or humiliating work). |
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Moreover, POWs, retained personnel, and protected persons may not renounce this right (see, for example,
GPW art. 7).
This prohibition applies to attempts to “compel” enemy nationals; it does not apply to measures short
of compulsion, such as bribing enemy nationals or seeking to influence them through propaganda. LOAC
specifically prohibits, however, an Occupying Power from using propaganda that aims to secure voluntary
enlistment of protected persons in its armed forces or auxiliary forces (see GC art. 51).
This prohibition applies to nationals of a hostile party; LOAC does not prohibit States from
compelling their own nationals to serve in the armed forces. Similarly, this rule would not prohibit States
from compelling persons to betray an allegiance to a non-State armed group.
INFORMATION GATHERING
Employing measures necessary to obtain information about the enemy and its country is considered
permissible (see HR art. 24). Information gathering, however, must not violate specific LOAC rules. For
example, torture or abuse may not be used to question or interrogate detainees. Similarly, LOAC prohibits
the improper use of a flag of truce to obtain information (see paragraph 2-157). Some forms of deception
used to gather information, although not prohibited by LOAC, may put persons engaging in them at risk of
being treated as spies. For instance, combatants wearing civilian attire to collect intelligence in the zone of
operations of a belligerent, if caught before returning to friendly lines, jeopardize their status as POWs and
could be considered spies by the capturing enemy.
INFORMATION OPERATIONS
In general, LOAC permits the use of counter-propaganda and information operations (IO), even if it
encourages acts that violate an enemy State’s domestic law or is directed towards civilians or neutral
audiences. Certain types of information operations, however, are prohibited.
Historically, permissible IO messages have been disseminated through a variety of communications
media, including printed materials, loudspeakers, radio and television broadcasts, aircraft, and the internet.
Information operations are sometimes used with financial or other incentives, if sanctioned and authorized.
They may support intelligence gathering, be directed at enemy civilians and neutrals, or encourage enemy
persons to commit acts that would violate the domestic law of the enemy State. For example, it is permissible
to encourage enemy combatants to defect, desert, or surrender. Similarly, it is permissible to encourage
insurrection among the enemy civilian population.
Information operations must not incite violations of LOAC. For example, information operations
intended to incite attacks against civilians is prohibited. Information operations also must not threaten the
commission of LOAC violations. For example, it is prohibited if the propaganda constitutes a measure of
intimidation or terrorism against the civilian population, such as threats of violence whose primary purpose
is to spread terror among the civilian population. Similarly, it is prohibited to threaten an adversary by
declaring that no quarter will be given. Information operations are also prohibited when they would violate
LOAC. For example, LOAC specifically prohibits an Occupying Power from using IO messages that are
aimed at securing voluntary enlistment of protected persons in its armed or auxiliary forces (see paragraphs
6-133 and 6-134). Similarly, information operations may not be used to subject a detainee to public curiosity
or other humiliating or degrading treatment. Additionally, the delivery of the information operations should
be consistent with other LOAC obligations.
BRIBERY OR OFFERING OF REWARDS
In general, it is permissible to offer rewards for assistance in the conduct of hostilities, including
rewards intended to corrupt enemy combatants or civilians. Rewards, however, may not be offered to commit
violations of LOAC, and rewards may not be offered for the killing of enemy persons.
It is forbidden to place a price on the head of enemy persons or to offer a reward for enemy persons
“dead or alive.” Such actions encourage the denial of quarter or encourage private persons to take up arms
whose participation in hostilities is often undisciplined and associated with the commission of war crimes. |
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This prohibition extends to offers of rewards for the killing or wounding of all enemies, including
specific individuals or a class of enemy persons (for example, officers). This rule, however, would not
prohibit offering rewards for the capture unharmed of enemy personnel generally or of particular enemy
personnel. Similarly, this rule does not prohibit offering rewards for information that may be used by
combatants to conduct military operations that attack enemy combatants.
TREATMENT OF ENEMY PROPERTY
Outside the context of attacks, certain rules apply to the seizure and destruction of enemy property:
* Enemy property may not be seized or destroyed unless imperatively demanded by the necessities
of war (HR art. 23(g)).
* Public movable property and certain types of private movable property may customarily be
captured as war booty.
* Pillage is prohibited.
* Feasible precautions must be taken to mitigate the burden on civilians, but there is no obligation
to compensate the owners of enemy property that is lawfully damaged.
* Enemy private movable property that is not susceptible of direct military use may be appropriated
only to the extent that such taking is permissible in occupied areas. Owners should be given
receipts and compensation paid, when feasible.
See also paragraphs 6-95 through 6-128 for treatment of enemy property during occupation.
DEFINITION OF ENEMY PROPERTY
Enemy property includes all property located in enemy territory regardless of its ownership.
ENEMY PROPERTY—MILITARY NECESSITY STANDARD
Enemy property may not be seized or destroyed unless imperatively demanded by the necessities of
war (HR, art. 23(g)). In particular, devastation or destruction may not be pursued as an end in itself. The
measure of permissible seizure or destruction of enemy property is found in the strict necessities of war. The
seizure or destruction of enemy property must have a reasonable connection to the overcoming of enemy
forces. The necessities of war may imperatively demand seizing or destroying enemy property in order to
support military operations or to diminish the enemy’s ability to conduct or sustain operations.
Supporting Military Operations
The military necessity standard may justify seizing or destroying enemy property to support military
operations in many types of scenarios. The following examples are illustrative:
* Using enemy land for the construction of military bases, air fields, or other facilities to support
military operations;
* Using enemy buildings to billet military personnel and others supporting them, to house the
wounded and sick, for observation and reconnaissance, for concealment and cover, or for
defensive purposes;
* Demolishing, cutting down, or removing enemy walls, forests, crops, or buildings to clear a field
of fire, to construct bridges, to furnish firewood for billeted military forces, or to provide
construction material; and
* Seizing means of transportation for use in military operations.
Diminishing the Enemy’s Ability to Conduct or Sustain Operations
Under the principle of military necessity, seizing or destroying enemy property is permissible to
diminish the enemy’s ability to conduct or sustain military operations. Thus, LOAC permits seizing or
destroying enemy property such as railways, lines of communication, and other war-fighting and war-
sustaining infrastructure. |
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Incidental Damage to Enemy Property
Damage to enemy property incidental to combat operations that is reasonably related to overcoming
enemy forces is justified by military necessity and lawful. For example, the movement of armed forces and
equipment may damage roads or fields.
ENEMY MOVABLE PROPERTY ON THE BATTLEFIELD (WAR BOOTY)
Much of an enemy’s movable property on the battlefield, sometimes referred to as “war booty,” is
subject to seizure by the opposing State. Military units may seize any enemy public movable property on the
battlefield. Property is public if it belongs to the enemy State or an agency of the State. In general, enemy
private movable property on the battlefield may also be seized, but only if the property is necessary and
indispensable for the conduct of war. This includes arms, ammunition, military papers, or property that can
be used as military equipment (for example, as a means of transportation or communication). However,
certain types of military equipment used for clothing, feeding, or personal protection (for example, helmets
and gas masks) may not be seized from POWs, and should remain in their possession.
All enemy property that is captured or found on the battlefield becomes the property of the capturing
State. During international armed conflict, personal property recovered from enemy dead becomes the
property of the United States for the purpose of returning it to the next-of-kin of the deceased. The individual
service member or civilian accompanying the force who captures or finds such enemy property acquires no
title or claim to it.
PILLAGE PROHIBITED
Pillage is prohibited, both generally (HR art. 28, 47) and specifically with respect to the military
wounded, sick, and shipwrecked (GWS art. 15; GWS Sea art. 18); POWs (see GPW art. 18); and civilians
(see GC art. 16, 33). This applies in international armed conflict, occupation, and non-international armed
conflict. The same applies to cultural property, which is addressed in paragraphs 5-19 through 5-21 and 6-
104.LOAC imposes affirmative obligations to prohibit and prevent pillage (GWS art. 15; GWS Sea art. 18;
1954 Hague art. 4(3)).
Pillage is the taking of private or public movable property (including enemy military equipment) for
private or personal use (10 U.S.C. § 950t(5)). It does not include an appropriation of property justified by
military necessity. For example, if no time is available for ordinary requisitions to provide food and supplies,
or the local inhabitants have fled so that ordinary requisitions are unavailable, the taking of food does not
constitute pillage. In the medieval era, pillage served as a form of compensation for private armies, but it
ceased to be regarded as lawful with the widespread adoption of standing armies at the end of the 18th
century. The later prohibition of pillage was intended, in part, to maintain discipline among the armed forces.
Pillage is also referred to as looting (UCMJ art. 103) and plunder.
FEASIBLE PRECAUTIONS SHOULD BE TAKEN TO MITIGATE THE BURDEN ON CIVILIANS
In seizing or destroying enemy property, feasible precautions should be taken to mitigate the burdens
imposed on civilians. For example, in U.S. practice, religious buildings, shrines, and consecrated places
employed for worship are used only as aid stations, medical installations, or for the housing of wounded
personnel awaiting evacuation, provided in each case that a situation of emergency requires such use.
Similarly, if armed forces use a private residence, the inhabitants and owners must be treated humanely and
with as much consideration as the circumstances permit. In particular, the armed forces should generally
allow the inhabitants to continue to live there and should not expel them if alternate shelter is not available.
If imperative military necessity requires the removal of the inhabitants, however, then effort should be made
to give them notice and to aid them in taking their essential possessions. If the armed forces take anything,
they should leave a note to this effect. There is no obligation, however, to protect abandoned property in the
area of active operations.
LOAC imposes no obligation to compensate for loss of, or damage to, private property when such
loss or damage is imperatively demanded by the necessities of war, including damage incidental to combat
operations. There is no obligation to compensate for incidental harm to civilian property due to combat |
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operations, whether such harm arises from attacks on military objectives within proximity to the damaged
property, maneuver damage, mechanical error, enemy countermeasures, human error (including mistake of
fact), or other actions resulting from the fog or friction of war or from the necessities of war. If time allows,
however, a record of the use or damage should be kept or given to the owner so that in the event either
belligerent provides funds at the close of hostilities to compensate the owners, evidence may be available to
assist the assessors. During certain operations and as a matter of policy not law, the U.S. practice has been to
provide ex gratia payments to alleviate the suffering of the civilian populace not involved in the conflict. All
enemy public movable property captured or found on a battlefield becomes the property of the capturing
State. Other than arms, military papers, military transportation, and other property that is susceptible to
military use, enemy private moveable property captured or found on a battlefield may be appropriated only
to the extent that such taking is permissible in occupied areas. In particular, receipts should be given and
compensation paid, when feasible (see paragraphs 6-95 through 6-128).
ENSURING LEGALITY OF WEAPONS AND WEAPON SYSTEMS
Under longstanding DOD policies, there are requirements to review the legality of the acquisition
or procurement of weapons. Although the United States is not a party to Additional Protocol I, many allies
and potential multinational partners of the United States are required to determine the legality of new
weapons as a treaty obligation under article 36 of Additional Protocol I.
LEGAL REVIEW REQUIREMENT
Prior to fielding or deploying any weapon and weapon system, including non-lethal weapons, cyber
weapons and cyber weapon systems, DOD requires the legal review of the acquisition or procurement be
reviewed to ensure compliance with all applicable U.S. domestic law and international legal obligations of
the United States, whether derived from LOAC, international law, international agreements, customary
international law. (See DODD 5000.01, ¶E1.1.15). To implement this policy, all weapons, weapon systems,
and munitions must receive a legal review by an attorney authorized by the Military Department. For the
Marine Corps, the Judge Advocate General of the Navy (Code 10) has been authorized to conduct the legal
review (see SECNAVINST 5000.2E) and OTJAG-NSL has been authorized to conduct legal reviews for the
Army (see AR 27-53).
Note: The general legality of a weapon, weapon system, or munition discussed in this manual does
not obviate the requirement for a legal review of the acquisition or procurement of each new
weapon, weapon system, or munition.
SCOPE OF LEGAL REVIEWS
A review of the legality of a weapon system, weapon or munition under LOAC should address each
of the following questions: whether a specific rule of law prohibits or restricts its use, whether the weapon is
calculated to cause unnecessary suffering or superfluous injury, and whether the weapon is inherently
indiscriminate.
Specific Rule of Law
Whether a specific rule of law—such as a U.S. treaty obligation, a rule accepted by the United States
as customary international law, or a domestic law—prohibits or restricts the use of the weapon in question is
first considered. The use of the following types of weapons is prohibited:
* poison, poisoned weapons, poisonous gases, and other chemical weapons;
* biological weapons;
* certain environmental modification techniques;
* weapons that injure by fragments that are non-detectable by X-rays;
* certain types of mines, booby-traps, and other devices; and
* lasers specifically designed to cause permanent blindness to unenhanced vision. |
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For discussion of these weapons, refer to Chapter VI of the DOD Law of War Manual.
Certain types of weapons are subject to specific rules that apply to their use by the U.S. armed forces.
These rules may reflect U.S. obligations under international law or national policy. These weapons include:
* mines, booby-traps, and other devices (except certain specific classes of prohibited mines, booby-
traps, and other devices);
* cluster munitions;
* incendiary weapons;
* laser weapons (except blinding lasers);
* riot control agents;
* herbicides;
* nuclear weapons;
* explosive ordnance.
For more information, consult the DOD Law of War Manual and specific policies and guidance applicable
to particular types of weapons. It may be appropriate in the review of such weapons to advise on these types
of restrictions or obligations.
If there is no specific prohibition, the following questions are considered:
* Whether the weapon is calculated to cause superfluous injury, in violation of the Hague
Regulations Article 23(e); and
* Whether the weapon is inherently indiscriminate.
Unnecessary Suffering/Superfluous Injury
A weapon review addresses whether the weapon is calculated to cause unnecessary suffering or
superfluous injury in violation of the standard stated in Hague Regulations Article 23(e). The terms
“unnecessary suffering” and “superfluous injury” are synonymous in the context of this analysis. Superfluous
injury generally is determined in light of the practice of nations and in evaluation of a specific weapon.
Superfluous injury is assessed in the sense of the design of a particular weapon or its employment, and not
in terms of how a person affected by the weapon would be subjectively affected by it. Use of “calculated to
cause” in the Hague Regulations Article 23(e) helps convey that the legal standard is focused on assessing
the intended purpose or purposes of the weapon’s developer in developing the weapon.
The prohibition of weapons calculated to cause superfluous injury or unnecessary suffering
constitutes acknowledgement that the use of weapons in war causes suffering, including injury and loss of
life. A weapon cannot be declared unlawful merely because it may cause severe injury or suffering. Nor is a
lawyer reviewing the legality of a weapon required to foresee or anticipate all possible uses or misuses of a
weapon, for almost any weapon can be misused in ways that might be prohibited.
LOAC has no internationally agreed upon definition for superfluous injury. The determination is
whether a weapon’s employment for its normal or expected use would be prohibited under some or all
circumstances. A weapon would be deemed to cause superfluous injury only if it inevitably, or in its normal
use, has a particular effect—and the injury caused as a result of this use is considered by governments as
manifestly disproportionate to the military necessity for it, that is, to the military advantage to be gained from
its employment. This determination cannot be made in isolation from other weapons. A weapon’s effects
must be weighed in light of comparable, lawful weapons in use on the modern battlefield.
Importantly, the effect of the use of a weapon in combat is not the sole criterion for determining
whether a weapon is calculated to cause superfluous injury; effects will differ widely as a result of the
constantly shifting nature of the battlefield. For example, a weapon that can incapacitate or wound lethally
at 300 meters or longer ranges may result in a greater degree of incapacitation or greater lethality when used
against targets at lesser ranges. Similarly, the necessity for the use of a weapon of sufficient power to destroy
materiel or, for example, a reinforced object such as a tank, a bunker, or an aircraft hanger may have a
devastating effect on enemy military personnel in, on, or adjacent to it at the time of its attack, or on enemy
military personnel struck directly by a weapon intended for a vehicle or entrenched defensive position. In
both cases, the use of these weapons would not be unlawful. |
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An objective in war is to impose destruction upon the military forces of the enemy and other military
objectives that contribute to its ability to wage war. The prohibition of weapons calculated to cause
superfluous injury is not intended to limit the legitimate pursuit of those objectives through the employment
of lawful weapons against lawful targets. This principle does not prohibit bringing a preponderance of force
on an opposing military force in order to subdue or destroy it.
In summary, in determining whether a weapon causes superfluous injury, a legal review includes all
of the following:
* An evaluation of the military necessity of the weapon;
* An analysis of the intended results of its use (including design, that is, what it is designed to do,
and intended employment, that is, how it is intended to be used in combat); and
* A comparison of the weapon with lawful comparable weapons already in use.
Inherently Indiscriminate Weapons
A fundamental principle of LOAC is that in the application of force, a nation’s military forces must
direct their attacks against enemy military objectives and, furthermore, must distinguish these military
objectives from the civilian population, individual civilians not taking a direct part in hostilities, and civilian
objects. Only combatants, civilians taking a direct part in hostilities, and other military objectives may be
targeted.
The principle of distinction in targeting requires that the weapon be capable of being directed against
a military objective. “Capable of being directed” does not require terminal guidance to the target or use of
the most precise weapon under all circumstances. It does, however, prohibit “blind weapons.” Such weapons
cannot, with any reasonable assurance, be directed against a military objective. Indiscriminate weapons also
include those that are essentially random in their effects and would be as likely to hit civilians as combatants.
RELIANCE ON LEGAL REVIEWS FOR WEAPONS
Soldiers and Marines may presume a weapon to be lawful, that is, consistent with LOAC and arms
control obligations of the United States, if it has received the requisite legal review and has been issued in
accordance with relevant regulations of the military service concerned. Questions regarding the legality of a
particular weapon, weapon system, or munition should be addressed to the appropriate legal officer
responsible for the legal review as identified in paragraph 2-202.
The application of LOAC related to specific targeting issues will often be addressed at the time of
employment, to be determined by the on-scene commander under the circumstances ruling at the time. Such
issues do not determine the lawfulness of the weapon, weapon system, or munition provided for in the legal
review (see DOD Law of War Manual, 6.1.1). The commander authorizing a weapon’s use must consider its
characteristics, whether civilians are present, and other factors in order to ensure consistency with mission
Rules of Engagement and LOAC proscriptions on directing attacks at civilians not taking a direct part in
hostilities or who otherwise do not pose a threat to U.S. forces. |
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Prisoners of War and Other Detainees
This chapter addresses the protection of POWs, retained personnel, and other detainees
under LOAC, and as described below. The Hague Conventions of 1907 was one of the
international community’s first attempts to codify treatment of captured persons. The
1929 Geneva Convention relative to Prisoners of War provided more substantive
treatment than previous treaties and has been refined in the 1949 GPW and in AP I.
Since the United States is a party to the GPW, it is binding treaty law and the basis for
much of this chapter. This publication uses “POWs” to refer to both friendly and enemy
POWs. The treatment and protection of civilian internees are discussed in Chapter 5 of
this manual.
PRACTICAL GUIDANCE ON POWS AND DETAINEE OPERATIONS
3-1. Soldiers and Marines must comply with LOAC with respect to the treatment of all detainees. Until a
detainee’s release, repatriation, or transfer from DOD custody or control, Soldiers and Marines will, without
regard to a detainee’s legal status, at a minimum apply: (1) common article 3 of the 1949 Geneva
Conventions during all military operations; (2) the principles in Article 75 of AP I during international armed
conflict and occupation; and (3) the principles in Articles 4-6 of AP II during non-international armed conflict
(DODD 2310.01E).
3-2. Certain categories of detainees held during international armed conflict or cases of occupation, such
as prisoners of war (POWs), and certain civilian internees (see Chapter 5), enjoy protections and privileges
under LOAC beyond the minimum standards of treatment discussed in paragraph 3-5. Such detainees will be
afforded all applicable protections and privileges under LOAC until their release, repatriation, or transfer.
3-3. Commanders who expect to conduct detention operations should familiarize themselves with guidance
from higher headquarters that implements applicable law, DOD policies, and other regulations applicable to
the treatment of POWs and retained personnel, such as DODD 2310.01E, DOD Detainee Program; DODD
3115.09, DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning; AR 190-
8/Marine Corps Order (MCO) 3461.1, Enemy Prisoners of War, Retained Personnel, Civilian Internees and
Other Detainees. During detention operations, commanders should anticipate, and where appropriate
request, guidance on detainee issues from higher headquarters, especially on issues implicating U.S. legal
obligations or national policy. Commanders should seek the advice of their servicing judge advocate if they
have any questions about the law applicable to the treatment of POWs, retained personnel, and other
detainees.
BASIC PROTECTIONS AND HUMANE TREATMENT FOR ALL
DETAINEES
3-4. Detainees in all circumstances must be treated humanely and protected against cruel, inhuman, or
degrading treatment or punishment (see DOD Law of War Manual, 8.2). Providing humane treatment to an
individual or group of individuals does not affect the legal status of that individual, group, or any parties to
a conflict (GPW art. 3).
3-5. Detainees must be provided humane care and treatment and with respect for their dignity from the
moment they fall into the hands of DOD personnel until their release, transfer out of DOD control, or
repatriation. Further, inhumane treatment of detainees is expressly prohibited and is not justified by the stress
of combat or deep provocation. Humane treatment and basic protections include, in part: |
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* Adequate food, drinking water, shelter, and clothing;
* Reasonable access to the open air, reasonable educational and intellectual activities, and
appropriate contacts with the outside world (including, where practicable, exchange of letters,
phone calls, and video teleconferences with immediate family or next of kind, as well as family
visits);
* Safeguards to protect health and hygiene, and protections against the rigors of the climate and
dangers of military activities;
* Appropriate medical care and attention required by the detainee’s condition, to the extent
practicable;
* Free exercise of religion, consistent with the requirements of detention;
* Reasonable access to qualified interpreters and translators, where applicable and practicable;
* Respect for each as a human being without any adverse distinction founded on race, color, religion
or faith, political or other opinion, national or social origin, sex, birth, or wealth, or other similar
criteria;
* Protection against threats or acts of violence, including rape, forced prostitution, assault, theft,
public curiosity, bodily injury, reprisals, torture, and cruel, inhuman, or degrading treatment or
punishment; and
* Prohibition on being subject to medical or scientific experiments or to sensory deprivation
intended to inflict suffering or serve as punishment (DODD 2310.01E).
3-6. Detainees must not be subject to criminal punishment without a fair trial and other important criminal
procedural protections (see DOD Law of War Manual, 8.16).
3-7. Detainees must be removed as soon as practicable from the point of capture and transported to a
detainee collection point, temporary holding area, or DOD detention facility. Detainees not released or
transferred from DOD custody or control from the detainee collection point or holding area will be
transported to a DOD detention facility in a secure location within 14 days of capture, barring exceptional
circumstances. Detainees will be promptly informed of the reasons for their detention in a language that they
understand. Detainees will remain at a DOD detention facility until their release or transfer from DOD
custody or control (DODD 2310.01E).
3-8. Under DOD policy, detainees will receive certain procedural protections.
3-9. Detainees will be registered, and property in their possession will be inventoried. Records of their
detention and such property will be maintained according to applicable law, regulation, policy, and other
issuances. All detainee records will be maintained and safeguarded. Detainees will be assigned an Internment
Serial Number (ISN) normally within 14 days after their capture by, or transfer to, the custody or control of
DOD personnel, barring exceptional circumstances.
3-10. The ICRC will be promptly notified of all ISN assignments. The ICRC will be given access to all
DOD detention facilities and the detainees housed therein, subject to reasons of imperative military necessity
(DODD 2310.01E).
3-11. Alleged detainee abuse must be reported in accordance with DOD policies (see DODD 2310.01E;
DODD 2311.01E; DODD 3115.09).
3-12. DOD personnel will review periodically the detention of all individuals in DOD custody or control
who do not receive the protections afforded POWs. Such reviews may include: (1) preliminary assessments
of the detainee’s status and threat; (2) formal determinations of the lawfulness and continued necessity of
detention; and (3) determination of the status of unprivileged belligerents held in long-term detention,
presided over by a military judge (DODD 2310.01E, para. 3i).
3-13. DOD personnel, including DOD contractors, must not accept the transfer of a detainee from another
U.S. Government department or agency, coalition forces, multinational partner personnel, or other personnel
not affiliated with the DOD or the U.S. Government, except in accordance with applicable law, regulation,
policy, and other issuances. (DODD 2310E, para. 3e). No detainee may be released or transferred from the
care, custody, or control of a DOD component except in accordance with applicable law, regulation, policy,
and other issuances (DODD 2310.01E, para. 3m). |
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GPW AND POW PROTECTIONS
3-14. When the GPW and POW protections apply to detainees, they are afforded not only humane treatment
protections discussed paragraphs 3-5 through 3-7, but also additional protections under international law and
DOD policy. For example, the United States has, in some instances, afforded detainees certain POW
protections, even when those protections might not apply as a matter of law (see DOD Law of War Manual,
9.3.1). The applicability of POW protections during a particular armed conflict or operation and the
entitlement of armed groups to POW status are generally resolved at the national level. This is a national
level decision because providing POW protections to an armed group can affect the group’s legal status, and
because it is important to have a consistent national approach to how U.S. obligations under international law
are to be interpreted with regard to the status of armed groups. Generally, POW protections only apply during
international armed conflict, i.e., State versus State armed conflict, and when there are armed forces or groups
that qualify for POW protections under article 4 of the GPW (e.g., State military forces).
3-15. If those broader conditions are met, then there might be questions as to whether particular individuals
are entitled to POW protections. During international armed conflict, should any doubt arise as to whether a
detainee is entitled to the protections and privileges afforded POWs, such detainees shall enjoy treatment as
POWs until a tribunal convened in accordance with Article 5 of the GPW determines whether the detainee is
entitled to such status or treatment. In practice, an Article 5 tribunal may be used to assess whether an
individual detainee is, in fact, a member of a group entitled to POW status.
PERSONS ENTITLED TO PRISONER OF WAR STATUS
3-16. Article 4A of the GPW describes those persons during an international armed conflict and occupation
who are entitled to POW status as discussed, infra, in paragraphs 3-17 through 3-30. Captured military
medical personnel and chaplains are not POWs but are retained personnel, provided that they meet the criteria
in the GPW, including that the organization to which they belong meets the criteria in Article 4A(1), (2), or
(3)of the GPW as discussed, infra, in paragraphs 3-35 through 3-42.
MILITARY PERSONNEL
3-17. Members of the armed forces of a State party to a conflict, other than military medical personnel and
chaplains attached to the armed forces are entitled to POW status based on their membership in the armed
forces. This includes members of militias or volunteer corps that form part of the armed forces (GPW art.
4A(1)).
Non-Standard Uniforms
3-18. Soldiers and Marines who fall within Article 4A(1) of the GPW, including special operations forces,
are expected to carry out their operations in standard uniform. However, the wearing of a non-standard
uniform, would not necessarily violate the law of war. For example, Soldiers and Marines wearing items of
indigenous clothing that represent the distinctive device of a non-standard uniform must be approved by
competent authority upon the demonstration of a military requirement. To be considered a “uniform,” even
a non-standard one, the clothing should distinguish military personnel from ordinary members of the civilian
population. Soldiers and Marines who are captured in non-standard uniforms while conducting operations in
enemy territory and fail to distinguish themselves from the civilian population may be treated as spies and
risk relinquishing their entitlement to POW status.
Civilian Clothing
3-19. Occasions may arise, such as a surprise attack, when military personnel may not have time to dress in
their uniforms before resisting an enemy assault. Soldiers and Marines in civilian clothing may resist an
attack so long as they do not kill or wound treacherously, such as by deliberately seeking to feign civilian
status or other protected status while fighting (see paragraph 2-153). Such military personnel remain entitled
to POW status if captured. Soldiers and Marines may be authorized by competent authorities to dress in
civilian clothing in order to engage in espionage and sabotage, but such persons may be treated as spies if
captured behind enemy lines. |
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OTHER MILITIA AND VOLUNTEER CORPS
3-20. Militia or other volunteer corps members belonging to a State party to a conflict, including organized
resistance movements, whether operating in or outside their own territory are entitled to POW status upon
capture provided the group is commanded by a person responsible for his or her subordinates, wears or has
a fixed distinctive sign or insignia recognizable at a distance, carries arms openly, and complies with LOAC
(GPW art. 4A(2)).
Commanded by a Person Responsible for His or Her Subordinates
3-21. This condition is satisfied if the group has a commander with effective authority over the armed group.
This requirement helps ensure that the armed group has sufficient discipline and organization to conduct its
operations in accordance with the law of war. The authority of the commander over his or her subordinates
gives rise to a corresponding duty to ensure that the group’s members conduct their operations in accordance
with LOAC (see DOD Law of War Manual, 4.6.3).
Wears or Has a Fixed Distinctive Sign
3-22. The second condition, having a fixed distinctive sign recognizable at a distance, is satisfied by the
wearing of a military uniform, but less than the complete uniform will suffice. The essence of this requirement
is that members of the armed group are distinguishable from the civilian population. A helmet or headdress
that 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 militia members or volunteer corps wear
a badge or brassard permanently affixed to their 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.
Carry Arms Openly
3-23. This requirement is not satisfied if the group carries weapons concealed on the approach of the enemy.
Armed groups are required to carry their arms openly in order to qualify for prisoner of war status.
Comply With the Law of Armed Conflict
3-24. This condition is fulfilled if the group observes the laws and customs of war in its operations,
notwithstanding that unauthorized violations by individual members concerned may occur. Evidence that an
armed group enforced LOAC (such as by promulgating instructions regarding LOAC requirements and
punishing violations by members) would help establish that an armed group meets this condition.
MILITARY PERSONNEL OF UNRECOGNIZED POWERS
3-25. During an international armed conflict, members of regular armed forces who profess allegiance to a
government or an authority not recognized by the detaining power are entitled to POW status. This provision
covers members of a regular armed force who remain loyal to their government after its own territory has
been occupied (GPW art. 4A(3)), but who continue to fight as part of an international armed conflict, such
as the Free French Forces in World War II, as well as other circumstances in which the regular armed forces
have “right authority” but the detaining power does not recognize the government or authority of the opposing
party.
CIVILIANS SUPPORTING MILITARY OPERATIONS
3-26. Civilians who accompany the armed force with the authorization of the armed force are entitled to
POW status (GPW, art. 4A(4)). The United States authorizes civilians, including DOD emergency-essential
civilians, civilian contractors, and accredited journalists, to accompany U.S. armed forces on the battlefield.
They are entitled to POW status if captured. DOD issues these individuals identity cards to confirm their
status. Although each State Party is required to issue an identification card to its personnel who are liable to
become a POW (GPW art. 17), possession of the identification card is not a prerequisite for POW status. It
does represent, however, a form of confirmation of entitlement to such status. |
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3-27. Civil aircraft and merchant marine ship crew members of the parties to the conflict are entitled to POW
status (GPW art. 4A(5)).
3-28. A levée en masse involves inhabitants of a non-occupied territory who, upon approach of the
enemy, spontaneously take up arms to resist the invading forces, with no time to form into regular
armed units, provided that they carry their arms openly and respect the laws and customs of war. A
levée en masse may only be formed on the approach of the enemy to non-occupied territory. For example,
after an invading power effectively secures invaded territory and places that territory under its authority as
an occupying power (HR arts. 2, 42, 43; GPW art. 4A(6)), a levée en masse may not be formed.
OTHER PERSONS TO BE GIVEN PRISONER OF WAR TREATMENT
3-29. Persons who belong, or formerly belonged, to the armed force of an occupied country are entitled to
be treated as if they have POW status if the occupying country deems it necessary to detain them (GPW art.
4B(1)).
3-30. Generally, a person who would qualify for POW status as outlined in paragraphs 3-16 through 3-28
and who are in the hands of a neutral or non-belligerent party are entitled to be treated as if they have POW
status (GPW art. 4B(2)).
3-31. During an international armed conflict, if there is doubt about the POW status or treatment of someone
who has committed a belligerent act and who has fallen into enemy hands (such as, someone in a non-standard
uniform who lost his or her identity card or a deserter who does not wish to admit being a member of his or
her armed force), that person must still be treated as a POW until such time as his or her status has been
determined by a competent tribunal (GPW art. 5; DODD 2310.01E).
3-32. Commanders should use tribunals conducted in accordance with applicable policies and regulations to
assess factually whether specific detainees fall within the groups entitled to POW status. Commanders should
refer legal questions on the status of the conflict (i.e., international or non-international) or the entitlement of
particular armed forces or groups to POW status through the operational chain of command for resolution to
ensure consistency of U.S. legal interpretation.
COMMENCEMENT AND DURATION OF STATUS
3-33. The GPW applies to persons referred to in Article 4 of the GPW from the time they fall into the power
of the enemy until their final release and repatriation (GPW art. 5). For example, military personnel who are
captured by, or who have surrendered to, enemy armed forces or members of the civilian population of the
enemy, have “fallen into the power of the enemy” and therefore receive GPW protections. Individuals who
defect are not viewed as having fallen into the power of the enemy since they voluntarily chose to switch
sides and are not considered to be entitled to POW status (DOD Law of War Manual, 9.3.4.1). POWs or
retained personnel are entitled to protections under the GPW until their final release or repatriation, unless
their status is changed otherwise by competent authority in a manner consistent with the GPW (GPW art. 5).
So long as the individuals are properly classified as POWs or retained personnel, the detaining power has no
other basis in treaty to derogate, waive, reclassify, or re-characterize their status.
3-34. Wounded, sick, or injured enemy military personnel remain POWs or retained personnel throughout
their treatment and captivity, until released or repatriated (GWS art. 14; GWS Sea art. 16).
RETAINED PERSONNEL
3-35. Military medical personnel and chaplains who are retained in the hands of the enemy to assist POWs
are not POWs. They are considered retained personnel, if they meet the criteria in the GWS including that
the organization in which they serve meets the criteria outlined in paragraphs 3-21 through 3-24. For example,
under the GWS, military medical personnel who exclusively engaged in medical duties would receive special
status as retained personnel upon capture and are not considered POWs. Retained personnel should be given,
as a minimum, the POW protections under the GPW and they must also be afforded the facilities necessary
to carry out their medical and chaplain duties in support of the POWs (GWS art. 28; GPW arts. 33, 35). |
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3-36. Retained personnel under the GPW must receive GPW protections from the time they fall into the
power of the enemy until their final release and repatriation.
3-37. Retained personnel must, at a minimum, be provided the same humanitarian care, respect, and
treatment as afforded POWs by the GPW. Retained personnel are subject to the same disciplinary
proceedings as POWs.
RETAINED MEDICAL PERSONNEL
3-38. The following rules apply to retained medical personnel (GWS art. 28; GPW art. 33):
* They shall continue to exercise their medical activities for the benefit of POWs, preferably of their
own armed forces.
* They shall be authorized and afforded necessary transportation to make periodic visits to POWs
and retained persons in labor detachments or hospitals outside the camp.
* Retained medical personnel shall perform their medical duties in accordance with their
professional ethics. This occurs under the control of the detaining power’s competent service,
however, and within the scope of its military laws and regulations. The detaining power retains its
responsibility for the health of those in its custody.
* The senior retained medical officer in each camp is responsible for everything connected with the
activities of retained medical personnel.
* Retained medical personnel may not be compelled to carry out work other than their medical
duties.
* They may propose that POWs or retained persons be examined by Mixed Medical Commissions
with a view toward being repatriated or accommodated in a neutral country and an entitlement to
attend examinations conducted by Mixed Medical Commissions.
* If their retention is not indispensable to provide for the health of POWs during hostilities, retained
medical personnel are to be returned to the party to the conflict to whom they belong, as soon as
the road is open for their return and military requirements permit. Upon their departure, they have
the right to take their personal property, including medical instruments, with them.
RETAINED MILITARY CHAPLAINS
3-39. POWs may be ministered to by retained military chaplains. Retained military chaplains shall be
allocated to camps and labor detachments containing POWs belonging to the same force, speak the same
language, and practice the same religion.
3-40. The rights and privileges of retained military chaplains are similar to those of retained medical
personnel; for example, retained military chaplains also have the right deal with camp authorities on all
questions related to their duties (GWS art. 28; GPW arts. 33, 35). Subject to camp censorship policies, they
are free to write on matters concerning their religious duties to recognized international religious
organizations and religious authorities of their faith in the country of detention. This correspondence is
subject to standard security safeguards, including censorship of outgoing and incoming correspondence (see
DOD Law of War Manual, 7.9.5.4).
3-41. POWs who are ministers of religion, without having officiated as military chaplains to their own forces,
may minister freely to members of their community. Those who are recognized to act in the capacity of a
chaplain should be treated as such, and may not be required to do other work. (GWS art. 28; GPW arts.
33, 36).
3-42. Under Article 37 of the GPW, if no retained military chaplain or POW minister of the appropriate faith
is available, one of a similar denomination or a qualified layperson may be appointed at the request of the
POWs if it is done with the approval of the detaining authority.
PERSONS NOT ENTITLED TO PRISONER OF WAR STATUS
3-43. Unprivileged belligerents, as described in Chapter 1, including persons engaged in private acts of
hostility and members of non-State armed groups who fail to meet the requirements of POW status, are not |
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entitled to POW status. Unprivileged belligerents must be afforded the basic protections discussed in
paragraphs 3-4 through 3-13. In certain cases, treatment of detained persons who do not qualify for POW
status will be the same as civilian internees, as discussed in Chapter 5.
3-44. Spies and others acting clandestinely or under false pretenses, such as members of the armed forces
out of uniform, who have engaged in secretive and hostile activities behind enemy lines risk being deprived
of the privileges of combatant status (e.g., POW status) and are often treated as spies. Espionage and spying
are covered in Chapter 1.
BASIC PROTECTIONS AND HUMANE TREATMENT FOR POWS
3-45. From capture until release and repatriation, POWs must be treated humanely at all times (HR art. 4;
GPW art. 13). POWs are entitled to respect for their persons and honor in all circumstances (GPW art. 14).
Further, POWs must at all times be protected against acts of violence or intimidation, against insults, and
against public curiosity (GPW art. 13). Any unlawful act or omission by the detaining power that seriously
endangers the health of or causes the death of a POW in custody is considered a serious breach of the GPW
(GPW art. 13). POWs must not be denied quarter or murdered; LOAC does not permit derogation from this
prohibition for any reason (see DOD Law of War Manual, 9.5.2.1). Additionally, POWs are forbidden to
renounce, in whole or in part, their POW rights (GPW ar. 7).
3-46. POWs must be protected against:
* attack by other members of the force, including U.S. or multinational partners, or by members of
the civilian population, and by other POWs.
* If wounded or sick, the POW must be treated by qualified medical personnel as promptly as
medical priorities permit. If qualified medical personnel are not immediately available and the
medical situation warrants treatment, members of the capturing force should apply first-aid
measures commensurate with their abilities. Only urgent medical reasons will authorize priority
in the order of treatment to be administered (GWS art. 12; GPW arts. 19, 20).
RESPECT FOR THE PERSON OF PRISONERS
3-47. POWs must be respected for their persons and honor at all times. Female POWs must be treated with
all consideration due their gender and will not be treated less favorably than male POWs (GPW arts. 14, 16,
25).
NO ADVERSE DISTINCTION AMONG POWS
3-48. Subject to the preceding provisions concerning due regard for female POWs as well as GPW provisions
relating to rank and to any privileged treatment for POWs based on the state of health, age, or professional
qualifications, all prisoners are to be treated alike by the detaining power, without adverse distinction based
on race, nationality, religious belief, political opinions, or any other distinction based on similar criteria
(GPW art. 16). For example, singling out POWs for harsh treatment based on their race would be a violation
of this rule.
PROHIBITED ACTS
3-49. Certain acts or omissions by the detaining power against POWs or retained personnel are expressly
prohibited (GPW arts. 3, 13, 23; consider AP I art. 75), and the detaining power has obligations to protect
POWs against the following acts or omissions:
* Physical mutilation or medical or scientific experiments that are not justified by the medical,
dental, or hospital treatment of the POW concerned and carried out in his interest
* Any unlawful act or omission by the detaining power that causes death or seriously endangers the
health of a POW.
* Acts of violence or intimidation.
* Exposure to insults or public curiosity. For example, POWs may not be paraded through city
streets and subjected to the insults of the populace; POWs may not be publicly displayed in a |
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humiliating fashion on television or on the internet. Custodians of POWs, such as escorts, must
protect POWs from acts of violence.
* Improper photography and media exposure. For example, DOD policy has generally prohibited
the taking of photographs except for authorized purposes in order to protect POWs and other
detainees from public curiosity.
* Using POWs as human shields to protect military objectives.
* Acts of reprisal against POWs.
* Bartering and other transactions between members of the forces of the detaining power and POWs
concerning the POWs personal effects are not considered proper.
* Adverse discrimination based upon race, gender, nationality, religious belief, political opinions,
or any other similar criteria in regard to treatment of POWs. In some cases, however, the captor is
permitted, and sometimes required, to make distinctions between POWs or retained personnel as
to rank, state of health, age, or professional status, as well as to provide additional protection for
women. Also, as explained in paragraph 3-43, distinctions for security purposes are permissible
(GPW arts. 14, 16, 30, 43-45, 49, 109-110).
BEGINNING OF CAPTIVITY
3-50. Military commanders have an affirmative duty to take the measures within their ability and appropriate
to the circumstances, to protect POWs captured by their unit until they are properly transferred to higher or
other competent authority. Commanders may not execute POWs to preserve their unit or to facilitate their
unit’s movement.
ARTICLE 5 TRIBUNALS
3-51. If, during an international armed conflict, the detaining power has any doubt as to whether a captured
person is entitled to POW status or treatment, Article 5 of the GPW requires the detaining power to provide
POW treatment for such persons having committed a belligerent act until such time as his or her status has
been determined by a competent tribunal. This “Article 5 tribunal” would review the facts and circumstances
to determine the status of the individual in doubt. If the detaining power has no doubt regarding the
entitlement to POW status or treatment, then Article 5 does not require that the person be provided POW
treatment or a tribunal to adjudicate claims of POW status (for example, if the United States has determined
that a non-State armed groups does not meet the criteria for its members to be entitled to POW status, then
no members of that group may, by asserting membership in that group, assert a right to POW treatment under
Article 5 or to an Article 5 tribunal to adjudicate their claim to POW treatment).
3-52. Similarly, if a member of non-State armed group is captured in a non-international armed conflict, then
no “Article 5 tribunal” is required as a matter of international law, and POW status or treatment would not
be required. However, an administrative tribunal may be useful to determine whether a detainee is a peaceful
civilian or an unprivileged belligerent or whether there is a necessity for continued detention (DOD Law of
War Manual, 4.27.4).
3-53. If the detaining power has doubt as to whether a captured person is entitled to POW status or treatment
and the detaining power wishes not to treat the captured person as a POW, an Article 5 tribunal should be
convened within a reasonable period of time following capture, generally upon timely arrival at a corps or
higher level POW camp. A detaining power may decline to convene a tribunal only if military exigencies
prevent it.
3-54. The details of Article 5 tribunals, such as composition and procedures, are within the discretion of the
detaining power. In U.S. practice, tribunals have been three-person administrative boards. A captured person
is entitled to notice in a language he or she understands that a tribunal will be held and he or she will be given
the opportunity to testify or otherwise address the tribunal. The standard for reaching a determination has
been a “preponderance of the evidence.” (See details in AR 190-8/MCO 3461.1, Enemy Prisoners of War,
Retained Personnel, Civilian Internees and Other Detainees.)
3-55. If a competent tribunal determines that a person who has committed a belligerent act is not entitled to
POW status or treatment, such person may still be entitled to protected person status under the GC or may be |
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determined to be an unprivileged belligerent who is not entitled to POW status or treatment nor protected
person status under the GC. In any event, the person will be treated humanely at all times. (See Chapter 5.)
ADDITIONAL ACTIONS UPON CAPTURE
3-56. In addition to treating captured individuals humanely, the following actions should occur at the time
of capture, subject to the requirements of the GPW (GPW art. 18):
* Captured personnel are to be disarmed.
* Following disarmament, they are to be searched for hidden weapons, identification documents,
and items of potential intelligence value.
* Captured enemy personnel may be segregated by rank or grade, service, gender, or nationality.
They also may be segregated if they are deserters, civilians, or political indoctrination personnel,
or by other categories, so long as the segregation is undertaken in a manner consistent with the
prohibition against adverse distinction (see para. 3-35, supra).
* Each captured person should be examined to identify if he or she requires medical treatment. A
capture card should be completed at the earliest possible time to facilitate accountability.
* Personal property may be removed for intelligence purposes, but should be returned as soon as
possible. This may include sun glasses, watches, family photographs, and personal
correspondence.
* Captured personnel are entitled to retain the following items:
Clothing, including protective clothing;
Equipment for personal protection, such as helmet, body armor, and gas mask;
Canteens and mess kits;
Military badges of rank, nationality, service, and branch, and specialty badges; and
Identity cards, dog tags, or similar identification items.
SECURITY MEASURES BY CAPTURING UNIT
3-57. The GPW does not prohibit routine security measures at the time of capture that are necessary to
prevent the escape of a POW, concealment of identity or documents of intelligence value, or similar acts (see
DOD Law of War Manual, 9.6). POWs may be disarmed, searched, segregated by rank, and may be ordered
to remain silent. The capturing unit may secure the POW’s hands with handcuffs or flex cuffs and take other
security measures to protect those responsible for the POW’s from physical or other abuse.
EVACUATION
3-58. As soon as possible after capture, POWs must be evacuated to camps located sufficiently distant from
the combat zone so that they are out of danger. POWs must not be unnecessarily exposed to danger while
awaiting evacuation from a fighting zone. A POW may be temporarily kept near the danger zone only when
wounds or illness would make the evacuation more hazardous to the POW’s health. Furthermore, evacuation
should always be done in a humane manner and in conditions similar to those for the forces of the detaining
power. POWs must receive sufficient food and potable water, and necessary clothing and medical attention.
All feasible precautions must be taken to ensure POWs safety during evacuation. If POWs cannot be
evacuated as provided for in Part III, Section I, of the GPW, they may be released, provided that feasible
precautions are taken to ensure their safety (GPW arts. 19, 20; see DOD Law of War Manual, 9.9.2 and
9.9.3).
PRISONER OF WAR PROPERTY
3-59. When disarming prisoners at the time of capture, the capturing unit may confiscate firearms,
ammunition, knives, bayonets, grenades, or other weapons, or any other device that may pose a threat to
capturing force personnel, or any equipment or items that could possibly facilitate escape. Such items may
include: flares, compasses, survival maps, or individual emergency radios. Capturing personnel may not
confiscate items issued for personal protection, clothing, and feeding unless such an item is being impounded
for security reasons. |
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3-60. Personal items such as a ring, wrist watch, or family photographs may not be taken from a POW or
from dead enemy personnel except by authorized personnel, and then only for their safekeeping. Items taken
for safekeeping must be itemized, separated, and packaged in order to permit accountability, safekeeping,
and return upon a POW’s release (GPW art. 18).
3-61. Currency carried by POWs may not be taken except by order of an officer. The amount of currency
and the identity of the owner must be recorded in a special register, and an itemized receipt must be provided
to the POW (GPW art. 18). The unexplained possession by a POW of a large sum of money justifiably leads
to an inference that such funds are not his or her own property and are in fact either property of the enemy
government or property that has been looted or otherwise stolen.
INTERROGATION AND ACCOUNTABILITY
3-62. Intelligence interrogation of detainees immediately following capture is essential for purposes of
accountability and intelligence collection. For purposes of accountability, the capturing unit is required to
establish a list of POWs who are evacuated as soon as possible (GPW art. 20). To facilitate this effort, each
POW is obligated to provide name, rank, date of birth, and army, regimental, or service number, or, failing
this, equivalent information. Refusal to provide this information is not a basis for denial of POW or retained
person status, however, such refusal may justify a restriction of privileges that would otherwise be accorded
to a POW’s rank or status (GPW art. 17).
3-63. Parties to the conflict are required to provide personnel under their jurisdiction who are “liable to
become” POWs with identification cards with the information listed in the previous paragraph. These cards
may also have the fingerprints or signatures of the possessor. They shall be shown to the possessor’s captors
but retained by the cardholder (GPW art. 17). At no time will POWs be without their identification
documents. The lack of possession of an identification card does not disqualify a person “liable to become”
a POW from being entitled to POW status.
3-64. POWs unable to state their identity due to mental or physical condition shall be handed over to the
medical service (GPW art. 17).
3-65. The GPW does not prohibit intelligence interrogation of POWs, but specifies conditions and
limitations for conducting such an interrogation. It must be carried out in a language the prisoner understands
and in a manner consistent with the requirements for humane treatment, including the prohibition against acts
of violence or intimidation, and insults. No physical or mental torture, nor any form of coercion, may be
inflicted on POWs to secure information from them of any kind. Prohibited means include imposing
inhumane conditions, denial of medical treatment, or the use of mind-altering chemicals. POWs who refuse
to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind
(GPW arts. 13, 17). Intelligence interrogation by Army and Marine Corps personnel must also comply with
U.S. law and policy (see Section 1045, National Defense Authorization Act for Fiscal Year 2016; DOD
Directive 3115.09, DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning; and
Field Manual (FM) 2-22.3, Human Intelligence Collector Operations).
INTERNMENT IN PRISONER OF WAR CAMPS
3-66. POWs and retained personnel should be interned in camps that are situated in an area far enough from
the combat zone for them to be out of danger. The camps should be located in areas that afford every
guarantee of hygiene and healthfulness and to prevent epidemics. If necessary for security reasons or other
military reasons, such as to discourage escape or reduce the risk of enemy raids, POW camps may be located
outside the theater of operations. Because POW status is not punitive, POWs shall not be interned in
penitentiaries unless such internment is in the POWs interest (see DOD Law of War Manual, 9.11.3.2).
Military conditions permitting, POW camps should be clearly marked by the letters PG, PW, or other agreed-
upon markings so the camps are clearly visible from the air during the day (GPW art. 23).
3-67. POWs may have their movements restricted to certain limits, such as the camp where they are interned,
or if the camp is fenced in, of not going outside its perimeter. Subject to the GPW provisions related to penal
and disciplinary sanctions, POWs, may not be held in close confinement (for example a room or a cell) except
where necessary to safeguard their health and then only during the continuation of circumstances that make
such confinement necessary (GPW art. 21; see DOD Law of War Manual, 9.11.1). |
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3-68. POWs are entitled to the following protections and protective measures in a POW camp (GPW arts.
13, 17, 23).
* POWs and retained personnel shall be protected against acts of violence, including assaults or
intimidation.
* POWs and retained personnel shall be protected against insults and public curiosity.
* POWs and retained personnel may not be subjected to medical or scientific experimentation not
justified by the medical, dental, or hospital treatment of the POW concerned and carried out in his
or her interest.
* POWs and retained personnel are entitled to respect for their persons and honor. For example,
rapes and other sexual assault of POWs are forbidden.
* POWs and retained personnel may be interned only in camps on land. POW camps should be
situated in an area far enough from the combat zone for POWs to be out of danger.
* POWs and retained personnel may not be sent to or detained in areas where they may be exposed
to fire of the combat zone nor may his or her presence be used to render certain points or areas
immune from military operations.
* Camps may not be located or designed for the purpose of using POWs or retained personnel as
human shields in order to prevent the attack of military objectives.
* POWs and retained personnel must have shelters against bombardment and other hazards of war
to the same extent as the local civilian population. If there is a risk of air, missile, or chemical,
biological, radiological, or nuclear weapons attack, POWs shall retain their personal protective
equipment (such as, helmets, body armor, and protective masks) or be provided comparable
equipment for personal protection.
QUARTERS
3-69. POWs and retained personnel must be quartered in camps or camp compounds according to their
nationality, language, and customs in order to minimize friction among POWs or groups of POWs, provided
that such POWs shall not be separated from POWs belonging to the armed forces with which they were
serving at the time of their capture, except with their consent (GPW art. 22). In any camps in which women
POWs, as well as men, are accommodated, separate dormitories and separate toilet facilities shall be provided
for women POWs. POWs may be segregated according to their known or suspected security risk level.
Subject to compliance with the GPW, officer POWs may be separated from enlisted POWs. Female POWs
will be under the immediate supervision of women (GPW arts. 21-25).
3-70. In addition to the requirements previously listed, POWs and retained persons shall be quartered under
conditions as favorable as those for the forces of the detaining power in the same area. Barracks should be
protected from dampness, adequately heated and lighted, and should include all necessary fire prevention
measures. Conditions in the quarters must make allowances for the habits and customs of the POWs. In
addition, conditions posing health risks should be identified and corrected to ensure that conditions in no case
are prejudicial to the POWs’ health (GPW art. 25).
3-71. POWs shall have shelter against aerial bombardment and other hazards of war to the same extent as
the local population (GPW art. 23).
FOOD, WATER AND TOBACCO
3-72. The food and water ration of POWs and retained personnel should be as consistent as feasible with
their actual needs. Medical, cultural, and religious requirements should be considered in determining and
ensuring the appropriate diet for POWs. Food rations shall be of sufficient quantity, quality, and variety to
keep POWs in good health and to prevent weight loss or the development of nutritional deficiencies.
Adequate messing premises shall be provided and additional food provided for those whose labor require it.
Tobacco use is to be permitted, but reasonable restrictions on when it is permitted, for health reasons and
other legitimate reasons, are permitted. Collective disciplinary measures affecting food are forbidden (GPW
art. 26, 28, 31). |
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CLOTHING
3-73. Adequate supplies of clothing, underwear, and shoes must be provided to POWs free of charge. If
available, uniforms of the armed forces to which POWs owe their allegiance should be made available to
clothe them. POWs who work shall be provided clothing consistent with their work, to include protective
items. Clothing must be suitable for the regional climate (GPW art. 27). Uniforms or other clothing may
contain markings denoting the individuals as POWs to help prevent escape, but the markings may not be
humiliating or degrading (DOD Law of War Manual, 9.13.4.1).
CANTEENS
3-74. Canteens are similar to a base or post exchange for POWs. They should be established in all permanent
POW camps within a reasonable period of time, such as after more basic camp facilities have been established
for U.S. forces in the area. The purpose of the canteen is to permit prisoners to purchase items, at a cost not
greater than local market prices, for daily use that the detaining power is not otherwise required to provide.
These may include, but are not limited to, items such as correspondence materials, foodstuffs, personal
hygiene articles, tobacco, soft drinks and other non-alcoholic beverages, and reading materials (see GPW art.
28). U.S. practice has been to provide these materials to POWs free of charge before a canteen can be
established (see DOD Law of War Manual, 9.17.1.1).
HYGIENE
3-75. POWs may only be interned in premises affording every guarantee of hygiene and healthfulness. POW
camps must have sanitary measures that will ensure the cleanliness and healthfulness of the camps and that
will prevent epidemics. POWs interned in unhealthful areas, or where the climate is injurious for them, shall
be removed as soon as possible to a more favorable climate (GPW art. 22).
3-76. POWs shall have for their use, accessible day and night, toilets that conform to the rules of hygiene
and are maintained in a constant state of cleanliness. Where feasible, toilets should be appropriate for the
culture of the POWs. In addition, bathing and laundry facilities with sufficient soap and water are to be
provided. Individuals must be provided reasonable opportunity to make use of these facilities. Toilet, bathing,
and laundry facilities must be kept clean (GPW art. 29). POWs may be assigned cleaning duties. The
detaining power, however, has the ultimate responsibility for the camp’s sanitary conditions.
MEDICAL CARE AND INSPECTIONS
3-77. POWs should be disinfected and receive medical examinations on entry into the POW camp. They
should receive any necessary inoculations and individuals suffering from infectious or mental disease should
be quarantined for the protection of other POWs (GPW arts. 30, 31; see DOD Law of War Manual, 9.11.5.1).
3-78. Every POW camp will have an adequate infirmary where POWs, including those undergoing
punishment, can receive medical care they require, as well as an appropriate diet. If necessary, isolation wards
must be established for those suffering from contagious or mental diseases. POWs with serious diseases or
requiring special treatment must be admitted to any military or civilian medical unit that can provide
appropriate treatment. As necessary, specialized medical treatment will be made available for treatment of
serious disease or injury. Imminent release and repatriation or transfer does not relieve the detaining power
from this responsibility (GPW art. 30).
3-79. POWs who are not members of the medical services of their armed forces but who may be medically
trained, may be required to provide medical care for their fellow POWs who belong to the same group.
Retained medical personnel should be permitted to perform their respective duties. The detaining power,
however, always retains responsibility for prisoner health and medical care. If available, POWs must have
access to medical care from personnel of the power on which they depend and, if possible, of their own
nationality (GPW art. 30, 32).
3-80. Required medical treatment cannot be denied POWs, and all medical treatment should be documented.
The detaining power must bear the cost of medical treatment and of remedial aids such as dentures, crutches,
artificial limbs, or eye glasses (GPW arts. 15, 30). |
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3-81. Only urgent medical reasons will authorize priority in the order of treatment administered (GWS art.
12).
3-82. POWs must receive a medical inspection at least once a month to check on each prisoner’s general
health, nutrition, and cleanliness, and to detect contagious diseases. Inspection includes checking and
recording of each POW’s weight (GPW art. 31).
Serious Injuries
3-83. Any serious injury (an injury requiring hospitalization) to or death of a POW will be the basis for an
official investigation to determine its cause (GPW art. 121). In addition, Army regulations and DOD policy
require reporting and investigation of potential detainee abuse.
Prisoners Who Engage in Medical Duties
3-84. Even if not attached to their own force’s medical service branch, POWs who happen to be doctors,
nurses, or other medical practitioners may be required to assist in the medical services of their fellow POWs.
If so, they may not be compelled to engage in any other work (GPW art. 32).
RELIGIOUS ACTIVITIES
3-85. POWs are entitled to religious worship, including attendance at services, subject to the POW’s
compliance with camp disciplinary routine. Accommodation for religious services shall be provided (GPW
art. 34).
3-86. POWs may be ministered to by retained military chaplains or by other ordained chaplains or qualified
laypersons, if available. Retained chaplains shall be allocated to camps and labor detachments containing
POWs of the same forces, language, or religion.
INTELLECTUAL AND PHYSICAL ACTIVITIES
3-87. Subject to security requirements and individual preference, the detaining power shall encourage
intellectual, educational, and recreational pursuits, including sports and games, and provide adequate
facilities and equipment. Each POW camp must contain sufficient open space for POWs and retained persons
to be outdoors and to engage in physical exercise, including sports and games (GPW art. 38).
3-88. Intellectual activities, including reading and courses of instruction, shall be available to POWs. POW
participation is elective. Educational courses, lectures, and other training methods of instruction on history
and democracy are permitted, provided attendance is not compelled and POWs are not punished if they do
not participate. This provision does not permit the subjection of POWs to propaganda under the guise of
education (see DOD Law of War Manual, 9.16.1).
LEGAL STATUS IN RELATION TO THEIR HOME STATE AND CIVIL CAPACITY
3-89. Although POWs are not subject to the judicial or disciplinary procedures of the State for which they
have an allegiance while they are POWs, POWs remain subject to the law, disciplinary authority, and
regulations of that State. For example, while they are POWs, they may not conduct disciplinary proceedings
against one another; however, they are liable to punishment for violations of their State’s domestic law
committed during captivity, once they have been released and repatriated (see DOD Law of War Manual,
9.22.2).
3-90. All prisoners retain their full civil capacity that they enjoyed at the time of their capture. The detaining
power may not restrict the exercise of the rights such capacity confers, except in so far as the captivity requires
(GPW art. 14).
COMMUNICATIONS, SHIPMENTS, AND RELATED ENTITIES
3-91. The GPW provides thorough requirements and guidelines to regulate communications, shipments, and
the related entities that facilitate such activities within POW camps. |
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COMMUNICATIONS WITH THE EXTERIOR
3-92. A point of immediate concern for POWs is their communication with others outside the camp. Once
POWs have fallen into the hands of a detaining power, that power must inform the POWs, and the powers
upon which the POWs depend of the measures taken to ensure compliance with the GPW. POWs may write
to their families and to the Central Prisoners of War Agency informing them of their capture, mailing address,
and state of health (GPW art. 70).
CORRESPONDENCE AND CONSIGNMENTS
3-93. POWs may send and receive letters and cards, subject to security requirements. Electronic means,
including voice and video conferences, should be considered as time, resources, and circumstances permit.
If the detaining power deems it necessary to limit such correspondence, it may not restrict any POW to
sending fewer than two letters and four cards monthly, conforming as closely as possible to the models
annexed to the GPW, not including capture cards sent to satisfy the notification referenced in the previous
paragraph and certain other correspondence the GPW authorizes without counting against any prisoner
correspondence quota (see DOD Law of War Manual, 9.20.2.1). The protecting power may permit further
limitations only in the interests of the POWs concerned based on the detaining power’s inability to find
sufficient qualified linguists to carry out the necessary censorship. As a general rule, the correspondence of
POWs shall be written in their native language although the parties to the conflict may allow correspondence
in other languages. In cases of urgency or of POWs having difficulty communicating with their next of kin,
the POWs affected may send telegrams at prisoner expense. Limitations on the correspondence addressed to
POWs may only be ordered by the power on which the prisoners depend. Such letters and cards must be
conveyed as rapidly as the detaining power can manage; they may not be delayed or retained for disciplinary
reasons (GPW art. 71).
3-94. Censorship of correspondence addressed to POWs or sent by them shall be done as quickly as possible.
Examination of consignments intended for POWs shall not be carried out under conditions that will expose
the goods contained in them to deterioration; except in the case of written or printed matter, it shall be done
in the presence of the addressee, or a fellow POW duly delegated by him or her (GPW art. 76).
PRISONERS’ REPRESENTATIVE
3-95. The role of the prisoners’ representative is to represent POWs before the military authorities, the
Protecting Powers, the ICRC, and any other organization that may assist them. The prisoners’ representative
shall also further the physical, spiritual, and intellectual well-being of POWs. The prisoners’ representative
facilitates much of the communication and shipments the GPW authorizes on behalf of POWs. If prisoners
decide to organize for mutual assistance, their organization will be within the purview of the prisoners’
representative. Prisoners’ representatives may not be held responsible for any offenses committed by POWs,
however, simply by reason of their duties. POWs may freely consult their prisoners’ representative. Any
POW correspondence limits as referenced in paragraph 3-93 shall not apply to correspondence to or from a
prisoner’s representative as such (GPW arts. 80, 81).
3-96. The highest ranking military POW officer acts as the prisoners’ representative, assisted by advisers
chosen by fellow POWs in the camp. In camps without officers, a representative is elected by secret ballot
every six months. An elected prisoners’ representative must be approved by the detaining power before
commencing duties as the representative. If the detaining power refuses to approve the elected representative,
it must inform the protecting power or the ICRC of the reason for such refusal and the prisoners are entitled
to hold a new election. A prisoners’ representative is to have the same nationality, language, and customs as
the POWs represented. Thus, a camp having different sections according to differing prisoner nationalities,
languages, or customs will have multiple prisoners’ representatives (GPW art. 79).
3-97. The detaining power must provide prisoners’ representatives all facilities necessary to communicate
with the detaining authorities, the protecting power, the ICRC, and those organizations given to assist POWs.
Other material facilities shall be granted prisoners’ representatives, particularly sufficient freedom of
movement to accomplish their duties, such as visits to those premises where POWs are detained, inspection
of labor detachments, and receipt of supplies. Prisoners’ representatives may appoint assistants they need |
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from among the POWs. The detaining power may not require prisoners’ representatives to perform other
work if doing so makes their duties more difficult (GPW art. 81).
3-98. Prisoners’ representatives who are transferred shall be allowed a reasonable time to acquaint their
successors with current affairs. The reasons for the dismissal of a prisoners’ representative must be
communicated to the protecting power (GPW art. 81).
THE CENTRAL PRISONERS OF WAR INFORMATION AGENCY AND THE CENTRAL TRACING
AGENCY
3-99. The GPW provides for the creation of a Central Prisoners of War Information Agency in a neutral
country for the purpose of collecting all the information it may obtain through official or private channels
respecting POWs, and to transmit it as rapidly as possible to the POWs’ country of origin or power on which
they depend (GPW art. 123). This role generally has been performed by the ICRC through its Central Tracing
Agency.
INFORMATION BUREAUS FOR POWS
3-100. On outbreak of a conflict and in all cases of occupation, each State party to the conflict must establish
an official national information bureau for POWs in its custody. The main purpose of the information bureau
is to receive all reportable information concerning POWs in the custody of the detaining party and forward
it expeditiously to the parties concerned through the Central Prisoner of War Information Agency and the
protecting power (GPW art. 122). In recent practice, the United States has established a National Detainee
Reporting Center that can perform this purpose (see Joint Publication [JP] 3-63, Detainee Operations).
3-101. The State concerned must (GPW art. 122):
* Ensure the information bureau has the necessary accommodation, equipment, and staff to
discharge its responsibilities efficiently. POWs may be employed in the information bureau under
work conditions established in the GPW as outlined in paragraphs 3-109 through 3-114, infra;
* Within the shortest possible period, provide the information bureau identifying information about
each person it detains and an address to which correspondence may be sent; and
* When applicable, provide the information bureau in the shortest period possible information
related to transfer, release, repatriation, escape, recapture, admission to a hospital, or death.
Information concerning the state of health of a POW who is seriously wounded, injured, or sick
must be provided regularly, every week if possible.
3-102. The following summarizes the procedure through which reports of enemy POWs captured by U.S.
forces or in U.S. hands are processed: The Theater Detainee Information Center receives reports from all
subordinate POW facilities, consolidates them, and reconciles any discrepancies. This center then forwards
the report to the National Detainee Reporting Center. The National Detainee Reporting Center forwards the
reports to the ICRC Central Tracing Agency (and any protecting power). The Central Tracing Agency then
transmits the reports to the appropriate country for each POW.
3-103. Information bureau responsibilities include (GPW arts. 122-123):
* On behalf of the detaining power, providing available information regarding POWs to the Central
Prisoners of War Information Agency and, if applicable, to the designated protecting power.
* Responding to authorized inquiries received about POWs, consistent with the protection from
insults and public curiosity.
* Ensuring that its correspondence is properly authenticated.
* Collecting and forwarding personal valuables, currency, and important documents, left by POWs
who died, escaped, or who were repatriated or released to the Central Prisoners of War Information
Agency and, if appropriate, the protecting power. These items should be forwarded in sealed
packets and accompanied by both an inventory of the packet’s contents and statements providing
clear and complete information as to the identity of the person who owned the articles. |
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RELIEF SOCIETIES AND OTHER ORGANIZATIONS
3-104. Subject to the consent of the detaining power, humanitarian organizations may provide collective
relief and assistance to, and within, POW camps. Historically, this role has been performed by the ICRC, its
special position in this field shall be recognized and respected at all times. Access is subject to security or
other practical considerations and the obligation to protect POWs from public curiosity (GPW arts. 9, 13).
REQUESTS AND COMPLAINTS
3-105. POWs have the right to make requests to the military authorities of the detaining power concerning
the conditions of their captivity. They also have the right to lodge complaints about such matters to the
protecting power if one has been appointed, or to ICRC representatives. Such complaints may be made by
the POW or through the prisoners’ representative. No restrictions may be placed on requests or complaints.
Written complaints must be transmitted without delay and may not be counted against a prisoner’s quota of
allotted letters if a quota has been established. The individual making the complaint may not be punished,
even if the complaint is unfounded (GPW art. 78).
LEGAL DOCUMENTS
3-106. The detaining power must provide POWs all reasonable facilities for the preparation and execution
of legal documents in their civil capacity, and for their transmission through the protecting power or Central
Prisoners of War Information Agency (GPW art. 77).
RELIEF SHIPMENTS
3-107. POWs are allowed to receive relief shipments containing food, clothing, medical supplies, and
articles of a religious, educational, or recreational character and materials allowing POWs to pursue their
studies or cultural activities, free of import, customs, or other duties (GPW arts. 72, 74). Procedures for
collective relief shipments are delineated in Annex III to the GPW. States may arrange for relief shipments
by special agreement as long as the agreement neither restricts the prisoner representative’s right to take
possession of relief shipments and distribute or dispose of their contents on behalf of the POWs nor restricts
the protecting power, the ICRC, or other qualifying organization of their right to supervise shipment
distribution (GPW art. 73).
3-108. The only limits that may be placed on these shipments shall be those proposed by the protecting
power in the interests of the POWs themselves, or by the ICRC or any other organization giving assistance
to the POWs, in respect to their own shipments only, on account of the exceptional strain on transport or
communication (GPW art. 72). Relief shipments for POWs are exempt from any postal charges or duties.
LABOR
3-109. Subject to the conditions outlined in Section III of the GPW, the detaining power may employ POWs
and retained personnel (GPW art. 33, 49). Retained personnel, however, may not be employed other than for
work related to their medical or religious duties (GPW art. 33).
3-110. Labor assignments for physically fit POW’s must, nevertheless, take into consideration a POW’s
age, gender, rank, and physical aptitude, with a view to maintaining POWs in a good state of physical and
mental health. Officers may not be compelled to work. They may be permitted to work if they request to do
so and suitable work is available. Noncommissioned officers may be employed, but only in supervisory
positions (GPW art. 49).
3-111. POWs may never be employed in labor that places them at risk of violence, intimidation, insults, or
public curiosity, or that would be regarded as humiliating if performed by a member of the detaining power’s
military force. Additionally, unless they volunteer, POWs may not be compelled to perform labor that is
unhealthy or dangerous (GPW art. 52). They may not be compelled to take part in military operations directed
against their own country.
3-112. POWs may be compelled to engage in a broad range of work, to include camp administration,
installation, and maintenance. If they volunteer, POWs may work in a broader range of jobs, to include work |
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on military bases not directly connected with war operations. The following lists other permissible classes of
work in which POWs may be compelled to work (GPW art. 50):
* agriculture;
* industries connected with the production or the extraction of raw materials and manufacturing
industries, except metallurgical, machinery and chemical industries;
* public works and building operations that have no military character or purpose;
* transport and handling of stores that are not military in character or purpose;
* commercial businesses, including arts and crafts;
* domestic service; and
* public utilities having no military character or purpose.
3-113. POWs shall be provided with appropriate food, clothing, equipment, conditions, and training for
performing their work (GPW art. 51). The treatment of POWs who work for private employers must not be
inferior to that provided for under the GPW (GPW art. 57).
3-114. POWs performing labor shall receive working pay at a fair rate established by the detaining power
within GPW guidelines (GPW arts. 54, 62). POWs permanently assigned to work for the administration,
installation or maintenance of POW camps, and POWs required to perform spiritual or medical duties for
their fellow POWs are also entitled to fair working pay (GPW art. 62). The duration of the POWs’ daily
routines should not be excessive and must comport with GPW standards, which in general require working
conditions that are safe and not inferior to those the detaining power affords its nationals (GPW art. 51).
Prisoners shall receive one hour of rest in the middle of the day’s work and 24 consecutive hours of rest each
week. For POWs held by the Department of Defense, further information is provided in chapter 4, AR 190–
8/Marine Corps Order 3461.1.
FINANCIAL RESOURCES OF PRISONERS OF WAR
3-115. POWs are entitled to a monthly advance of pay commensurate with their rank. This is paid during
captivity so that a POW or retained person may purchase items at the canteen that the detaining power is not
otherwise required to provide. Payment of advance pay is not dependent upon performing labor. The
detaining power pays the advance on behalf of the party in whose force the POW was serving at the time he
or she was captured and the amount of pay is rank-dependent. (GPW art. 60). Reimbursement to the detaining
power is to be made at the end of hostilities (GPW art. 67).
3-116. An advance of pay may be made in scrip or vouchers that can be used only in the POW camp in
order to prevent POWs from having or hoarding currency, which might create a security concern. Explicit
requirements for transfers of funds, maintenance and management of the POWs’ accounts, finalizing the
accounts at the end of captivity, and payment of claims and compensation are delineated in Articles 63-68 of
the GPW and DOD financial management regulations.
CAMP ADMINISTRATION AND DISCIPLINE
3-117. Every POW camp must be put under the immediate authority of a commissioned officer of the
detaining power’s regular armed force. Officers in charge of POW camps will have copies of the GPW, will
ensure the others in charge of camp administration understand and adhere to the GPW, and will ensure it and
other camp administration regulations are posted for POWs’ reading in languages they understand. Orders
addressed to a POW individually must be in a language that the POW understands (GPW arts. 39, 41).
3-118. POWs shall display the same respect and courtesies, such as saluting, to the officers of the detaining
power. POWs, with the exception of officers must salute and show external marks of respect to all officers
of the detaining power. Officer POWs must salute only Detaining Power officers of higher rank and the
commander of the camp (GPW art. 39). POW camp commanders have the right and responsibility to take
reasonable measures to maintain good order and discipline within a camp.
3-119. Apart from judicial authorities or superior military authorities, only the camp commander, the officer
acting in the commander’s place, or the officer to whom the commander has delegated command powers,
may award disciplinary punishment. This authority cannot be delegated to POWs (GPW art. 96). |
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3-120. POWs are entitled to keep their rank insignia, nationality badges or devices, and decorations (GPW
art. 18). They must be treated with due regard to their rank and age (GPW art. 44). The detaining power must
recognize promotions of POWs during their captivity, when notified by the power on which such POWs
depend (GPW art. 43).
3-121. Non-lethal weapons may be used to control rioting or to prevent escape. Deadly force may be used
to prevent the escape of a POW or to restore discipline in certain circumstances, such as when POW actions
pose an imminent threat of death or serious bodily harm to camp personnel or other POWs.
3-122. The use of weapons against POWs, particularly against those who are escaping or attempting to
escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the
circumstances (GPW art. 42).
3-123. Pursuant to Article 91, GPW, a POW succeeds in an escape attempt if the POW rejoins the armed
forces of the power on which the POW depends or joins those of an ally; the POW leaves the territory under
the control of the detaining power or its allies; or the POW joins a ship flying the flag of the power on which
the POW depends or of an ally, in the territorial waters of the detaining power (provided that this ship is not
under the control of the detaining power). POWs who make good their escape and are recaptured may not be
punished in respect to their escape (GPW art. 91; DOD Law of War Manual, 9.25.1).
3-124. A POW who attempts to escape but does not succeed before recapture may only be subject to
disciplinary punishment, even if it is not a first attempt. If recaptured by civilians, the prisoner should be
turned over to local, State, or federal law enforcement authorities for safekeeping so that he or she may be
turned over to military custody as soon as possible (GPW art. 92). A recaptured POW must be handed over
without delay to the competent military authority. A recaptured individual remains a POW and the
responsibility of the detaining power and must be treated accordingly.
3-125. A POW who commits offenses with the sole intention of facilitating escape and whose offenses do
not involve violence against life or limb, such as offenses against public property, theft without intention of
self-enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, may be subject to
disciplinary punishment only. Similarly, a POW who aids or abets an escape or an attempt to escape may be
subject to disciplinary punishment only. Escape or attempt to escape may not be considered an aggravating
circumstance if the POW is subjected to trial by judicial proceedings in respect of an offense committed
during the POW’s escape or attempt (GPW art. 93).
PENAL AND DISCIPLINARY SANCTIONS
3-126. A POW is subject to the laws, regulations, and orders that apply to the armed forces of the detaining
power (GPW art. 82). The UCMJ applies to POWs held by the United States. POWs also remain subject to
the laws of the State to which they claim allegiance, and may be prosecuted by that State following release
and repatriation for misconduct committed during their captivity.
3-127. For the purposes of this chapter, “disciplinary measures” means punishment by the commander of
the POW camp and other similar punishments by those with authority, and such punishment is equivalent to
summary disposition by a commanding officer. “Judicial proceedings” means trial and punishment by a court
having jurisdiction to try POWs and is usually equivalent to trial by court-martial.
3-128. This section provides information on the rules for penal and disciplinary sanctions against POWs. It
is not intended as a guide for the conduct of penal or disciplinary sanctions against POWs. Commanders
should seek the counsel of judge advocates and apply relevant provisions of U.S. law, such as the UCMJ, in
accordance with the requirements of the GPW.
JUDICIAL PROCEEDINGS
3-129. POWs should normally be tried in military courts only. However, if the law of the detaining power
permits members of its own armed forces to be tried in civilian courts for particular offenses, then civil courts
may try POWs under the same conditions. All courts trying POWs must offer essential guarantees of
independence, impartiality as generally recognized and, in particular, must be guided by the procedures |
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provided for under the GPW related to the rights of the accused and to means of defense (GPW arts. 84, 105;
consider AP I art. 75).
3-130. In deciding whether proceedings with respect to an offense shall be judicial or disciplinary, the
competent authority should exercise the greatest leniency and adopt, where possible, disciplinary rather than
judicial measures (GPW art. 83).
DOUBLE JEOPARDY
3-131. A POW may not be punished more than once for the same act or on the same charge (GPW art. 86).
OFFENSES COMMITTED PRIOR TO CAPTURE
3-132. Subject to the requirements of the GPW, a detaining power may try a POW for offenses over which
it may exercise jurisdiction committed prior to capture, such as war crimes committed against the detaining
power or its co-belligerents. Throughout the trial process and after, even if convicted, a POW retains the
status of a POW and the benefits of the GPW (GPW art. 85).
DISCIPLINARY MEASURES AND PRE-TRIAL ISSUES
3-133. Acts that constitute offenses against discipline shall be investigated immediately (GPW art. 96).
Investigations related to a POW shall be conducted as rapidly as circumstances permit so that his or her trial
may take place as soon as possible (GPW art. 103). No moral or physical coercion may be exerted on a POW
to induce an admission of guilt.
3-134. A POW accused of an offense against discipline shall not be confined during investigation and
pending any hearing unless the detaining power would similarly confine a member of its own armed forces
for the same offense under similar circumstances, or if doing so is otherwise essential to camp order and
discipline. Any period a POW spends in confinement awaiting disposal of an offense against discipline shall
be as short as possible and shall not exceed fourteen days (GPW art. 95). The period a POW spends in
confinement awaiting judicial trial may not exceed three months (GPW art. 103).
3-135. A POW confined as a disciplinary punishment or pending trial continues to enjoy the benefits of the
GPW except for those necessarily rendered inapplicable due to the nature of confinement. POWs shall not in
any case be transferred to a civilian prison to undergo disciplinary punishment therein; female POWs shall
be confined in separate quarters from men and shall remain under the immediate supervision of women (GPW
art. 97). Parcels and remittances of money to such a POW may be withheld until completion of confinement;
POWs shall meanwhile be entrusted to the prisoners’ representative. However, POWs confined for
disciplinary punishment or pending trial retains the right to (GPW arts. 98, 103):
* Make requests and complaints and deal with representatives of the protecting power or the ICRC;
* Retain the prerogatives attached to their rank;
* Read, write, receive, and send correspondence;
* Retain access to facilities to ensure individual safety, cleanliness, and health (GPW art. 25, 29);
* Take regular exercise and stay in the open air at least two hours daily; and
* Be present at the daily medical inspections and have the medical care required by their state of
health.
3-136. All POWs sentenced to confinement, as a result of judicial proceedings, have the right to (GPW art.
108):
* Make requests and complaints and deal with representatives of the protecting power or the ICRC;
* Receive and send correspondence;
* Receive at least one relief parcel each month;
* Take regular exercise in the open air;
* Have the medical care required by their state of health; and
* Have such spiritual assistance as they may desire. |
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RIGHTS OF AN ACCUSED
3-137. With respect to disciplinary proceedings, before any disciplinary punishment is announced, the
accused must be given precise information regarding the offenses of which the POW is accused and an
opportunity to explain the conduct and defend himself or herself. The accused must be allowed to call
witnesses and, if necessary, be given the services of a qualified interpreter (GPW art. 96). A record of
disciplinary punishments must be maintained by the camp commander and must be open to inspection by
representatives of the protecting power (GPW art. 96).
3-138. With respect to judicial proceedings, the detaining power must notify the POWs concerned, the
prisoners’ representative, and the protecting power of any plan to initiate judicial proceedings against any
POWs as soon as possible and at least three weeks before the opening of the trial. The notification must
contain the following information (GPW art. 104):
* Surname and first names of the POWs, their rank, their army, regimental, personal or serial
numbers, their dates of birth, and their professions or trades, if any;
* Place of internment or confinement;
* Specification of the charge or charges on which the POWs are to be arraigned, giving the legal
provisions applicable; and
* Designation of the court that will try the cases and the dates and places fixed for the opening of
the trials.
3-139. At trial, accused POWs are (GPW art. 105):
* Assistance by fellow POWs;
* Defense by a qualified advocate or counsel of the POW’s own choice;
* The right to call witnesses; and
* If necessary, the assistance of a competent interpreter (GPW art. 105).
SENTENCING AND EXECUTION OF PENALTIES
3-140. Sentences may be passed on POWs only by the same courts, and in accordance with the same
procedures, as for members of the armed forces of the detaining power (GPW art. 102). In addition, a sentence
may only be passed on POWs if the court complies with the requirements laid out by the GPW. If any time
was spent in pre-trial confinement, it must be deducted from any sentence of imprisonment and taken into
account when adjudicating any other punishment (GPW art. 103).
3-141. Judgments and sentences pronounced upon a POW must be immediately reported to the protecting
power and the prisoners’ representative concerned in the form of a summary communication, which shall
also indicate whether the POW has the right to appeal with a view to the quashing of the sentence or the
reopening of the trial. The communication must also be sent to the POW in a language that the POW
understands, if the sentence was not pronounced in the POW’s presence (GPW art. 107).
PERMITTED DISCIPLINARY PUNISHMENTS
3-142. The only disciplinary punishments that may be awarded are (GPW art. 89):
* A fine not exceeding fifty percent of advances of pay and working pay for a period of thirty days.
* Discontinuance of privileges granted over and above the treatment provided for by the GPW for
not more than thirty days.
* Fatigue duties, not exceeding two hours a day, for not more than thirty days. This punishment may
not be given to officers.
* Confinement for not more than thirty days.
In no case shall disciplinary punishments be inhuman, brutal, or dangerous to the health of POWs. |
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PROHIBITED PENALTIES
3-143. No penalty may be imposed on POWs that is not authorized for members of the armed forces of the
detaining power who have committed the same acts. The following punishments are expressly prohibited
(GPW art. 87):
* Collective punishments for individual acts;
* Corporal punishment;
* Imprisonment in premises without daylight;
* Any form of torture or cruelty; or
* Deprivation of rank or of the right to wear badges.
3-144. Courts or authorities assessing judicial or disciplinary penalties must consider that the accused does
not owe allegiance to the detaining power and may be, for example, under a duty to escape, and is in its
power through circumstances beyond his or her control . Consequently, such courts or authorities may reduce
the penalty below any minimum penalty prescribed for members of the armed forces of the detaining power.
(GPW art. 87).
DEATH PENALTY
3-145. The following are special rules regarding the death sentence for POWs (GPW art. 100):
* A POW and the protecting power shall be informed, as soon as possible, of any offense that is
punishable by a death sentence under the laws of the detaining power. Other offenses shall not
thereafter be made punishable by the death penalty without the concurrence of the power on which
the POWs depend.
* A death sentence may not be pronounced on POWs unless the attention of the court has been
drawn particularly to the fact that:
Since the accused is not a national of the detaining power, he or she is not bound to it by any
duty of allegiance; and
That he or she is in the power of the detaining power as the result of circumstances
independent of his or her own will.
* If the death penalty is pronounced on a POW, the sentence shall not be executed for at least six
months after communication to the protecting power of the details related to the death sentence.
APPEALS
3-146. Every POW must be given the same rights of petition or appeal from any sentence pronounced
against him or her as members of the armed forces of the detaining power, with a view to the quashing or
revising of the sentence or reopening of the trial. A POW must be fully and immediately informed of those
rights and of any applicable time limits. The detaining power must also immediately communicate to the
protecting power the POW’s decision to exercise or to waive the right to an appeal (GPW arts. 106, 107).
NOTIFICATION OF FINAL CONVICTION
3-147. If a POW is finally convicted or if a death sentence is pronounced, the detaining power must, as
soon as possible, send the protecting power written details of (GPW art. 107):
* The precise wording of the finding and sentence.
* A summarized report of any preliminary investigation and of the trial, emphasizing in particular
the elements of the prosecution and defense cases.
* Notification, if applicable, of the establishment where the sentence will be served or carried out.
CONDITION UNDER WHICH SENTENCES ARE TO BE SERVED
3-148. Any sentence pronounced on a POW must be served in the same establishment and under the same
conditions as a member of the detaining power’s armed forces would serve a similar sentence. The conditions
must in all cases conform to the basic requirements of health and humanity established in the GPW. A POW |
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deprived of liberty shall retain the benefit of complaints to and access by the ICRC and a protecting power,
and other benefits related to spiritual assistance, exercise, correspondence and parcels (GPW art. 108).
3-149. Officers, non-commissioned officers, and men and women POWs undergoing punishment must not
be subjected to more severe treatment than members of the armed forces of the detaining power of equivalent
rank undergoing the same punishment (GPW art. 108).
3-150. Women are not to be awarded or sentenced to a punishment more severe, or treated more severely
while undergoing punishment, than a female or male member of the detaining power’s armed forces would
be for a similar offense (GPW art. 88). Women sentenced to confinement are to be confined in separate
quarters from men and must be under the supervision of women.
EFFECT OF DISCIPLINARY PUNISHMENT OR SENTENCE UPON REPATRIATION
3-151. No POW on whom a disciplinary punishment has been imposed and who is eligible for repatriation
or for accommodation in a neutral country may be kept back because he or she has not undergone his or her
punishment (GPW art. 115).
3-152. POWs detained in connection with a judicial prosecution or conviction, and who are designated for
repatriation or accommodation in a neutral country, may benefit by such measures before the end of the
proceedings or the completion of the punishment, if the detaining power consents. Parties to the conflict shall
communicate to each other the names of any POWs who will detained until the end of the proceedings or the
completion of the punishment (GPW art. 115).
TRANSFER OF PRISONERS OF WAR
3-153. The transfer of POWs must be conducted humanely and in conditions not less favorable than those
under which the detaining power’s forces would be transferred. Adequate precautions must be taken for the
health and safety of POWs. If the combat zone draws closer to a camp, the POWs in that camp shall not be
transferred unless it can be carried out in adequate conditions of safety, or unless they are exposed to greater
risks by remaining on the spot than by being transferred. During a transfer, POWs must be protected from
harm and provided with sufficient food and water to keep them in good health, and must be provided
necessary clothing, shelter, and medical attention. Their personal property should be safeguarded, and relief
parcels or mail must be forwarded to them without delay (GPW arts. 46-48).
3-154. POWs who are scheduled for transfer must be identified and listed before departure. POWs must be
notified in advance so that they can pack their baggage and have an opportunity to inform their next of kin.
POWs must be allowed to take their personal property and any correspondence and parcels that have arrived
for them. If the conditions of transfer so require, such as in cases of transport shortages, the detaining power
may limit the amount of personal property to what each POW can reasonably carry. No POW may be made
to carry more than 25 kilograms (about 55 pounds) each. The camp commander must take measures in
agreement with the prisoners’ representative to forward any remaining community property or personal
property that POWs could not carry. The costs of transfers shall be borne by the detaining power (GPW art.
48).
3-155. Transfer of POWs to or from the custody of another State party may be desirable in some conflicts
due to force structure and manpower constraints, costs, and cultural sensitivities, but is subject to a number
of rules in the GPW. POWs may only be transferred by the detaining power to a power that is a Party to the
GPW and after the detaining power is satisfied of the willingness and ability of such receiving power to apply
the GPW. Any transfer must comply with relevant treaty obligations and policy requirements, including that
no detainee may be transferred to another country when a competent authority has assessed that it is more
likely than not that the detainee would be subject to torture (GPW arts. 46-48; DODD 2310.01E). The U.S.
practice has been to negotiate transfer agreements setting forth the terms and conditions of transfer and care.
To ensure accountability, a POW should not be transferred prior to formal processing and submission of all
required information to the information bureau.
3-156. Once transferred, responsibility to apply the GPW rests upon the State party that has assumed
custody of the POWs or retained personnel. Nevertheless, the State party that transferred the POWs retains a
residual responsibility for these personnel. If the State receiving the POWs fails to carry out the provisions |
6-27 | 97 | Prisoners of War and Other Detainees
of the GPW in any important respect, the transferring power must, upon being notified by the protecting
power take effective measures to correct the situation or request the return of the POWs (GPW art. 12).
DEATH OF PRISONERS OF WAR
3-157. The protecting power must be notified of the death or serious injury of POWs caused or suspected
to have been caused by a sentry, another POW, or any other person, as well as any death the cause of which
is unknown and underlying incidents must be the subject of an official inquiry by the detaining power. If the
inquiry indicates the guilt of one or more persons, the detaining power must take all measures for the
prosecution of the person or persons responsible (GPW art. 121).
WILLS
3-158. Following the death of a POW, the detaining power must send without delay any will in its
possession to the protecting power and a certified copy must be sent to the Central Prisoners of War
Information Agency (GPW art. 120).
DEATH CERTIFICATES
3-159. A death certificate must be completed, including at a minimum the information contained in the
form annexed to the GPW, for all who die as a POW. It must be certified by a responsible officer and
forwarded, as rapidly as possible, to the information bureau. The required information includes (GPW art 120):
* Service number, rank, full names, date of birth, and army, regimental, personal, or serial number,
or equivalent information;
* Date and place of death;
* Cause of death;
* Date and place of burial;
* Where applicable, the fact of and reason for, cremation; and
* All information necessary in order to identify the grave or inurnment/columbarium location.
BURIAL OR CREMATION AND INTERMENT
3-160. The GPW establishes procedures that must be followed after the death of a POW (GPW arts. 120, 121).
Burial or cremation of a POW or retained person shall be preceded by a medical examination of the body to
confirm the death to enable a report on the death to be made, and, where necessary, to establish identity.
TERMINATION OF CAPTIVITY
3-161. POWs shall be released and repatriated without delay after the cessation of active hostilities (GPW
art. 118). Note that the GPW allows for the possibility of repatriation or release during hostilities based on
serious wounds or sickness, paroles, or exchanges.
WOUNDED AND SICK REPATRIATION
3-162. Before the end of hostilities, parties to a conflict are obligated to repatriate certain POWs who are
seriously wounded or seriously sick, after they are fit enough to travel. No such sick or wounded POW may
be repatriated against his or her will during the hostilities (GPW art. 109). In accordance with GPW Article
110, the seriously wounded and sick are those POWs who meet one of the criteria listed in paragraph 3-164
below. In the case of certain less seriously wounded or sick persons, parties are obligated to endeavor to
make arrangements for their accommodation in neutral countries (GPW arts. 109-110).
3-163. Parties may also conclude agreements with a view to the direct repatriation or internment in a neutral
country of able-bodied POWs who have been in captivity for a long period of time. This is in addition to the
general obligation to endeavor to conclude agreements that will enable all POWs to be interned in a neutral
country. POWs injured in accidents are subject to the same rules as other sick and wounded persons unless
the injuries were self-inflicted (GPW arts. 109-111, 114). |
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3-164. In accordance with GPW, Article 110, the following are entitled to direct repatriation:
* The incurably wounded and sick whose mental or physical fitness seems to have been gravely
diminished;
* The wounded and sick who, according to medical opinion, are not likely to recover within one
year, whose condition requires treatment, and whose mental or physical fitness has been gravely
diminished; and
* The wounded and sick who have recovered, but whose mental or physical fitness seems to have
been gravely and permanently diminished.
3-165. Such POWs repatriated before the end of hostilities may not be employed on active military service
(GPW art. 117).
MIXED MEDICAL COMMISSIONS
3-166. According to the GPW, mixed medical commissions should be appointed upon the outbreak of
hostilities in order to examine sick and wounded POWs and to make appropriate decisions regarding them
(GPW art. 112). When necessary, consult AR 190-8 or other applicable guidance on mixed medical
commissions.
PAROLE
3-167. The GPW allows parole for POWs subject to certain guidelines and procedures. Upon the outbreak
of hostilities, each party to a conflict shall notify the adverse parties of its laws or regulations allowing or
forbidding its armed forces to accept liberty on parole or promise (GPW art. 21). U.S. policy prohibits U.S.
service members from accepting parole or special favors from the enemy.
RELEASE AND REPATRIATION AT THE END OF HOSTILITIES
3-168. POWs shall be released and repatriated without delay after the cessation of hostilities. Commanders
should seek guidance from national-level authorities on negotiating agreements or developing plans for POW
release and repatriation after the cessation of hostilities. If the parties have no stipulated agreement on how
repatriation will be accomplished, each detaining power shall establish and execute a plan without delay
(GPW art. 118). The GPW does not require the detaining power to repatriate forcibly POWs who do not wish
to be repatriated. Although the GPW provides that POWs may not renounce the rights secured to them by
the GPW, this principle is not violated by the POW rejecting repatriation and requesting asylum, if it is
established in a satisfactory manner that the POW is making an informed, voluntary, and personal choice.
The policy of the United States has been not to conduct forcible repatriation of POWs and, in particular, not
to transfer any person when torture is more likely than not to result (DOD Directive 2310.01E).
PROCEDURES
3-169. Repatriation is effected under conditions similar to those for the transfer of POWs during captivity
as outlined in paragraphs 3-153 and 3-156. Costs of repatriation at the end of hostilities are to be equitably
borne between the detaining power and the power on which the POWs depend, generally with the detaining
power bearing the costs of transport to its border or port of embarkation closest to the territory of the power
on which the POWs depend (GPW art. 118). If the two powers are not geographically contiguous, the
detaining power and the power on which the POWs depend shall agree between themselves as to the equitable
apportionment of the remaining costs of the repatriation (GPW art. 118). The detaining power may not delay
repatriation solely because the parties to the conflict have not agreed on an equitable allocation of costs (GPW
arts. 116, 118, 119).
3-170. Articles of value, and any currency that has not been converted into that of the detaining power,
must be returned to the POWs upon repatriation. Any items not returned must be sent to the information
bureau. Baggage limitations may be imposed similar to those allowed during the transfer of POWs outlined
in paragraph 3-139; those personal effects POWs cannot take with them are forwarded once the parties agree
regarding costs and procedures (GPW art. 119). |
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The Wounded and Sick
This chapter addresses the protection of the wounded and sick, medical units, facilities,
and transports. The 1864 Geneva Convention was one of the international community’s
earliest attempts to codify protections for the wounded and sick on the battlefield and
provide for the use of the Red Cross as a distinctive emblem. The later versions of the
Geneva Conventions relative to wounded and sick of the armed forces on land in 1906
and 1929, and the 1907 Hague Convention for the Adaptation to Maritime Warfare of
the Principles of the Geneva Convention expanded the standards for the protection of
military personnel who are hors de combat, due to illness or wounds on the battlefield
or at sea. This standard of treatment was further refined in the GWS, and the GWS Sea,
both of August 12, 1949. Since the United States is a party to the two 1949 Geneva
Conventions, their provisions are binding on the United States and form the basis for
this chapter. Additional Protocol I of 1977 (AP I), though not binding on the United
States, also contains provisions for the care of wounded and sick that in certain cases
its provisions may reflect customary international law and be consistent with U.S.
practice. This chapter also addresses the principles related to the protection of medical
care provided by impartial humanitarian organizations during armed conflict.
BASIC PRINCIPLES
4-1. LOAC imposes certain obligations on parties to an international armed conflict regarding the wounded,
sick, and shipwrecked, some of which are summarized below. Also, United States Army and Marine Corps’
practice is to respect and protect military and civilian sick, wounded, and shipwrecked, as well as those
identified as exclusively engaged in collecting, caring for, or transporting them. Soldiers and Marines must:
* Respect and protect wounded, sick, and shipwrecked military and other personnel to whom the
Geneva Conventions apply during an armed conflict (GWS art. 12, 15; GWS Sea art. 12, 18;
consider AP I art. 10(1)).
* “Respect and protect” means that these persons generally may not be knowingly attacked, fired
upon, or unnecessarily interfered with (see DOD Law of War Manual, 7.3.3). Soldiers and Marines
have a positive duty to collect and care for the wounded, sick, and shipwrecked, even if they are
enemy personnel.
* Provide for the respectful recovery, accounting for, and disposal of enemy dead in a manner that
facilitates the identification and proper disposition of remains (GWS art. 16-18; GWS Sea art. 19,
20; consider AP I art. 32-34).
* Respect and protect enemy military medical personnel, facilities, units, and ground transports in
the performance of their duties. It is prohibited to make them the object of an attack or unduly
interfere with their medical function, provided that those persons do not engage in, and those
objects are not used to engage in, acts outside their humanitarian duties that are harmful to the
enemy (GWS art. 19-21, 24-27, 35; GWS Sea art. 22-27; consider AP I art. 10, 12, 21).
4-2. The fact that an enemy force has violated its obligations by firing upon U.S. medical personnel
endeavoring to care for wounded U.S. military personnel does not provide a basis for U.S. military personnel
to respond by violating U.S. obligations by, for example, intentionally firing at enemy medical personnel, or
denying medical care to captured enemy military personnel. [For a discussion of reprisals, see para. 4-10 and
DOD Law of War Manual, 18.18.3.2.] |
6-27 | 100 | Chapter 4
PRACTICAL GUIDANCE ON BASIC RULES
4-3. All Soldiers and Marines must adhere to the following LOAC rules relating to the wounded, sick, and
dead, and enemy military medical and religious personnel, facilities, units, transports, and equipment:
* Do not knowingly attack, fire upon, or unnecessarily interfere with: (i) the wounded and sick; or
(ii)enemy military medical or religious personnel, facilities, units, transports, and equipment.
* Do not steal.
* Do not disrespect the dead.
* Collect and care for the wounded and sick, whether friend or foe.
4-4. Soldiers and Marines who are members of the medical service should understand their special duties
and noncombatant status under the law of war. They must, for example:
* Provide medical care to the wounded or sick, whether friend or foe.
* Refrain from engaging in acts harmful to the enemy.
* Continue to care for other members of the U.S. armed forces, if captured by the enemy (see
Chapter 3 for discussion of retained personnel).
4-5. Commanders must lead their units’ implementation of LOAC obligations related to the wounded, sick
and dead. If warranted by their assigned duties and operational context, they should:
* Determine practical steps after combat to search for, collect, and protect the wounded, sick, and
dead, such as negotiating local truces to collect them.
* Follow accountability procedures for enemy wounded, sick and dead, such as recording
identifying information and safekeeping of property.
* Ensure medical units are not misused to commit acts harmful to the enemy, such as stationing
combat forces in a hospital.
* Arrange for humanitarian organizations or other civilian volunteers to help collect and care for the
wounded and sick.
* Ensure the appropriate display of the Red Cross.
CLASSES OF PERSONS PROTECTED BY THE GWS AND GWS SEA
4-6. The GWS and GWS Sea protect those persons listed in Article 13 of the GWS and the GWS Sea
(including members of the armed forces of a party to a conflict and persons authorized to accompany the
armed forces) who are wounded, sick, or shipwrecked—that is, those who are incapacitated by wounds,
sickness, or shipwreck such that they are no longer capable of fighting, provided they abstain from any hostile
act and do not attempt to escape (see paragraph 2-105 regarding wounded and sick as hors de combat). The
GWS also applies to the wounded and sick who are POWs (see paragraphs 4-11 through 4-16). The GWS
and GWS Sea also protect military chaplains exclusively engaged in religious ministration and military
medical personnel exclusively engaged in the provision of medical care or the administration of medical units
and establishments (GWS art. 24; GWS Sea art. 37). Wounded and sick civilians benefit from provisions of
the GC pertaining to the treatment and protection of the wounded and sick (GC art. 16).
DURATION OF APPLICATION OF THE GWS
4-7. The GWS applies to persons protected by the GWS who have fallen into the hands of the enemy until
their final repatriation (GWS, art. 5). The GSW Sea does not specify when it ceases to apply, but only states
that GWS Sea only applies “to forces on board ship.” (GWS Sea art. 4). Once persons who are covered by
its provisions reach land, the GWS, or possibly, the GPW or GC will be applicable to them.
SPECIAL AGREEMENTS
4-8. The GWS and GWS Sea provide for special agreements to be negotiated between the parties for
protection of the wounded and sick (see GWS arts. 6 and 15; GWS Sea arts. 6 and 18). Special agreements
may not adversely affect the situation of the wounded and sick or military medical personnel or chaplains,
nor can such agreements restrict the rights GWS and GWS Sea confer on them (GWS, art. 6; GWS Sea, art.
6). Wounded and sick and military medical personnel and chaplains will enjoy the benefits of any special |
6-27 | 101 | The Wounded and Sick
agreements so long as GWS or GWS Sea applies to them, except when express provisions in such agreements
or in subsequent agreements provide otherwise or when more favorable measures have been taken with regard
to them by one of the parties to the conflict (see GWS, art. 6; GWS Sea, art. 6).
NON-RENUNCIATION OF RIGHTS
4-9. Wounded and sick, as well as military medical personnel and chaplains, may not renounce, in whole
or in part, their rights secured to them by the GWS or GWS Sea or by special agreements (GWS, art. 7; GWS
Sea, art. 7).
PROHIBITION OF REPRISALS
4-10. During international armed conflict, reprisals against the wounded, sick, personnel, buildings, or
equipment protected by the GWS are prohibited (GWS, art. 46; compare with GWS Sea, art. 47).
PROTECTION AND CARE OF THE WOUNDED AND SICK
4-11. All wounded and sick, including members of the armed forces, other persons who are entitled to POW
status, and civilians, must be respected and protected in all circumstances, whether or not they have taken
part in the armed conflict (see GWS, arts. 12-13; DOD Law of War Manual, 17.14.1; consider AP I, art. 10).
They shall be treated humanely and cared for by the party to the conflict in whose hands they have fallen,
without any adverse distinction based on sex, race, nationality, religion, political opinions, or any other
similar criteria. They shall not be willfully left without medical assistance and care, nor exposed to contagion
or infection. They shall not be treated violently, murdered, or exterminated. Only urgent medical reasons will
authorize priority in the order of treatment, a process called triage. Women shall be treated with all
consideration due to their sex. A party to the conflict that is compelled to abandon wounded or sick to the
enemy shall, as far as military considerations permit, leave with them part of its medical personnel and
materials to assist with their care (GWS, art. 12).
SEARCH FOR CASUALTIES
4-12. At all times, and particularly after a military engagement, parties to the conflict must, without delay,
take all possible measures to search for and collect the wounded and sick to protect them from pillage and
ill-treatment and to ensure their adequate care. Further, the parties to the conflict shall search for the dead to
prevent them from being despoiled. Whenever circumstances permit, armistices or cease-fires must be
arranged or local arrangements made to permit such collection and removal as well as transport or exchange
wounded and sick from the battlefield. Local arrangements may be made between parties to remove or
exchange wounded and sick from besieged areas or allow medical or religious personnel and equipment safe
passage to those areas (GWS, art. 15). The obligation to search for, collect, and take affirmative steps to
protect the wounded, sick, and dead are subject to practical limitations. Military commanders are to judge
what is possible and to what extent they can commit their personnel to these duties (see DOD Law of War
Manual, 7.4.4).
RECORD OF WOUNDED FALLING INTO ENEMY HANDS
4-13. Parties to the conflict must record, as soon as possible, any wounded, sick, or dead person under the
GWS of the adverse Party who falls into their hands to assist in their identification. If possible, these records
should include (GWS, art. 16):
* Designation of the power on which he or she depends;
* Service, unit, personal, or serial number;
* Surname;
* First name or names;
* Date of birth;
* Any other particulars shown on an identity card or disc; |
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* Date and place of capture or death; and
* Particulars concerning wounds, illness, or cause of death.
4-14. Each party must forward this information as soon as possible to its POW information bureau (see
paragraph 3-100 through 3-103), which must transmit the information to the power upon which the person
depends through the intermediary of the Protecting Power and of the Central POW agency. Parties to the
conflict must also prepare and forward certificates of death and/or authenticated lists of the dead and must
ensure items such as identification discs (frequently referred to as dog tags) of the deceased, last wills, other
documents of importance to the next of kin, money, or any other item of an intrinsic or sentimental value,
which are found on the dead are collected and forwarded through these channels in accordance with the GWS
(see GWS, art. 16).
4-15. Burials or cremation of deceased personnel under the GWS must be preceded by a careful examination,
if possible by a medical examination, of the bodies with a view to confirm the death, establish identity of the
deceased, and enable a report of death to be made. One half of the double-identity disc (or the disc, itself, if
it is a single disc) should be left with the body of the deceased interred on land. Cremation may only occur
for imperative reasons of hygiene or for motives based on the religion of the deceased. The dead must be
honorably interred, if possible, according to the rites of the religion to which they belonged. At the
commencement of hostilities, a graves registration service must be established to allow for subsequent
exhumations and to ensure the identification of bodies and possible transportation to the home country. The
graves registration service will also keep ashes until they may be properly disposed of in accordance with the
wishes of the home country. Lists showing the exact location and markings of the graves must be exchanged
between parties to the conflict; this will facilitate post-conflict return of remains to the next-of-kin, a practice
encouraged by the United States (GWS art. 17; consider AP I art. 32-34).
VOLUNTARY CARE
4-16. The military authorities may appeal for volunteers from the local inhabitants to assist with the
collection and care for, under the respective military authority’s direction, the wounded and sick under the
GWS. Once volunteers are identified, they are to receive necessary protection and facilities. Should the
adverse Party take or retake control of the area, that Party must likewise grant these persons the same
protection and the same facilities. No one must ever be molested or convicted for having given aid or care to
the wounded and sick (GWS art. 18; consider AP I art. 17). On the other hand, local inhabitants’ voluntarily
giving treatment to the wounded and sick do not relieve military authorities of their obligations to care for
the wounded and sick.
MEDICAL UNITS, FACILITIES, PERSONNEL, AND GROUND
TRANSPORTS
4-17. Military medical units and facilities, military medical personnel and chaplains, and medical ground
transports must not be made the object of attack and are entitled to respect and protection at all times (see
GWS arts. 19, 24, 35, 36; GWS Sea art. 23). For example, medical units and establishments are entitled to
respect and protection even when they have not yet received any wounded or when no more wounded are
with them for the moment. The respect and protection accorded by the GWS to military units and facilities
mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging
their proper functions.
LOSS OF PROTECTION
4-18. If military medical units or facilities are used to commit, outside their humanitarian duties, acts harmful
to the enemy, they may forfeit their special LOAC protections, but only after due warning (with, in all
appropriate cases, a reasonable time limit), and only after such warning has remained unheeded (GWS art.
21; DOD Law of War Manual, 7.10.3). Consistent with DOD policy, misuse of the protected status of any
military medical unit or facility, or medical ground transport, whether by U.S. forces, coalition forces, or
enemy forces, should be reported immediately through the chain of command to the appropriate combatant
commander (see DODD 2311.01E). |
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4-19. Acts harmful to the enemy by a person of a military medical unit or facility, or a medical ground
transport resulting in its loss of protected status do not necessarily warrant denial of respect and protection
to that person’s unit or facility, or medical ground transport or to other military medical units or facilities, or
medical ground transport.
4-20. The obligation to refrain from the use of force against a medical unit acting in violation of its mission
and protected status without due warning does not prohibit individuals or units from exercising their right of
self-defense (see DOD Law of War Manual, 7.10.3.2).
EXAMPLES OF ACTIONS OR CONDITIONS THAT DO NOT DEPRIVE MEDICAL UNITS AND
FACILITIES OR MEDICAL GROUND TRANSPORTS OF PROTECTION
4-21. The following are examples of actions or conditions that do not constitute “acts harmful to the enemy
outside of their humanitarian functions” that would cause a medical unit or facility, hospital ship, or medical
transport to lose its entitlement to protection (GWS arts. 21, 22, 35; see DOD Law of War Manual, 7.10.3.3):
* Arming military medical personnel for protection against unlawful attacks. Military medical
personnel and units may be armed for defense of themselves and the wounded and sick in their
charge against unlawful attacks (GWS, art. 22).
* Defensive devices of hospital ships and military medical aircraft. Equipping hospital ships and
military medical aircraft with defensive devices—such as chaff for protection against over-the-
horizon weapons or similar threats—is not prohibited, provided that such devices are not used to
commit acts harmful to enemy military forces acting in conformity with the law of war.
* Use of non-medical military personnel for security. The use of non-medical personnel, in the
absence of armed orderlies, as a picket, sentries, or as an escort for security against unlawful
attacks does not cause the medical units, facilities, or ground transports to forfeit their protection
(GWS, art 22).
* Temporary presence of small arms and ammunition recovered from the wounded and sick.
The temporary presence of small arms and ammunition recovered from the wounded and sick,
within the military medical unit, installation, hospital ship, or sick-bay before they are handed over
to competent authorities does not cause the forfeiture of their protection..
* Presence of military veterinarians and equipment. The presence of military veterinarians and
their equipment within a medical unit or facility or transport to which they are not assigned does
not cause the forfeiture of protection.
* Temporary presence of combatants. The temporary presence of combatants within a military
medical unit or facility (for example, to visit or leave wounded or to escort a prisoner to facilitate
the prisoner’s care) does not automatically constitute an act harmful to the enemy that result in
loss of protected status. As a feasible precaution, combatants should avoid unnecessary presence
within a medical unit or facility.
* Temporary presence of military objectives. The temporary presence of objects that are military
objectives, such as a tactical vehicle or aircraft within a military medical unit or facility (for
example, a military vehicle that is not protected as medical aircraft or transport used to deliver the
wounded and sick to a medical facility) does not automatically constitute an act harmful to the
enemy that forfeits its protection from being made the object of attack (see DOD Law of War
Manual, 7.10.3.6). However, commanders of military medical units and facilities should establish
procedures during international armed conflict to ensure that the non-medical transports do not
remain unnecessarily within or near military medical units or facilities.
* Care for civilian wounded or sick. Care for civilian wounded or sick does not cause medical
units, facilities, or ground transports to forfeit their protection.
* Transport of medical equipment and personnel. Equipment intended exclusively for medical
purposes or military medical personnel over and above normal mission requirements, either
stockpiled in military medical units and facilities or transported in medical ground transports, does
not cause medical units, facilities, or ground transports to forfeit their protection. |
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LOCATION OF MILITARY MEDICAL UNITS AND FACILITIES
4-22. Responsible authorities must ensure that military medical units and facilities are, as far as possible,
placed so as an attack against military objectives cannot imperil their safety (GWS art. 19; consider AP I art.
12(4)). Commanders of tactical units should avoid placing their units in proximity to military medical units
and facilities to the extent feasible. In no case may a military medical unit or facility be used to shield military
objectives from attack. The obligation to situate medical units and facilities so that attacks against military
objectives cannot imperil their safety is limited by practical considerations. For example, in order to perform
their medical duties effectively, medical units and facilities may, to some degree, need to be intermingled
with military objectives (see DOD Law of War Manual, 7.10.2.1).
CAPTURE OF MILITARY MEDICAL UNITS AND FACILITIES
4-23. Military medical units and facilities may be captured. In the event of capture, its personnel are entitled
to continue to perform their medical duties so long as the capturing force has not itself ensured the necessary
care for the wounded and sick found in the unit or facility (GWS art. 19). The material of mobile medical
units that fall into the hands of the enemy must be reserved for the care of the wounded and sick. The material
and stores of mobile medical units and fixed medical establishments that fall into the hands of the enemy
must not be intentionally destroyed.
4-24. In the event of urgent military necessity, commanders of forces in the field may make use of the
buildings, material, and stores of a fixed military medical establishments, provided they make previous
arrangements for the welfare of the wounded and sick who are being cared for in the establishment (see GWS
art. 33).
MEDICAL AIRCRAFT
4-25. Medical aircraft, that is to say, aircraft exclusively employed for the removal of the wounded, sick, and
shipwrecked, and for the transport of medical personnel and equipment, must not be attacked, but must be
respected by the belligerents, while flying at heights and times, and on routes, specifically agreed upon by
the belligerents concerned (GWS art. 36). Such aircraft, while designated or operating as medical aircraft,
may not be used also for military purposes, such as to transport able-bodied combatants or to carry
ammunition to combat forces (see DOD Law of War Manual, 7.14.2). Medical aircraft must obey every
summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its
flights after examination, if any (GWS art. 36).
4-26. Military medical aircraft (i.e., aircraft exclusively employed for the removal of the wounded, sick, and
shipwrecked, and for the transport of medical personnel and equipment) must not be attacked, but are to be
respected by the belligerents, while flying at heights and times, and on routes, specifically agreed upon by
the belligerents concerned. The use of protected medical aircraft generally depends on an agreement between
belligerents. However, known medical aircraft, when performing humanitarian functions, must be respected
and protected. Such aircraft do not constitute a military objective that is liable to being made the object of
attack. Thus, even if not flying pursuant to an agreement, such aircraft shall not be deliberately attacked or
fired upon, if identified as protected medical aircraft. For example, if there is no agreement and a military
force happens upon a medical aircraft belonging to an enemy State, the aircraft must not be made the object
of attack until all other means of control (such as directing the aircraft to land and submit to search) have
been exhausted. A medical aircraft that is not flying pursuant to a special agreement that seeks to claim
protection as medical aircraft must make every effort to identify itself and to inform the enemy State of its
status and operation, such as its flight times and routes. For example, an unknown aircraft within a theater of
military operations would often be reasonably presumed to be a military objective, and the aircraft must take
affirmative steps to rebut this presumption. In order to maintain its entitlement to protection, such aircraft
must obey the directions of the enemy State, such as directions to land and to submit to search (GWS art. 36;
see DOD Law of War Manual, 17.14.1).
HOSPITAL SHIPS AND COASTAL AND RESCUE CRAFT
4-27. Military hospital ships (such as ships built or equipped by States specially and solely with a view to
assisting, treating, and transporting the wounded, sick, and shipwrecked) may in no circumstances be attacked |
6-27 | 105 | The Wounded and Sick
or captured, but must be respected and protected, provided their names and descriptions have been notified
to the parties to the conflict ten days before the ships are employed (GWS Sea, art. 22). Military hospital
ships are to have all exterior surfaces painted white with at least one large, dark red cross (or other protected
medical symbol as in paragraph 4-30) on each side of the hull and on the horizontal surfaces and distinctively
marked further as specified in Article 43 of GWS Sea. Military hospital ships, commissioned civilian hospital
ships, and authorized neutral civilian hospital ships that meet the applicable requirements must be respected
and protected and are exempt from capture (GWS Sea art. 24; DOD Law of War Manual, 7.12.4). Hospital
ships are exempt from capture and any hospital ship in a port that falls into the hands of the enemy is
authorized to leave the port and the religious, medical, and hospital personnel of the ship and its crew may
not be captured during the time they are in the service of the hospital ship, whether or not there are wounded
and sick on board (GWS Sea, arts. 29 and 36).
4-28. As long as they have been provided with an official commission by a Party to the conflict and the
proper certification from responsible authorities (see GWS Sea, art. 24), and their names and descriptions
have been provided to parties to the conflict ten days before they are employed (GWS Sea, art. 22), small
craft employed by a State or by the officially recognized lifeboat institutions for coastal rescue operations
must be respected and protected, so far as operational requirements permit (GWS Sea, art. 27).
4-29. The phrase “so far as operational requirements permit” acknowledges the risk to which small craft,
because of their small size, are exposed when working in a combat environment. Their small size may
increase the likelihood of misidentification by enemy or friendly forces, or it may not be feasible to avoid
incidental harm to them. They act at their own risk during or after any engagement (GWS Sea, art. 30).
Although small craft may be exposed to certain risks, if a party to a conflict has recognized the craft, it is
prohibited from making a deliberate attack on them (GWS Sea, art. 27).
4-30. Religious, medical, and hospital personnel under the GWS Sea who are retained to care for the
wounded and sick at sea and are later retained to care for the wounded and sick on land are subject to GWS
on landing (see GWS Sea, art. 37). Similarly, wounded and sick personnel put ashore who previously may
have been engaged in the land-sea battle are subject to GWS once put ashore (see GWS Sea, art. 4).
THE DISTINCTIVE EMBLEMS
4-31. To serve as the visual expression of the protections accorded under the 1949 Geneva Conventions and
Additional Protocol III, to medical and religious personnel, and medical units, facilities, transports, and
equipment, four distinctive emblems have been established and recognized. As displayed in figure 4-1,
they are 1) a Red Cross; 2) a Red Crescent; 3) a Red Crystal, and 4) a Red Lion and Sun (not currently
in use) (GWS arts. 38-42; GWS Sea arts. 41-43; consider AP I, art. 18; AP I, Amended Annex I, arts. 3-4;
AP II art. 12; and, AP III art. 2). A party may only use one emblem at a time. The chosen emblem will be
displayed in red on a white background.
Figure 4-1. The distinctive emblems |
6-27 | 106 | Chapter 4
4-32. The display of the distinctive emblem is under the direction of the competent military or civilian
authority (GWS art. 39; GWS Sea art. 41; consider AP I art. 18 and AP II art. 12). The distinctive emblem
may be removed by competent authority for camouflage integrity or other tactical reasons. The fact that
medical personnel, land facilities, units, or transports are not displaying the distinctive emblem does not
entitle an opposing force to attack them if their status is apparent or otherwise has been established. They
retain their protections as long as their mission and use is consistent with their protected status. However, the
absence of the distinctive emblem may increase the risk that enemy forces will not recognize the protected
status of military medical and religious personnel and other protected persons and objects, and attack them
in error (see DOD Law of War Manual, 7.15.3.1).
DISPLAY BY PERSONNEL
4-33. Personnel entitled to wear the distinctive emblem, when authorized by competent authority, include:
* Military medical personnel and chaplains (GWS art. 39, 40; GWS Sea art. 41, 42; consider AP I,
Amended Annex I, art. 5(4));
* Auxiliary medical personnel, while carrying out their medical duties (GWS art. 41);
* Members and medical staff of the Red Cross Movement; that is, official representatives of the
ICRC, the International Federation of Red Cross and Red Crescent Societies, and national Red
Cross societies in accordance with the GWS (see GWS art. 44);
* Staff of recognized aid societies of neutral countries (see GWS art. 27); and
* Staff of national societies or other voluntary aid societies, auxiliary to, or assisting, the military
medical services in accordance with the GWS (see GWS art. 26).
4-34. Wearing of the Red Cross armlet by U.S. military medical personnel is subject to service authorization
and may be limited by tactical conditions. The emblem does not in itself confer protected status, but it
facilitates the identification of protected objects and persons (DOD Law of War Manual, 7.15.3.2). When
authorized, such military medical personnel, staff of national Red Cross societies, and staff of recognized aid
societies of neutral countries, may wear on the left arm an armlet displaying the appropriate distinctive
emblem and issued and stamped by competent military authority (see GWS art. 40). Such personnel are
required to bear an identity card that states in what capacity its possessor is entitled to protection under the
GWS and that is embossed with the stamp of the military authority (see GC art. 40). Auxiliary medical
personnel require similar authorization to wear an armlet in a similar manner and carry similar identification,
but such armlets are to bear a smaller distinctive emblem (see GWS art. 41).
DISPLAY BY MEDICAL UNITS AND ESTABLISHMENTS
4-35. The GWS provides for military medical units, both fixed and mobile, and military medical
establishments of parties to a conflict to display the distinctive emblem when they are entitled to protection
under the GWS, subject to authorization by competent military authority (see GWS art. 42). The GWS also
provides for such display by medical units belonging to neutral countries, when authorized to lend their
services to a belligerent (see GWS arts. 27, 43).
DISPLAY BY MILITARY MEDICAL AIRCRAFT
4-36. The GWS and GWS Sea require that military medical aircraft (those aircraft exclusively employed for
the removal of the wounded, sick, and shipwrecked, and for the transport of medical personnel and
equipment), shall bear the distinctive emblem, together with their national insignia, on their lower, upper and
lateral surfaces (see GWS art. 36; GWS Sea art. 39).
MANDATORY REMOVAL OF DISTINCTIVE EMBLEM FROM VEHICLES AND AIRCRAFT
4-37. Ground transport or aircraft no longer exclusively employed for medical work related to its former
protected status should no longer bear the distinctive emblem.
4-38. If ground transport or aircraft is used temporarily for medical transport work, such ground transport or
aircraft should bear the distinctive emblem only while on the medical mission and will be entitled to
protection of the Conventions only for its duration. If the vehicle or aircraft is to be used for tactical purposes, |
6-27 | 107 | The Wounded and Sick
military authorities must take the greatest care to remove all distinctive emblems as soon as the ground
transport or aircraft are no longer employed as medical transport (see GWS, arts. 35, 36).
MEDICAL CARE PROVIDED BY IMPARTIAL HUMANITARIAN
ORGANIZATIONS
4-39. Impartial humanitarian organizations serve an important function in armed conflict, in particular with
respect to the provision of medical care. As noted above in this Chapter, the United States is a party to a
number of treaties that address the protection of medical care during armed conflict. In addition, the United
States has long supported the fundamental guarantees in Additional Protocol II for the protection of and
appropriate care for the wounded and sick during non-international armed conflicts (Secretary of Defense
Memorandum, “Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian
Organizations During Armed Conflict,” October 3, 2016).
4-40. As with military medical units, the following principles related to the protection of medical care
provided by impartial humanitarian organizations during international or non-international armed conflict
apply and must be respected by all parties to the an armed conflict:
* Medical care during armed conflict is an activity that is fundamentally of a neutral, humanitarian,
and non-combat character. Ensuring that medical care during armed conflict is protected requires
parties refrain from acts that undermine its protection, and take affirmative steps to distinguish
medical care from activities of a combatant character.
* All wounded and sick, whether or not they have taken part in the armed conflict, must be respected
and protected. The wounded and sick are persons placed hors de combat by sickness and wound.
They must not be made the object of attack. Combatants must not use the presences or movement
of the wounded and sick to attempt to make certain points or areas immune from seizure; to shield
military objectives from attack; or otherwise shield or favor one’s own military operations or to
impede the adversary’s military operations.
* Whenever circumstances permit, and particularly after an engagement, all possible measure shall
be taken, without delay, to search for and collect the wounded and sick, to protect them from
pillage and ill-treatment, and to ensure their adequate care.
* In all circumstances, the wounded and sick shall be treated humanely without adverse distinction
founded on race, color, religion or belief, se, birth wealth, political opinion, and any other similar
criteria.
* The wounded and sick shall receive, to the fullest extent practicable and with the least possible
delay, the medical care and attention required by their condition. There shall be no distinction
among them founded on any grounds other than medical ones.
4-41. Impartial humanitarian organizations may offer their services to any of the parties to the conflict. States
should not arbitrarily withhold their consent to the activities of humanitarian organizations. Where a State
has accepted the services of an impartial humanitarian organization, it must not regard such services,
including the provision of medical care, as unlawful and subject to punishment. If a State does withhold its
consent to the activities of the humanitarian organization and that organization enters the theater of conflict
anyway, it does so at its own peril.
4-42. Personnel, units, transports, and facilities belonging to impartial humanitarian organizations providing
medical care shall be respected and protected. Such personnel, units, transports, and facilities of impartial
humanitarian organizations are those that are exclusively engaged in humanitarian functions. Such
personnel, units, transports, and facilities must not be made the object of attack or unnecessarily prevented
from discharging their proper functions. The protection to which such units (including units composed of
personnel and facilities) and transports are entitled shall not cease unless they are used to commit hostile acts
outside their humanitarian function. Protection may, however, cease only after a warning has been given
setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded. Any
attack must comply with all applicable rules and principles of LOAC, such as the prohibition on attacks that
are expected to cause excessive incidental harm and the requirement to take feasible precautions in
conducting the attack. Combatants must not use the presence or movement of such personnel, units,
transports, and facilities to attempt to make certain points or areas immune from seizure or attack; to shield |
6-27 | 108 | Chapter 4
military objectives from attack; or otherwise to shield or favor one's own military operations or to impede
the adversary's military operations.
4-43. Personnel belonging to impartial humanitarian organizations providing medical care must be granted
all available help in the performance of their duties, including by establishing appropriate channels of
communication with such organizations. They must not be subject to harassment or attacks for having
performed their humanitarian duties for the wounded and sick. They must not be compelled to carry out tasks
that are not compatible with their humanitarian mission. In the performance of their duties, they may not be
required to give priority to any person except on medical grounds.
4-44. Impartial humanitarian organizations may take appropriate measures to distinguish their personnel,
units, transports, and facilities from military objectives, including by marking such personnel, units,
transports, and facilities and, where feasible, by situating healthcare facilities away from military objectives.
Under the direction of the competent authority concerned, the distinctive emblem of the Red Cross or other
distinct emblem must be displayed by medical and religious personnel and medical units of impartial
humanitarian organizations, and on their medical transports. The distinctive emblem must be respected in all
circumstances and shall not be used improperly. If personnel, units, transports, and facilities that are entitled
to protection are recognized as such, they remain entitled to such protection even if the distinctive emblem
or other appropriate markings are not displayed. |
6-27 | 109 | Chapter 5
Civilians
This chapter addresses the protection of civilians in the hands of a party to the conflict
under the law of armed conflict. The protection of civilians is governed by the Geneva
and Hague traditions, customary international law, and recent practice consistent with
Additional Protocols I and II to the Geneva Conventions. Certain provisions are
applicable only in the territory of a party to the conflict, others to belligerently occupied
territory, and a number to both or to civilian populations generally. Those relating
exclusively to occupied areas appear in Chapter 6, while the requirements of GC
having to do with the territory of a belligerent, with both such territory and occupied
territory, or with the general protection of civilians are set forth in this chapter. This
chapter will focus on detention and treatment standards from the Geneva tradition, with
some reference to civilian protections in the conduct of hostilities as outlined in
Chapter 2.
PRACTICAL GUIDANCE ON THE PROTECTION OF CIVILIANS
5-1. As discussed in Chapter 2, Soldiers and Marines must comply with LOAC during military operations.
With respect to the protection of civilians and civilian objects, all Soldiers and Marines must adhere to the
following guidance:
* Do not intentionally target civilians and civilian objects, for example, hospitals, schools, religious
buildings, historic monuments. However, as discussed further below, civilians directly
participating in hostilities may be targeted.
* When conducting an attack, combatants must exercise due regard to reduce the risk of incidental
harm to the civilian population and other persons and objects that may not be made the object of
attack.
* Do not abuse, degrade, or seek revenge against civilians, or take other unnecessary actions that
could harm civilians.
* When necessary to detain, search, question, or exercise other measures of control over civilians,
perform such measures humanely, respectfully, and professionally in accordance with Army and
Marine Corps values.
* Do not steal.
* Follow accountability and reporting procedures related to civilians and civilian property. For
example:
Follow command guidance on reporting the presence of civilians or civilian casualties during
military operations.
When feasible, give receipts when seizing private enemy property, such as holding for
safekeeping or family documents or valuable from civilian internees.
Report alleged violations of the law of war against civilians in accordance with applicable
DOD policies, including DODD 2311.01E.
5-2. In addition to adhering to the practical guidance on detainee operations and the basic protections
provided at the beginning of Chapter 3, Soldiers and Marines who are conducting internment of protected
persons under the GC must comply with the GC’s requirements and with applicable U.S. law and U.S. and
DOD policies. |
6-27 | 110 | Chapter 5
5-3. Commanders, at all levels, have a great responsibility to exercise the leadership necessary to reduce
the risk of harm to civilians and civilian objects. Accordingly, they should, for example:
* Make the necessary judgments and decisions required by the principle of proportionality to ensure
that harm to civilians and civilian objects is not excessive compared to the expected military
advantage.
* Determine the feasible precautions to take for the protection of civilians in planning and
conducting an attack, including canceling or suspending an attack based on new information
raising concerns of expected civilian casualties or determining whether it is feasible to provide
warnings or to use different types of weapon systems in order to reduce the risk of civilian
casualties) (see DOD Law of War Manual, 5.11).
* Administer civilian internment camps in accordance with the GC.
* Arrange for passage of humanitarian relief.
GENERAL PROVISIONS
5-4. As described in Chapter 1 (see paragraph 1-54), a civilian is a member of the civilian population. That
is, a civilian is an individual who is neither part of nor associated with an armed force of a State or a non-
State armed group that is engaging in hostilities. For example, an ordinary inhabitant of the enemy State
would be a civilian, but a member of the enemy armed forces or a member of a terrorist group or a non-State
armed group would not be a civilian.
5-5. Like combatants, members of the civilian population have certain rights, duties and liabilities under
LOAC. Civilians may not be made the object of an attack, and feasible precautions must be taken to reduce
the risk of harm to them. Civilians are generally treated consistent with the GC, and most qualify for
protections established for protected persons under the convention (GC art. 4). In general, civilians may be
temporarily detained when militarily necessary and may be interned for imperative reasons of security. In
all circumstances, they are entitled to humane treatment. Civilians do not enjoy combatant immunity
(immunity from prosecution for engaging in hostilities) and may be punished by an enemy State for engaging
in hostilities against it. Further, civilians who take a direct part in hostilities forfeit their protection from being
made the object of attack (consider AP I art. 50, 51).
PROTECTED PERSONS
5-6. In general, the GC uses the term “protected person” to refer to those individuals who are entitled to
receive its protections. Principally, protected persons include persons of enemy nationality living in the
territory of a belligerent State and the inhabitants of occupied territory. Even if a person is not a protected
person under the GC, other rules may be applicable to them. For example, persons protected by the GPW,
the GWS, or the GWS Sea, are not considered protected persons under the GC (GC art. 4). Further, certain
baseline rules apply to the treatment of all detainees, including those who are not protected persons or POWs
(DOD Law of War Manual, 10.3).
5-7. The GC underlies most of the treaty rules applicable to the United States for the treatment of civilians
in the hands of a party to the conflict during international armed conflict and occupation. Although the GC’s
provisions should be interpreted in light of the principles that underlie the treatment of civilians, protected
persons do not simply refer to persons who are civilians. Protected persons may include certain unprivileged
belligerents, although certain rights and privileges that unprivileged belligerents receive are subject to
derogation for security reasons (see DOD Law of War Manual, 10.3.2.4). Subject to certain exceptions,
persons protected by the GC are those who, at a given moment and in any manner whatsoever, find
themselves, in the case of occupation or conflict, in the hands of a party to the conflict or occupying State of
which they are not nationals (DOD Law of War Manual, 10.3.2). The GC term “protected person” does not,
under the framework of the GC, apply to non-international armed conflicts (conflicts against or between non-
State armed groups).
5-8. The phrase “in the hands of” is used in an extremely general sense. It is not limited to physical custody
or control, such as a prisoner. The mere fact of being in the territory of a party to the conflict or in occupied
territory implies the person is in the power or “in the hands of” the Occupying Power. |
6-27 | 111 | Civilians
5-9. Certain individuals do not receive protected person status. Nationals of a State not bound by the GC
are explicitly excluded from protected person status. Nationals of a neutral State who find themselves in the
territory of a belligerent State, and nationals of a co-belligerent State (for example, an ally) are not regarded
as protected persons while the State of which they are nationals has normal diplomatic representation in the
State whose hands they are. Nationals of a neutral State in occupied territory, however, are considered as
protected persons under the GC (see DOD Law of War Manual, 15.6.4.1).
POLICY AND PRACTICE
5-10. Subject to the derogation provisions discussed in paragraphs 5-11 through 5-13, those persons who
have engaged in hostile or belligerent conduct, but are not entitled to treatment as POWs, are not per se
precluded from receiving protected person status under the GC.
DEROGATIONS
5-11. The GC permits States to derogate from the GC’s requirements to provide certain rights and privileges
otherwise afforded to protected persons for security reasons. Such derogation may differ based on location
of the protected person, such as in occupied territory or in the belligerent’s home territory, and the conduct
of the civilian (GC art 5; DOD Law of War Manual, 10.4).
In a Belligerent’s Home Territory and in Occupied Territory
5-12. In the home territory of a party to the conflict, protected persons who are definitely suspected of or
engaged in activities hostile to the security of the State may be deprived of certain rights and privileges under
the GC when those rights and privileges, if exercised, would prejudice the security of the State. In occupied
territory, a protected person detained as a spy or saboteur, or as a person under definite suspicion of activity
hostile to the security of the Occupying Power, may be deprived of communication rights when military
security so requires (GC art. 5; DOD Law of War Manual, 10.4.2). In each case, such persons must
nevertheless be treated humanely and in the case of trial must not be deprived of the rights of a fair and
regular trial. They must also receive the full rights and privileges of a protected person under the GC at the
earliest date consistent with the security of the State (GC art. 5).
Other Areas
5-13. To the extent that the rights and privileges of protected persons afforded by the GC are applied outside
the home territory of a party to the conflict or outside occupied territory, it would be reasonable for such
rights and privileges similarly to be subject to derogation. Thus, if U.S. forces are satisfied that an individual
protected person is definitely suspected of or engaged in activities hostile to the security of the United States
in other contexts, such person could be deemed not entitled to claim such rights and privileges under the GC
as would, if exercised in favor of such individual person, be prejudicial to the security of the United States
(see DOD Law of War Manual, 10.4.3). In no case, however, may deviations be taken from the minimum
humane treatment standards outlined in paragraphs 5-16 through 5-18.
Authority to Punish
5-14. The derogation provisions of the GC implicitly recognize the power of a party to the conflict to impose
the death penalty and lesser punishments (after judgment by a properly constituted court) on protected
persons who are spies, saboteurs, and other persons not entitled to be treated as POWs, such as unprivileged
belligerents,, except to the extent that that power has been limited or taken away by the GC (see GC art. 68,
which limits application of the death penalty and other punishments in the case of protected persons, subject
to the U.S. reservation with respect to imposing the death penalty).
Minimum Standards of Treatment
5-15. Even when derogations of other provisions may be appropriate for security reasons, Soldiers and
Marines must comply with LOAC with respect to the treatment of all detainees. Until a detainee’s release,
repatriation, or transfer from DOD custody or control, Soldiers and Marines will, without regard to a
detainee’s legal status, at a minimum apply: (1) common article 3 of the 1949 Geneva Conventions during |
6-27 | 112 | Chapter 5
all military operations; (2) the principles in Article 75 of AP I during international armed conflict and
occupation; and (3) the principles in Articles 4-6 of AP II during non-international armed conflict (DODD
2310.01E). As a matter of U.S. law and policy, there are no situations in an armed conflict, however
characterized, in which individuals are not entitled to at least this humane care and treatment. Further, as a
matter of U.S. policy, such care and treatment will be accorded, at a minimum, to detainees in any military
operations not involving armed conflict.
Humane Treatment and Other Basic Protections of Detained Civilians
5-16. Detainees must be provided humane care and treatment and with respect for their dignity from the
moment they fall into the hands of DOD personnel until their release, transfer out of DOD control, or
repatriation. Further, inhumane treatment of detainees is expressly prohibited and is not justified by the stress
of combat or deep provocation. Humane treatment includes, in part:
* Adequate food, drinking water, shelter, and clothing; (consider AP II art. 5);
* Regular access to the open air, reasonable educational and intellectual activities, and appropriate
contacts with the outside world (including, when practicable, exchange of letters, phone calls, and
video teleconferences with family, as well as family visits) (consider AP II art. 4, 5);
* Free exercise of religion, consistent with the requirements of detention (consider AP II art. 5);
* Safeguards to protect health and hygiene, and protections against the rigors of the climate and
dangers of military activities (consider AP II art. 5);
* Appropriate medical care and attention required by the detainee’s condition, to the extent
practicable (consider AP II art. 5);
* Respect for each as a human being without any adverse distinction founded on race, color, religion
or faith, political or other opinion, national and social origin, sex, birth, or wealth, or other similar
criteria;
* Protection against threats or acts of violence, including rape, forced prostitution, assault, bodily
injury, and reprisals, torture, and cruel, inhuman, or degrading treatment or punishment; and
* Prohibition on being subjected to medical or scientific experiments, or to sensory deprivation
intended to inflict suffering or serve as punishment (consider AP I art. 75; consider AP II art. 4).
5-17. Detainees must not be subject to criminal punishment without a fair trial and other important criminal
procedural protections (DOD Law of War Manual, 8.16).
5-18. Detainees must be removed as soon as practicable from the point of capture and transported to a
detainee collection point, temporary holding area, or DOD detention facility. Detainees not released or
transferred from DOD custody or control from the detainee collection point or holding area will be
transported to a DOD detention facility in a secure location within 14 days of capture, barring exceptional
circumstances. Detainees will be promptly informed of the reasons for their detention in a language that they
understand. Detainees will remain at a DOD detention facility until their release or transfer from DOD
custody or control (DODD 2310.01E).
Procedural Protections
5-19. Under DOD policy, detainees will receive certain procedural protections.
5-20. Detainees will be registered, and property in their possession will be inventoried. Records of their
detention and such property will be maintained according to applicable law, regulation, policy, and other
issuances. All detainee records will be maintained, safeguarded. Detainees will be assigned an Internment
Serial Number (ISN) normally within 14 days after their capture by, or transfer to, the custody or control of
DOD personnel, barring exceptional circumstances.
5-21. The ICRC will be promptly notified of all ISN assignments. The ICRC will be given access to all
DOD detention facilities and the detainees housed therein, subject to reasons of imperative military necessity.
(DODD 2310.01E).
5-22. Alleged detainee abuse must be reported in accordance with DOD policies (see DODD 2310.01E;
DODD 2311.01E; DODD 3115.09). |
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5-23. DOD personnel will review periodically the detention of all individuals in DOD custody or control
who do not receive the protections afforded POWs. Such reviews may include: (1) preliminary assessments
of the detainee’s status and threat; (2) formal determinations of the lawfulness and continued necessity of
detention; and (3) determination of the status of unprivileged belligerents held in long-term detention,
presided over by a military judge (DODD 2310.01E, para. 3i).
5-24. DOD personnel, including DOD contractors, must not accept the transfer of a detainee from another
U.S. Government department or agency, coalition force, multinational partner personnel, or other personnel
not affiliated with the DOD or the U.S. Government, except in accordance with applicable law, regulation,
policy, and other issuances (DODD 2310.01E, para. 3e). No detainee may be released or transferred from the
care, custody, or control of a DOD component except in accordance with applicable law, regulation, policy,
and other issuances (DODD 2310.01E, para. 3m).
Greater Protections
5-25. As a matter of law, persons who are entitled to treatment as either POWs or retained personnel under
the GPW, or as internees under the GC, are entitled to even greater protections than the minimum humane
care and treatment described above.
SPECIAL AGREEMENTS
5-26. Parties to a conflict may conclude special agreements for all matters concerning which they deem it
suitable to make separate provision, in addition to those specified by the GC (GC art. 7). No special agreement
may adversely affect the situation of protected persons nor restrict the rights the GC confers on them.
5-27. In no circumstances may protected persons renounce the rights secured to them by the GC and by any
special agreements negotiated under the GC (GC art. 8).
GENERAL PROTECTION OF POPULATIONS AGAINST CERTAIN CONSEQUENCES OF WAR
5-28. The general protections afforded to civilians are intended to alleviate the sufferings caused by war. As
a matter of Army/USMC practice, the general protections of GC Part II (art. 13 – 26) apply to all civilians
encountered in military operations (see GC art. 13). These general protections provided by the Army and
Marine Corps are also consistent with certain portions of Additional Protocol I outlined in paragraphs 5-29
through 5-65.
PROTECTION OF CIVILIANS AND CIVILIAN PROPERTY IN THE CONDUCT OF MILITARY
OPERATIONS
5-29. LOAC provides protections for civilians and civilian property while combatants engage in the conduct
of military operations (see generally paragraphs 2-6 through 2-21 and 2-68 through 2-144, prohibiting
indiscriminate attacks and the principles of military necessity, humanity, distinction, and proportionality
found in Chapter 1). Many of the rules for the protection of civilians are derived from the principles of
distinction and proportionality.
5-30. In the conduct of military operations, constant care shall be taken to spare the civilian population,
civilians, and civilian objects (consider AP I art. 57(1)). In general, military operations must not be directed
against enemy civilians. For example, the civilian population as a whole may not be the object of attack.
Measures of intimidation or terrorism against the civilian population are prohibited, including acts or threats
of violence, the primary purpose of which is to spread terror among the civilian population (consider AP I
art. 51(2); AP II art. 13(2)). Civilians must not be made the object of attack, unless they take a direct part in
hostilities (see paragraphs 2-11 through 2-21).
5-31. When prosecuting an attack against a military objective, combatants must exercise due regard to reduce
the risk of incidental harm to the civilian population and other persons and objects that may not be made the
object of attack. In particular, combatants must take feasible precautions in planning and conducting attacks
to reduce the risk of harm to civilians and other persons and objects protected from being made the object of
attack. Also, combatants must refrain from attacks in which the expected loss of civilian life, injury to
civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete |
6-27 | 114 | Chapter 5
and direct military advantage expected to be gained (see DOD Law of War Manual, 5.10). Such feasible
precautions can reduce the risk that civilians may become casualties as a result of their proximity to attacks
on military objectives.
5-32. Feasible precautions to reduce the risk of harm to civilians must also be taken by the party subject to
attack. For example, military commanders and other officials responsible for the safety of the civilian
population must take reasonable steps to separate the civilian population, individual civilians, and civilian
objects under their control from military objectives and protect the civilian population from the effects of
combat. Other feasible precautions may include avoiding locating military objectives within or near densely
populated areas, removing civilians and civilian objects from the vicinity of military objectives, and other
necessary precautions to protect the civilian population, individual civilians and civilian objects under their
control from the dangers resulting from military operations (consider AP I art. 58; see DOD Law of War
Manual, 5.14).
5-33. LOAC protects civilian property as well. Outside the context of attacks, certain rules apply to the
seizure and destruction of enemy civilian property. For instance, pillage is strictly prohibited (HR art. 28).
Enemy property, including enemy civilian property, may not be seized or destroyed unless imperatively
demanded by the necessities of war (DOD Law of War Manual, 5.17.2). In general, enemy private movable
property on the battlefield may be seized if the property is susceptible to direct military use, i.e., it is necessary
and indispensable for the conduct of war. This includes arms, ammunition, military papers, or property that
can be used as military equipment (e.g., as a means of transportation or communication) (see DOD Law of
War Manual, 5.17.3).
5-34. Enemy private movable property that is not susceptible to direct military use may be appropriated only
to the extent that such taking is permissible in occupied areas. In particular, receipts should be given and
compensation paid, when feasible (see DOD Law of War Manual, 5.17.3.1). During occupation, other rules
relating to the treatment of enemy property apply (HR art. 43; see Chapter 6).
5-35. Cultural property is subject to special protection under LOAC. For example, in general, no use should
be made of cultural property, its immediate surroundings, or appliances in use for its protection, for purposes
that are likely to expose it to destruction or damage in the event of armed conflict. However, such use is
permissible when military necessity imperatively requires such use. Uses that would be likely to expose
cultural property to destruction or damage in the event of armed conflict would include: (1) using cultural
property for military purposes; (2) placing military objectives near cultural property; or (3) using the cultural
property in such a way that an adversary would likely regard it as a military objective (HR art. 27; 1954
Hague art. 4; see DOD Law of War Manual, 5.18.3; consider AP I art. 53). Other feasible precautions should
be taken to reduce the risk of harm to cultural property, such as physically shielding cultural property from
harm and establishing refuges and evacuating movable cultural property to them (see DOD Law of War
Manual, 5.18.4).
5-36. In general, acts of hostility also may not be directed against cultural property, its immediate
surroundings, or appliances in use for its protection. Acts of hostility may, however, be directed against
cultural property, its immediate surroundings, or appliances in use for its protection, when military necessity
imperatively requires such acts (1954 Hague art. 4; see DOD Law of War Manual, 5.18.5).
5-37. Any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural
property are prohibited. These obligations are not subject to waiver for purposes of “imperative military
necessity.” Military commanders also have an obligation to take reasonable measures to prevent or stop any
form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural property
(see DOD Law of War Manual, 5.18.6.1).
5-38. For the purpose of the 1954 Hague Cultural Property Convention and this publication, cultural property
includes, irrespective of ownership or origin: (1) movable and immovable property of great importance to
the cultural heritage of every people, such as monuments of architecture, art, or history, whether religious or
secular; (2) buildings intended to shelter cultural property, such as museums and depositories of archives;
and (3) centers containing monuments |
6-27 | 115 | Civilians
MARKINGS
5-39. It may be appropriate to identify protected persons and objects, as such, through the use of distinctive
and visible signs. For example, for cultural property, this may include use of the distinctive blue and white
shield described by 1954 Hague (1954 Hague arts. 6, 16) and displayed in figure 5-1 below. This may also
include identifying civilian hospitals (see paragraphs 5-41 through 5-43 concerning markings for civilian
hospitals and places where the sick and wounded are collected). The parties to the conflict must, in so far as
military considerations permit, take the necessary steps to make the distinctive emblems clearly visible to the
enemy land, air, and naval forces in order to prevent intentional hostile action on the protected sites. Even if
not so marked, however, an attacking force may not knowingly target a building or other facility known to
enjoy special protection under LOAC. Similarly, attacking forces are not required to observe signs indicating
inviolability of buildings if such buildings are known to be used for military purposes, such as quarters for
military personnel, warehouses for military equipment and supplies, observation posts, or military
communications installations.
Figure 5-1. The distinctive emblem for the protection of cultural property
PROTECTION OF CIVILIAN SICK AND WOUNDED, HOSPITALS, AND MEDICAL PERSONNEL
5-40. LOAC requires particular protection and respect for the wounded and sick, as well as the infirm and
expectant mothers (GC art. 16). The infirm and expectant mothers are given special consideration along with
the sick and wounded because they are vulnerable so long as they do not take part in hostilities. As far as
military considerations allow, each party to the conflict must facilitate the steps taken to search for the killed
or wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against
pillage and ill-treatment (GC art. 16). Even though civilian authorities would often be responsible for
collecting and bringing in civilian casualties, the armed forces may be asked to lead such efforts or to carry
out a joint relief operation with civilian authorities (DOD Law of War Manual, 7.16.1). Parties to the conflict
may appeal to the civilian population and local aid societies to assist in collecting the sick and wounded and
locating the dead (consider AP I art. 17).
Civilian Hospitals
5-41. Civilian hospitals organized to give care to the wounded and sick, the infirm, and maternity cases, may
in no circumstances be the object of attack but must at all times be respected and protected by the parties to
the conflict (GC art. 18; consider AP I art. 12). The protection to which civilian hospitals are entitled shall
not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.
Civilian hospitals must avoid any interference, direct or indirect, in military operations, such as the use of a
hospital as a shelter for able-bodied combatants, as an arms or ammunition store, as a military observation |
6-27 | 116 | Chapter 5
post, or as a center for liaison with combat forces (see DOD Law of War Manual, 7.17.1.1). However, the
fact that sick or wounded members of the armed forces are being cared for in these hospitals, or the presence
in these hospitals of small arms and ammunition taken from such combatants and not yet handed to the proper
service, are not to be considered acts harmful to the enemy (GC art. 19).
5-42. Protection for civilian hospitals may, however, cease only after due warning has been given, naming
in all appropriate cases a reasonable time, and after such warning has remained unheeded (GC art. 19;
consider AP I art. 13). The obligation to refrain from the use of force against a civilian hospital acting in
violation of its mission and protected status without due warning does not prohibit the exercise of the right
of self-defense (see DOD Law of War Manual, 7.17.1.2).
5-43. States that are parties to a conflict must provide all civilian hospitals with certificates showing that
they are civilian hospitals and that the buildings they occupy are not used for any purpose that would deprive
these hospitals of protection in accordance with Article 19 of the GC. They must also be marked with the
appropriate distinctive emblem provided for in Article 38 of the GWS (as described in paragraph 4-30), but
only if authorized by the State. The parties to the conflict must, in so far as military considerations permit,
take the necessary steps to make the distinctive emblems indicating civilian hospitals in a manner clearly
visible to the enemy land, air, and naval opposing forces in order to obviate the possibility of any hostile
action (see also figure 4-1, page 4-8). In view of the dangers to which civilian hospitals may be exposed by
being close to military objectives, it is recommended that such hospitals be located as far as possible from
military objectives (GC art. 18).
Civilian Medical Personnel
5-44. Persons regularly and solely engaged in the operation and administration of civilian hospitals—
including the persons engaged in the search for, removal, transport of, and care for wounded and sick
civilians, the infirm, and maternity cases—must be respected and protected by State parties to the conflict
(GC art. 20). In occupied territory and in zones of military operations, such persons must be recognizable by
means of an identity card certifying their status, bearing the photograph of the holder, and embossed with the
stamp of the responsible authority, and also by means of a stamped, water-resistant armlet that they must
wear on the left arm while carrying out their duties. This armlet must be issued by the State with control over
such persons and shall bear the Red Cross, Red Crescent, or Red Crystal, as applicable (GC art. 20).
Medical Transport
5-45. Means of transport, including vehicles, convoys, and hospital trains, must be respected and protected
in the same manner as hospitals as long as they are exclusively engaged in the transport of wounded and sick
civilians; they must be appropriately marked (GC art. 21, 22; consider AP I art. 21). Civilian medical aircraft
are subject to the same restrictions as military medical aircraft, and should be respected and protected when
recognized as such (GC art. 22; consider AP I art. 24-28).
Consignments of Medical Supplies, Food, and Clothing
5-46. Parties to the conflict must allow the free passage of all consignments of medical and hospital stores
and objects necessary for religious worship for civilians of another State, even if that State is an opposing
party. Parties to the conflict must also permit the free passage of consignments of essential food, clothing,
and medicine intended for children under 15 years of age, expectant mothers, and maternity cases. A State
Party’s obligation to allow free passage is subject to the condition that State Party is satisfied that there are
no serious reasons to fear: (1) that the consignments may be diverted from their destination; (2) that the
control may not be effective; or (3) that a definite advantage may accrue to the military efforts or economy
of the enemy through the substitution of the above consignments for goods which would otherwise be
provided or produced by the enemy or through the release of such material, services, or facilities as would
otherwise be required for production of such goods. Technical arrangements may be negotiated with the
opposing side to facilitate such passage (GC art. 23). |
6-27 | 117 | Civilians
Special Zones
5-47. States may establish hospital and safety zones and localities to protect certain persons from the effects
of war, namely, wounded, sick, and aged persons, children under the age of 15, expectant mothers, and
mothers of children under the age of 7. Parties to a conflict may conclude agreements on the mutual
recognition of the hospital zones and localities they have created, drawing upon model agreements that are
annexed to the 1949 Geneva Conventions (GC art. 14). The establishment of a zone only binds an adverse
party when it agrees to recognize the zone (see DOD Law of War Manual, 5.14.3.1).
5-48. Parties to a conflict may conclude similar agreements to establish neutralized zones to shelter: (1)
wounded and sick combatants and non-combatants; and (2) civilians who take no part in hostilities and who,
while they reside in the zones, perform no work of a military character (GC art. 15).
CHILDREN AND OTHER SPECIAL CATEGORIES OF CIVILIANS
5-49. In an international armed conflict, the parties to the conflict must take the necessary measures to ensure
that children under the age of 15 who are orphaned or who are separated from their families as a result of
war, are not left to their own resources, and that their maintenance, the exercise of their religion, and their
education are facilitated in all circumstances (GC art. 24). The maintenance of the children concerned means
their feeding, clothing, and accommodation, care for their health, and, where necessary, medical and hospital
treatment (see DOD Law of War Manual, 4.20.1.1).
5-50. Their education must, as far as possible, be entrusted to persons of a similar cultural tradition.
5-51. The parties to the conflict must facilitate the reception of such children in a neutral country for the
duration of the conflict with the consent of the protecting power, if any, and under due safeguards for the
observance of the above principles. The parties to the conflict must, furthermore, endeavor to arrange for all
children under the age of 12 to be identified by the wearing of identity discs, or by some other means (GC
art. 24).
5-52. Finally, parties to the conflict should enable personal communications between persons in their home
territory or in the territory occupied by them and other members of such protected persons’ families, including
possibly with the cooperation of national Red Cross societies (GC art. 25, 26).
Children and Their Mothers under Additional Protocol I
5-53. Although the United States is not bound by Additional Protocol I, it contains several provisions that
grant enhanced protection to children and their mothers; these provisions should guide Army/Marine Corps
practice. For example, pregnant women and mothers having “dependent infants” who are arrested, detained,
or interned for reasons related to the armed conflict are to have their cases considered with the “utmost
priority” (consider AP I art. 76).
5-54. Additionally, Additional Protocol I provides children shall be the object of “special respect” and must
be protected against any form of indecent assault (consider AP I art. 77). Furthermore, the States Party to the
conflict are to provide such children with the care and aid they require (consider AP I arts. 70, 77). No party
to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country
except for a temporary evacuation when compelling reasons of the health or medical treatment of the children
or, except in occupied territory, their safety so require. When the parents or legal guardians can be found,
their written consent to such an evacuation is required. If they cannot be found, the written consent to the
evacuation of the persons who by law or custom are primarily responsible for the care of the children is
required. Any such evacuation must be supervised by the protecting power in agreement with the parties
concerned, namely, the party arranging for the evacuation, the party receiving the children, and any parties
whose nationals are being evacuated. In each case, all parties to the conflict must take all feasible precautions
to avoid endangering the evacuation. If children are evacuated, their education, including their religious and
moral education as their parents’ desire, must be provided while they are away with the greatest possible
continuity. Furthermore, if children are evacuated, the party arranging for the evacuation and, as appropriate,
the authorities of the receiving State must establish for each child a card with photographs, which they must
send to the Central Tracing Agency of the ICRC (consider AP I art. 78). |
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