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6-27 | 118 | Chapter 5
Women
5-55. In the territory of a party to the conflict and in occupied territory, all protected persons, including
women, are entitled, in all circumstances, to respect for their person, their honor, their family rights, their
religious convictions and practices, and their manners and customs. They are to be humanely treated at all
times, and are to be protected especially against all acts of violence or threats thereof and against insults and
public curiosity. Women must be especially protected against any attack on their honor, in particular against
rape, forced prostitution, or any form of indecent assault (GC art. 27).
Journalists
5-56. In general, journalists are civilians and are protected as such under LOAC. Journalists do not form a
distinct class of persons under LOAC, but instead receive protection through the general protections afforded
civilians. Although journalism is regarded as a civilian activity, the fact that a person performs such work
does not preclude that person from otherwise acquiring a different status under LOAC, such as the status of
persons authorized to accompany the armed forces or of combatants (DOD Law of War Manual, 4.24). For
example, journalists authorized to accompany an armed force during an international armed conflict is a
POW upon capture. See paragraph 3-26 regarding the treatment standards of detained war correspondents as
“persons authorized to accompany the armed forces.”
Civil Defense Personnel
5-57. The GC does not expressly address how civil defense organizations, such as fire and rescue services,
should be treated except for those ambulance and similar rescue services that are attached to hospitals and
their personnel that would enjoy the protections afforded medical personnel as discussed in paragraphs 5-40
through 5-46. The GC says little else specifically about civil defense organizations or first responders,
although as civilians they would be entitled to the protections accorded to civilians generally.
Civil Defense Personnel Under Additional Protocol I
5-58. Articles 61-67 of Additional Protocol I address the performance of certain humanitarian tasks intended
to benefit the civilian population. The United States supports the principle that civilian civil defense
organizations and their personnel be respected and protected as civilians and be permitted to perform their
civil defense tasks except in cases of imperative military necessity. However, a number of operational
problems have been identified with respect to the system of protection for civil defense personnel established
by Additional Protocol I, and these provisions of Additional Protocol I may be understood not to preclude an
attack on an otherwise lawful military objective (see DOD Law of War Manual, 4.22). Articles 61-67 of
Additional Protocol I should guide Army/Marine Corps practice in this area.
5-59. Under Additional Protocol I, “civil defense” is broadly defined as the performance of certain
humanitarian tasks intended to protect the civilian population against the dangers of armed conflict, to help
them recover from the immediate effects of hostilities or disasters, and to provide the conditions necessary
for their survival. These tasks include warning, evacuation, management of shelters and blackout measures,
rescue and medical services, fire-fighting, detection and marking of danger areas, decontamination and
similar services, emergency accommodation and supplies, emergency assistance to restore and maintain
order, emergency repair of vital public utilities, emergency disposal of the dead, assistance in preserving
objects necessary for survival, and activities that complement the foregoing (consider AP I art. 61).
5-60. Civil defense organizations and their personnel must be respected and protected and are entitled to
perform their civil defense tasks except in case of imperative military necessity. This obligation to respect
and protect also applies to civilians who, although not members of civilian civil defense organizations,
respond to an appeal from the competent authorities and perform civil defense tasks under their control.
Buildings and materiel used for civilian civil defense purposes and shelters provided for the civilian
population are civilian objects; as such they cannot be the subject of attack or reprisal unless they become
military objectives (consider AP I, art 62).
5-61. Additional rules that apply to civil defense organizations and personnel in occupied territories are
discussed in paragraphs 6-125 through 6-127. The rules from Additional Protocol I concerning civil defense
organizations and personnel also apply to the personnel and materiel of civilian civil defense organizations |
6-27 | 119 | Civilians
of neutral States or other States not parties to the conflict that perform civil defense activities in the territory
of a party to the conflict, with the consent and under the control of that party.
Civil Defense Organizations and Acts Harmful to the Enemy
5-62. The protection to which civilian civil defense organizations are entitled ceases if they commit or are
used to commit acts harmful to the enemy outside their humanitarian activities. Protection may cease only
after a warning has been given that sets, whenever appropriate, a reasonable time-limit for ceasing these
activities and such warning has remained unheeded. Merely carrying out civil defense tasks under military
direction or control and cooperating with the military in performing civil defense tasks are not considered to
be acts harmful to the enemy. Nor is it harmful to the enemy if some military personnel are attached to civilian
civil defense organizations or if the performance of civil defense tasks incidentally benefits military victims.
Military personnel permanently and exclusively assigned to civil defense organizations (and properly
distinguished with civil defense symbols) do not lose their status as POWs if captured, but they could lose
their immunity from attack should they directly participate in hostilities, and they may be prosecuted for their
hostile acts while acting under the color of civil defense authority.
5-63. Civilian civil defense personnel may bear light individual weapons for the purpose of maintaining
order or for self-defense without losing their protections, although in areas where land fighting is taking place
or is likely to take place, the parties to the conflict must take measures to limit these weapons to handguns in
order to assist in distinguishing between civil defense personnel and combatants. If civil defense personnel
bear other light individual weapons in such areas, however, they must nevertheless be respected and protected
as soon as they have been recognized as such. The mere formation of civilian civil defense organizations
along military lines, and compulsory service in them, does not deprive them of these protections (consider
AP I art. 65). If civil defense organizations are participating in military activities, however, like providing
warning to military organizations (as well as civilians), they may become military objectives.
Marking of Civil Defense Organizations and Structures
5-64. Under Additional Protocol I, the international distinctive sign of civil defense, displayed in figure 5-2
below, is an equilateral blue triangle on an orange ground when used for the protection of civil defense
organizations, their personnel, buildings, and materiel, and for civilian shelters. The parties to the conflict
must take measures necessary to supervise the display of the international distinctive sign of civil defense
and to prevent and repress its misuse (consider AP I art. 66).
Figure 5-2. The distinctive sign of civil defense
Cultural Property Personnel
5-65. As far as is consistent with the interests of security, personnel engaged in the protection of cultural
property must, in the interests of such property, be respected and, if they fall into the hands of the opposing |
6-27 | 120 | Chapter 5
party, must be allowed to continue to carry out duties whenever the cultural property for which they are
responsible has also fallen into the hands of the opposing party (1954 Hague art, 15). Such personnel are
analogous to medical and religious personnel who also are to continue to carry out their medical and spiritual
duties when they have fallen into the hands of the enemy. Certain Civil Affairs Soldiers and Marines may
have training in and assigned duties to help protect cultural property.
PROVISIONS COMMON TO THE TERRITORIES OF THE PARTIES
TO THE CONFLICT AND TO OCCUPIED TERRITORIES
5-66. All protected persons are entitled, in all circumstances, to respect for their person, their honor, their
family rights, their religious convictions and practices, and their manners and customs. They are to be
humanely treated at all times and are to be protected especially against all acts of violence or threats thereof
and against insults and public curiosity.
5-67. Women must be especially protected against any attack on their honor, in particular against rape, forced
prostitution, or any form of indecent assault (GC art. 27). Although the GC provides special protection for
women against these offenses, all individuals, including children and men, should also be protected against
these offenses. Indecent assault is generally referred to today as sexual assault (see DOD Law of War Manual,
10.5.1.2).
5-68. Without prejudice to the provisions relating to their state of health, age, and sex, all protected persons
are to be treated with the same consideration by the party to the conflict in whose power they are, without
any adverse distinction based, in particular, on race, religion, or political opinion (GC art. 82). Distinctions
are permitted, and in some cases required, for humanitarian reasons. For example, the GC provides for special
treatment for children during internment. Distinction based on religion, political opinion, or other similar
criteria may also be made so long as it is not adverse and it is made to advance legitimate interests, such as
maintaining order in a place of internment (see DOD Law of War Manual, 10.5.5).
5-69. The taking of hostages is prohibited (GC art. 34). The presence of protected persons may not be used
to render certain points or areas immune from military operations, such as the practice of using “human
shields” is prohibited (GC art. 28; consider AP I art. 51(7)).
5-70. Internees must at all times be protected against insults and public curiosity. For example, displaying
internees in a humiliating fashion on television or on the internet would be prohibited. For this reason and
others, DOD policy has prohibited the taking of photographs of detainees except for authorized purposes (see
DOD Law of War Manual, 10.5.2).
5-71. No physical or moral coercion may be exercised against protected persons, in particular to obtain
information from them or third parties (GC art. 31). For example, protected persons in occupied territory may
not be compelled to provide information about their State’s military defenses. Other requirements, including
the requirements of U.S. law and policy, would apply to the interrogation of protected persons. The GC’s
prohibition against the use of coercion does not apply to those measures implicitly or explicitly authorized
by the GC, such as the use of force to prevent one internee from harming another, or other lawful measures
that are otherwise consistent with the GC, such as the use of force to prevent internees from escaping
internment (see DOD Law of War Manual, 10.5.3.1).
5-72. Protected persons must at all times be protected, particularly against acts or threats of violence. For
example, murder of protected persons is prohibited. Protected persons should be protected not only against
unlawful acts by the agents of the detaining power, but also against violence from other protected persons,
such as during internment or, in the case of protected persons in a belligerent’s home territory, violence from
members of the civilian population (see DOD Law of War Manual, 10.5.1).
5-73. Parties to the GC specifically agree that each of them is prohibited from taking any measure of such a
character as to cause the physical suffering or extermination of protected persons in their hands. This
prohibition applies not only to murder, torture, corporal punishment, mutilation, and any medical or scientific
experiments not necessitated by the medical treatment of a protected person, but also to any other measures
of brutality whether applied by civilian or military agents (GC art. 32). |
6-27 | 121 | Civilians
5-74. No protected person may be punished for an offense that he or she has not personally committed.
Collective penalties and, likewise, all measures of intimidation or of terrorism are prohibited. In addition to
this specific prohibition in the GC, collective penalties are prohibited as a general matter under LOAC (see
DOD Law of War Manual, 10.5.3.2).
5-75. Pillage is prohibited (GC art. 33). In addition to this specific prohibition in the GC, pillage is prohibited
as a general matter under LOAC.
5-76. Reprisal against protected persons and their property are prohibited (GC art. 33).
5-77. Protected persons must have every facility for applying to the protecting powers (if designated), to the
ICRC, to the national Red Cross or Red Crescent Society of the country where they may be, as well as to any
organization that might assist them. These several organizations must be granted full facilities for that
purpose by the authorities, within the bounds set by military or security considerations (GC art. 30). For
example, relief organizations generally may only access military operations areas or military facilities in
coordination with military authorities, and they can be barred from areas under military control if their
activities exceed the scope of their humanitarian missions or pose other security concerns.
5-78. Apart from the visits of the delegates of the protecting powers and of the ICRC, provided for by Article
143 of the GC, the detaining power must facilitate as much as possible visits to protected persons by the
representatives of other organizations whose object is to give spiritual aid or material relief to such persons
(GC art. 30).
ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT
5-79. Military forces have often been assigned the mission of providing security in their home territory,
including by providing for the internment of enemy aliens who find themselves in the territory of the opposing
party when hostilities break out between two States. Army and Marine forces assigned to such missions in
the United States or its territories during an international armed conflict can expect to receive additional
guidance from national authorities.
GENERAL TREATMENT OF PROTECTED PERSONS IN THE TERRITORY OF A PARTY DURING
TIME OF WAR
5-80. With the exception of special measures of control authorized by the GC, such as internment, the
situation of protected persons in the home territory of a State party to the conflict continue to be regulated,
in principle, by the provisions concerning aliens in time of peace (GC art. 38). In any case, the following
rights must be granted to them:
* They must be enabled to receive the individual or collective relief that may be sent to them;
* They must, if their state of health so requires, receive medical attention and hospital treatment to
the same extent as the nationals of the State in whose hands they are;
* They must be allowed to practice their religion and to receive spiritual assistance from ministers
of their faith;
* If they reside in an area particularly exposed to the dangers of war, they must be authorized to
move from that area to the same extent as the nationals of the State where they are residing; and
* Children under 15 years of age, pregnant women, and mothers of children under 7 years of age,
are to benefit from any preferential treatment to the same extent as the nationals of the State in
whose hands they are (GC art. 38).
5-81. Protected persons who, as a result of the war, have lost their gainful employment, must be granted the
opportunity to find paid employment. That opportunity must, subject to security considerations to the
provisions of Article 40 of the GC, be equal to that enjoyed by the nationals of that State in whose territory
they are. When a party to the conflict applies to a protected person methods of control (see paragraphs 5-83
through 5-88) that result in the protected person being unable to support himself or herself, and especially if
such person is prevented for reasons of security from finding paid employment on reasonable conditions, the
said party must ensure provisions of his or her support and that of his or her dependents. Protected persons
may in any case receive allowances from their home country, the protecting power, or relief societies referred |
6-27 | 122 | Chapter 5
to in Article 30 of the GC (the national Red Cross or Red Crescent society of the country where they may
be) (GC art. 39).
5-82. Protected persons may be compelled to work only to the same extent as nationals of the party to the
conflict in whose territory they are. If protected persons are of enemy nationality, they may only be compelled
to do work that is normally necessary to ensure the feeding, sheltering, clothing, transport, and health of
human beings and that is not directly related to the conduct of military operations. In the cases mentioned in
the first two paragraphs of Article 40 of the GC (that are described in the preceding two sentences), protected
persons compelled to work must have the benefit of the same working conditions and of the same safeguards
as national workers, in particular as regards wages, hours of labor, clothing and equipment, previous training,
and compensation for occupational accidents and diseases (GC art. 40).
MEASURES OF CONTROL
5-83. Enemy aliens and other protected persons in the home territory of a party to the conflict when hostilities
break out between two States are not necessarily made prisoners or interned en masse. For example, all
protected persons who may desire to leave the territory at the outset of or during a conflict may be entitled to
do so, unless their departure is contrary to the national interest of the State (GC art. 35).
5-84. Although the GC provides that the parties to the conflict may take such measures of control and security
in regard to protected persons as may be necessary as a result of the war, it does not list every measure that
may be implemented (see GC art. 27). Such measures can include many different types of measures. For
example, in the home territory of a party to a conflict, measures of control are normally taken with respect
to, at the very least, persons known to be active or reserve members of a hostile army (they would be the first
POWs), persons who would be liable to service in the enemy forces, and persons who would be expected to
furnish information or other aid to a hostile State..
5-85. Other measures may include, for example, requiring protected persons: (1) to register with and report
periodically to the police authorities; (2) to carry identity cards or special papers; (3) to refrain from carrying
weapons; (4) to refrain from changing their place of residence without permission; (5) to refrain from
accessing certain areas; (6) to have an assigned residence; and (7) to be interned.
5-86. Should the State, in whose hands protected persons may be, consider the measures of control
mentioned in the GC to be inadequate, it may not have recourse to any other measure of control more severe
than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43 of the
GC. The internment or placing in assigned residence of protected persons may be ordered only if the security
of the detaining power makes it “absolutely necessary.” If any person, acting through the representatives of
the protecting power, voluntarily demands internment, and if his or her situation renders this step necessary,
he or she must be interned by the State in whose hands he or she may be (GC art. 42). All protected persons
subject to measures of control are to be provided treatment consistent with the minimum humane treatment
standards discussed in paragraphs 5-16 through 5-18.
5-87. Any protected person who has been interned or placed in assigned residence is entitled to have such
action reconsidered as soon as possible by an appropriate court or administrative tribunal designated by the
detaining power for that purpose. If the internment or placing in assigned residence is maintained, the court
or administrative board must periodically, and at least twice yearly, consider his or her case with a view to
favorably amending the initial decision, if circumstances permit (GC art. 43).
5-88. Unless the protected persons concerned object, the detaining power must, as rapidly as possible, give
the protecting power the names of any protected persons who have been interned or subjected to assigned
residence, or who have been released from internment or assigned residence. The decisions of the courts or
boards mentioned in the first paragraph of Article 43 of the GC must also, subject to the same conditions, be
notified as rapidly as possible to the protecting power (GC art. 43). |
6-27 | 123 | Civilians
TREATMENT OF INTERNEES
INTERNMENT GENERALLY
5-89. During an international armed conflict, parties to a conflict may not intern protected persons in a
belligerent’s home territory, except in accordance with the provisions of Articles 41-43, 68, and 78 of the
GC. Humane treatment standards of the GC for protected persons described in paragraphs 5-16 through 5-
18)also apply to interned protected persons.
Maintenance of Internees and Their Dependents
5-90. Parties to the conflict who intern protected persons are bound to provide free of charge for their
maintenance and to grant them also the medical attention required by their state of health. No deduction from
the allowances, salaries, or credits due to the internees may be made for the repayment of these costs. The
detaining power must provide for the support of those dependent on the internees if such dependents are
without adequate means of support or are unable to earn a living (GC art. 81).
Grouping of Internees
5-91. The detaining power must, as far as possible, accommodate the internees according to their nationality,
language, and customs. Internees who are nationals of the same country are not to be separated merely
because they speak different languages (GC art. 82). Internees must be accommodated and administered
separately from POWs and from persons deprived of liberty for any other reason (GC art. 84). Much like
internment of POWs, the internment of protected persons is a precautionary measure and should not be
confused with the penalty of imprisonment.
PROTECTION FOR WOMEN, FAMILIES, AND CHILDREN
5-92. Throughout the duration of their internment, members of the same family, and in particular parents
and children, must be lodged together in the same place of internment except when separation of a temporary
nature is required for reasons of employment or health, or for penal and disciplinary purposes. Internees may
request that their children who are left at liberty without parental care be interned with them, but one of the
parents would not be able to request the internment of a child being cared for by a parent who was not being
interned (GC art. 82). Whenever possible, interned members of the same family must be housed in the same
premises and given separate accommodations from other internees, together with facilities for leading a
proper family life (GC art. 82). Moreover, the parties to the conflict must endeavor during the course of
hostilities to conclude agreements for the release, the repatriation, the return to places of residence, or the
accommodation in a neutral country of certain classes of internees, in particular children, pregnant women
and mothers with infants and young children, wounded and sick, and internees who have been detained for a
long time (GC art. 132).
Additional Protections
5-93. If interned, expectant and nursing mothers, and children under 15 years of age must be given additional
food in proportion to their physiological needs (GC art. 89). The detaining power must encourage intellectual,
educational, and recreational pursuits among the internees, including child internees. The education of
children and young people must be ensured; they must be allowed to attend schools either within the place
of internment or outside. Like all internees, child internees must be given opportunities for physical exercise,
sports, and outdoor games. For this purpose, sufficient open spaces must be set aside in all places of
internment. Special playgrounds must be reserved for children and young people (GC art. 94).
Women Internees
5-94. Whenever it is necessary, as an exceptional and temporary measure, to accommodate women internees
who are not members of a family unit in the same place of internment as men, women internees must be
provided separate sleeping quarters and sanitary conveniences for their use (GC art. 85). Women internees
accused or convicted of offenses must be confined in separate quarters from men and must be under the |
6-27 | 124 | Chapter 5
immediate supervision of women (GC arts. 85 and 126). Women internees undergoing disciplinary
punishment must be confined in separate quarters from male internees and under the immediate supervision
of women (GC art. 124). A woman internee must not be searched except by a woman (GC art. 97). Sick,
wounded, and infirm internees and maternity cases may not be transferred if the journey would be seriously
detrimental to them unless their safety imperatively so demands (GC art. 127).
PLACES OF INTERNMENT
5-95. The detaining power may not set up places of internment in areas particularly exposed to the dangers
of war. The detaining power must give enemy powers, through the intermediary of the protecting powers, all
useful information regarding the geographical location of places of internment. Whenever military
considerations permit, internment camps must be indicated by the letters “IC,” placed so as to be clearly
visible in the daytime from the air. The powers concerned may, however, agree upon any other system of
marking. No place, other than an internment camp, may be marked as such (GC art. 83). A detaining power
may refrain from marking a camp when it believes that such identification may enable an enemy power to
pose a security risk to the camp; for example, if such identification would enable an enemy power to instigate
a revolt, provide weapons to internees, or enable escape attempts.
Accommodation; Hygiene Regarding Internees
5-96. The detaining power must take all necessary and possible measures to ensure that protected persons,
from the outset of their internment, are accommodated in buildings or quarters that afford every possible
safeguard in regard to hygiene and health, and provide efficient protection against the rigors of the climate
and the effects of the war. In no case may permanent places of internment be situated in unhealthy areas, or
in districts the climate of which is injurious to the internees. In all cases where the district in which a protected
person is temporarily interned is in an unhealthy area or has a climate that is harmful to his or her health, he
or she must be removed to a more suitable place of internment as rapidly as circumstances permit.
5-97. The premises must be fully protected from dampness and adequately heated and lighted, in particular
between dusk and lights-out. The sleeping quarters must be sufficiently spacious and well-ventilated, and the
internees must have suitable bedding and sufficient blankets, with account being taken of the climate and of
the age, sex, and state of health of the internees.
5-98. Internees must have for their use, day and night, sanitary conveniences (e.g. latrines, bathrooms) that
conform to the rules of hygiene and are constantly maintained in a state of cleanliness. They must be provided
with sufficient water and soap for their daily personal toilet and for washing their personal laundry;
installations and facilities necessary for this purpose must be granted to them. Showers or baths must also be
available. Necessary time must be set aside for washing and for cleaning (GC art. 85).
Canteens
5-99. Canteens must be installed in every place of internment, except where other suitable facilities are
available (for comparison, see paragraph 3-74 for discussion of POW canteens). The purpose of the canteens
is to enable internees to make purchases, at prices no higher than local market prices, of food and articles of
everyday use, including soap and tobacco, in order to increase their personal well-being and comfort.
5-100. Profits made by canteens must be credited to a welfare fund to be set up for each place of internment,
and administered for the benefit of the internees attached to such place of internment. The internee committee
(described in paragraphs 5-134 through 5-137) has the right to check the management of the canteen and of
its welfare fund. When a place of internment is closed down, the balance of the welfare fund must be
transferred to the welfare fund of a place of internment for internees of the same nationality or, if such a place
does not exist, to a central welfare fund to be administered for the benefit of all internees remaining in the
custody of the detaining power. In case of a general release, the detaining power may keep the profits subject
to any agreement to the contrary between the powers concerned (GC art. 87). Internees are not entitled to
more favorable treatment than the population at large with respect to canteen facilities and are equally subject
to regulations, such as those pertaining to rationing, which are applied to the population generally. |
6-27 | 125 | Civilians
Air-Raid Shelters and Protective Measures for Internees
5-101. In all places of internment exposed to air raids and other hazards of war, shelters adequate in number
and structure to ensure the necessary protection of the internees must be installed. In case of alarms, the
internees must be free to enter such shelters as quickly as possible, except those who remain for the protection
of their quarters against hazards. Any protective measures taken in favor of the population also apply to the
internees. All due precautions must be taken in places of internment against the danger of fire (GC art. 88).
FOOD AND CLOTHING
5-102. Daily food rations for internees must be sufficient in quantity, quality, and variety to keep internees
in a good state of health and prevent the development of nutritional deficiencies. Account must also be taken
of the customary diet of the internees. Internees must be given the means to prepare for themselves any
additional food in their possession. Sufficient drinking water must be supplied to internees. Internees who
work must receive additional rations in proportion to the kind of labor that they perform (GC art. 89).
5-103. When taken into custody, internees must be given all facilities to provide themselves with the
necessary clothing, footwear, and change of underwear, and later on, to procure further supplies if required.
In general, internees are expected to provide for their own clothing. Should any internees not have sufficient
clothing for the climate and be unable to procure any, the detaining power must provide it free of charge. The
clothing the detaining power supplies to internees and the outward markings placed on their own clothes may
neither be ignominious nor expose them to ridicule. For example, any uniforms that are provided must not
resemble convicts’ uniforms.
5-104. Workers must receive suitable working outfits, including protective clothing, whenever the nature
of their work so requires (GC art. 90).
MEDICAL CARE
5-105. Parties to the conflict who intern protected persons must grant them the medical attention required
by their state of health (GC art. 81).
5-106. Every place of internment must have an adequate infirmary under the direction of a qualified doctor
where internees may have the attention they require, as well as an appropriate diet. Isolation wards must be
set aside for cases of contagious or mental diseases. Maternity cases and internees suffering from serious
diseases, or whose condition requires special treatment, a surgical operation, or hospital care, must be
admitted to any institution where adequate treatment can be given. They must receive care not inferior to that
provided for the general population.
5-107. Internees must, for preference, have the attention of medical personnel of their own nationality.
Internees may not be prevented from presenting themselves to the medical authorities for examination. Upon
request, the medical authorities of the detaining power must issue to every internee who has undergone
treatment an official certificate showing the nature of his or her illness or injury, and the duration and nature
of the treatment given. A duplicate of this certificate must be forwarded to the central information agency for
protected persons as described in paragraph 5-139. Treatment, including the provision of any apparatus
necessary for the maintenance of internees in good health, particularly dentures and other artificial appliances
and spectacles, must be free of charge to the internee (GC art. 91). Internees may receive individual parcels
and collective shipments containing medical supplies (GC art. 108). However, medical supplies should be
sent in collective shipments so they may be properly administered by the camp medical personnel (see DOD
Law of War Manual, 10.23.3.2).
Medical Inspection of Internees
5-108. Medical inspections of internees must be made at least once a month. Their purpose is, in particular,
to supervise the general state of health, nutrition, and cleanliness of internees, and to detect contagious
diseases, especially tuberculosis, malaria, and venereal diseases. Such inspections must include the checking
of weight of each internee and, at least once a year, radioscopic examination (GC art. 92). |
6-27 | 126 | Chapter 5
Death of Internees
5-109. The death of internees must be certified by a doctor and a death certificate prepared showing the
cause of death and the conditions under which it occurred. An official record of the death, duly registered,
must be drawn up in accordance with the procedure relating thereto in force in the territory where the place
of internment is situated, and a duly certified copy of such record is to be transmitted without delay to the
protecting power and the central information agency for protected persons (GC, art. 129). Internees who die
while interned must be honorably buried, if possible, in accordance with the cultural and religious practices
of the religion to which they belong. Their graves must be respected, properly maintained, and marked in a
manner that ensures recognition (GC, art. 130).
RELIGIOUS, INTELLECTUAL, AND PHYSICAL ACTIVITIES, AND WORK
5-110. Internees must enjoy complete latitude in the exercise of their religious duties, including attendance
at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the
detaining authorities. The detaining power must place at the disposal of interned persons, of whatever
denomination, premises suitable for the holding of their religious services (GC art. 86). The premises where
services are held should have enough space, be clean, and provide effective shelter to those attending services.
The premises do not need to be set aside exclusively for religious services (see DOD Law of War Manual,
10.15.1).
5-111. Ministers of religion who are interned must be allowed to minister freely to the members of their
community. For this purpose, the detaining power must ensure their equitable allocation among the various
places of internment that have internees speaking the same language and belonging to the same religion.
Should there be too few ministers, the detaining power must provide them with the necessary facilities,
including means of transport, for moving from one place to another, and they must be authorized to visit any
internees who are hospitalized. Ministers of religion must be at liberty to correspond on matters concerning
their ministry with the religious authorities in the country of detention and as far as possible with the
international religious organizations of their faith. Such correspondence must not count against the quota
mentioned in Article 107 of the GC as described in paragraph 3-93. It may, however, be subject to censorship,
but such censorship must be done as quickly as possible. When internees do not have at their disposal the
assistance of ministers of their faith, or should these ministers be too few in number, the local religious
authorities of the same faith may appoint, in agreement with the detaining power, a minister of the internees’
faith or, if such a course is feasible from a denominational point of view, a minister of similar religion or a
qualified layman. The latter must enjoy the facilities granted to the ministry he or she has assumed. Persons
so appointed must comply with all regulations laid down by the detaining power in the interests of discipline
and security (GC art. 93).
Recreational Study, Sports, and Games for Internees
5-112. The detaining power must encourage intellectual, educational, and recreational pursuits and sports
and games among internees, while leaving them free to take part in them or not. It must take all practicable
measures to ensure the exercise thereof, in particular by providing suitable premises. All possible facilities
must be granted to internees to continue their studies or to take up new subjects. Internees must be given
opportunities for physical exercise, sports, and outdoor games. For this purpose, sufficient open spaces must
be set aside in all places of internment GC art. 94).
5-113. Apart from the detaining power, internees may receive assistance from a variety of sources that allow
them to engage in intellectual, physical, and recreational activities. For example, relief organizations,
including the ICRC, may contribute to the ensuring that internees have opportunities for intellectual, physical,
and recreational activities. In addition, internees may receive shipments that are intended to allow them to
engage in these activities. Lastly, the profits from the canteen may be used in this area (DOD Law of War
Manual, 10.16.4).
Working Conditions of Internees
5-114. The detaining power may not employ internees as workers unless the internees desire to work.
Employment that if undertaken under compulsion by a protected person not in internment would involve a |
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breach of the GC provisions concerning employment of aliens in the home country (discussed in paragraph
5-81) or employment of civilians in occupied territory (discussed in paragraphs 6-129 through 6-145), or
would involve work of a degrading or humiliating character, is prohibited. After a working period of six
weeks, internees are free to give up work at any moment, subject to eight days’ notice.
5-115. These two paragraphs of Article 95 of the GC (as described above) do not affect the right of the
detaining power to employ interned doctors, dentists, and other medical personnel in their professional
capacity on behalf of their fellow internees, or to employ internees for administrative and maintenance work
in places of internment, or to detail such persons for work in the kitchens or for other domestic tasks, or to
require such persons to undertake duties connected with the protection of internees against aerial
bombardment or other war risks. This although internees generally may not be compelled to work, there is
an exception for tasks that benefit the internee community as a whole (see DOD Law of War Manual,
10.17.2). No internee may, however, be required to perform tasks for which he or she is, in the opinion of a
medical officer, physically unsuited (GC art. 95).
5-116. The detaining power must take entire responsibility for all working conditions, for medical attention,
for the payment of wages, and for ensuring that all employed internees receive compensation for occupational
accidents and diseases. The standards prescribed for said working conditions and for compensation must be
in accordance with national laws and regulations and with existing practice; they must in no case be inferior
to those obtaining for work of the same nature in the same district (GC art. 95).
Wages
5-117. Wages for work done must be determined on an equitable basis by special agreements between the
internees, the detaining power, and if the case arises, employers other than the detaining power, with due
regard being paid to the obligation of the occupying State to provide for free maintenance of internees and
for the medical attention that their state of health may require. Whether work is done for the occupying State
or for an outside employer, the wages are to be decided by agreement with the internees, bearing in mind the
latter have no living expenses to defray.
5-118. Internees permanently detailed for categories of work mentioned in paragraph 5-115, such as
doctors, dentists, and other medical personnel in the professional capacity on behalf of their fellow internees;
administrative and maintenance work in places of internment, must be paid fair wages by the detaining power.
The working conditions and the scale of compensation for occupational accidents and diseases to internees
thus detailed may not be inferior to those applicable to work of the same nature in the same district (GC art.
95).
Labor Detachments
5-119. All labor detachments must remain part of, and dependent upon, a place of internment. The
competent authorities of the detaining authority and the commandant of a place of internment are responsible
for observing the provisions of the GC in a labor detachment. The commandant must keep an up-to-date list
of the labor detachments subordinate to him or her, and must communicate the list to the delegates of the
protecting power, the ICRC, and other humanitarian organizations who may visit the places of internment
(GC art. 96).
PERSONAL PROPERTY AND FINANCIAL RESOURCES
5-120. Internees may retain articles of personal use (CG art. 97). Internees, however, are not entitled to
retain items that could be put to a use prejudicial to the legitimate interests of the detaining power, such as
items that may pose a risk to security, such as knives or devices that may be used as weapons, or items that
may facilitate escape, such as flares, compasses, or maps (DOD Law of War Manual, 10.18.1).
5-121. Items that have “above all” a personal or sentimental value may not be taken away (GC art. 97). If
an item of personal or sentimental value presents a security risk (for example, it may be useful as a bribe in
an escape attempt), then the detaining power may impound it. Family or identity documents in the possession
of internees may not be taken away without a receipt being given (GC art. 97). At no time may internees be
left without identity documents. If they have none, they must be issued special documents drawn up by the
detaining authorities, which will serve as their identity papers until the end of their internment. Internees may |
6-27 | 128 | Chapter 5
keep on their persons a certain amount of money, in cash or in the form of purchase coupons, to enable them
to make purchases, such as at a canteen (GC art. 97).
5-122. Monies, checks, bonds, and other valuables in the possession of internees may not be taken from
them except in accordance with established procedures that include providing detailed receipts (GC art. 96).
Amounts taken from an internee are to be paid into the internee’s account, as discussed in paragraph 5-125.
Such amounts may not be converted into any other currency unless legislation in the territory in which the
owner is interned so requires, or the internee consents.
5-123. On release or repatriation, internees must be given all articles, monies, or other valuables taken from
them during internment and must receive in currency the balance of any credit to their internee accounts,
with the exception of any articles or amounts the detaining power withheld by virtue of its legislation in force.
If the property of the internee is withheld, the owner is to receive a detailed receipt (GC art. 97).
5-124. All internees must receive regular allowances sufficient to enable them to purchase goods and
articles such as tobacco or toiletries. Allowances may take the form of credits or purchase coupons.
Furthermore, internees may receive allowances from the power to which they owe allegiance, the protecting
powers, and any organizations that may assist them, or their families, as well as the income on their property
in accordance with the law of the detaining power. The amount of allowances granted by the power to which
an internee owes allegiance must be the same for each category of internees (such as infirm, sick, or
pregnant), but may not be allocated by that power or distributed by the detaining power on the basis of
discrimination between internees that is prohibited by Article 27 of the GC, such as race, religion, or political
opinion.
5-125. The detaining power must open a regular account for every internee, to which must be credited the
allowances discussed in the preceding paragraph, wages earned, remittances received, and with such sums
taken from the internee as may be available under the legislation in force in the territory in which he or she
is interned. Internees may draw from their accounts the amounts necessary for their personal expenses, within
the limits fixed by the detaining power. Internees must be granted all facilities consistent with the legislation
in force in such territory to make remittances to their families and to other dependents. Internees must at all
times be afforded reasonable facilities for consulting and obtaining account statements. A statement of
accounts must be furnished to the protecting power on request, and an account statement must accompany
the internee in case of transfer (GC art. 98).
INTERNMENT CAMP ADMINISTRATION
5-126. Every place of internment must be put under the authority of a responsible officer from the regular
military forces or the regular civil administration of the detaining power. The officer in charge of a place of
internment must have in his or her possession a copy of the GC in an official language of the officer’s country
and is to be responsible for its application. The staff in control of internees must be instructed in the provisions
of the GC and of the administrative measures adopted to ensure its application. The texts of the GC and any
special agreements concluded under the GC must be posted inside the place of internment in a language that
the internees understand or must be in the possession of the internee committee. Regulations, orders, notices,
and publications of every kind must be communicated to the internees and posted inside the places of
internment in a language they understand. Every order and command addressed to internees individually
must likewise be given in a language they understand (GC art. 99).
Discipline of Internees
5-127. The disciplinary regime in places of internment must be consistent with humanitarian principles, and
may not include regulations imposing on internees any physical exertion dangerous to their health or
involving physical or moral victimization. Identification by tattooing or otherwise imprinting signs or
markings on the body is prohibited. Prolonged standing and roll-calls, punishment drill, military drill and
maneuvers, or the reduction of food rations are prohibited (GC, art, 100). Without prejudice to the
competence of courts and higher authorities, disciplinary punishment may be ordered by the commandant of
the place of internment, or by a responsible officer or official who replaces him or her, or to whom he or she
has delegated his or her disciplinary powers. Before any disciplinary punishment is awarded, the accused
internee must be given precise information regarding the offense of which he or she is accused, and given an |
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opportunity to explain his or her conduct and to defend himself or herself against the allegation (GC art. 123).
Disciplinary procedures are similar to those employed in POW camps (see, generally, paragraphs 3-126
through 3-128). Criminal proceedings against internees must comply with the procedures discussed in
paragraphs 6-171 through 6-201.
Complaints and Petitions by Internees
5-128. Internees have the right to present to the detaining authorities any petition with regard to the
conditions of internment to which they are subjected (GC art. 101). The commander of an internment facility
should establish a procedure to facilitate the exercise of an internee’s right to petition. This procedure should
include a designated point of contact for such petitions.
5-129. Internees also have the right to apply without restriction through the internee committee or, if they
consider it necessary, directly to the representatives of the protecting power in order to indicate to them any
points on which they may have complaints to make with regard to the conditions of internment. Such
complaints may also be made to the delegates of the ICRC, who enjoy the same prerogatives of access to
internees as the representatives of the protecting power.
5-130. Such petitions and complaints must be transmitted without delay or alteration. Even if petitions or
complaints are unfounded, they may not occasion any punishment.
5-131. The detaining power may examine and censor complaints and petitions for security reasons.
Communications for transmittal may be examined to determine whether they legitimately contain complaints
or petitions. Security review and censorship must be conducted in accordance with the general rule on
censoring internee correspondence. The detaining power may also examine such complaints and reports to
the protecting power representatives to verify that they are what they purport to be, and to delete matters not
constituting either a complaint or a report within the meaning of the foregoing provision.
5-132. Internee committees may send periodic reports on internee needs and the internment situation to the
protecting power representatives (GC art. 101). The detaining power may subject these reports to security
review and censorship to ensure these reports are not misused.
Report Allegations
5-133. Any credible allegation of a LOAC violation regarding internees must be reported to the chain of
command and the proper investigative authority, such as the service major criminal investigative organization
(such as the U.S. Army Criminal Investigation Division [CID]) (see DODD 2310.01E).
Internee Committees
5-134. In every place of internment, the internees are to freely elect, by secret ballot every six months, the
members of an internee committee empowered to represent them before the detaining power and the
protecting powers, the ICRC, and any other organization that may assist them. Members of the committee
are eligible for re-election. Internees so elected enter upon their duties after the detaining authorities approve
their election. The reasons for any refusals or dismissals must be communicated to the protecting powers
concerned (GC art. 102). Internee committee members who are transferred must be allowed a reasonable
time to acquaint their successors with current affairs (GC art. 104).
5-135. The duties of internee committees include, furthering the physical, spiritual, and intellectual well-
being of the internees, much like the duties of prisoners’ representatives for POWs (see paragraphs 3-81
through 3-84). These general duties imply that internee committees are to undertake a variety of activities to
ensure that internees receive proper treatment by the detaining power and to advance their welfare, even
activities that are not specified in the GC as constituting their duties. In case the internees decide, in particular,
to organize a system of mutual assistance among themselves, this organization would be within the
competence of the internee committees, in addition to the specific duties entrusted to them under other
provisions of the GC (GC art. 103).
5-136. Members of internee committees may not be required to perform any other work if the work will
hinder accomplishment of their duties. Members of internee committees may appoint from among the
internees such assistants as they require. All material facilities are to be granted to members of the internee |
6-27 | 130 | Chapter 5
committees, particularly a certain freedom of movement necessary for the accomplishment of their duties
(such as visits to labor detachments or receipt of supplies). This freedom of movement does not require
complete freedom, however; for example, a camp commander may restrict movement for security reasons.
5-137. All facilities must likewise be accorded to internee committee members for communication by post
and telegraph with the detaining authorities, the protecting powers, the ICRC, and organizations that give
assistance to internees. Internee committee members in labor detachments are to enjoy similar facilities to
communicate with their internee committee in the principal place of internment. Such communications may
not be limited, nor considered as forming a part of the quota for letters and cards mentioned in article 107 of
the GC. Censorship of such communications with the protecting powers, the ICRC, or other organizations
dedicated to the welfare of the internees is not prohibited, but the detaining power should ensure that delays
do not occur to the disadvantage of the internees.
Notification of Measures Taken Regarding Internees
5-138. Immediately upon interning protected persons, the detaining power must inform them, the power to
which they owe allegiance, and their protecting power (or the ICRC if it assumed the duties of the protecting
power) of the measures taken. The detaining power must likewise inform the parties concerned of any
subsequent modifications of such measures (GC art. 105).
Internment Card
5-139. As soon as a person is interned, or at the latest no more than one week after his or her arrival in a
place of internment (normally the theater internment facility), and likewise in cases of sickness or transfer to
another place of internment or to a hospital, an internee must be enabled to send direct to his or her family
and to the central information agency for protected persons described in paragraph 1-111 an internment card
that is similar, if possible, to the model in Annex III to the GC, informing their relatives of his or her detention,
address, and state of health. The cards must be forwarded as rapidly as possible and may not be delayed in
any way (GC art. 106). In US practice, the National Detainee Reporting Center, described in paragraphs 3-
86 through 3-89, has served as the National Protected Person Information Bureau responsible under the GC
for various functions, including for receiving and transmitting information required by the GC to the Powers
concerned, through the intermediary of the protecting powers and the Central Information Agency for
protected persons (see DOD Law of War Manual, 10.31.2 and 10.31.4). The role of the Central Information
Agency for protected persons has been performed in many conflicts by the ICRC Central Tracing Agency
(GC art. 136, 137, 138, 139, 140; see DOD Law of War Manual, 10.31.3). |
6-27 | 131 | Chapter 6
Occupation
This chapter concerns the law of military occupation. It discusses when military
occupation applies, the duties of the Occupying Power, the administration of the
occupied territory, and the protection of the population within occupied territory. It
further discusses the rules applicable to relief organizations in occupied territory, the
rights and duties of the Occupying Power in regard to enemy property, the rules that
concern obtaining services of the inhabitants, public finance in the occupied territory,
and penal provisions in the occupied territory.
OVERVIEW AND PRACTICAL GUIDANCE
6-1. Military occupation of enemy territory establishes a special relationship between the government of
the Occupying Power, the occupied government, and the civilian population of the territory occupied. The
body of international law governing occupations recognizes that the Occupying Power is responsible for the
general administration of the occupied territory and its civilian inhabitants, including the maintenance of
public order and safety (HR art. 43).
6-2. Military occupation is a temporary measure for administering territory under the control of an invading
army, both for purposes of military necessity and of safeguarding the welfare of the population of the
occupied territory. To administer occupied territory effectively, the Occupying Power has authority, within
certain limits, to enact laws and to suspend certain local laws. (See HR art. 27; GC art. 64.) The Occupying
Power generally may not suspend or alter laws that pertain to private matters such as family life, inheritance,
and property, except as required to enable the Occupying Power to fulfill its obligations under LOAC, to
maintain an orderly government, and to ensure the security of the Occupying Power.
6-3. Commanders should be prepared to apply occupation law, including by planning for the requirements
of occupation even before the entry into foreign territory. Successful stability operations may be critical to
achieving the political objectives of combat operations. Many of the rules of occupation law reflect sound
principles for stability operations that technically occur outside the context of occupation.
6-4. Commanders should be prepared to work and coordinate with a range of organizations and entities on
occupation issues to utilize relevant expertise and to ensure consistency with national policy and U.S. legal
obligation, such as the Department of State and other national level authorities.
6-5. Commanders should be prepared to take the necessary actions to fulfill the additional responsibilities
of an Occupying Power, in particular, the duty to restore and ensure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in the country. Although the primary
objective in conducting military occupation is to further the purpose of the war and to ensure the maintenance
and security of occupying forces, there are important duties to provide for the interests and welfare of the
civilian population of the occupied territory (see DOD Law of War Manual, 11.1). For example:
* Commanders should plan and prepare to take actions to ensure there is sufficient food and clean
water and other basic services for the inhabitants of the occupied territory;
* Commanders should plan and prepare to take actions to stop looting after the government of the
opposing State has been ousted; and
* Commanders must not make arbitrary changes to the governance of the occupied territory.
6-6. Commanders should be prepared to take the necessary actions to exercise the additional authorities
that occupation law confers with respect to the administration of the occupied territory. For example, there
are authorities to: |
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* Enforce obedience from the inhabitants of the occupied territory as may be necessary for the
security of occupation forces, the maintenance of law of and order, and for the proper
administration of the country;
* Restrict freedom of movement and control means of transportation within the occupied territory;
* Suspend, repeal, or change municipal law applicable to occupied territory; and
* Control property in occupied territory or control private businesses in order to address the needs
of the occupied territory.
MILITARY OCCUPATION AND INTERNATIONAL LAW
6-7. In general, the LOAC rules that are not specific to military occupation continue to apply to situations
that are addressed by those rules that may arise during occupation. For example, the rules regarding the
humane treatment of detainees apply to detention operations during occupation. The fact of occupation
triggers the application of additional LOAC rules specific to occupation (see DOD Law of War Manual,
11.1.2.1). There are three primary treaty sources to which the United States is a party that address military
occupation.
6-8. Articles 42 through 56 of the HR address military occupation. Although in some cases the HR would
not be applicable as a matter of treaty law because belligerent States might not be parties, many of the
provisions of Articles 42 through 56 reflect customary international law.
6-9. The 1949 Geneva Conventions apply to all cases of partial or total occupation of the territory of a High
Contracting Party, even if the said occupation meets with no armed resistance. Articles 47 through 78 of the
GC specifically addresses occupied territories. Other provisions of the GC also apply to occupied territory,
such as articles 27 through 34 of the GC contain provisions common to the home territories of parties to an
armed conflict and occupied territories.
6-10. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
(1954 Hague) applies to all cases of partial or total occupation of the territory of a High Contracting Party,
even if the said occupation meets no armed resistance. The 1954 Hague and the Regulations for the Execution
of the 1954 Hague have provisions that expressly address occupation. When the 1954 Hague and the GC are
both applicable, the 1954 Hague provisions supplement the GC provisions (1954 Hague art. 36). The
applicable provisions of the GC and 1954 Hague supplement the HR provisions regarding occupation (see
GC art. 154; 1954 Hague art. 36).
WHEN MILITARY OCCUPATION LAW APPLIES
6-11. The law of military occupation applies in international armed conflict and also in all cases of partial or
total occupation of a country’s territory, even if the occupation meets with no armed resistance (HR art. 2;
GC art. 2). Whether military occupation law applies is a question of fact. Even if the requirements of the law
of military occupation doe no apply as a matter of law, general LOAC principles and rules will continue to
apply (see DOD Law of War Manual, 11.2).
PREREQUISITES AND SCOPE OF MILITARY OCCUPATION
6-12. Whether a situation qualifies as an occupation is a question of fact under LOAC. Under Article 42 of
the 1907 Hague Regulations, “Territory is considered occupied when it is actually placed under the authority
of a hostile army. The occupation extends only to the territory where such authority has been established and
can be exercised.” Military occupation:
* Must be actual and effective; that is, the organized resistance must have been overcome, and the
Occupying Power must have taken measures to establish its authority;
* Requires the suspension of the territorial State’s authority and the substitution of the Occupying
Power’s authority; and
* Occurs when there is a hostile relationship between the State of the invading force and the State
of the occupied territory. |
6-27 | 133 | Occupation
WHEN MILITARY OCCUPATION LAW DOES NOT APPLY
6-13. Paragraphs 6-14 through 6-17 describe examples of situations to which military occupation law does
not apply. Nonetheless, it may be appropriate to apply rules from the law of military occupation in such
situations (see DOD Law of War Manual, 11.1.3).
Invasion or Intervention
6-14. Mere physical presence of a belligerent’s military in the territory of its enemy does not constitute
military occupation (see HR art. 42) and does not activate military occupation law. Air superiority alone does
not constitute an effective occupation. For example, a brief physical holding of enemy territory by a small
unit does not constitute military occupation. Capturing a military objective, such as a town or city in the
process of defeating enemy forces, and even holding it for an indeterminate period of time, by itself may not
constitute a military occupation, as the government of the invaded State may remain capable of exercising
its authority.
Liberation of Friendly Territory
6-15. The law of military occupation does not apply to the liberation of friendly territory. Indeed, a military
occupation presupposes that the Occupying Power is hostile in relation to the State whose territory is being
occupied. The administration of liberated territory may be conducted in accordance with a civil affairs
agreement. In the absence of such an agreement, a military government may be established in the area as a
provisional and interim measure (DOD Law of War Manual, 11.1.3.2).
Peace Operations or Non-International Armed Conflict
6-16. Generally, the law of military occupation would not apply in a non-international armed conflict
because a military occupation presupposes that the Occupying Power is hostile in relation to the State whose
territory is being occupied. A State’s military forces controlling its own territory would not be regarded as
conducting an occupation; similarly, foreign forces conducting operations with the consent of the territorial
State would also not be regarded as conducting an occupation. However, the law of military occupation may
be applicable to a non-international armed conflict when a non-State party to the conflict has been recognized
as a belligerent and the criteria identified in Paragraph 6-12 are met (see DOD Law of War Manual, 11.1.3.3).
Law by Analogy
6-17. Although the law of military occupation does not apply as a matter of law to the foregoing situations,
it may be appropriate to apply rules from the law of military occupation in such situations (see DOD Law of
War Manual, 11.1.3). For example, the law of military occupation may provide appropriate rules to apply by
analogy after the liberation of friendly territory, pending a civil affairs agreement with the territorial State.
EFFECTIVENESS OF OCCUPATION
6-18. Military occupation must be actual and effective. The organized resistance must have been overcome,
and the Occupying Power must have taken measures to establish its authority.
6-19. It is sufficient that the occupying force can, within a reasonable time, send detachments of forces to
enforce its authority within the occupied district. Military occupation does not require the presence of military
forces in all populated areas, although those forces must control the most important places. The type of forces
used to maintain the authority of the Occupying Power is not material. For example, the occupation might be
maintained by permanently based units or mobile forces, either of which would be able to send detachments
of forces to enforce the authority of the Occupying Power within the occupied district.
6-20. Additionally, an occupation may be effective despite the existence of areas in the enemy State that are
temporarily controlled by enemy forces or pockets of resistance.
6-21. The fact that a defended location (such as a city or town) still controlled by enemy forces exists within
an area declared occupied by the Occupying Power does not render the occupation of the remainder invalid, |
6-27 | 134 | Chapter 6
provided that continued resistance in such a place does not render the occupier unable to exercise control
over the remainder of the occupied territory.
COMMENCEMENT OF OCCUPATION
6-22. There is no specific legal requirement that the Occupying Power issue a proclamation of military
occupation. Due to the special relations established between the civilian population of the occupied territory
and the Occupying Power, the fact of military occupation and the territory over which it extends should be
made known to the citizens of the occupied territory and to other States. The general historical practice of
the United States has been to make the fact of occupation known by proclamation or similar notice.
6-23. However, the absence of a proclamation or similar notice, the exact time an occupation commences
may be difficult to fix.
LIMITATIONS OF OCCUPATION
6-24. Military occupation of enemy territory involves a complex, trilateral set of legal relations between the
Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory.
Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying
Power the right to govern the enemy territory temporarily.
6-25. The fact of a military occupation does not authorize the Occupying Power to take certain actions. For
example, the Occupying Power is not authorized by the fact of a military occupation to annex occupied
territory or create a new State. Nor may the Occupying Power compel the inhabitants of occupied territory
to become its nationals or otherwise swear allegiance to it (HR art. 45).
6-26. The U.N. Security Council may call upon Occupying Powers to comply with existing international
law. Acting under the Charter of the United Nations, the Security Council may also establish authorities or
limitations that might interact with those otherwise applicable under occupation law. For example, a U.N.
Security Council Resolution may provide additional authority for an Occupying Power to take action in
governing occupied territory that would otherwise not be permissible under the law of belligerent occupation,
including such actions related to modifying existing laws of the territorial State, and encouraging political
reforms.
TERMINATION OF OCCUPATION
6-27. Military occupation will cease when the conditions for its application are no longer met (see paragraphs
6-11 through 6-12). In particular, the military occupation would cease when the invader no longer factually
governs the occupied territory or when a hostile relationship no longer exists between the State of the
occupied territory and the Occupying Power. For example, an uprising of the local population may prevent
the Occupying Power from actually enforcing its authority. Similarly, the Occupying Power’s expulsion or
complete withdrawal from the occupied territory would also be sufficient to terminate the military
occupation.
6-28. Military occupation also may end when a hostile relationship no longer exists between the Occupying
Power and the State of the occupied territory. For example, if a new, independent government of the
previously occupied territory assumes control of the territory and consents to the presence of the previously
occupying forces, it would no longer be considered a military occupation. Similarly, if a peace treaty
legitimately transfers sovereignty of the territory to the Occupying Power, it would no longer be characterized
as a military occupation (DOD Law of War Manual, 11.3.1).
6-29. In the territory of the parties to the conflict, the application of the GC will cease on the general close
of military operations. In the case of occupied territory, the application of the GC will cease to apply to
occupied territory one year after the general close of military operations (GC art. 6). However, the Occupying
Power is bound for the duration of the military occupation, to the extent the Occupying Power continues to
exercise governmental functions in the occupied territory, by the following Articles of the GC: 1 through 12,
27, 29 through 34, 47, 49, 51 through 53, 59, 61 through 77, and 143 (see GC art. 6). |
6-27 | 135 | Occupation
6-30. Additional Protocol I provides that the 1949 Geneva Conventions and AP I will cease to apply upon
the termination of occupation (AP I art. 3(b)). Occupying Powers who are party to AP I would be bound by
this rule. The United States is a not a party to AP I. In any case, individuals entitled to GC protection who
remain in the custody of the Occupying Power following the end of occupation retain that protection until
their release, repatriation, or re-establishment (GC art. 6).
PROTECTED PERSONS
6-31. The GC is concerned in large part with the welfare of “protected persons” located either in occupied
territory or the home territory of a party to the conflict. 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
conflict or occupation, “in the hands of” a party to the conflict or occupying State of which they are not
nationals (GC art. 4). The following persons are specifically excluded from being considered protected
persons under the GC, even though they may nonetheless receive the protection of the population against
certain consequences of armed conflict:
* Nationals of any State that is not a party to GC;
* A State’s own nationals;
* Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals
of a co-belligerent State (for example, nationals of a State that is a multinational partner of the
Occupying Power in the armed conflict), while the State of which they are nationals has normal
diplomatic representation with the Occupying Power; and
* Persons protected by the GWS, GWS Sea, or GPW (for example, those persons entitled to be
treated as POWs or retained personnel if captured by the Occupying Power).
HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR
PROTECTED PERSONS IN OOCCUPIED TERRITORY
6-32. The requirements of humane treatment and other basic protections for protected persons discussed in
Chapter 5 (see paragraphs 5-16 through 5-34) apply to protected persons in occupied territory.
6-33. The Occupying Power has certain obligations to respect the rights of protected persons secured by the
GC. For example, protected persons who are in occupied territory must not be deprived, in any case or in any
manner whatsoever, of the benefits of the GC by any change introduced, as a result of the occupation of a
territory, into the institutions or governments of the occupied territory, nor by any agreement concluded
between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the
latter of the whole or part of the occupied territory (GC art. 47).
6-34. The Occupying Power may not enter into any special agreements that would adversely affect the
situation of protected persons, as defined by the GC, nor restrict the rights that the GC confers upon them
(GC art. 7). The Occupying Power may also not evade its responsibilities through the purported renunciation
by protected persons of the rights secured to them by the GC and by any special agreements referred to in
Article 7 of the GC (GC art. 8).
ADMINISTRATION OF THE OCCUPIED TERRITORY
6-35. Under LOAC, once the authority of the legitimate power has in fact passed into the hands of the
Occupying Power, the latter must take all the measures in its power to restore and ensure, as far as possible,
public order and safety while respecting, unless absolutely prevented, the laws in force of the country (HR
art. 43).
DUTIES OF THE OCCUPYING POWER IN GENERAL
6-36. The Occupying Power has a general duty to restore and maintain public order and safety, and to provide
for the preservation of the rights of the inhabitants, including rights to their private property.
6-37. The Occupying Power may take measures of control and security necessary to maintain orderly
government of the occupied territory, to ensure its own security, and to further the purposes of the war (HR |
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art. 43; GC art. 27, 47, 64). The Occupying Power may suspend laws that constitute a threat to the Occupying
Power’s security or the security of the general population, or laws constituting an obstacle to application of
the law of occupation, provided it ensures protected persons are humanely treated (GC art. 27). In meeting
obligations regarding public order and safety, the Occupying Power will continue to enforce the ordinary
civil and criminal laws of the occupied territory, except to the extent authorized by the law of occupation to
alter, suspend, or repeal such laws (see HR art. 43; GC art. 64). The Occupying Power is prohibited from
arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied
territory (see DOD Law of War Manual, 11.5.2).
6-38. The Occupying Power’s obligations and authorities under the law of occupation are extensive. The
Occupying Power has, in particular, the positive obligation and authority to ensure the protection, security,
and welfare of the population living under occupation. This includes the obligation and authorities to ensure
that the civilian population has adequate food and access to essential medical services, and related to ensuring
the working of institutions for the care and education of children (GC arts. 50, 55, 56).
NATURE OF THE OCCUPATION GOVERNMENT
6-39. It is immaterial whether the government over an enemy’s territory consists of a military or civil or
mixed administration. Its character is the same, and the source of its authority is the same. It is a government
imposed by force and the legality of its actions are determined by LOAC (see DOD Law of War Manual,
11.8.6). For example, in the initial stages of a military occupation, authority may be exercised exclusively by
military authorities. In later stages, occupation authority is sometimes exercised through a civilian governing
authority established by the Occupying Power.
POWER OF THE OCCUPYING POWER OVER THE INHABITANTS
6-40. The Occupying Power, as a belligerent State, may take such measures of control and security in regard
to protected persons as may be necessary as a result of the armed conflict. In addition, the Occupying Power
may take measures necessary to fulfill its duty to ensure public order and safety.
6-41. The inhabitants of occupied territory have a duty to carry on their ordinary peaceful pursuits, to behave
in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrain from all
injurious acts toward the forces or in respect to their operations, and to render strict obedience to the orders
of the Occupying Power. Subject to the restrictions imposed by international law, the Occupying Power may
demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for the
security of its forces, for the maintenance of law and order, and for the proper administration of the country.
LOCAL GOVERNMENTS UNDER DURESS OR SURROGATE GOVERNMENTS AND ACTS BY
AGENTS
6-42. Obligations of the Occupying Power may not be avoided through appointment of a surrogate or puppet
government, central or local, to carry out acts that would be unlawful if performed directly by the Occupying
Power. Such acts induced or compelled by the Occupying Power are nonetheless its acts (see GC art. 29).
FUNCTIONS OF GOVERNMENT
6-43. The functions of the hostile government continue only to the extent they are sanctioned by the
Occupying Power. The Occupying Power may permit the government of the country to perform some or all
of its normal functions.
6-44. The compulsion of civil servants and other officials of local governments to continue to execute their
duties must be justified by military necessity and be consistent with applicable provisions of the GC.
GENERAL CONTINUATION OF MUNICIPAL LAW OF OCCUPIED TERRITORY AS BETWEEN
INHABITANTS
6-45. In general, the municipal law of the occupied territory (i.e., the ordinary domestic civil and criminal
law) and the administration of such law remain in full force so far as the inhabitants of occupied territory are |
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concerned, unless changed by the Occupying Power. As a foreign State and as the paramount authority in the
occupied territory, the Occupying Power is not bound by the municipal law of the occupied territory.
6-46. The duty of the Occupying Power to respect, unless absolutely prevented, the laws in force in the
country prohibits it from arbitrarily exercising its authority to suspend, repeal, or change the municipal law
applicable to occupied territory. As with other authorities under the LOAC, the Occupying Power must use
its power with respect to the municipal law of occupied territory in good faith and not for the purpose of
oppressing the population.
6-47. The Occupying Power may subject the population of the occupied territory to provisions: (1) that are
essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly
government of the territory; and (3) to ensure the security of the Occupying Power, of the members and
property of the occupying forces or administration, and likewise of the establishments and lines of
communication used by them (GC art. 64).
AUTHORITY TO ALTER, REPEAL, SUSPEND, OR ENACT PENAL LAWS
6-48. The penal laws of the occupied territory are to remain in force during the occupation, except an
Occupying Power may repeal or suspend laws where they constitute:
* A threat to its security; or
* An obstacle to the application of the GC (GC art. 64).
Laws that may constitute a threat to the security of occupation forces might include, for example, laws
mandating resistance to any occupation or permitting civilian ownership of weapons, munitions, or
components thereof. Laws that may be an obstacle to the application of the GC might include laws that are
inconsistent with the duties of the Occupying Power, such as laws that permit the use of torture, that
contravene the protections from brutality (see GC art. 32), or that permit discrimination based on race,
religion, or political opinion (see GC art. 27).
6-49. The Occupying Power may subject the population of the occupied territory to penal provisions:
* That are essential to enable the Occupying Power to fulfill its obligation under the GC;
* To maintain the orderly government of the territory; and
* To ensure the security of the Occupying Power, its forces and property, or the occupying
administration, and likewise the establishment and lines of communication used by them (GC art.
64).
PRE-OCCUPATION ACTS OF PROTECTED PERSONS
6-50. Protected persons may not be arrested, prosecuted, or convicted by the Occupying Power for acts
committed or opinions expressed before the occupation, or during a temporary interruption thereof, with the
exception of breaches of the laws and customs of war (GC art. 70).
6-51. Nationals of the Occupying Power who sought refuge in the territory of the occupied State before the
outbreak of hostilities, may not be arrested, prosecuted, convicted, or deported from the occupied territory,
except for offenses committed after the outbreak of hostilities or for offenses under common law committed
before the outbreak of hostilities that, according to the law of the occupied State, would have justified
extradition in time of peace (GC art. 70).
6-52. Protected persons may not be forcibly transferred or deported to another country, nationals of the
Occupying Power may be involuntarily removed under certain conditions (see DOD Law of War Manual,
11.11.7.2).
OBLIGATION TO NOTIFY THE POPULATION
6-53. The Occupying Power is not required to adhere to the local procedure for amending municipal law.
However, the population of the occupied territory must be informed of any alteration, suspension, or repeal
of existing laws and of the enactment of new laws. In particular, penal provisions enacted by an Occupying
Power must not come into force before they have been published and brought to the knowledge of the
inhabitants in their own language. The effects of these penal provisions may not be retroactive (GC art. 65). |
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PROHIBITION OF THE EXTINGUISHING OF RIGHTS
6-54. It is expressly forbidden to declare abolished, suspended, or inadmissible in a court of law the rights
and actions of the nationals of a hostile party (HR art. 23). This rule has been interpreted to apply solely to
enemy areas occupied by a belligerent. It has been interpreted to prohibit a military commander from
arbitrarily annulling the results of civil proceedings between private parties (see DOD Law of War Manual,
11.11.1.4).
FUNCTIONING OF LOCAL COURTS AND TRIBUNALS
6-55. In general, the courts and other tribunals of the occupied territory should continue to function. For
example, ordinary crimes that do not affect the safety of the Occupying Power or its personnel are normally
left to the jurisdiction of the courts in the occupied territory (GC art. 64). However, the administration of
justice in occupied territory, like the performance of other governmental functions, is subject to the direction
of the Occupying Power (see DOD Law of War Manual, 11.10).
SUSPENSION OF COURTS AND TRIBUNALS
6-56. The ordinary courts in occupied territory should be suspended only if:
* Judges and magistrates are unable or unwilling to perform their duties (GC art. 54);
* The courts are corrupt or unfairly constituted, for example, failing to provide the impartial and
regularly constituted courts respecting the generally recognized principles of regular judicial
procedure, recognized by international law (consider AP I art. 75); or
* Local judicial administration has collapsed due to the hostilities preceding the occupation (see
DOD Law of War Manual, 11.10.1).
In such cases, the Occupying Power may use its own properly constituted, non-political military courts to
ensure that offenses against the local population are properly tried (see DOD Law of War Manual, 11.10.1).
IMMUNITY OF OCCUPATION PERSONNEL FROM LOCAL LAW
6-57. Military and civilian personnel of the occupying forces and occupation administration, and persons
accompanying them, are not subject to local laws or to the jurisdiction of the local civil or criminal courts of
the occupied territory, unless expressly agreed to by a competent officer of the Occupying Power.
CENSORSHIP
6-58. For the purposes of security, an Occupying Power may establish censorship or regulation of any or all
forms of media (for example, press, radio, or television) and entertainment (for example, theater or movies),
of correspondence, and of other means of communication. For example, an Occupying Power may prohibit
entirely the publication of newspapers that pose a threat to security or it may prescribe regulations for the
publication or circulation of newspapers or, of other media for the purpose of fulfilling its obligations to
restore public order (see DOD Law of War Manual, 11.7.2).
CONTROL OF THE MEANS OF TRANSPORT
6-59. An Occupying Power is entitled to exercise authority over all public and private transportation, whether
on land, water or air, within the occupied territory and may seize them and regulate their operation
PROTECTION OF THE POPULATION OF THE OCCUPIED
TERRITORY
6-60. Under the law of belligerent occupation, the Occupying Power has certain duties with respect to the
population of an occupied territory, including protected persons under the GC.
6-61. The population of an occupied territory, like other protected persons under the GC, are entitled, in all
circumstances, to respect for their persons, their honor, their family rights, their religious convictions and
practices, and their manners and customs (HR art. 46). They must at all times be humanely treated, and must |
6-27 | 139 | Occupation
be protected especially against all acts of violence or threats of violence, and against insults and public
curiosity (see DOD Law of War Manual, 11.6.1).
6-62. Other provisions for the humane treatment of protected persons set forth in Articles 27 through 34 of
the GC apply to the population of an occupied territory. For example, women must be especially protected
against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent
assault. Reprisals against protected persons and their property are prohibited. The taking of hostages is
prohibited. In addition, protected persons in occupied territory must have every facility for making
application to the protecting powers (if designated), to the ICRC, to the national red cross or red crescent
society of the country where they may be, as well as to any organization that might assist them.
6-63. There are a number of protections for the population of occupied territory that are specific to
occupation. For example, specific provision exists for the protection of children in occupied territory. Specific
constraints exist on the authority of the Occupying Power to punish protected persons, direct their movement,
or compel them to perform labor. Provision also is made with respect to: (1) food and medical supplies of
the population; (2) public health and hygiene; (3) spiritual assistance; and (4) relief efforts and consignments
(see DOD Law of War Manual, 11.6.2).
6-64. Additionally, it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the
hostile State. No general penalty, pecuniary or otherwise, may be inflicted upon the population on account
of the acts of individuals for which they cannot be regarded as jointly and severally responsible (HR art. 50).
Such penalties are prohibited, even if authorized under the law of the occupied territory (see DOD Law of
War Manual, 11.6.2.2).
6-65. Citizens of neutral States residing within occupied territory are generally treated the same as other
residents of occupied territory.
APPLICABILITY OF HUMAN RIGHTS LAW TO OCCUPATION
6-66. Human rights law has some limited relevance and application to military occupation. It has been the
U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does not create obligations
for an Occupying Power with respect to the occupied territory because a contracting State’s obligations under
the ICCPR only extend to persons within its territory and subject to its jurisdiction. Although persons within
occupied territory are subject to the jurisdiction of the Occupying power for certain purposes, they are not
within the Occupying Power’s national territory.
6-67. The law of belligerent occupation is specially crafted to address the situation of belligerent occupation.
Thus, in cases of apparent conflict with other provisions of law that are not intended to address the situation
of belligerent occupation, there might be a presumption that such provisions would not conflict with
occupation law or that occupation law would control when addressing belligerent occupation. Other States,
including many U.S. allies, interpret their human rights treaty obligations to create obligations for their
military operations outside their home territory in the context of belligerent occupation (see DOD Law of
War Manual, 11.1.2.5). Further, there are court cases, public pronouncements, and resolutions of
international bodies that have sometimes addressed occupations by citing provisions contained in regional
and general human rights treaties.
6-68. Although international human rights law is not specifically designed for situations of armed conflict
and occupation, it may have relevance to certain situations arising in an occupation. Subject to the Occupying
Power’s authority to change local law, an occupied State’s domestic law that has been enacted pursuant to
its human rights treaty obligations or that meets the requirements of the occupied State’s human rights treaty
obligations may continue to apply during an occupation. (see DOD Law of War Manual, 11.1.2).
MOVEMENT OF PROTECTED PERSONS IN OCCUPIED TERRITORY
6-69. As a general matter, the Occupying Power assumes the authority of the ousted government in
controlling the movement of person within the occupied territory, as well as entering or exiting the occupied
territory. For example, private individuals, members of private organizations, or representatives of foreign
governments or public international organizations seeking to enter the occupied territory may not do so
without express authorization from the Occupying Power. |
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6-70. For security and other valid reasons, including those relating to its duties and responsibilities as an
Occupying Power, an Occupying Power may prohibit individuals from changing their residence, restrict
freedom of movement within the occupied territory, prohibit visits to certain areas, declare certain areas off
limits, prohibit emigration and immigration by protected persons who are nationals of the State whose
territory is occupied, and require all individuals carry identification documents.
Departure of Protected Persons Who Are Not Nationals of the State Whose Territory is
Occupied
6-71. Protected persons who are not nationals of the power whose territory is occupied may avail themselves
of the right to leave the territory, subject to Article 35 of the GC, and decisions thereon must be taken
according to the procedure that the Occupying Power must establish (GC art. 48). Article 35 of the GC sets
forth rules regarding the departure of protected persons from the home territory of a belligerent State and
provides protected persons with a right to depart. But, Article 35 allows a belligerent to prevent such
departure if such departure is contrary to the belligerent’s national interests, and Article 35 specifies certain
procedural requirements (see DOD Law of War Manual, 11.12.2). For example, persons permitted to leave
may provide themselves with the necessary funds for their journey and take with them a reasonable amount
of their effects and articles of personal use. If a person is refused permission to leave the territory, he or she
is entitled to have the refusal reconsidered as soon as possible by an appropriate court or administrative board
designated by the Occupying Power for that purpose (GC arts. 35, 48).
Prohibition Against Forcible Transfers and Deportations
6-72. Individual or mass forcible transfers, as well as deportations of protected persons from occupied
territory to the territory of the Occupying Power, or of any other country, occupied or not, are prohibited,
regardless of their motive. The unlawful deportation or transfer of protected persons in violation of this rule
constitutes a grave breach of the GC. Nevertheless, the Occupying Power may undertake total or partial
evacuation of a given area if required for the security of the population or for imperative military reasons.
Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied
territory, except when, for material reasons, it is impossible to avoid such displacement. The evacuees must
be transferred back to their homes as soon as hostilities in the area in question have ceased (GC art. 49). This
provision applies only to protected persons under the GC; for example, POWs may be transferred from
occupied territory to POW camps in the home territory of a belligerent. Similarly, a person who is not a
protected person (such as a national of a neutral or a co-belligerent, who travels to an occupied State to fight
the Occupying Power) would not be covered by this prohibition.
6-73. The Occupying Power undertaking such transfers or evacuations must ensure, to the greatest extent
practicable: (1) proper accommodation is provided to receive the protected persons; (2) that the evacuations
or transfers are effected with satisfactory conditions of hygiene, health, safety and nutrition; and (3) that
members of the same family are not separated. The Protecting Power must be informed of any transfers and
evacuations as soon as they have taken place (GC art. 49).
6-74. The Occupying Power must not detain protected persons in an area particularly exposed to the dangers
of war unless the security of the population or imperative military reasons so demand. Additionally, the
Occupying Power must not deport or transfer parts of its own civilian population into the territory it occupies
(GC art. 49).
CHILDREN
6-75. In response to the acute deprivations that children suffered during the two World Wars, the GC places
particular emphasis on their safety and well-being. Although the GC does not set forth a specific age criteria
for the term “children,” for the purposes of article 50 of the GC and its obligations with respect to the
protection of children in occupied territory may be understood generally to refer to children under fifteen
years of age (GC art. 50).
6-76. The Occupying Power must, with the cooperation of the national and local authorities, facilitate the
proper working of all institutions devoted to the care and education of children (GC art. 50). This obligation |
6-27 | 141 | Occupation
goes beyond merely not interfering with such institutions, as it also includes the affirmative duty to support
them when the responsible authorities of the country fail to do so.
6-77. The Occupying Power must take all necessary steps to facilitate the identification of children and the
registration of their parentage (GC art. 50). The Occupying Power may not, in any case, change their personal
status, nor enlist them in formations or subordinate organizations (GC art. 50).
6-78. Should the local institutions be inadequate for the purpose, the Occupying Power must make
arrangements for the maintenance and education, if possible by person of their own nationality, language and
religion, of children who are orphaned or separated from their parents as a result of the war and cannot be
adequately cared for by a near relative or friend (GC art. 50).
6-79. A special section of the National Protected Person Information Bureau is to be responsible for taking
all necessary steps to identify children whose identity is in doubt (see paragraph 5-33). Particulars of their
parents or other near relatives should be recorded if available. The Occupying Power must not hinder the
application of any preferential measures in regard to food, medical care and protection against the effects of
war that may have been adopted prior to the occupation in favor of children under fifteen years of age,
expectant mothers, and mothers of children under seven years of age (GC art. 50).
FOOD AND MEDICAL SUPPLIES FOR THE CIVILIAN POPULATION
6-80. The responsibility for providing and maintaining health services falls primarily on the national and
local authorities, but where such authorities are unable to provide adequately for the health needs of the
civilian population, the Occupying Power has the duty described below. To the fullest extent available to it,
the Occupying Power has the duty of ensuring the adequacy of food and medical supplies of the population.
In particular, it should bring in the necessary food, medical stores, and other articles if the resources of the
occupied territory are insufficient (GC art. 55; consider AP I art. 69).
6-81. The Occupying Power must allow the protecting power to verify the state of the food and medical
supplies in occupied territories, at any time, except where temporary restrictions are made necessary by
imperative military requirements (GC art. 55).
HYGIENE AND PUBLIC HEALTH
6-82. To the fullest extent available to it, the Occupying Power has the duty of ensuring and maintaining,
with the cooperation of national and local authorities, medical and hospital establishments, medical services,
and public health and hygiene in the occupied territory, with particular reference to the adoption and
application of the prophylactic and preventive measures necessary to combat the spread of contagious
diseases and epidemics. Medical personnel of all categories must be allowed to carry out their duties (GC art.
56; consider AP I art. 15).
6-83. If new hospitals are set up in occupied territory and if the competent organizations of the occupied
State are not operating there, the occupying authorities must, if necessary, grant them the recognition
provided for in Article 18 of the GC (GC art. 56). This recognition allows civilian hospitals to show that they
are civilian hospitals and that the buildings they occupy are not used for any purpose that would deprive them
of protection (see DOD Law of War Manual, 11.15.3). In similar circumstances, the occupying authorities
must also grant recognition to hospital personnel and transport vehicles under the provisions of Articles 20
and 21 of the GC (GC art. 56). This recognition allows such personnel and vehicles to display their
entitlement to protection. In adopting measures for purposes of health and hygiene, and in their
implementation, the Occupying Power must take into consideration the moral and ethical sensitivities and
susceptibilities of the population of the occupied territory (GC art. 56).
REQUISITION OF HOSPITALS AND OF FOOD AND MEDICAL SUPPLIES
6-84. The Occupying Power may requisition civilian hospitals only temporarily and in cases of urgent
necessity for the care of military wounded and sick, and then on condition that suitable arrangements are
made in due time for the care and treatment of the hospital’s current patients and for the future needs of the
civilian population for hospital accommodation. The material and stores of civilian hospitals may not be
requisitioned so long as they are needed for the civilian population (GC art. 57; consider AP I art. 14). |
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6-85. The Occupying Power may not requisition food, articles, or medical supplies available in the occupied
territory, except for use by the occupation forces and administration personnel, and then only if the
requirements of the civilian population have been considered. Subject to the provisions of other international
agreements, the Occupying Power must make arrangements to ensure that fair value is paid for any
requisitioned goods (GC art. 55).
SPIRITUAL ASSISTANCE
6-86. The Occupying Power must permit ministers of religion to give spiritual assistance to the members of
their religious communities. The Occupying Power must also accept consignments of books and articles
required for religious needs and must facilitate their distribution in occupied territory (GC art. 58).
COLLECTIVE RELIEF
6-87. If the population of an occupied territory is inadequately supplied, the Occupying Power must agree
to relief schemes on behalf of the affected population and must facilitate them by all the means at its disposal.
Such schemes may be undertaken either by States or by impartial humanitarian organizations, such as the
ICRC, and consist, in particular, of food, medical supplies, and clothing (GC art. 59; consider AP I art. 69).
6-88. All parties to the GC must permit the free passage of the consignments and must guarantee their
protection. A State granting free passage to consignments on their way to territory occupied by an adverse
party to the conflict, must, however, have the right to search the consignments, to regulate their passage
according to prescribed times and routes, and to be reasonably satisfied (through the Protecting Power) that
these consignments are to be used for the relief of the needy population and not to be used for the benefit of
the Occupying Power (GC art. 59).
RESPONSIBILITIES OF THE OCCUPYING POWER
6-89. Relief consignments do not relieve the Occupying Power of its responsibilities under Articles 55, 56,
and 59 of the GC, which address the provision of food, medical supplies, and medical services to the
population. The Occupying Power may not divert relief consignments from the purpose for which they are
intended, except in cases of urgent necessity in the interests of the population of the occupied territory and
with the consent of the protecting power (GC art. 60).
DISTRIBUTION
6-90. The distribution of relief consignments referred to in Articles 59 and 60 of the GC must be carried out
with the cooperation, and under the supervision, of the protecting power. This duty may be delegated, by
agreement between the Occupying Power and the protecting power, to a neutral State, to the ICRC, or any
other impartial humanitarian body. Such consignments must be exempt in occupied territory from all charges,
taxes, or customs duties unless such are necessary in the interests of the economy of the territory. The
Occupying Power must facilitate the rapid distribution of these consignments. All parties to the GC must
endeavor to permit the transit and transport of such relief consignments free of charge on their way to
occupied territories (GC art. 61). Subject to imperative reasons of security, protected persons in occupied
territories must be permitted to receive the individual relief consignments sent to them (GC art. 62; consider
AP I art. 71).
NATIONAL RED CROSS OR RED CRESCENT SOCIETIES AND OTHER RELIEF
ORGANIZATIONS
6-91. Subject to temporary and exceptional measures imposed for urgent reasons of security by the
Occupying Power, recognized national Red Cross and Red Crescent Societies must be able to pursue their
activities in accordance with Red Cross principles, as defined by the International Red Cross Conferences.
Other relief societies must be permitted to continue their humanitarian activities under similar conditions; the
Occupying Power may not require any changes in the personnel or structure of these societies that would
prejudice these activities. The same principles are to apply to the activities and personnel of special
organizations of a non-military character that already exist or that may be established for the purpose of |
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ensuring the adequate living conditions of the civilian population by maintaining essential public utility
services, distributing relief, providing medical care, and organizing rescues (GC art. 63).
RELIEF SOCIETIES AND PROTECTED PERSONS
6-92. Protected persons must have the ability to apply to the protecting powers, the ICRC, and the National
Red Cross or Red Crescent Society of the country where they may be, as well as to any society or organization
that might assist them. Within the bounds set by military or security considerations, the authorities must grant
these several organizations all facilities for that purpose. Apart from the visits on behalf of protected persons
by the delegates of the protecting powers and of the ICRC provided for by the GC (GC art. 143) as described
in paragraph 1-113, the detaining or Occupying Power must facilitate as much as possible visits to protected
persons by the representatives of other organizations whose object is to give spiritual aid or material relief to
such persons (GC art. 142; consider AP I art. 81).
RELIEF SOCIETIES AND OTHER ORGANIZATIONS
6-93. Subject to measures that the detaining powers, including Occupying Powers may consider essential to
security or other reasonable need, the representatives of religious organizations, relief societies, or other
organizations assisting the protected persons must receive from these powers, for themselves or their duly
accredited agents, all facilities for visiting protected persons, for distributing relief supplies and material from
any source intended for educational, recreational, or religious purposes, or for assisting them in organizing
their leisure time within the places of internment. Such societies or organizations may be constituted in the
territory of the detaining power, or in any other country, or they may have an international character. The
detaining power, including the Occupying Powers, may limit the number of societies and organizations
whose delegates are allowed to carry out activities in its territory and under its supervision, on condition,
however, that such limitation ay not hinder the supply of effective and adequate relief to all protected persons.
The special position of the ICRC must be recognized and respected at all times (GC art. 142; consider AP I
art. 81). In addition, such personnel should be respected, protected, and assisted in their mission to the fullest
extent practicable. The activities of the relief personnel should only be limited or their movements
temporarily restricted in the case of imperative military necessity (consider AP I art. 71).
SUPERVISION BY PROTECTING POWERS
6-94. Representatives or delegates of the protecting powers must be permitted to go to all places where
protected persons are located, particularly to places of internment, detention, and work. They must have
access to all premises occupied by protected persons and must be able to interview them without witnesses.
Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an
exceptional and temporary measure. The duration and frequency of such visits must not be restricted (GC
art. 143).
TREATMENT OF ENEMY PROPERTY
6-95. An Occupying Power has certain rights, and assumes certain obligations, with respect to the property
of its enemy, including the property of the inhabitants of the occupied territory.
DESTRUCTION OF PROPERTY
6-96. The general prohibitions against pillage and wanton destruction of enemy property that apply to
military operations also apply to the occupation of enemy territory. Further, any destruction by the Occupying
Power of real (immoveable) or personal (moveable) property belonging individually or collectively to private
persons, to the Occupied State, to other public authorities, or to social or cooperative organizations is
prohibited except where such destruction is rendered absolutely necessary by military operations (GC art.
53). The GC identifies “extensive destruction . . . of property, not justified by military necessity and carried
out unlawfully and wantonly” as a grave breach (GC art. 147).
6-97. Although wanton destruction is prohibited, LOAC does not prohibit the destruction of property when
absolutely necessary or imperatively demanded for military reasons. The evaluation of whether destruction |
6-27 | 144 | Chapter 6
of property is militarily necessary in occupation is undertaken by applying the standards that are applied in
combat operations. For example, the evaluation of whether the destruction of property is militarily necessary
is made by the responsible commander or other authority of the Occupying Power, based on good faith and
the information available at the time the decision is made (see DOD Law of War Manual, 11.18.2.1).
SEIZURES AND OTHER TAKINGS OF PROPERTY
6-98. An Occupying Power may always take temporary possession of enemy property (real or personal, and
public or private) where required for direct military use in military operations. In the case of private property,
an Occupying Power, where possible, should requisition the property and offer compensation to the owner
(HR art. 52).
Seizure or Capture and Vesting of Title in the Occupying Power
6-99. In the case of real (immovable) property that is captured or seized, the Occupying Power may use such
property for the duration of the occupation but does not take title to the property. In contrast, public property
captured or seized, as well as private property validly captured on the battlefield and abandoned property, is
the property of the capturing State (see DOD Law of War Manual, 11.18.2.3).
6-100. Valid capture and seizure of property require both intent to seize or capture, and a physical act of
seizure or capture. The mere presence within occupied territory of property that is subject to appropriation
under international law does not operate to vest title thereto in the Occupying Power (DOD Law of War
Manual, 11.18.2.3).
Requisition of Private Enemy Property
6-101. Although private enemy property may not be confiscated (see paras. 6-112 through 6-117), it may
be subject to requisition, which is the method of taking private enemy real and personal property for the needs
of the army of occupation. Requisitions in kind and services are not to be demanded from municipalities or
inhabitants except for the needs of the army of occupation. They must be in proportion to the resources of
the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military
operations against their own country. Requisitions must be made under the authority of the commander of
the locality (HR art. 52).
6-102. Contributions in kind must, as far as possible, be paid for in cash; if not, a receipt must be given, and
the payment of the amount due must be made as soon as possible (HR art. 52). The prices of articles and
services requisitioned will be fixed by agreement if possible, otherwise by military authority (see DOD Law
of War Manual, 11.18.7.3).
6-103. Goods and services that are necessary for the maintenance of the occupation army, such as fuel,
food, clothing, building materials, machinery, tools, vehicles, or furnishings for quarters, may be
requisitioned. Billeting of troops in occupied areas is also authorized.
6-104. However, the Occupying Power may not requisition foodstuffs, articles necessary to support life, or
medical supplies available in the occupied territory, except for use by the occupation forces and
administration personnel, and then only if the requirements of the civilian population have been considered.
Subject to the provisions of other international conventions, the Occupying Power must make arrangements
to ensure that fair value is paid for any such requisitioned goods (GC art. 55).
6-105. Coercive measures may be used to enforce requisitions but will be limited to the amount and kind
necessary to secure the articles requisitioned.
Seizure/Destruction of Submarine Cables
6-106. Submarine cables connecting an occupied territory with a neutral territory shall not be seized or
destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed
when peace is made (HR art. 54). This rule applies only to activities on land and does not deal with seizure
or destruction of cables in the open sea (see DOD Law of War Manual, 11.18.2.4). |
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ENEMY PUBLIC PROPERTY
6-107. In general, an Occupying Power may capture or seize the real (immovable) and personal (movable)
property of the occupied State and use it for military operations or the administration of the occupied territory.
No compensation needs to be paid to the occupied State or the use or taking of such property.
Public Real (Immovable) Property of Direct Military Use
6-108. Real (immovable) property of the occupied State that is of direct military use, such as forts, arsenals,
dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military facilities, may
remain in the hands of the Occupying Power until the close of the hostilities. Such property may also be
destroyed or damaged by the Occupying Power if it is deemed necessary to military operations.
Other Public Real (Immovable) Property That is Essentially of a Non-Military Nature
6-109. The Occupying Power is regarded only as an administrator and usufructuary of public buildings, real
estate, forests, and agricultural estates belonging to the hostile State and situated in the occupied territory. It
must safeguard the capital of these properties and administer them in accordance with the rules of usufruct
(HR art. 55). Thus, the Occupying Power may use and enjoy the benefits of public real property belonging
to an enemy State, but it does not have the right of sale or unqualified use of such property. Further, it should
not exercise its rights in such a wasteful and negligent manner as to seriously impair the value of the property.
It may, however, lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the
mines. The term of a lease or contract should not extend beyond the conclusion of hostilities (see DOD Law
of War Manual, 11.18.5.2).
6-110. Real (immovable) property of the enemy State that is essentially of a non-military nature, such as
public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless
military operations render such destruction absolutely necessary.
Public Personal (Movable) Property
6-111. An army of occupation may take possession of cash, funds, and realizable securities that are strictly
the property of an enemy State, depots of arms, means of transport, stores, and supplies, and generally, all
personal (movable) property belonging to the enemy State that may be used for military operations (HR art.
53). Thus, all personal (movable) property belonging to an enemy State susceptible of military use may be
taken possession of and utilized for the benefit of the Occupying Power. Under modern conditions of warfare,
a large proportion of State property may be regarded as capable of being used for military purposes. However,
personal (movable) property that is not susceptible of military use must be respected and may not be
appropriated (DOD Law of War Manual, 11.18.5.3).
ENEMY PRIVATE PROPERTY
6-112. Private property may not be confiscated, that is, it may not be taken without compensation (HR art.
46). This prohibition against confiscation of private property extends not only to outright taking in violation
of LOAC, but also to any acts that, through the use of threats, intimidation, or pressure, or by actual
exploitation of the power of the Occupying Power, permanently or temporarily, deprive the owner of the use
of such property without his or her consent or without authority under international law. The prohibition
against confiscation of private property does not extend to takings by way of contribution, requisition, or the
valid imposition of penalties.
Seizure of Private Property Susceptible to Direct Military Use
6-113. All appliances, whether on land, at sea, or in the air, adapted from the transmission of news, or for
the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally,
all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored
and compensation fixed when peace is made (HR art. 53). Private property susceptible of direct military use,
such as cables, telephone and telegraph facilities, radio, television, telecommunications and computer
networks and equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges and |
6-27 | 146 | Chapter 6
other watercraft, airfields, aircraft, depots of arms (whether military or sporting), documents connected with
the conflict, all varieties of military equipment (including that in the hands of manufacturers), component
parts of or material suitable only for use in the foregoing, and, in general, all kinds of war material.
6-114. If private property is seized on the grounds that it is susceptible to direct military use, a receipt should
be given to the owner, or a record made of the nature and quantity of the property and the name of the owner
or person in possession of it, in order that restoration and compensation may be made at the conclusion of
the armed conflict.
Private Real (Immovable) Property
6-115. Private real (immovable) property may not under any circumstances be seized. It may, however, be
requisitioned (see DOD Law of War Manual, 11.18.6.3).
Property Control
6-116. Public and private property within occupied territory may be controlled to the degree necessary to
prevent its use by or for the benefit of hostile forces or in a manner harmful to the Occupying Power.
Conservators may be appointed to manage the property of absent persons (including nationals of the United
States and of friendly States) and of internees, property managed by such persons, and property of persons
whose activities are deemed to be prejudicial to the Occupying Power. When the owners or managers of such
property can resume control of their property and the risk of its hostile use no longer exists, it must be returned
to them.
6-117. Measures of property control must not extend to confiscation of private property. However, the
authority of the Occupying Power to impose such controls does not limit its power to seize or requisition
property or take such other action with respect to it as may be authorized by other provisions of law.
Municipal, Religious, Charitable, and Cultural Property
6-118. The property of municipalities and institutions dedicated to religion, charity and education, and the
arts and sciences, even when State property, is treated in the same manner as private property. Just as private
property may be subject to requisition and us for contribution and certain other purposes during a military
occupation, so may such property be subject to such demands (HR art. 56).
Determining Whether Property Is Public or Private
6-119. Under modern conditions, the distinction between public and private property is not always easy to
draw. For the treatment of property under military occupation, one must often look beyond strict legal title
and ascertain the character of the property based on its beneficial ownership. Thus, for example, trust funds,
pension funds, and bank deposits generated by private persons are not to be regarded as public property
simply by reason of their being held by a State-owned bank.
6-120. Property that is ostensibly private but is subjected to a large measure of governmental control and
management, or property that is used to perform functions that are essentially public, would tend to be viewed
in practice as public property. If the Occupying Power appropriates property that is beneficially owned in
part by the enemy State and in part by private interests, the occupation authorities should compensate the
private owners to the extent of their interest. Such compensation should bear the same relationship to the
compensation that would be paid if the property were entirely privately owned. The Occupying Power may
take those measures it deems necessary to ensure that no portion of the compensation paid on account of
private interests accrues to the enemy State.
Property of Unknown Ownership
6-121. If it is unknown whether certain property is public or private, it should be treated as public property
until its ownership is ascertained. |
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PROTECTION OF CULTURAL PROPERTY
6-122. An Occupying Power is obliged, as far as possible, to support the competent national authorities in
safeguarding and preserving the cultural property of the occupied State. Should it prove necessary to take
measures to preserve cultural property situated in occupied territory and damaged by military operations, and
should the competent national authorities be unable to take such measures, the Occupying Power must, as far
as possible, and in close co-operation with such authorities, take the most necessary measures of preservation
(1954 Hague art. 5).
6-123. Parties to the 1954 Hague have an obligation to prohibit, prevent, and, if necessary, put a stop to any
form of theft, pillage, or misappropriation of, and any acts of vandalism directed against cultural property.
The requisition of movable cultural property situated in the territory of another party to the 1954 Hague is
prohibited (1954 Hague art. 4).
6-124. Civil Affairs arts and monuments teams have historically been constituted to assist indigenous
populations and institutions and other civil authorities in the protection or restoration of cultural property
(1954 Hague art. 7).
PROTECTION OF CIVIL DEFENSE FACILITIES AND PROPERTY
6-125. Additional Protocol I to the Geneva Conventions provides rules for the treatment of civil defense
facilities and property in occupied territory (consider AP I art. 63). It states that the Occupying Power shall
provide civilian civil defense organizations (such as police, fire, and rescue services), the facilities necessary
for the performance of their tasks, provided these services act solely in the civil defense capacity and do not
threaten the security of the Occupying Power. Although the United States is not bound by the provisions of
Additional Protocol I, these provisions concerning civil defense facilities and property in occupied territories
reflect practices that Army and Marine Corps forces generally follow, subject to imperative military necessity
(consider AP I art. 61-67).
6-126. Additional Protocol I also provides that personnel of civil defense organizations may not be compelled
to perform activities that would interfere with the proper performance of their tasks. The Occupying Power may
not change the structure or personnel of such organizations in any way that might jeopardize the efficient
performance of their mission. These organizations may not be required to give priority to the nationals or
interests of the Occupying Power or to perform their tasks in any manner prejudicial to the interests of the
civilian population. The Occupying Power may disarm civil defense personnel for reasons of security and their
protection ceases if they commit acts harmful to the Occupying Power (consider AP I art. 65).
6-127. Finally, Additional Protocol I provides that the Occupying Power may not requisition or divert from
their proper use buildings or materiel belonging to, or used by, civil defense organizations, if such diversion or
requisition would be harmful to the civilian population. The Occupying Power may requisition or divert these
resources if the buildings or materiel are necessary for other needs of the civilian population; however, such
requisition or diversion may continue only while such necessity exists. The Occupying Power may not divert
or requisition shelters provided for the use of the civilian population or that the civilian population needs.
CAPTURE OR SEIZURE AND VESTING OF TITLE IN THE OCCUPYING POWER
6-128. Public property captured or seized from the enemy, as well as abandoned property and private
property validly captured on the battlefield, is the property of the Occupying Power. Wrongful failure to turn
over such property to the proper authorities is punishable, for example, as a violation of Article 103 of the
UCMJ. Further, under Article 103 of the UCMJ, wrongfully buying, selling, trading, dealing in, or disposing
of captured or abandoned property in order to receive any personal profit, benefit, or advantage to either
themselves or to others connected with themselves is made punishable.
SERVICES OF INHABITANTS AND OFFICIALS
6-129. The Occupying Power may not compel protected persons to work unless they are over eighteen years
of age, and then only on work that is necessary for (1) the needs of the army of occupation; (2) the public
utility services; or (3) the feeding, sheltering, clothing, transportation, or health of the population of the
occupied country (GC art. 51). |
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CONDITIONS FOR REQUISITIONED WORK
6-130. Requisitioned work may only be carried out in the occupied territory where the persons whose
services have been requisitioned are resident, and such persons, so far as possible, are to be kept in their usual
place of employment. Workers must be paid a fair wage, and the work must be proportionate to their physical
and intellectual capacities. The legislation in force in the occupied country concerning working conditions
and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary
training, and compensation for occupational accidents and diseases are to apply to the protected persons
assigned to the work (GC art. 51).
SERVICES THAT MAY BE REQUIRED
6-131. The services that may be obtained from inhabitants by requisition include those of professionals,
such as engineers, physicians, and nurses, and of artisans and laborers, such as clerks, carpenters, butchers,
bakers, and truck drivers. The officials and employees of (1) railways, trucking companies, airlines, canals,
and river or coastal steamship companies; (2) cable, telegraph, telephone, radio, postal and similar services;
(3) gas, electric, and water works; and (4) sanitary authorities, whether employed by the State or private
companies, may be requisitioned to perform their duties only so long as the duties required do not directly
concern the operations of war against their own country. The Occupying Power may also requisition labor to
restore the general condition of the public works to that of peacetime, including the repair of roads, bridges,
railways, and telecommunication networks, and to perform services on behalf of the local population, such
as the care of the wounded and sick, and the burial of the dead (DOD Law of War Manual, 11.20.2.1).
6-132. In general, police, firefighters, prison guards, and others who provide services essential to good order
and security in occupied territory may be compelled by an Occupying Power to continue to provide those
services. Such a requirement is consistent with the Occupying power’s obligation to maintain public order in
occupied territory. These officials, however, may not be required to participate in military operations or other
measures aimed at countering belligerent acts against the Occupying Power that are performed by privileged
combatants under the law of war. For example, civilian police forces in occupied territory may not be
compelled to provide security for an occupying force against attacks in compliance with the law of war
launched by lawful combatants, including resistance fighters who, if captured, would be entitled to POW
status under the GPW (see paragraphs 3-14 through 3-30 regarding POW status). On the other hand, such
police forces may be required to continue to perform their normal policing functions with respect to actual
or threatened criminal acts, even when the victim of such acts is the Occupying Power.
TYPES OF LABOR THAT MAY NOT BE COMPELLED
6-133. Generally, an Occupying Power may not compel protected persons to perform certain types of labor.
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. Further,
no pressure or propaganda that aims at securing voluntary enlistment is permitted (GC art. 51).
6-134. Protected persons may not be compelled to undertake any work that would involve them in the
obligation of taking part in military operations (GC art. 51). This prohibition would preclude requisitioning
their services in work directly promoting the ends of the war, such as construction of fortifications,
entrenchments, and military airfields, or the transportation of supplies or ammunition in the zone of
operations.
6-135. A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information
about the army of the other belligerent, or about its means of defense (HR art. 44).
6-136. In no case may requisition of labor lead to a mobilization of workers in an organization of a military
or semi-military character (GC art. 51).
6-137. The Occupying Power may not compel protected persons to employ forcible means to ensure the
security of the installations where protected persons are performing compulsory labor (GC art. 51).
6-138. Although the GC prohibits protected persons from being compelled to provide certain work related
to military operations, there is no prohibition in the law of war to such persons being employed voluntarily
and for pay in such work (see DOD Law of War Manual, 11.20.4). |
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6-139. All measures aiming at creating unemployment or restricting the opportunities offered to workers in
occupied territory in order to induce them to work for the Occupying Power (GC art. 52).
ACCESS TO PROTECTING POWER
6-140. No contract, agreement, or regulation may impair the right of any worker, whether voluntary or not
and wherever he or she may be, to apply to the representatives of the protecting power in order to request the
protecting power’s intervention with the Occupying Power (GC art. 52). It would be improper, for example,
to forbid workers who are protected persons, as a condition of work, to renounce their right to apply for
assistance to the protecting power concerning work conditions or any other matter (see DOD Law of War
Manual, 11.20.5.1).
JUDGES AND OTHER PUBLIC OFFICIALS
6-141. The Occupying Power may not alter the status of “public officials” or judges in the occupied
territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them,
should they abstain from fulfilling their functions for reasons of conscience (GC art. 54). “Public officials”
includes officials at both the national and local levels who fulfill public duties.
6-142. This prohibition does not prejudice the application of the second paragraph of Article 51 of the GC.
Thus, a public official may be compelled to work to meet the needs of the army of occupation or for public
utility services, such as water, electricity, or sanitation.
6-143. This prohibition does not affect the right of the Occupying Power to remove public officials from
their posts. For example, the Occupying Power may remove the political leadership and other political agents
from their posts to prevent them from undermining the Occupying Power’s administration.
OATH OF OFFICIALS
6-144. An Occupying Power may not require the inhabitants of occupied territory, including officials, to
swear allegiance to it (HR art. 45). However, the Occupying Power may require such officials who continue
in their offices to take an oath to perform their duties conscientiously and not to act to its prejudice. Any
official who declines to take the oath may be removed; but, even if the official does not take the oath, the
official is required to obey the legitimate orders of the Occupying Power as long as they remain in office.
OFFICIALS’ SALARIES
6-145. The salaries of civil officials of the hostile government who remain in the occupied territory and
continue the work of their offices, especially those who can properly continue their work under the
circumstances arising out of the war—such as judges, administrative or police officers, and officers of city
or communal governments—are paid from the public revenues of the occupied territory, until the military
government has reason wholly or partially to dispense with their services. Based on consistent practice,
salaries or incomes connected with purely honorary titles would be suspended.
PUBLIC FINANCE
6-146. As a result of assuming the functions of government of the occupied territory, the financial
administration of the occupied territory passes into the hands of the Occupying Power. During the occupation,
the fiscal laws of the occupied territory or State remain in effect, but may be amended or suspended by the
Occupying Power under certain circumstances, as discussed below.
6-147. If in the occupied territory, the Occupying Power collects the taxes, dues, and tolls imposed for the
benefit of the State, it must do so, as far as possible, in accordance with the rules of assessment and incidence
in force, and shall in consequence be bound to defray the expenses of the administration of the occupied
territory to the same extent as the ousted government was bound (HR art. 48). The first charge upon such
taxes would be for the costs of the administration of the occupied territory. The balance may be used for the
purpose of the Occupying Power. The Occupying Power may use tax revenue to defray the cost of
maintaining order in the occupied territory or for expenditures that benefit the local population (for example, |
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infrastructure improvements). Furthermore, the Occupying Power is not required to spend money for the
support of any activity opposed to either its military interests or to the restoration of order in the occupied
territory, even if the ousted government formerly allocated tax revenues to such activity.
6-148. The Occupying Power, as the paramount authority in the occupied territory, is exempt from
indigenous taxation in the occupied territory unless it waives its sovereign immunity and consents to be taxed.
Its personnel are also generally exempt from local taxation, as part of their immunity from local law. In
practice, the Occupying Power often issues an order to the effect that no taxes of any kind may be levied or
assessed within the occupied territory on the persons, agencies, property, instrumentalities, or transactions of
the Occupying Power.
METHOD OF TAX COLLECTION
6-149. The Occupying Power may only collect taxes, as far as possible, in accordance with the rules of
assessment and incidence in force. If, due to the flight or unwillingness of local officials, it is impracticable to
follow the rules of incidence and assessment in force, then the total amount of taxes to be paid may be allotted
among the districts, towns, or other subdivisions, and the local authorities may be required to collect it.
6-150. The power of the Occupying Power to collect taxes extends only to persons and property under its
actual control. For example, persons and property wholly outside occupied territory generally may not be taxed,
but the property of absent inhabitants that is within the occupied territory, such as real estate, may be taxed.
CHANGES IN TAX LAW
6-151. The Occupying Power may suspend the tax laws of the occupied territory, but such a suspension
does not affect the Occupying Power’s responsibilities related to the occupied territory. Similarly, the
Occupying Power may also reduce the rate of taxes under the existing tax laws.
6-152. Unless required to do so by considerations of public order and safety, the Occupying Power may
create new taxes. Additional revenue may be raised in some other form, such as monetary contributions or
customs duties. UN Security Council resolutions may provide additional authority for the Occupying Power
to amend the tax laws.
SOCIAL WELFARE TAXES
6-153. An Occupying Power is often an employer of local civilian labor. Local law may provide that
employers are responsible for the deduction and transfer to indigenous agencies of unemployment, health
insurance, pensions, and similar welfare contributions. However, in general, the agencies of the Occupying
Power do not act as a collector for the local authorities, and will not be responsible for the employer’s share
of such welfare taxes. On the other hand, the inhabitants retain their obligation to pay their share of such
contributions out of their remuneration.
TAXES COLLECTED BY LOCAL AUTHORITIES
6-154. The Occupying Power may only collect those taxes, dues, and tolls imposed “for the benefit of the
State” (HR art. 48). The words “for the benefit of the State” were inserted in Article 48 of the Hague IV
Regulations to exclude local taxes, dues, and tolls that are collected by local authorities. The Occupying
Power may supervise the expenditure of such revenue and prevent its hostile use.
CONTRIBUTIONS
6-155. If, in addition to continuing to collect taxes under the existing law of the occupied territory as
permitted by Article 48 of the Hague IV Regulations, the Occupying Power levies other money contributions
in the occupied territory, this may only be for the needs of the army or of the administration of the territory
in question (HR art. 49). The economy of an occupied territory may only be required to bear the expenses of
the occupation, and these expenses should not be greater than what the economy of the occupied territory can
reasonably be expected to bear. |
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Loans
6-156. The Occupying Power may seek contributions from the inhabitants of an occupied territory in the
form of forced loans. The Occupying Power is required to repay such loans. As forced loans are viewed as a
form of contribution, they are governed by the rules applicable to contributions.
Prohibited Purposes
6-157. Contributions may be levied only for the needs of the occupying forces and the administration of the
occupied territory, and may not be levied for the enrichment of the Occupying Power or for the payment of
war expenses generally. Furthermore, although fines or pecuniary penalties may be imposed on responsible
individuals and entities, contributions may not be levied against the general population for purposes of
collective punishment or impoverishing the population in order to pressure the enemy to sue for peace. No
general penalty, pecuniary or otherwise, may be inflicted upon the population on account of the acts of
individuals for which they cannot be regarded as jointly and severally responsible (HR art. 50).
METHOD OF LEVYING CONTRIBUTIONS
6-158. No contribution shall be collected except under a written order, and on the responsibility of a
“commander-in-chief.” The collection of contributions may only be affected as far as possible in accordance
with the rules of assessment and incidence of the taxes in force. For every contribution a receipt must be
given to the contributors (HR art. 51). The term “commander-in-chief” is understood to refer to the highest
military officer charged with the administration of the occupied territory. Commanders of small units or
detachments may not order the collection of contributions.
6-159. As contributions are money demands, commodities may not be exacted as contributions. However,
if the inhabitants of the occupied territory use certain commodities, rather than money, as a medium of
exchange and receivable in payment of tax obligations, contributions in-kind limited to such commodities
would be permissible. Additionally, if the Occupying Power finds it difficult to secure prompt money
payment, it may accept securities and bills of exchange from contributors in lieu of money.
6-160. For every contribution, a receipt must be given to contributor. The Occupying Power, however, is
under no obligation to reimburse contributors for such contributions. The receipt is intended to secure for the
contributors the possibility of being indemnified afterward by their own government, and does not imply a
promise of reimbursement by the Occupying Power.
CUSTOMS DUTIES
6-161. The Occupying Power has the right to continue to exact existing duties as part of its right to collect
existing taxes. Such collections must comply with the rules for the collection of taxes. The Occupying Power
may also exact new duties as a form of contribution levied against the enemy or its trade. Such new duties
must comply with the rules for contributions (see DOD Law of War Manual, 11.22.3). However, relief
shipments for POWs, relief shipments for internees, and other relief consignments for occupied territory are
exempt from customs duties, unless such duties on other relief consignments for occupied territory are
necessary in the interests of the economy of the territory (GPW art. 74; HR art. 16; GC arts. 61 and 110).
ENEMY DEBTS
6-162. Generally, the Occupying Power is not permitted to collect pre-occupation debts owed to the
sovereign of the occupied territory because it is not a party to the agreement originating the debt. However,
the Occupying Power may collect the debts owed to the sovereign provided that the debts may be legitimately
characterized as realizable securities that are strictly the property of the State, such as bearer instruments (see
HR art. 53; DOD Law of War Manual, 11.22.4.1).
6-163. The Occupying Power is under no obligation to pay the debts owed by the occupied territory
(although it may choose to do so as a matter of policy). The Occupying Power may prevent payments from
being made from occupied territory to a hostile belligerent. |
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6-164. In general, the Occupying Power may not contract new debts on behalf of the occupied territory or
collect taxes to pay interest on such debt. However, new debt may be undertaken on behalf of the occupied
territory if immediately necessary for the welfare of the inhabitants of occupied territory, and if undertaking
such debt constitutes a fair and reasonable transaction (see DOD Law of War Manual, 11.22.4.3). The
Occupying Power may refinance or consolidate already existing public debt of the occupied territory if it is
clearly in the interest of sound financial administration of that territory and therefore of direct benefit to the
inhabitants.
CURRENCY, EXCHANGE CONTROLS, AND PRICE CONTROLS
6-165. The Occupying Power may leave the local currency of the occupied area in circulation. The
Occupying Power may also introduce its own currency in the occupied area or issue special currency for use
in the occupied area, should the introduction or issuance of such currency become necessary. The Occupying
Power may set exchange rates for currency in occupied territory. For example, intentional debasement of
currency by the establishment of factitious valuation or exchange rates, or like devices, as well as failure to
take reasonable steps to prevent inflation, with the result of enrichment of the Occupying Power, would
violate international law (see DOD Law of War Manual, 11.22.5).
6-166. The Occupying Power may also institute exchange controls, including clearing arrangements and, if
necessary, the freezing or blocking of certain assets in order to conserve the monetary assets of the occupied
territory, as well as for security purposes. Such measures must not, however, be utilized to enrich the
Occupying Power or otherwise circumvent the restrictions placed on requisitions, contributions, seizures, and
other measures dealing with property.
6-167. The Occupying Power may regulate prices in the occupied territory. Shortages of commodities and
increased demand for certain commodities in the occupied territory may result in increased price fluctuations
requiring the Occupying Power to resort to measures designed to maintain prices at a reasonable maximum
level. The Occupying Power may not use its power over price controls, however, for the purpose of exploiting
the occupied territory to its own illegal advantage.
CONTROL OF BUSINESS AND COMMERCIAL INTERCOURSE IN OCCUPIED TERRITORY
6-168. The Occupying Power has the right to regulate commercial intercourse within, into, or out of the
occupied territory. It may subject such intercourse to such prohibitions or restrictions as are essential to the
purposes of occupation. The Occupying Power may also remove existing commercial restrictions or
regulations when essential to the purposes of the occupation. The purposes of the occupation that justify
economic regulation may include the military interest of the Occupying Power, the needs of the inhabitants
of occupied territory, and applicable law of war obligations (see DOD Law of War Manual, 11.23.1).
6-169. The Occupying Power may exercise controls over private business for the purpose of addressing the
needs of the inhabitants of the occupied territory and for military purposes. The Occupying Power may
compel a business to continue operations if necessary to serve the needs of the local populace or for military
purposes. The Occupying Power may also take steps to increase production from private business, including
granting subsidies out of available governmental revenues from the occupied territory. If necessary to serve
the needs of the local population or for military purposes, the Occupying Power may assume control and
management of such a business. Title to the business in such circumstances remains with the legal owner,
and if the Occupying Power earns a profit from the operation of the business, the legal owner must be
indemnified to avoid violating the prohibition on confiscating private property. On the other hand, if the
Occupying Power determines that the continued operation of a business is detrimental to the interests of the
local populace or to the Occupying Power, the Occupying Power may close down the business. For purposes
of security and restoration of public order, the Occupying Power may also take steps to prevent hoarding of
supplies, to curb or prevent black markets, and to regulate labor conditions, including strikes.
6-170. The Occupying Power may also regulate foreign trade, including completely suspending such trade.
For example, the Occupying Power may halt the export of precious metals and other valuable items that are
readily converted or exchanged on the international market, such as copper, jewels, and securities.
Commercial relations between the occupied territory and the remaining territory of the enemy and its allies
are normally suspended. |
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OBEDIENCE, SECURITY MEASURES, AND PENAL LEGISLATION
AND PROCEDURE
6-171. Subject to the restrictions imposed by international law, the Occupying Power may demand and
enforce from the inhabitants of occupied territory such obedience as may be necessary for the security of its
forces, for the maintenance of law and order, and for the proper administration of the country The inhabitant’s
obedience to the Occupying Power is generally distinguished from a duty of allegiance. The inhabitant’s duty
of allegiance to his or her State of nationality is not severed. The inhabitants, however, are not bound to obey
their State of nationality.
6-172. Neutral persons resident within an occupied territory are not entitled to claim different treatment, in
general, from that accorded other inhabitants. They must refrain from all participation in the war and from
all hostile acts, and must observe strictly the rules of the Occupying Power. All nationals of neutral States,
whether resident in or temporarily visiting an occupied territory, may be punished offenses committed by
them to the same extent and in the same manner as enemy nationals. In addition, it may be possible to
extradite nationals of neutral States who have committed offenses to their home States for prosecution. If
nationals of neutral States are not “protected persons,” they may be deported or expelled for just cause. In
the event that such a person is arrested, suspicions must be verified by a serious inquiry, and the arrested
neutral person must be given an opportunity to present a defense, and to communicate with his or her national
consul, if requested (DOD Law of War Manual, 15.6.4).
PROHIBITION OF CORPORAL PUNISHMENT, TORTURE, AND CERTAIN OTHER ACTS
6-173. An Occupying Power is strictly prohibited from taking any measure of such a character as to cause
the physical suffering or death of protected persons in the occupied territory. This prohibition applies not
only to murder, torture, corporal punishment, mutilation, and medical or scientific experiments not
necessitated by the medical treatment of a protected person, but also to any other measures of brutality,
whether applied by civilian or military agents (GC art. 3; consider AP I art. 75).
NO COLLECTIVE PENALTIES
6-174. A protected person may not be punished for an offense that he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism are prohibited (GC art. 33).
NO REPRISAL
6-175. Reprisals are measures that are otherwise prohibited taken by one State in response to another State’s
violations of LOAC in order to encourage future compliance. In occupied territory, reprisals against protected
persons and their property by an Occupying Power are prohibited (GC art. 33).
NO PILLAGE
6-176. Pillage involves the unlawful seizure or appropriation of private or public property. Pillage is strictly
prohibited under LOAC, including in times of occupation (GC art. 33).
NO HOSTAGES
6-177. The taking of hostages for any reason, including that of seeking to intimidate or otherwise pacify the
population of the occupied territory, is prohibited (GC art. 34).
SECURITY MEASURES, INCLUDING ASSIGNED RESIDENCE AND INTERNMENT
6-178. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety
measures concerning protected persons, it may, at the most, subject them to assigned residence or to
internment (GC art. 78).
6-179. Decisions regarding such assigned residence or internment must be made according to a regular
procedure to be prescribed by the Occupying Power in accordance with the GC. This procedure must include |
6-27 | 154 | Chapter 6
the right of appeal for the parties concerned. Appeals must be decided with the least possible delay. In the
event of the decision being upheld, it must be subject to periodic review, if possible every six months, by a
competent body set up by the said power. Protected persons made subject to assigned residence and thus
required to leave their home must enjoy the full benefit of Article 39 of the GC (GC art. 78). For example,
the internment standards in the GC should also be a guide for support to protected persons and their
dependents who are subject to assigned residence in occupied territory (DOD Law of War Manual, 10.6.4).
6-180. Further discussion of internment is provided in Chapter 5.
PENAL LEGISLATION
6-181. The penal laws of the occupied territory must remain in force, with the exception that they may be
repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an
obstacle to the application of the GC. Subject to the latter consideration and the necessity for ensuring the
effective administration of justice, the tribunals of the occupied territory must continue to function in respect
of all offenses covered by these laws. The Occupying Power may, however, subject the population of the
occupied territory to provisions that are essential to enable the Occupying Power to fulfill its obligations
under the GC, to maintain an orderly government over this territory, and to ensure the security of the
Occupying Power, of the members and property of the occupying forces or administration, and likewise of
the establishment and lines of communication used by them (GC art. 64).
6-182. The penal provisions enacted by the Occupying Power may not come into force before they have
been published and brought to the knowledge of the inhabitants in their own language. The effect of these
penal provisions must not be retroactive (GC art. 65).
ESTABLISHMENT OF PROPERLY CONSTITUTED, NON-POLITICAL COURTS
6-183. In case of a breach of the penal provisions promulgated by the Occupying Power by virtue of Article
64 of the GC, the Occupying Power may hand over the accused to its properly constituted non-political
military courts, on condition that these courts sit in the occupied country. Courts of appeal must preferably
sit in the occupied territory (GC art. 66).
APPLICABLE LAW
6-184. Properly constituted, non-political courts must apply only those provisions of law that were
applicable prior to the offense and that are in accordance with general principles of law, in particular the
principle that the penalty must be proportionate to the offense. The courts must also take into consideration
the fact that the accused is not a national of the Occupying Power (GC art. 67).
PENALTIES
6-185. Protected persons who commit an offense that is solely intended to harm the Occupying Power, but
that does not constitute an attempt on the life or limb of members of the occupying forces or administration,
nor a grave collective danger, nor seriously damages the property of the occupying forces or administration,
or the installations used by them, are liable to internment or simple imprisonment, provided the duration of
such internment or imprisonment is proportionate to the offense committed. The minor offense must have
been solely intended to harm the Occupying Power in order to trigger these restrictions. For example, an
offense such as travelling without a permit or violating exchange control regulations would not fall under
this restriction, but, nonetheless, may result in internment or simple imprisonment (see DOD Law of War
Manual, 11.11.4).
6-186. Furthermore, internment or imprisonment for such offenses that are solely intended to harm the
Occupying Power must be the only measure adopted for depriving protected persons of liberty (GC art. 68).
Penalties that do not deprive protected persons of liberty, such as fines, or less severe measures, such as
arrest, are not covered by this rule.
6-187. The GC provides that the penal provisions promulgated by the Occupying Power in accordance with
Articles 64 and 65 of the GC may impose the death penalty on a protected person only when the person is
guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power, or |
6-27 | 155 | Occupation
of intentional offenses that have caused the death of one or more persons, provided that such offenses were
punishable by death under the law of the occupied territory in force before the occupation began (GC art.
68). However, the United States has reserved the right to impose the death penalty in accordance with the
provisions of Article 68, paragraph 2, of the GC without regard to whether the offenses referred to in that
paragraph were punishable by death under the law of the occupied territory at the time the occupation begins
(see DOD Law of War Manual, 11.11.5).
6-188. The death penalty may not be pronounced against a protected person unless the attention of the court
has been particularly called to the fact that because the accused is not a national of the Occupying Power, the
accused is not bound to it by any duty of allegiance. In any case, the death penalty may not be pronounced
against a protected person who was under eighteen years of age at the time of the offense (GC art. 68).
DEDUCTIONS FROM SENTENCES OF PERIOD UNDER ARREST
6-189. The duration of the period during which a protected person accused of an offense is under arrest
awaiting trial or punishment must be deducted from any period of imprisonment awarded (GC art. 69).
PENAL PROCEDURE
6-190. No sentence may be pronounced by the competent courts of the Occupying Power except after a
regular trial. Accused persons who are prosecuted by the Occupying Power must be promptly informed, in
writing in a language that they understand, of the particulars of the charges preferred against them and must
be brought to trial as rapidly as possible (GC art. 71).
6-191. The protecting power must be informed of all proceedings instituted by the Occupying Power against
protected persons with respect to charges involving the death penalty or imprisonment for two years or more,
and must be enabled, at any time, to obtain information regarding the state of such proceedings at any time.
Furthermore, the protecting power must be entitled, on request, to be furnished with all particulars of these
and any other proceedings instituted by the Occupying Power against protected persons (GC art. 71).
6-192. The notification to the protecting power, as provided for in the second paragraph of Article 71 of the
GC, must be sent immediately, and must in any case, reach the protecting power three weeks before the date
of the first hearing. The notification must include the following particulars (GC art. 71):
* Description of the accused;
* Place of residence or detention;
* Specification of the charge or charges (with mention of the penal provisions under which it is
brought);
* Designation of the court that will hear the case; and
* Place and date of the first hearing.
6-193. Although the GC provides particular trial rights and protections for protected persons, it is important
to understand that the procedures applied in these courts must conform to international standards for a
regularly constituted court affording all the judicial guarantees that are recognized as “indispensable by
civilized peoples” (see GC art. 3; consider AP I art. 75).
RIGHT OF DEFENSE
6-194. Protected persons accused of offenses shall have the right to present evidence necessary to their
defense and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate
or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities
for preparing the defense (GC art. 72).
6-195. If the accused fails to choose an advocate or counsel, the protecting power may provide the accused
with an advocate or counsel. When the accused person is facing a serious charge and the protecting power is
not functioning, the Occupying Power, subject to the consent of the accused, must provide the accused with
an advocate or counsel. Accused persons must, unless they freely waive such assistance, be aided by an
interpreter, both during preliminary investigation and during the hearing in court. They shall have the right
at any time to object to the interpreter and to ask for the interpreter to be replaced (GC art. 72). |
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RIGHT OF APPEALS
6-196. A convicted person shall have the right of appeal provided for by the laws applied by the court. The
convicted person shall be fully informed of the right to appeal or petition and of the time limit within which
to do so. The penal procedures in Section III of the GC (which is the section of the GC pertaining to occupied
territories) is to apply, as far as they are applicable, to appeals. Where the laws applied by the court make no
provision for appeals, the convicted person shall have the right to petition against the finding and sentence to
the competent authority of the Occupying Power (GC art. 73).
ASSISTANCE BY THE PROTECTING POWER
6-197. Representatives of the protecting power shall have the right to attend the trial of any protected person
unless, the hearing, as an exceptional measures, must be held in camera in the interests of the security of the
Occupying Power, which shall then notify the protecting power. A notification with respect to the date and
place of trial must be sent to the protecting power (GC art. 74).
6-198. Any judgment involving a sentence of death or imprisonment for two years or more must be
communicated, with the relevant grounds, as rapidly as possible to the protecting power. The notification
must contain a reference to the notification made under Article 71 of the GC (as described in paragraph 6-
164), and, in the case of sentences of imprisonment, the name of the place where the sentence is to be served.
A record of judgments, other than those referred to above, must be kept by the court and must be open to
inspection by representatives of the protecting power. Any period allowed for appeal in the case of sentences
involving the death penalty or imprisonment of two years or more must not run until notification of judgment
has been received by the protecting power (GC art. 74).
DEATH SENTENCE
6-199. In no case may persons condemned to death be deprived of the right of petition for pardon or
reprieve. No death sentence may be carried out before the expiration of a period of at least six months from
the date of receipt by the protecting power of the notification of the final judgment confirming the death
sentence, or of an order denying pardon or reprieve. This six month period of suspension of the death sentence
may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the
security of the Occupying Power or its forces, provided always that the protecting power is notified of such
reduction and is given reasonable time and opportunity to make representations to the competent occupying
authorities with respect to such death sentences (GC art. 75).
DETENTION OF PROTECTED PERSONS CONVICTED OR ACCUSED OF OFFENSES
6-200. If found in occupied territory, protected persons accused of offenses must be detained in the occupied
country, and, if convicted, they shall serve their sentences therein. They must, if possible, be separated from
other detainees and shall enjoy conditions of food and hygiene that will be sufficient to keep them in good
health, and that will be at least equal to those individuals imprisoned in the occupied country. Much like
internees, such protected persons must receive the medical attention required by their state of health, have a
right to receive any spiritual assistance that they may require, have the right to receive relief parcels monthly,
and have the right to be visited by the protecting power or the ICRC in accordance with Article 43 of the GC.
Women must be confined in separate quarters and be under the supervision of women. Proper regard must
be paid to the treatment of children under the age of 15 (GC art. 76).
DISPOSITION OF ACCUSED OR CONVICTED PROTECTED PERSONS UPON CLOSE OF
OCCUPATION
6-201. Protected persons accused of offenses or convicted by courts in occupied territory must be handed
over at the close of occupation with the relevant records to the authorities of the liberated territory (GC art.
77). Pending their transfer to such authorities, such protected persons must continue to be protected by the
GC because protected persons whose release, repatriation, or re-establishment may take place after such dates
continue to benefit from the protections of the GC (see DOD Law of War Manual, 11.11.8). |
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Non-Hostile Relations Between Belligerents
This chapter addresses non-hostile relations between belligerents, particularly at the
tactical and operational levels. Although an arcane area of the law, this topic has been
essential in assisting military commanders to define the terms and methods of
communication with the enemy on the battlefield with respect to conflict termination
or other negotiations, in conducting tactical pauses, and in controlling limited
commerce between the parties. Many of these terms were first used in the Lieber Code
and then in the 1907 Hague Regulations, with little change in the terminology since
then. But these rules have been relevant in many armed conflicts since 1907, including
recent conflicts in Afghanistan and Iraq.
GENERAL BACKGROUND
7-1. War between nations may result in the termination of formal diplomatic relations and direct
communications and exchanges between opposing governments or between the territories occupied by
belligerent armies. This is not limited to communications and exchanges, but includes commerce,
transportation, and postal services. Termination of communications and exchanges (non-intercourse) may
occur with or without special proclamation. The traditional rule of non-intercourse reflects a belligerent’s
authority under LOAC to limit and regulate intercourse between persons and territory controlled by or
belonging to that belligerent and persons and territory controlled by or belonging to the enemy (see DOD
Law of War Manual, 12.1.1). Even in the midst of armed conflict, however, opposing forces often find they
need to communicate or exchange with each other. Communications and exchanges between opposing forces
may occur at the operational or tactical level, often as a result of actions or decisions at higher levels. The
mechanisms, legal principles, and rules for these are the subject of this chapter.
7-2. Exceptions to the general rule of non-intercourse during armed conflict have been granted on behalf
of individuals only with the approval of national authorities or a designated commander.
7-3. The laws of neutrality and occupation may affect a belligerent’s authority to regulate intercourse
between territory it controls and territory controlled by the enemy (see DOD Law of War Manual, 12.1.1.1).
For example, under the GC, protected persons in a belligerent’s home territory, or in territory occupied by a
belligerent, are entitled to leave unless such departure is contrary to the interest of the State (see DOD Law
of War Manual, 10.8.2, 11.12.2).
7-4. The conduct of military operations and the restoration of peace often necessitate the establishment and
maintenance of certain communications and non-hostile relations between belligerents. Traditionally, these
relations have been conducted through parlementaires, military passports, safe-conducts, safeguards, cartels,
armistices, and capitulations, all of which are discussed in this chapter.
7-5. Non-hostile relations may be conducted in other ways. For example, informal communication may
take place between opposing State parties to a conflict. These may occur through intermediaries, such as a
protecting power, neutral governments, an international organization such as the United Nations (for
example, through the Office of the United Nations High Commissioner for Refugees), other envoys
recognized by the parties to the conflict, or impartial humanitarian organizations, such as the ICRC.
7-6. Although each of the types of communication mentioned in paragraph 7-5 may affect the missions of
tactical and operational commanders, their discussion is beyond the scope of this field manual. A
commander’s authority to control communication during belligerent occupation is the subject of Chapter 6,
Occupation. |
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7-7. This chapter summarizes several modes of communications and exchanges and the conditions for their
implementation. They are not necessarily precise, rigid communications “packages.” A “package” may be
tailored for the circumstances and mission at hand. Historic examples of communications packages described
below generally occurred at the operational level or higher. Communication at the tactical level was less
formal, ad hoc, and sometimes occurred without higher command knowledge or express authorization. For
example, during the Allied liberation of Italy in World War II, stories abound of the mayor of a town greeting
a single U.S. Soldier to declare the city “open.” Another example occurred during Operation IRAQI
FREEDOM, when a large group of Iraqi soldiers surrendered to a Marine traffic control unit. Commanders’
flexibility, ingenuity and familiarity with the concepts in this chapter are invaluable at such times.
7-8. Good faith is essential in all non-hostile relations between belligerents. The most scrupulous good faith
should be observed by both parties. Among other things, the principle of good faith in the context of non-
hostile relations requires that compacts between belligerents be faithfully adhered to, neither party to a
conflict take or attempt to gain an advantage not intended by the opposing party, and the means of conducting
non-hostile relations must not be misused (see DOD Law of War Manual, 12.2).
PRACTICAL GUIDANCE FOR COMMANDERS
7-9. Commanders must act in good faith in non-hostile relations with the enemy. In particular, they must
strictly comply with agreements made with the enemy, such as armistices, truces, and safe conduct. In
applying such agreements, commanders must not take advantages that the adversary did not intend to give.
Commanders also must ensure that their forces do not misuse the means of conducting non-hostile relations,
such as flags of truce (see DOD Law of War Manual, 12.2).
7-10. Although commanders must act in good faith, this does not prohibit commanders from continuing
military operations while negotiations are ongoing. Consistent with the principle of good faith, commanders
may decline to respond to offers to negotiate, refuse offers to negotiate, or refuse specific offers from the
enemy for reasons of military expediency (see DOD Law of War Manual, 12.2).
7-11. Commanders should be prepared to negotiate agreements like local temporary cease-fires, to for
example, allow for the collection of dead and wounded, or agreements for the surrender of enemy forces.
Offers by the enemy to negotiate agreements that may have strategic or national-level implications should be
reported up the chain of command.
7-12. Under the Code of Conduct for the U.S. armed forces, a commander must never surrender the members
of his or her command while they still have the means to resist. Under the Uniform Code of Military Justice,
shameful surrenders are punishable. In addition, compelling or attempting to compel a commander to
surrender or striking colors or flag to an enemy without proper authority is punishable (see DOD Law of War
Manual, 12.8.2.1).
COMMUNICATION BETWEEN BELLIGERENTS
7-13. Belligerents may communicate with one another directly by telecommunications, through diplomatic
channels (sometimes through intermediary governments), through a display of a flag of truce and sending of
parlementaires, indirectly through a protecting power (Common art. 8 to GWS, GWS (Sea), and GPW; GC
art. 9), international organizations, such as the United Nations, or, when a protecting power has not been
appointed or agreed upon, through the ICRC or any other impartial humanitarian organization (see DOD Law
of War Manual, 12.3).
NECESSITY FOR LOCAL COMMUNICATION
7-14. In addition to communication between opposing State parties to a conflict at the diplomatic level, local
communication may be necessary to facilitate the conclusion and implementation of special arrangements,
including: an armistice, a temporary ceasefire or other arrangement to search for and collect wounded and
sick military personnel (GWS art. 15; GWS (Sea) art. 18) or civilians (GC art. 16, 17); the establishment of
agreed routes, heights, and times at which medical aircraft must fly to be entitled to protection from attack
(GWS art. 36; GWS (Sea) art. 39; GC art. 22); where authorized, battlefield exchange of POWs and retained
personnel during hostilities; or passage of humanitarian relief supplies (GC art. 23). As an armed conflict |
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approaches an end, communication may also be necessary to arrange for temporary ceasefires leading to a
conclusion of hostilities, separation of forces, a formal cessation of hostilities, and repatriation of POWs and
retained personnel (see DoD Law of War Manual, 12.1.2.2).
7-15. Local communication between friendly and enemy forces is dependent on various factors, including
the commander’s mission, an ability to communicate with opposing forces, and a willingness of opposing
forces to communicate. A commander is not legally obligated to seek communication with opposing forces.
Moreover, a commander is not obligated to respond to an opposing force’s attempts to communicate if such
communication is inconsistent with the commander’s mission or military security (see HR art. 33).
DOCUMENTATION
7-16. Communication between belligerents may be facilitated by the use of military passports, safe conducts,
or safeguards (see paragraph 7-47 through 7-64; DOD Law of War Manual, 12.6).
PARLEMENTAIRES
7-17. Parlementaires ordinarily are agents or envoys employed by commanders in the field to go in
person within the enemy lines for the purpose of communicating or negotiating openly and directly
with the enemy commander. Derived from the same word from which the word “parley,” the term
parlementaire was adopted by governments at the First Hague Peace Conference (1899), and the 1907 Hague
IV Regulations provide that “a person is regarded as a parlementaire who has been authorized by one of the
belligerents to enter into communication with the other, and who advances bearing a white flag.” (HR art.
32).
7-18. Although the word parlementaire has been translated as a person bearing a flag of truce, a parlementaire
does not need to carry or be the physical bearer of the white flag. The main point is a parlementaire is a
representative of a government or its military forces authorized to engage in communication with an enemy
government’s representatives or its military forces.
7-19. A parlementaire may be civilian or military, and may come alone, or he or she may request to have
others, such as an interpreter, accompany him or her. A parlementaire may perform duties at the national
(strategic), operational, or tactical level. The Hague Regulations mention a white flag and accompanying
“trumpeter, bugler or drummer,” (HR art. 32) which emphasizes that the term historically referred primarily
to battlefield negotiations, such as to arrange a surrender or temporary ceasefire to collect wounded and sick.
REFUSAL OR ACCEPTANCE OF PARLEMENTAIRE
7-20. A commander to whom a flag of truce is sent is not in all circumstances obligated to receive it (HR art.
33). For instance, a commander may decline to receive a parlementaire for reasons of military necessity. A
commander is under no obligation to allow unnecessary repetition of parlementaire visits. However, a
belligerent may not declare beforehand, even for a specified period – except in case of reprisal for abuses of
the flag of truce – that it will not receive parlementaires. Although commanders may refuse to receive a
parlementaire and other envoys seeking to negotiate, commanders may not refuse the unconditional surrender
of the adversary or declare that they will refuse unconditional surrender (see DOD Law of War Manual,
12.5.2).
7-21. A commander accepting an offer of a parlementaire is entitled to declare the circumstances and
conditions under which the parlementaire will be received. Such commander may set the time, place, number
of persons accompanying the parlementaire, authorized method of transport (for example, by foot or vehicle),
and other meeting details, to include frequency of meetings if more than one will take place (see DoD Law
of War Manual, 12.5.2). Moreover, the receiving commander may take all necessary measures to prevent a
parlementaire from taking advantage of their mission to collect intelligence (HR art. 33).
PARLEMENTAIRE MUST BE AUTHORIZED
7-22. A parlementaire must be authorized by a belligerent to enter into communications with the opposing
commander. In addition to presenting themselves under the protection of the white flag, a parlementaire must
possess—and present—written and signed authorization from the enemy commander the parlementaire |
6-27 | 160 | Chapter 7
claims to represent. The authorization should clearly specify the commander’s name, unit, and the scope of
the matters on which the parlementaire is authorized to speak. The receiving command is entitled to know
that the representative has the authority to negotiate on the matters on which the representative purports to
offer terms, The authorization could read, “I authorize these present [name and rank or title] to negotiate
[specifying type and scope of negotiations authorized (for example, a local armistice to collect wounded)]
[specifying authority]” and signed by the authorizing commander, identifying the commander’s name and
unit and, if appropriate, the authority for whom the commander speaks.
PARLEMENTAIRE PARTY MEMBERS
7-23. A parlementaire may come alone or may request to have others accompany him or her, such as an
interpreter (see HR art. 32). Historic practice has included flag bearers or drummers to reduce the risk of
attack; modern parlementaires may be accompanied by a driver or communications personnel. The receiving
command, however, is entitled to limit the size of the parlementaire’s party.
PROCEDURES FOR PARLEMENTAIRE PARTY TRAVEL AND CONDUCT
7-24. Parlementaires bear the burden of communicating their status to the enemy. Parlementaires should
take appropriate measures to help clarify their status to the enemy.
7-25. Parlementaires have no right to approach or enter opposing lines at any place of their own choosing.
They may only enter as and where permitted by the receiving command. Parlementaires should abide by
agreed-upon approaches for the purpose of entering the opposing forces protective lines and move slowly
and deliberately. While within the lines of the enemy, the parlementaire must obey all instructions given to
him or her (see DoD Law of War Manual, 12.5.3).
7-26. If a parlementaire is ordered by the receiving force to suspend their mission and return to their own
lines, the parlementaire must do so. If the parlementaire obeys this order, the parlementaire remains entitled
to protection and may not be intentionally fired upon or interfered with in any other manner until reaching
their own lines.
7-27. Parlementaires should transmit an agreed signal to the receiving force as they approach, or as otherwise
directed by the receiving command.
7-28. Once recognized and when authorized, parlementaires and their party will proceed by the approach
route designated. They may be provided an escort by the receiving command to accompany and direct them
to the latter’s lines.
7-29. Parlementaires may be furnished an escort or guard if necessary out of respect for their safety or for
the receiving command’s security. The parlementaires and their accompanying party may be blindfolded for
security purposes.
7-30. If parlementaires are to be received by the commander, the commander may direct that they proceed
alone with friendly force escort. Members of his party awaiting the parlementaire’s return may be restricted
in their movement.
7-31. A parlementaire is not entitled to be received by the commander. The parlementaire’s message, if
written, may be delivered to the commander outside the parlementaire’s presence. If the parlementaire’s
message is oral, the parlementaire may be required to reduce it to writing or deliver it orally to such person
as may be designated to receive it.
7-32. A parlementaire has no right to pass beyond authorized limits within the opposing forces’ positions.
7-33. When a decision from higher authority is required or expected, the parlementaire may be expected to
wait.
7-34. Parlementaires will be permitted to return to their own lines with the same courtesy, formalities, and
precautions as upon their arrival. |
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INVIOLABILITY OF PARLEMENTAIRE
7-35. Parlementaires have a right of inviolability in the execution of their functions. All members of the
parlementaire’s party have the same right to inviolability as the parlementaire (HR art. 32).
LOSS OF INVIOLABILITY OF PARLEMENTAIRE
7-36. Parlementaires lose their right of inviolability if it is established in a clear and uncontestable manner
that they took advantage of the privileges associated with the position to provoke or commit an act of
treachery (HR art. 23(f), 34). That includes engaging in sabotage or the secret gathering of information about
the adversary while under the adversary’s protection. Parlementaires or any member of their party abusing
their privileged position may be detained temporarily (HR art. 33).
7-37. Parlementaires do not take advantage of their privileged position if they report what they observed in
plain sight during their mission. As paragraph 7-29 demonstrates, the receiving command may take necessary
steps to prevent the parlementaire and his or her party from taking advantage of their mission to obtain
information, including by using blindfolds.
OTHER REASONS FOR DETENTION OF A PARLEMENTAIRE
7-38. In addition to a right of detention for abuse of his privileged position, a parlementaire may be detained
for other imperative security reasons, such as in case the parlementaire or his or her party saw anything, or
otherwise obtained knowledge the receiving commander regards as detrimental to his force, or if their
departure might reveal information as to the movement of friendly force units (see DOD Law of War Manual,
12.5.4.3).
7-39. A parlementaire should be detained only for as long as circumstances imperatively require. Information
regarding the parlementaire’s detention, as well as any other action against the parlementaire, or any member
of the parlementaire’s party, should be sent to his or her commander.
NEUTRAL AREAS FOR NEGOTIATION
7-40. The parties to the conflict may agree to the establishment of a neutral zone or area as a site for
negotiations if prolonged negotiations are anticipated.
SIGNIFICANCE OF THE WHITE FLAG
7-41. A white flag, when used by military forces, indicates a desire to communicate with the enemy. The
hoisting of a white flag has no other legal meaning in LOAC.
7-42. Forces displaying a flag of truce must show clearly that they intend to engage in non-hostile relations.
The forces bear the burden of communicating their intent to the opposing forces. To indicate that the hoisting
of the white flag is authorized by its commander, the force hoisting it should cease fire completely (see DOD
Law of War Manual, 12.4.2).
7-43. A party is not required to cease fire or other military operations when a white flag is raised by the other
side. Fire must not be directed intentionally on individuals carrying the white flag or on persons near them
unless there is a clear manifestation of hostile intent by those persons. It is essential to determine with
reasonable certainty that the flag is shown by actual authority of the enemy commander before basing
important actions upon that assumption. For example, the force should not assume that all enemy forces in
the locality intend to surrender and expose themselves to hostile fire based on the enemy’s display of the
white flag.
7-44. Marines and Soldiers should be instructed to report promptly the display of the white flag through their
chain of command so that the commander may determine if the opposing force seeks to engage in non-hostile
relations. The burden is on the party displaying the white flag to establish such intention to its adversary and
should consider sending a parlementaire to communicate the commander’s intent. If the force displaying the
white flag ceases fire and other hostile acts, Marines and Soldiers should seek guidance from their |
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commander about whether and under what conditions they may wish to engage in non-hostile relations with
that force.
7-45. While it is not a legally recognized form of surrender, a white flag hoisted by an individual Soldier
may also express a genuine desire or intent to surrender. Its display, however, does not mean that a unit, or
the person waving it, is prepared to surrender—nor should this be assumed by opposing forces. Nor does it
mean that other enemy soldiers in the immediate area have the same intent. Friendly forces seeing a white
flag hoisted by an enemy soldier whom the friendly forces believe is genuinely attempting to surrender should
consider whether it is feasible to accept such surrender. Soldiers or Marines must not intentionally direct fire
against the person carrying the white flag or a person near him or her unless there is a clear manifestation of
hostile intent by those persons.
7-46. Prohibited uses of a white flag include use of a flag of truce to feign an intent to surrender or to
negotiate (HR art. 23(f)). To feign an intent to surrender or negotiate in order to kill or wound enemy
personnel is perfidy (HR art. 23(b)) (see discussion on perfidy in paragraphs 2-151 through 2-153). Improper
use of a flag of truce also includes its use while engaging in attacks or in order to shield, favor, or protect
one’s own military operations, or otherwise to impede military operations (DOD Law of War Manual,
12.4.2.1). For example, forces may not use the bearer of a white flag as cover to advance or maneuver for
hostile purposes.
MILITARY PASSPORTS, SAFE-CONDUCTS, SAFEGUARDS,
CARTELS, AND OTHER SPECIAL AGREEMENTS
7-47. A military passport is a document issued by order of a commander of belligerent forces that
authorizes a person or persons named therein and residing or sojourning within territory occupied by
such forces to travel unmolested within the territory, with or without permission to pass, or to pass
and return, by designated routes, through the lines, subject to conditions or limitations imposed by the
commander. A military passport differs from a passport issued by a government agency for peacetime travel,
such as a passport issued by the U.S. Department of State for personal, official, or diplomatic travel.
7-48. A safe-conduct pass is similar to a military passport. It is a document issued by a commander of
belligerent forces, but to persons residing or traveling outside territory occupied by such forces, to
enter and remain within or pass through areas occupied by such forces. Safe-conduct passes may also
refer to similar documents the same authority issues to persons that permit them, whether they reside within
or outside areas occupied by the authority’s forces, to carry specified goods to or from designated points
within those areas and to engage in trade otherwise forbidden by the general rule of non-intercourse (see
paragraphs 7-1 through 7-8 for discussion of the general rule of non-intercourse). A safe-conduct pass to
engage in a specified trade for goods to which the grantee is given a continuing right for a prescribed period,
or until further ordered, may also be referred to as a license to trade.
7-49. Ambassadors and other diplomatic agents of neutral governments accredited to the opposing party to
the conflict may receive a safe-conduct pass through territory under opposing force control. A request for a
safe-conduct pass is typically granted to them absent military or other security reasons to the contrary,
including the safety of the personnel in question, unless they may reach their destination conveniently by
another route. There is no legal requirement, however, for issuing such a safe-conduct pass. A safe-conduct
pass is usually granted by national level authorities. Refusal of a request is not to be regarded as an
international or national affront.
7-50. A safeguard is a detachment, guard, or detail posted by a commander for the protection of persons,
places, or property of the enemy, or of a neutral (see Manual for Courts-Martial (2016), part IV, para. 26 (art.
102)). A safeguard falls within LOAC only when granted and posted by arrangement with the enemy or a
neutral. For example, guards posted by a belligerent for the protection of its own personnel or property would
not be governed by LOAC. Military personnel on duty as safeguards, on the other hand, occupy a protected
status under LOAC. They may not be attacked, and it is customary to send them back, together with their
equipment and arms, to their own armed forces when the locality is occupied by the enemy and as soon as
military exigencies permit. |
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7-51. The term “safeguard” also refers to a written order left by a commander with an enemy subject, or
posted upon enemy property, for the protection of that person or property. Usually it is directed to the
succeeding commander and requests a continued grant of protection.
7-52. The effect of a safeguard is to pledge the honor of the nation that the person or property will be
respected by its armed forces. It does not commit the government to its protection or defense against attacks
by enemy armed forces or other hostile elements.
7-53. “Forcing a safeguard” means to perform an act or acts in violation of the protection of the safeguard.
Any trespass on the protection of the safeguard by persons subject to the UCMJ will constitute an offense
under Article 102 (Forcing a Safeguard), UCMJ, whether the safeguard was imposed in time of war or in
circumstances amounting to a state of belligerency short of a formal state of war.
CHARACTER OF MILITARY PASSPORTS, SAFE-CONDUCTS, AND RELATED INSTRUMENTS
7-54. Military passports and safe-conducts fall within the scope of international law only when granted by
arrangement with opposing forces or with a neutral power. Military passports and safe-conducts issued to
persons are both specific to the individual issued the instrument and nontransferable. A safe-conduct for
goods, however, while restricted to the articles named in them, may be transferred from one person to another,
provided it does not designate who is to carry (or trade) the goods. If the safe-conduct designates a specific
licensee, the goods may only be transferred if the authorizing belligerent approves the transferee.
7-55. The terms “pass” or “permit” may be used in lieu of passport. “Pass” is used for a general permission
to do certain things, while “permit” is used like “safe-conduct,” to signify permission to do a particular thing.
7-56. Documents should be interpreted according to their terms. For example, a document applies to the
territories or during the time periods specified in the document.
REVOCATION
7-57. A military passport or safe-conduct may be revoked by the commander issuing them or by the
commander’s superiors for good reasons of military expediency. Until revoked, they remain valid according
to their specific terms. For example, if a time is specified in the document, it is valid only for that period.
7-58. Documents must not be revoked for the purpose of detaining the holder; such persons should be
permitted to withdraw in safety unless suspected of unlawful activities. In a case of violation of the terms of
the safe-conduct or military passport, the privilege may be revoked.
LICENSES TO TRADE
7-59. Licenses to trade must, as a general rule, emanate from the supreme authority of the State. In an
international armed conflict, a State controlling enemy territory may grant licenses to trade that relax its
prohibitions on trading with the enemy.
7-60. Licenses to trade issued by military authorities may be either general or special. A general license is
a document that generally or partially relaxes the exercise of the rights of war in regard to trade in
relation to any community or individuals liable to be affected by their operation. A special license is a
document that allows individuals to take a particular voyage or journey to import or export particular
goods.
CARTELS
7-61. In its narrower sense, a cartel is an agreement entered into by opposing belligerents for the exchange
of POWs (see Lieber Code, art. 106). A cartel is a statement commanders agree to at the tactical or operational
level (when authorized by higher authority), arranged either through parlementaires, negotiations conducted
during a truce, or exchange of letters.
7-62. In its broader sense, a cartel is an agreement concluded between belligerents for the purpose of
arranging or regulating certain kinds of non-hostile intercourse that would otherwise be prohibited by the |
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existence of the armed conflict. These are not limited to matters regarding exchanges of POWs and can
include, for example, postal communication or trade in certain goods or commodities.
7-63. Parties to a cartel are honor bound to observe its provisions with the most scrupulous care. A party
may void a cartel upon definite proof that the other party has violated it intentionally in an important particular
(see DOD Law of War Manual, 12.7).
OTHER SPECIAL AGREEMENTS
7-64. The 1949 Geneva Conventions contemplate the conclusion and implementation of special agreements
between opposing parties to an armed conflict (see DOD Law of War Manual, 12.1.2.1). These include, but
are not limited to, appointment of protecting powers (art. 10 common to GWS, GWS (Sea), and GPW; GC
art. 11), repatriation of wounded or sick POWs or retained personnel (GPW art. 109), and agreements as to
the location of hospital zones and localities (GWS art. 23). Other special agreements may be concluded on
an ad hoc basis (art. 6 common to GWS, GWS (Sea), and GPW; GC art. 7).
ARMISTICE
7-65. An armistice is an agreed upon cessation of active hostilities between opposing forces for a period
agreed upon by the belligerent parties.
7-66. An armistice agreement must be concluded by authorities who are competent to agree to and enforce
its terms. Armistices that include more substantive and expansive terms must be concluded by more senior
authorities. If the armistice contains political terms, it must be made under authorization from the government
concerned or subject to approval by them (see DOD Law of War Manual, 12.11.2). An armistice is not a
partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the
parties to the conflict (HR art. 36). War, as a legal state of hostilities between the parties, may continue,
despite the conclusion of an armistice agreement. In certain instances, for example the Korean War, armistice
agreements may be in place for a long time.
7-67. An armistice agreement may arrange for a variety of humanitarian activities, such as the recovery of
wounded or shipwrecked from the battlefield (land or sea) or the exchange of POWs.
7-68. Hostilities need not cease during the negotiation of an armistice.
7-69. The existence of an armistice agreement is not a reason to relax either the vigilance or readiness of
forces, or to expose positions to the enemy (see DOD Law of War Manual, 12.11.4.4).
TYPES OF ARMISTICE
7-70. An armistice may be general or local. A general armistice suspends military operations between the
belligerents everywhere. A local armistice only suspends military operations between certain fractions of the
belligerent armies and within a fixed area (HR art. 37). In practice, a local armistice can refer to a partial
armistice or a suspension of arms with the primary distinction between the two being the size of the units
involved as discussed in paragraphs 7-72 to 7-76.
7-71. Other terms have been and may be used for an armistice, to include truce, local truce, ceasefire,
cessation of hostilities, and suspension of arms. Other terms may also be used in other languages. Although
a tacit or implied suspension of fighting may precede an armistice, any form of armistice, whether a truce,
local truce, suspension of arms, requires agreement between competent authorities. Armistice can be used in
a general sense to encompass each of these terms.
General
7-72. A general armistice suspends all (ground, naval, and air) operations between opposing forces
throughout the theater of operations. It often is of a combined political and military character. It usually
precedes negotiations for peace. Due to its political importance, a general armistice usually is agreed to at
the national or diplomatic level, with implementation of the agreed terms by military commanders, such as
by the relevant combatant commander. |
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Local or Partial
7-73. A local or partial armistice suspends military operations between certain portions of opposing forces
and within a specified area (HR art. 37). It may suspend combat operations indefinitely or for a specified
period of time, ranging from hours to days. The primary distinction between a local or partial armistice and
a suspension of arms, discussed in paragraph 7-77, is the size of the units or area affected, and the broader
interests than the local military requirements that are addressed in a suspension of arms.
7-74. A partial armistice suspends operations between specified forces or within specified zones. It may
apply only to operations of ground forces, for example, or naval operations in an area specified by longitude
and latitude, or air operations above a specified parallel.
7-75. A unilateral suspension of operations is not a partial armistice. A unilateral but conditional suspension
of operations may be a partial armistice if there is tacit agreement by the opposing force. A partial armistice
requires express agreement between the opposing forces or governments.
7-76. A partial armistice may be a cessation of operations between two belligerents. A partial armistice
always includes a large number of the forces involved in an armed conflict and a considerable portion of the
conflict region. It is not an agreement merely to address some matter of local interest, as would be the case
with a suspension of arms, but one of a more general character.
Suspension of Arms
7-77. A suspension of arms, also referred to as a suspension of fire, is a form of local armistice
concluded between commanders of military forces for some local military purpose, such as to recover
and bury the dead, to collect and care for the wounded and sick, to arrange for exchange of prisoners,
or to enable a commander to communicate with his or her government or superior officer. A suspension
of arms is not intended to have, and does not have, any legal or other effect on the war generally, or its
political bases. It is intended to serve military interests of local importance only. An opposing commander
with the competence to do so can agree upon a suspension of arms.
AUTHORITY TO CONCLUDE AN ARMISTICE
7-78. The degree to which opposing forces seek to suspend hostilities will determine what authorities are
needed to conclude the armistice agreement. An armistice agreement must be concluded by authorities who
are competent to agree to it and to enforce its terms. An armistice that includes more substantive and
expansive terms must be approved by more senior authorities. For example, a commander would not have
the authority to conclude an armistice agreement that binds units or areas that are not under his or her
command. Similarly, if an armistice contains political terms, it must be made under authorization from the
governments concerned or subject to approval by them (see DOD Law of War Manual, 12.11.2). In U.S.
practice, any proposed final armistice would be coordinated with higher civilian authority.
7-79. Commanders are presumed to have the authority to conclude a suspension of arms for forces or areas
within their control. Regardless of the type of armistice entered into, commanders may not bind units or areas
not under their command. Commanders negotiating an armistice agreement have the responsibility in the
course of negotiations to inform the opposing force commander of any units or areas within the scope of the
armistice over which they lack command authority. The opposing force commander has the right to accept
or reject this as a condition for agreement.
7-80. An armistice agreement is not a proper mechanism for resolution of political issues, such as territorial
claims or permanent rights to be conferred on the local population. Higher authority may renounce terms of
agreement related to political issues that exceed the commander’s authority. Renunciation of a non-military
provision, however, does not constitute authority to revoke the remaining terms of the armistice
FORM OF ARMISTICE
7-81. No special form for an armistice is prescribed. It should, if possible, be reduced to writing to avoid
misunderstandings and for reference should differences of interpretation arise. It should be drafted with the
greatest precision and clarity. |
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WHAT STIPULATIONS AN ARMISTICE SHOULD CONTAIN
7-82. To avoid misunderstanding and to ensure it can accomplish its intended purposes, stipulations
regarding the following matters should be incorporated into an armistice agreement:
Date, Day, and Time of Commencement
7-83. The commencement time and duration of an armistice should be fixed as precisely as possible to avoid
misunderstanding and an unintentional resumption of hostilities. The specific date, day, and hour for
suspension of hostilities should be stipulated. Effective times may differ in different time zones. Time should
be specified in Zulu time (Greenwich Mean Time) and each time zone in which the armistice will apply.
Armistice commencement time should be specified as beginning immediately upon completion of the terms
of the agreement or at a future specified time. In the absence of agreement to the contrary, an armistice
commences at the moment it is signed. Agreement to commence at a later time may be necessary, however,
in order to ensure all forces receive the order prior to its entry into effect. Unless the duration is specific, as
“from 0001 27 August to 2400 29 August,” the following is historic practice:
* An armistice “for twenty-four hours” beginning, for example, at 1800 on 1 January concludes at
1800 on 2 January.
* An armistice for a number of days may begin at any time, but concludes at the same hour as the
time it began after the elapse of the specified number of days (measured as twenty-four hour time
periods). Thus, an armistice “for ten days, commencing at 0700 on 1 January” begins at the time
specified and ends at 0700 on 11 January, unless otherwise specified (such as “for ten days,
beginning at 0700 on 1 January, concluding at 2400 on 11 January”).
* An armistice “from 1 January to 1 April,” without specified beginning and ending hours includes
the first day but not the last—thus, it begins at 0001 on 1 January and concludes at 2400 on 31
March.
Duration
7-84. The duration of an armistice may be for a definite or indefinite period of time, and with or without a
period of notice prior to its expiration.
Indefinite
7-85. When duration of an armistice is indefinite, parties to the armistice may resume combat operations at
any time, subject to prior notice to opposing forces in accordance with the terms of the agreement (HR art.
36). An armistice of indefinite duration should include a provision specifying the agreed length of time
between the delivery of this notice and the subsequent recommencement of combat operations.
Recommencement of combat operations without prior notice (when notice is required by the armistice) in
order to gain surprise is inconsistent with the intent of an armistice and is prohibited under LOAC.
7-86. The requirement for notice prior to recommencement of combat operations does not, however,
preclude a party to the conflict from reacting to serious violations of the armistice by opposing forces,
including recommencing hostilities immediately (HR art. 40). When an armistice violation is not serious, and
perhaps the result of a mistake by one side or the other, commands affected by an enemy’s breach remain
subject to higher authority orders. Nevertheless, they retain the inherent right of self-defense.
Definite
7-87. A “definite” armistice is for an agreed specified, fixed period of time, such as “from 0900 GMT
[Greenwich Mean Time][specify local time] on [date] to 0700 GMT [specify local time] on [date].” If the
armistice is for a fixed period of time and no agreement has been made for prolonging it, hostilities may
recommence without prior notice the moment the period of time has elapsed. |
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Boundaries, Including Location of Forces
7-88. An exchange of maps or other imagery showing the lines of opposing forces at the time of armistice
commencement may facilitate understanding while reducing risk of confrontation. If agreed by the parties,
locations of forces may be displayed.
Neutral Zone
7-89. Armistice elements may include a “neutral zone” situated between lines of demarcation sufficient in
breadth to minimize risk of unintentional confrontation between opposing forces. A neutral zone does not
exist absent express agreement between the relevant parties. One example of a neutral zone is the
Demilitarized Zone between North Korea and South Korea.
7-90. In the event of a general ceasefire, it may be sufficient to agree to a line rather than a zone. The line
may include a buffer zone of specified depth between forces. It may be necessary for one or both parties to
institute a partial withdrawal in order to establish a neutral zone. Whether a line or a zone, specificity as to
either (such as through use of maps or Global Position System) is essential in order to minimize the risk of
accidental breach or confrontation. For this purpose maps with the lines of the neutral zone indicated may be
attached to and made part of the armistice. The extent of the zone will vary according to the circumstances
and agreement of the parties. Historical examples have ranged from 1,000 yards to two miles, and in other
circumstances have made use of the respective sides of a natural boundary, such as a river.
7-91. A road or roads through the neutral zone should be identified by which communications between
opposing forces must pass during the armistice.
7-92. It is usually agreed that military personnel of either side may not encroach upon a neutral zone except
by parlementaires or other parties by special arrangement for specified purposes, such as to search for and
recover sick, wounded, or dead within the zone.
Signals
7-93. Signals may be agreed to for communication between opposing parties, whether for passage of
parlementaire, a start or cessation of an armistice, or for other reasons.
Language
7-94. Unless agreement is possible for an armistice to be drawn up in one language, an armistice should be
drawn up in the language of each belligerent force, with each side retaining a copy in its language. Each
belligerent should confirm the text in each version to ensure consistency in each language.
ADDITIONAL ELEMENTS
7-95. Occasionally, an armistice contains additional elements that may be appropriate, such as addressing
issues of a humanitarian nature.
Relations of Forces with Local Population During Armistice
7-96. In the terms of an armistice agreement, the contracting parties may settle what communications may
be held in the theater of war with the inhabitants and between the inhabitants of one belligerent State and
those of another (HR art. 39).
7-97. “Communications” are not limited to electronic forms of communication and postal services, but refer
to the movement of civilians and commerce as well. The rule applies with respect to citizens of a State divided
by military operations between opposing forces. If changes in the relations between the opposing forces and
the local population during the armistice are desired, this must be the subject of express agreement between
relevant parties to the conflict. Otherwise, the relations remain unchanged. Each belligerent continues to
exercise the same rights as before, including the right to deny or control all communications or movement of
members of the civilian population between opposing lines. |
6-27 | 168 | Chapter 7
7-98. An armistice does not alter commanders’ responsibilities and authorities to take all necessary measures
for the security of their forces and mission. As a state of hostilities continues to exist during an armistice,
commanders are entitled to weigh whether civilian movement may place the mission at risk through, for
example, the facilitation of espionage by the opposing forces. If nothing is stipulated, communication remains
suspended, as during actual hostilities. As a general rule, movement between the territories held by opposing
forces remains suspended in the same way as during actual hostilities.
Humanitarian Activities
7-99. Parties to the conflict affected by the armistice may agree to specific humanitarian activities, such as
searching for and collecting the sick and wounded from the battlefield or account for the missing (GWS art.
15; GWS (Sea) art. 18; consider API art. 33); providing medical care or food supplies intended only for the
civilian population (GC art. 23); seeking the assistance of local civilians to voluntarily collect and care for
the wounded and sick under the direction of the military of a State party to the conflict, (GWS art. 18; GWS
(Sea) art. 21); and exchanging or repatriating POWs or civilian internees (GPW art. 118; GC arts. 133 and
134). Operations of non-government organizations within an armistice area are subject to the express
authorization of the commander affected by their operations and to limitations the commander deems
necessary for reasons of military security (GWS art. 9).
Civil Administration of Area Concerned
7-100. Regardless of whether the armistice agreement contains provision for relations between the opposing
forces and the local population during the armistice, each commander maintains authority to address issues
concerning the civilian population in territory within that commander’s control in accordance with other
applicable principles of LOAC, such as the law governing belligerent occupation (see Chapter 6). The
armistice agreement may stipulate responsibilities of each party for civil administration of areas under its
respective control. Where control is shared, the armistice agreement should specify the specific
responsibilities of each opposing force commander.
Disposition of Prisoners of War
7-101. If POWs, retained persons, or civilian internees are to be released or exchanged during an armistice,
specific provision in this regard must be made within the armistice agreement.
Consultative Mechanism
7-102. The armistice agreement may provide for the establishment of a commission composed of
representatives of the opposing forces to supervise implementation of the armistice agreement. If appropriate
and agreed upon by all relevant belligerent parties, local authorities may be represented on the commission.
Political and Military Stipulations
7-103. A general armistice may contain political and military stipulations, to include evacuation of territory;
disposition of aircraft and shipping; cooperation in the investigation and prosecution of war crimes; recovery
and restitution of captured or looted property; maintenance of public utilities, including communications
facilities; restoration of civil administration, public safety, and public health needs; and provision of
assistance to displaced persons. Political terms require authorization and approval at the national level.
Evacuation or Re-Supply of Besieged Positions
7-104. Parties to the conflict shall endeavor to conclude local agreements for the removal from besieged or
encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage
of ministers of all religions, medical personnel, and medical equipment on their way to such areas (GC art.
17). |
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NOTIFICATION, COMMENCEMENT OF, AND BINDING EFFECT OF ARMISTICE
7-105. An armistice must be notified officially and in good time to the competent authorities and to the
forces. Hostilities are suspended immediately after the notification, or on the date fixed (HR 38). It is the
obligation of the contracting authorities to disseminate the armistice officially and in good time to subordinate
commands. Commanders are responsible only from the time of receipt of official notification of the armistice.
There may be reasonable differences between the agreed time and date for commencement and time of
notification at the local unit level. .
7-106. Significant differences between the agreed date and notification may be regarded as tantamount to
breach of the agreement. Risk of this situation may be reduced by specifying a reasonable period of time for
notification by each side prior to the time and date specified for an armistice to enter into effect. Parties may
agree to, or unilaterally execute, a partial armistice pending commencement of an agreed armistice.
PROHIBITED ACTS
7-107. An armistice is a cessation of hostilities for the time period agreed upon by the parties. Belligerent
forces affected by an armistice are prohibited from engaging in any act expressly prohibited by the armistice,
any act contrary to the express terms of the agreement, and any other act inconsistent with the purpose for
the armistice. These acts would include any offensive military operations, such as conducting attacks or
seizing territory beyond its lines. For example, an overt penetration of opposing forces’ lines or territory or
neutral territory, including tunneling to penetrate enemy lines or positions or to escape a besieged position,
would constitute a violation of the armistice. Airborne penetration of enemy airspace is prohibited unless
expressly agreed otherwise. Each party, however, retains the right to resort to use of force in self-defense if
fired upon.
7-108. Absent express agreement, an armistice does not give authorities of a besieged place the right to
receive food, water, or other provisions for military forces or the civilian population beyond what LOAC
already requires concerning civilians. Obligations concerning the transport of medical supplies, religious
supplies, and food to civilians are outlined in Chapter 5 (GC art. 23).
PERMISSIBLE ACTS
7-109. In the absence of written agreement to the contrary, each belligerent is entitled to take steps that are
not offensive in character, but will tend to improve its situation. This includes, but is not limited to, troop
movement within its own lines; troop reinforcements; construction of new fortifications, installations, and
bases; construction and repair of transportation and communications facilities; intelligence collection;
movement of supplies and equipment; and in general, taking advantage of the time and means at its disposal
to prepare for possible resumption of hostilities.
7-110. Espionage or clandestine ground force reconnaissance behind opposing lines is not prohibited; but
individuals captured while engaged in espionage are subject to the risks entailed under LOAC the same as at
other times (HR art. 29; consider AP I art. 46).
INDIVIDUAL VIOLATIONS
7-111. An armistice violation by an individual Soldier, Marine, or a small group of Soldiers or Marines
acting on their own initiative does not constitute a serious violation of an armistice, nor does it provide a
basis for renunciation of the armistice. The injured party, however, is entitled to demand punishment of such
Soldiers or Marines for their unauthorized acts, or, if necessary, compensation for the losses sustained (HR
art. 41).
7-112. Deliberate violation of the terms of an armistice by individuals is punishable as a war crime. Such
violations by individual members of the armed forces or subordinate officers do not justify denunciation of
the armistice unless they are proved to have been committed with the knowledge and actual or tacit consent
of their own government or commander. Consent may be inferred in the event of a persistent failure to punish
such offenders (see DOD Law of War Manual, 12.13.2.2). |
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7-113. If Service Members acting in their individual capacity to violate the terms of an armistice are
captured, they remain entitled to POW status, provided such entitlement exists during general hostilities
(GPW art. 4). Deliberate violation of an armistice by an individual Service Member resulting in the killing
or wounding of any member of the opposing force is an act of perfidy, punishable as a war crime (consider
AP I, art. 37(1)). It does not, however, constitute a basis to deny the Service Member entitlement to POW
status (GPW art. 85).
ARMISTICE VIOLATIONS
7-114. The following are serious violations of an armistice:
* A violation of the express terms of an armistice agreement.
* An action taken by opposing forces to gain a military advantage it would not be able to gain but
for the armistice.
* An overt manifestation of bad faith.
7-115. Depending on factors discussed above such as notification and the isolated nature of violations, the
following actions may constitute serious violations of an armistice:
* movement beyond agreed lines.
* encroachment or unauthorized entry into neutral areas.
* physical seizure of objectives outside agreed lines.
* direct attack of opposing forces.
DENUNCIATION
7-116. Any serious violation of the armistice by one of the parties gives an opposing belligerent the right
of denouncing the armistice and even, in cases of urgency, of recommencing hostilities immediately (HR art.
40).
7-117. A belligerent denounces an armistice when it notifies the opposing party of its intent to terminate
the armistice. Absent urgent necessity, a delay should occur between denunciation of the armistice and
resumption of hostilities. If compelling evidence exists of a serious violation and delay incident to formal
denunciation and warning seems likely to provide the violating party a substantial advantage of any kind, the
aggrieved party may resume offensive military operations without warning, with or without formal
denunciation.
7-118. A commander of a military unit faced with any suspected or apparent violation of an armistice
agreement, regardless of its severity, retains the right an obligation to use force in the exercise of unit self-
defense.
DENUNCIATION MAY NOT INVOLVE PERFIDY
7-119. An armistice, like other formal arrangements between belligerents, engages the honor of both parties
for the exact and complete fulfillment of every obligation imposed. It would be perfidious for either party,
without warning, to resume hostilities during the period of an armistice, with or without a formal denunciation
thereof, except in case of urgency and upon convincing proof of intentional and serious violation of its terms
by the other party.
ARMISTICE EXTENSION
7-120. An armistice may be extended in the same manner as originally concluded or in any other manner
satisfactory to each belligerent.
CAPITULATIONS
7-121. A capitulation is an agreement, sometimes with certain conditions, entered into between the
commanders of belligerent forces for the surrender of a body of forces, a defended position, other defended
town or place, or a particular district of the theater of operations (See DOD Law of War Manual, 12.8.1). |
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Surrenders of territory sometimes include provisions for the withdrawal defenders from it and allowing the
victorious forces to enter into possession. A capitulation is a surrender by agreement; surrender can also
occur without capitulation (see paragraphs 7-124 and 7-125).
7-122. Capitulation differs from an armistice in that the former surrenders the capitulating unit, while the
latter suspends fighting between opposing forces. Further, a capitulation is permanent while an armistice is
temporary (at least in theory—the Korean armistice from 1953 is still in effect awaiting “a final peaceful
settlement”).
7-123. A capitulation may be of a small unit, such as a squad, platoon, company, or battalion, or of larger
forces, such as a division or corps. Commanders have the authority to conclude capitulation agreements only
with respect to areas under their control and forces or units under their command.
CAPITULATION AS COMPARED TO SURRENDER
7-124. Capitulation involving personnel refers to unit surrender pursuant to an agreement. Individual
Soldiers or groups of Soldiers who throw down their arms and surrender do not capitulate, but surrender. A
surrender may occur without a capitulation agreement. For example, individuals or units may surrender
themselves unconditionally to the opposite side without a specific capitulation agreement. On the other hand,
an unconditional surrender may also be effected through a capitulation instrument.
7-125. Surrender also may be arranged between belligerents at national levels without the involvement of
military commanders, possibly through third parties. A capitulation agreement may be negotiated between
opposing military forces in local implementation of a surrender negotiated at national levels.
MILITARY HONOR
7-126. Capitulations agreed upon between belligerents must take into account the rules of military honor.
Once settled, they must be scrupulously observed by both parties (HR art. 35).
7-127. Executing a capitulation with honor and respect for the adversary is not only the professional way
to treat a defeated enemy, but one in which the psychological stigma of capitulation is diminished. Along
with humane treatment in accordance with LOAC, treatment with honor and respect provides incentive to an
enemy to capitulate rather than fight on without any chance of prevailing.
7-128. Just as a surrendering individual Soldier is to be treated professionally and humanely—but firmly—
by the captors, so, too, should acceptance of capitulation be executed.
7-129. Honorable treatment does not serve to diminish illegal acts, or criminal responsibility, by
capitulating forces. Military and other personnel entitled to POW status (GPW art. 4) suspected of criminal
acts, including violations of LOAC, remain POWs and, as such, remain entitled to protections afforded by
their status (GPW art. 85).
AUTHORITY OF COMMANDERS REGARDING CAPITULATION
7-130. Commanders are generally presumed to have the authority to conclude a capitulation agreement with
respect to forces under their command or areas under their control. This presumption is essential not only
with respect to the authority of a commander offering to capitulate, but for an opposing force commander
accepting the capitulation.
7-131. For example, if commanders of military forces conclude continued fighting has become impossible
and is unable to communicate with their superiors, under LOAC, they may assume they have authority to
surrender their position or forces, or both.
7-132. Unless their respective government has granted authority to do so, commanders do not possess the
authority to bind their government to a permanent cession of places under their command, to surrender
sovereignty over territory, or to agree to terms of a political nature that will take effect after the termination
of hostilities.
7-133. The fact that a commander surrenders in violation of orders or domestic law does not itself invalidate
the surrender. |
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7-134. Commanders who surrender in violation of orders or the law of their own State may be punished by
their State. Under the Code of Conduct for U.S. armed forces, a commander must never surrender the
members of his or her command while they still have the means to resist. Under the Uniform Code of Military
Justice, shameful surrenders are punishable. In addition, compelling or attempting to compel a commander
to surrender or striking colors or flag to an enemy without proper authority is punishable (for U.S. practice
regarding this type of prosecution, see UCMJ art. 99(2)) (for more information regarding a U.S. commander’s
authority to capitulate, surrender, and capture with respect to the U.S. Code of Conduct, see para. 7-137).
Violations of Capitulation Agreements by Individual Soldiers
7-135. Capitulations extend to all military personnel under a commander’s command. Deliberate violations
by individual Soldiers or Marines of the terms of a capitulation agreement may be punished as a war crime
Individual Soldiers are also subject to prosecution by their own government for disobeying the capitulation
order (see UCMJ art. 92 (10 U.S.C. 892)). Violation of a capitulation agreement, like other pre-capture law
of war violations, is not a basis for denying a person POW status, if that person otherwise qualifies for POW
status under the GPW (GPW arts. 4 and 85).
Commander’s Authority with Respect to Detached Forces
7-136. Commanders’ competence to capitulate is limited to forces immediately under their command and
does not necessarily extend to detached forces. To avoid misunderstandings, a capitulation agreement should
state to what extent detached forces and personnel in outlying defenses are included in the surrender of the
military forces.
The Code of Conduct for U.S. Armed Forces
7-137. The Code of Conduct for U.S. Armed Forces is a moral code designed to provide U.S. military
personnel with a standard of conduct (see DOD Law of War Manual, 9.3.9). Article II of the Code of Conduct
states: “I will never surrender of my own free will. If in command, I will never surrender the members of my
command while they still have the means to resist” (DODI O-3002.05). Code of Conduct (CoC) Training
provides that:
* Military personnel must never willingly surrender and must do their best to avoid capture. If a
military member is isolated and unable to execute his or her mission or otherwise advance U.S.
military objectives, it is his or her duty to evade capture and delay contact with individuals that
may lead to capture, rejoin the nearest friendly force, and return to U.S. control (Enclosure 4, para.
2.a).
* Military personnel must understand the difference between surrender and other circumstances
resulting in an adversary having control of the individual. Surrender is the voluntary
relinquishment of a military member, or his or her subordinates, to an adversary’s control. When
there is no chance for meaningful resistance, evasion is impossible, and further military
engagement will squander life with no significant advancement of U.S. objectives or hindrance to
the adversary’s objectives, members of Armed Forces should view themselves as “captured’
against their will,” versus “surrendering.” (Enclosure 4, para. 2.b.(1)).
* The responsibility and authority of a commander never extends to the surrender of command, even
if isolated, cut off, or surrounded, while the unit has a reasonable power to resist, break out, or
evade to rejoin friendly forces (Enclosure 4, para. 2.b.(2)).
To Accept Enemy Capitulation
7-138. A commander possesses the inherent authority to accept enemy surrender or general capitulation.
The authority to accept enemy capitulation with conditions, however, is subject to approval by higher
authority. A commander’s agreement to conditions without higher authority approval is subject to higher
command repudiation. |
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GENERAL NATURE OF CAPITULATION AGREEMENTS
7-139. The general effect of concluding a capitulation agreement is that of an unconditional surrender. In
other words, absent specific terms in the capitulation agreement to the contrary, the capitulation agreement
should be understood to create the effect of an unconditional surrender by the capitulating party. The
capitulating party must generally cease operations and maintain the military status quo at the time in which
the capitulation becomes effective. For example, the capitulating forces must not engage in offensive
operations against opposing forces. Similarly, although forces may destroy their own weapons and
intelligence information to prevent them from falling into the hands of the enemy before they capitulate, after
the capitulation is effective, the capitulating forces must abstain from all destruction and damage to their own
facilities and equipment, unless expressly permitted by the capitulation agreement. The capturing side is free
to confiscate as war booty or, at its discretion, destroy the weapons, ammunition, and military equipment of
the capitulating side (see DOD Law of War Manual, 12.8.5).
7-140. Capitulations normally contain nothing but military stipulations, such as addressing issues related to
movements and administration of the surrendered forces. Other relevant issues may be addressed, such as the
administration of the local civilian population.
FORM
7-141. There is no specified form for a capitulation agreement. They may be oral or in writing. As in the
case of armistices, however, a written agreement is preferred to avoid misunderstandings and disputes over
the terms. The agreement should be as specific and precise as possible as to terms to be observed on either
side, excepting such conditions as are clearly imposed by LOAC. Details of time and procedure should be
prescribed in the most exact and unequivocal language.
TERMS AND CONDITIONS USUALLY ADDRESSED IN CAPITULATION AGREEMENTS
7-142. A capitulation agreement may, and often should, include provisions addressing each of the
following, insofar as they are relevant to the circumstances:
* Time of surrender
* Forces (including to what extent detached forces or personnel may be included) or territory to be
surrendered
* Disposition of surrendered forces
* Disarmament of surrendered forces
* Disposition of Prisoners of war, civilian internees, and other persons held in custody
* Requirement to follow orders of the victorious commander
* Consequences of not following orders of the victorious commander
* Prohibition on acts of destruction by surrendered forces
PROHIBITED ACTS
7-143. Once a capitulation is settled, its terms must be scrupulously observed by all parties concerned (HR
art. 35). Personnel of the capitulating side must be handed over to the captor in accordance with the terms of
the capitulation. In other words, the capitulating party must maintain the status quo at the time of signature.
In turn, surrendering military forces and others entitled to POW status become POWs (or retained personnel).
Damage and Destruction
7-144. Once a capitulation agreement has been signed, the capitulating commanders and their forces are
prohibited from causing destruction or damage to installations, arms, ammunition, war material, stores, and
equipment under their control, or injury to opposing force personnel. The capitulating commanding officer
must abstain and ensure that members of the command abstain from all such destruction, unless the
commanding officer is expressly authorized or directed to do so by the terms of the capitulation agreement.
Nothing prohibits commanders from destroying military equipment, arms, ammunition, and other military
stores prior to their capitulation. |
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Breaches
7-145. Once capitulation terms have been agreed upon, all parties must scrupulously comply with them
(HR art. 35). Breach of the terms of a capitulation agreement subjects the offender to trial for violations of
the laws and customs of war. In addition, if the violation is directed by the commander who capitulated or by
higher authority, the other belligerent may denounce the capitulation and resume hostilities. Individual
Service Member or groups of Service Members acting in violation of the capitulation agreement remain
entitled to POW status, but may be prosecuted for their illegal acts (GPW art. 85). For example, following
capitulation, a Service Member from the capitulated force no longer enjoys combatant immunity and may be
prosecuted for carrying out attacks on enemy military equipment or personnel. If captured, he may be tried
for misconduct as a POW in addition to any violation of LOAC (UCMJ art. 105 (10 U.S.C. 905)).
Command Responsibility
7-146. Capitulating units remain military units, subject to LOAC, and commanders remain responsible for
the units under their command and for military personnel over whom they exercise authority. As such,
commanders remain responsible for criminal misconduct of capitulating forces. Prevention of acts of looting
and destruction by capitulating forces, whether of military equipment or civilian objects, remains a
responsibility of commanders, for which they may be held criminally accountable.
DENUNCIATION
7-147. A capitulation agreement may be denounced if a party to it violates it based on directions by the
commander who capitulated or by higher authority. The other belligerent may denounce the capitulation
agreement and resume hostilities. Likewise, a denunciation action may also be taken if the capitulation was
obtained through a breach of faith. It may not, however, be denounced because one of the parties has been
induced to agree to it by a means consistent with LOAC, such as by a ruse, or by that party’s own incapacity,
such as by mistake of fact.
ANNULMENT
7-148. A capitulation is null and void if it takes place following the agreement of a general armistice of
which the parties to the capitulation had no knowledge, unless the terms of the armistice stipulate that the
cessation of hostilities occurs from the time when notification reaches the forces concerned, rather than from
the date and time of signature. |
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War Crimes and Enforcement of the Law of Armed Conflict
This chapter addresses war crimes and enforcement of LOAC from a U.S. perspective,
largely by specifying how U.S. law authorizes criminal prosecution of conduct that
also constitutes LOAC violations. Thus, this chapter discusses violations of LOAC
generally, what constitutes war crimes, criminal prosecution of war crimes, and
remedies available in response to LOAC violations.
PRACTICAL GUIDANCE FOR COMMANDERS AND SOLDIERS OR
MARINES
8-1. Commanders must exercise leadership to ensure that the forces under their command comply with
LOAC. In addition to being legally required, compliance with LOAC: reinforces military effectiveness;
helps maintain public support and political legitimacy; and can encourage reciprocal adherence by the
adversary or adherence by adversaries in future conflicts (see DOD Law of War Manual, 18.2). As a matter
of policy, commanders should encourage allies and partners to comply with LOAC.
8-2. Commanders have a duty to take appropriate measures as are within their power to control the forces
under their command for the prevention of violations of LOAC (DOD Law of War Manual, 18.4).
Appropriate measures may include: training subordinates, issuing command guidance or procedures;
investigating allegations or incidents; instituting administrative or disciplinary action; and taking other
appropriate corrective action.
8-3. Commanders must report “Reportable Incidents” (defined as possible, alleged or suspected violations
of LOAC) (see DODD 2311.01E), including Reportable Incidents committed by enemy personnel or by
personnel belonging to allied or partner forces (see DODD 2311.01E).
8-4. Commanders may need to direct the investigations of allegations or to refer matters to investigatory
authorities in accordance with DOD procedures, such as procedures applicable to a command-directed
investigation (for example, Army Regulation 15-6) or to an investigation by a military criminal investigative
service (for example, Army Regulation 195-2).
8-5. Commanders should take appropriate action with regard to Reportable Incidents of LOAC in
accordance with the UCMJ and the Manual for Courts-Martial. Under international law, commanders must
consider whether disciplinary action is warranted in the case of serious violations of LOAC, but there is no
absolute or automatic requirement under international law to punish particular offenders within their armed
forces in a specific way. Commanders have discretion about how to implement and enforce LOAC in
accordance with U.S. domestic law and applicable DOD procedures.
8-6. All Soldiers and Marines must: (1) comply with LOAC in good faith; and (2) refuse to comply with
clearly illegal orders to commit violations of LOAC (see DOD Law of War Manual, 18.3).
8-7. When appropriate, Soldiers and Marines should ask questions through appropriate channels and
consult with the command legal adviser on issues relating to LOAC (see DOD Law of War Manual, 18.3.1.2).
8-8. Soldiers and Marines should adhere to regulations, procedures, and training, as these policies and
doctrinal materials have been reviewed for consistency with LOAC (see DOD Law of War Manual, 18.3.1.2,
18.6.2).
8-9. Commands and orders should not be understood as implicitly authorizing violations of LOAC where
other interpretations are reasonably available (see DOD Law of War Manual, 18.3.2.2). |
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VIOLATIONS OF THE LAW OF ARMED CONFLICT
8-10. For purposes of this publication, a violation of LOAC is an act or omission that contravenes a rule of
international law applicable to the conduct of hostilities or the protection of war victims. Depending on the
context, violations of the law of neutrality, jus ad bellum, or occupation law may also be considered to be
violations of LOAC.
STATE RESPONSIBILITY
8-11. Each State Party to the 1949 Geneva Conventions is obligated “to respect and to ensure respect” for
the Conventions “in all circumstances” (Common Article 1 of GWS, GWS Sea, GPW and GC). Although
this provision does not reflect an obligation to ensure implementation of the conventions by other States or
parties to a conflict, the United States, as a matter of policy, often seeks to promote adherence to LOAC by
others (see DOD Law of War Manual, 18.1.2.1). Additionally, a State is responsible for ensuring that its
armed forces and others acting on its behalf comply with LOAC (Hague IV art. 3; consider AP I art. 91).
Compensation referred to in these references is a matter to be determined between States; compensation of
individual victims is not an obligation of LOAC (see DOD Law of War Manual, 18.9, 18.16). Note that the
ex gratia payments that commanders may be authorized to provide in accordance with DOD policy and
domestic fiscal authorities are not payments that are required by LOAC. The obligation to ensure LOAC
compliance applies even if the enemy fails to comply with LOAC.
ENFORCEMENT
8-12. International law authorizes an injured State to seek redress for violations of LOAC against it (see
Hague IV art. 3; DOD Law of War Manual, 18.10). States are not limited solely to judicial redress and may
avail themselves of the full panoply of enforcement mechanisms, including reprisals, reparation payments,
diplomatic negotiations, arbitration, and voluntarily constituted claims commissions. Individuals may, in
certain circumstances, also be prosecuted for LOAC violations, as discussed in greater detail below.
WAR CRIMES
8-13. For purposes of this publication, war crimes are serious violations of LOAC that are punishable by
criminal sanctions. The definition of “war crimes” often depends on the legal purpose at issue, and different
definitions of “war crimes” are used. Under the Geneva Conventions, States have a responsibility to search
for and prosecute those alleged to have committed “grave breaches,” of the Conventions. In addition, the
United States interprets the penal sanction provisions of the Geneva Conventions (see GC arts. 146, 147) in
accordance with its longstanding practice. In order for commanders to exercise appropriate command
supervision, prompt reporting and investigation of alleged war crimes and other LOAC violations are
essential. These other LOAC violations may not necessarily merit characterization as “war crimes,” but the
conduct may still be subject to criminal prosecution under U.S. law. In addition to obligations with respect
to grave breaches, the United States is responsible for taking all measures necessary to suppress other
violations of the Geneva Conventions (see, for example, GC art. 146).
WAR CRIMES IN INTERNATIONAL ARMED CONFLICTS
8-14. Historically, war crimes generally included all crimes that were punishable during armed conflict (see
DOD Law of War Manual, 18.9.5), regardless of whether the crimes were violations of LOAC. For example,
espionage and other offenses committed by captured enemy personnel, that were not prohibited by LOAC
but were punishable by a belligerent State were also characterized as “war crimes.” However, “war crimes”
now generally refers to only serious violations of LOAC. For example, the War Crimes Act, 18 U.S.C. §
2441, defines “war crime” to include certain serious LOAC violations.
Grave Breaches of the Geneva Conventions
8-15. To reflect the particular seriousness of some violations, the Geneva Conventions characterize certain
breaches as “grave.” These include willful killing of protected persons; engaging in torture or inhuman
treatment, such as biological experiments; willfully causing great suffering or serious injury to body or health; |
6-27 | 177 | War Crimes and Enforcement of the Law of Armed Conflict
unlawfully deporting, transferring, or confining a protected person; compelling a protected person to serve
in the forces of a hostile power; willfully depriving a protected person of the rights of fair and regular trial;
taking of hostages; and causing extensive destruction or appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly (GWS art. 50; GWS Sea art. 51; GPW art. 130; GC art.
147; consider AP I art. 85). Under the Geneva Conventions, grave breaches involve violations against the
person or property of persons specifically protected by the four conventions. Though not binding on the
United States, under Additional Protocol I to the Geneva Conventions, the concept of a grave breach is
expanded to include violations against civilian persons and property generally. As a matter of international
law, the grave breach regime (with its obligation to search for and prosecute) only applies in an international
armed conflict, as defined by Common Article 2 of the Geneva Conventions (see GWS art. 2, GWS Sea art.
2, GPW art. 2 and GC art. 2).
Other Violations
8-16. Other LOAC violations that are punishable and may be serious enough to merit characterization as
“war crimes” include, but are not limited to, using poisonous weapons or weapons calculated to cause
unnecessary suffering; attack or bombardment of undefended cities, towns or villages; pillage of public or
private property; maltreatment of dead bodies; poisoning of wells or streams; resorting to perfidy (for
example, using a white flag to conduct an attack treacherously); abusing or intentionally firing on a flag of
truce; intentionally targeting protected places, objects, or protected persons (HR art. 23a, 23g, 25, 28, 47;
War Crimes Act, 18 U.S.C. § 2441; consider AP I art. 85).
WAR CRIMES IN NON-INTERNATIONAL ARMED CONFLICTS
8-17. Common Article 3 provides minimum standards that parties to a conflict are bound to apply in a non-
international armed conflict, and its standards are widely considered to apply to all armed conflicts. It
explicitly prohibits violence to life and person for those taking no active part in hostilities and protects them
from murder; mutilation; cruel treatment; torture; being taken hostages; outrages upon personal dignity, in
particular, humiliating and degrading treatment; and sentences passed and executions carried out without a
judgment pronounced by a regularly constituted court affording all the judicial guarantees recognized as
indispensable by civilized peoples (see GWS art. 3, GWS Sea art. 3, GPW art. 3 and GC art. 3). Conduct
that violates Common Article 3 can be punished by a State competent to exercise jurisdiction with respect to
that conduct.
8-18. While nothing in Common Article 3 specifically requires that States impose individual criminal
liability for violation of its standards, other treaties and domestic statutes do make reference to Common
Article 3 in defining what constitutes a war crime. For example, in the United States, the War Crimes Act
and the Military Commissions Act of 2006 criminalize certain violations of Common Article 3 (see, for
example, 18 U.S.C. § 2441(c)(3) (War Crimes Act, as amended by the Military Commissions Act of 2006)).
OTHER VIOLATIONS OF THE LAW OF ARMED CONFLICT
8-19. The United States has an obligation to take all measures necessary to prevent acts contrary to the
Geneva Conventions. Violations of LOAC that are not sufficiently serious are generally not characterized as
“war crimes,” but typically may be prosecuted under a State’s domestic law or addressed via administrative
measures. In the United States, this may include referring charges to a court-martial under the UCMJ (see,
for example, UCMJ art. 93, Cruelty and Maltreatment) or taking other actions, such as changing doctrine or
tactics, providing additional training, taking administrative or corrective measures, imposing non-judicial
punishment, or initiating prosecution before a civilian court, as appropriate.
UNITED STATES’ OBLIGATIONS
8-20. The United States has certain treaty obligations with respect to LOAC violations, including the
following obligations: |
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* To enact any legislation necessary to provide effective penal sanctions for persons committing or
ordering to be committed and of the grave breaches of the Geneva Conventions;
* To search for persons alleged to have committed, or have ordered to be committed, grave breaches
of the Geneva Conventions, and bring such persons regardless of their nationality, before its own
courts;
* To take measures necessary for the suppression of all acts contrary to the provisions of the 1949
Geneva Conventions other than grave breaches;
* To provide persons accused of violations of the Geneva Conventions the safeguards of a proper
trial and defense (GWS art. 49; GWS Sea art. 50; GPW art. 129; GC art. 146); and
* To pay compensation, when appropriate, for violations of LOAC for which the United States is
responsible (see DOD Law of War Manual, 18.16).
8-21. The United States has enacted domestic laws to help meet these obligations (see generally paragraphs
8-22 to 8-56, “Reporting and Investigating LOAC Violations”). U.S. law provides general courts-martial
with the requisite authority to try, convict, and punish individuals who commit conduct punishable under
LOAC, including war crimes. In addition, the 1996 War Crimes Act establishes federal jurisdiction over
certain war crimes when the alleged perpetrator or victim is a U.S. person or member of the U.S. Armed
Forces.
REPORTING AND INVESTIGATING LOAC VIOLATIONS
8-22. DOD Directive 2311.01E, DOD Law of War Program, requires all military and U.S. civilian
employees, contractors, and subcontractors assigned to or accompanying the Armed Forces to report LOAC
violations (“reportable incidents” as defined by the Directive; see also para. 8-3, above) through their chain
of command (contractors must report reportable incidents to the commander of the unit they are
accompanying or the installation to which they are assigned or to the Combatant Commander) (DODD
2311.01E). Such reports also may be made through other channels, such as the military police, a judge
advocate, or an inspector general. A report to these other entities, however, must be forwarded to the
recipient’s chain of command. A commander who obtains information about a reportable incident must
immediately report the incident through the applicable operational chain of command. Department of
Defense policy requires higher authorities receiving an initial report of any reportable incident to submit the
report through command channels to the applicable combatant commander by the most expeditious means
available (DODD 2311.01E).
Reportable Incidents
8-23. A “reportable incident” is defined as “a possible, suspected, or alleged violation of the law of war for
which there is credible information, or conduct during military operations other than war that would
constitute a violation of the law of war if it occurred during an armed conflict” (DODD 2311.01E para. 3.2;
CJCSI 5810.01D para. 5b). Supplemental Service guidance provides for reporting of war crimes, or serious
LOAC violations, as well as other “serious” incidents that may generate adverse publicity or have serious
international consequences (see, for example, AR 190-45 para. 8-1; MCO 3300.4A, Enclosure 6). A
commander need not determine that a potential violation occurred, but only that credible information merits
further review of the incident. Commanders should consult with their assigned judge advocate for advice as
to whether an alleged violation is a reportable incident.
Investigations
8-24. Department of Defense policy requires that reportable incidents be thoroughly investigated. Under
DOD policy, commanders receiving an initial report of a reportable incident are also required to request a
formal investigation by the appropriate military criminal investigative organization (“MCIO,” for example
CID, Air Force Office of Special Investigations [OSI], or the Naval Criminal Investigative Service [NCIS]).
If, in the course of the investigation, it is determined that U.S. persons are not involved in a reportable
incident, any U.S. investigation continues only at the direction of the appropriate combatant commander.
Even when U.S. personnel are not involved, reporting of the information through the chain of command may
nevertheless be required by DODD 2311.01E. |
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Command Response
8-25. Commanders receiving information about an alleged LOAC violation involving a member of their
command, either as a victim or a perpetrator, may conduct an informal or formal administrative investigation
to collect evidence and assess the credibility of the allegations and the involvement of U.S. personnel (AR
15-6; Chapter II of the Manual of the Judge Advocate General of the Navy [JAGMAN]). A commander’s
decision to direct such an investigation, however, should not delay further reporting up the chain of command
or, when appropriate, referral to CID or the NCIS. Further, if a commander’s investigation determines there
is credible evidence a crime has been committed, the commander should consult the command’s judge
advocate for advice on determining the appropriate disposition of the charges (Rules for Courts-Martial
[RCM] 303, 306).
Department of Justice Involvement
8-26. It is DOD Policy to maintain effective working relationships with the Department of Justice (DOJ) in
the investigation and prosecution of crimes involving DOD programs, operations and personnel, including
the investigation of some alleged violations of LOAC. DOD and DOJ policy with regard to the investigation
and prosecution of criminal matter is set forth in a Memorandum of Understanding (MOU) between the DOD
and DOJ (implemented by DODI 5525.07). The MOU is a general policy and not specific to LOAC
violations. Under the MOU, DOD generally will investigate most crimes committed on a military installation
or during military operations. If the crime was committed by a person subject to the UCMJ, the Military
Department concerned generally will take the lead in prosecuting the offender. DOJ is responsible for
prosecution when the perpetrator is not subject to the UCMJ. Commanders should consult with a judge
advocate and adhere to applicable DOD policies regarding DOJ involvement in a particular matter.
WHO MAY BE HELD ACCOUNTABLE
8-27. Those personnel who commit a war crime may be held individually responsible. In addition to the
individual, others may be held responsible, such as the commander, those who aided and abetted an offense,
and those who conspired with them to commit the crime—and even those who conspire to commit a war
crime that does not occur. Other theories of criminal responsibility under international law include joint
criminal enterprise responsibility, command responsibility and responsibility for planning, instigating, or
ordering the crime. Under the UCMJ, a person who aids, abets, counsels, commands, or procures the
commission of an offense may be punishable (see UCMJ, art. 77).
Individual Responsibility
8-28. Any person who commits an act that constitutes a crime under international law, who aids, abets, or
counsels such a crime, or orders the commission of, conspires to commit, or attempts to commit such a crime
is responsible for the crime and is liable to punishment (see DOD Law of War Manual, 18.22.1). Even if the
act is not punishable as a crime in the person’s own State, the individual is not relieved from criminal
responsibility under international law (see DOD Law of War Manual, 18.22.2). Further, a person acting
pursuant to an order of their government or of a superior is not relieved from responsibility under international
law for acts that constitute a crime under international law, provided it was possible in fact for the person to
make a moral choice (see DOD Law of War Manual, 18.22.4; but see para. 8-67(describing when superior
orders might constitute a legitimate defense)).
Command Responsibility
8-29. Commanders have a duty to maintain order and discipline within their command and to ensure
compliance with applicable law by those under their command or control. Commanders, therefore, may be
liable for the criminal acts of their subordinates or other persons subject to their control even if the
commander did not directly participate in the underlying offenses (see DOD Law of War Manual, 18.23.3).
In order for the commander to be liable, however, the commander’s personal dereliction must have
contributed to or failed to prevent the offense; the commander is required to take necessary and reasonable
measures to ensure that their subordinates do not commit violations of LOAC. |
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8-30. For instance, if soldiers commit massacres or atrocities against POWs or against the civilian population
of occupied territory, the responsibility may rest not only with the actual perpetrators, but also with the
commander if the commander’s dereliction contributed to the offense. If the commander concerned ordered
such acts be carried out, then the commander would have direct criminal responsibility (UCMJ, Art. 77: “Any
person punishable under this chapter who – commits an offense punishable by this chapter, or… commands…
its commission… is a principal.”).
8-31. Under international law, criminal responsibility may also fall on commanders or certain civilian
superiors with similar authorities and responsibilities as military commanders if they had actual knowledge
or constructive knowledge of their subordinates’ actions and failed to take “necessary and reasonable”
measures to prevent or repress those violations. That is, commanders may be held responsible if they knew
or should have known, through reports received by them or by other means, that troops or other persons
subject to their control were about to commit or have committed a war crime and did nothing to prevent such
crimes or punish the violators. Once established that a commander has knowledge (actual or constructive) of
a subordinates’ actions, the commander may be liable under international law only where failure to supervise
subordinates properly constitutes criminal negligence on the commander’s part. That is, the commander may
be criminally liable where there is personal neglect amounting to a wanton, immoral disregard of the action
of the commander’s subordinates that amounts to acquiescence in the crimes.
Aiding and Abetting
8-32. An individual who aids and abets, as well as one who counsels, commands, assists, encourages,
advises, or instigates another to commit an offense or one who procures the commission of an offense may
be held responsible for an offense equally as one who actually commits the offense (see UCMJ, Art. 77).
Aiding and abetting liability for an offense can be usefully analyzed by evaluating: (1) knowledge of the
illegal activity being aided, abetted, or counseled; (2) a desire to help the activity succeed; and (3) some act
of helping (see DOD Law of War Manual, 18.23.4).
Conspiracy
8-33. A conspiracy exists when two or more persons agree to commit a criminal offense and at least one of
the persons does something to effect the agreed-upon offense while the agreement exists. Under U.S. law,
conspiracy can take one of two forms. First, it can be based on a completed crime, such as the murder of
civilians. Conspiracy entails intentional participation in a common plan to complete a war crime. The
individual need not engage in the physical act of the war crime. He or she must intentionally participate in
the common plan, although the role can be relatively minor. To be found guilty under U.S. law, an accused
need not have prior knowledge of a particular crime, as long as the accused intended to aid acts of similar
character, such as the murder of civilians. Second, conspiracy can be charged as a separate, stand-alone
offense requiring only an agreement and some overt act furthering the agreement (also known as inchoate
conspiracy).
8-34. The crime of conspiracy can be found in a number of statutes applicable to war crimes, including the
War Crimes Act, other sections of Title 18 of the U.S. Code, the UCMJ, and the Military Commissions Act
(MCA). Defendants have argued in litigation that the Constitution does not allow for the offense of
conspiracy to be tried by military commission because it is not an offense under the international law of war.
The Government has responded to that argument by, among other things, noting that U.S. military
commissions tried and convicted a number of defendants on conspiracy charges during the Civil War and
World War II. Current appellate litigation in the Military Commissions may afford U.S. practitioners with
clarity on this issue. (Compare UCMJ art. 81, 10 U.S.C. § 881, with 10 U.S.C. § 950t (29)).
Joint Criminal Enterprise
8-35. Although not specifically reflected in U.S. law, international criminal tribunals in recent years have
held individuals acting together with others pursuant to a common design, guilty of offenses committed by
other members of the group, even though the individual did not commit the punishable offense personally;
this form of liability is very similar to the first form of conspiracy discussed above (paragraph 8-33) (see, for
example, Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, 220 (International Criminal Tribunal for the
former Yugoslavia [ICTY] App. Chamber, July 15, 1999)). This basis is sometimes referred to as joint |
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criminal enterprise or “JCE.” In other words, under JCE, every person of the joint enterprise may be held
equally liable as a conspirator, even if his or her actions are distant from the actual execution of the crimes.
It is not a violation itself, but rather a theory upon which an individual can be liable for violations committed
by others.
Planning, Instigating, and Ordering
8-36. The ICTY provides that an accused can be liable under international law for planning, instigating, or
ordering a violation of LOAC, even though the accused does not physically commit the violation (ICTY art.
7(1)). Under U.S. law, an individual who planned, instigated, or ordered conduct that would constitute a war
crime may be liable for that crime as a principal or aider and abettor (see paragraph 8-32).
PROSECUTION OF WAR CRIMES
8-37. Prosecution of war crimes requires individual States with competent authority, or international courts
granted authority by competent States, to assert jurisdiction, provide a venue, and authorize punishment in
order to try those who violate LOAC. This section examines jurisdiction and venue issues, penalties, and
defenses from a U.S. perspective.
JURISDICTION AND VENUE
8-38. Acts that constitute war crimes are within the jurisdiction of general courts-martial (UCMJ art. 18; 10
U.S.C. § 818), military commissions, provost courts, other U.S. military tribunals (UCMJ art. 21; 10 U.S.C.
§821), and U.S. civilian courts.
8-39. An act that constitutes a war crime under LOAC likely also constitutes a crime under U.S. law. Persons
subject to the UCMJ are ordinarily charged with violations of a specific provision of the UCMJ rather than a
violation of LOAC because charging offenses as specific UCMJ violations prevent adjudication of complex
issues, such as proving a state of armed conflict existed. Charging an offense under the UCMJ carries a
maximum punishment that is comparable to violations of federal law, and is a method with which military
prosecutors are familiar (see RCM 307 Discussion). Before considering to pursue charges against DOD
personnel under LOAC, consideration should be given to the availability of prosecution under specific
provisions of the UCMJ.
Universality of Jurisdiction
8-40. In respect to grave breaches, the State’s obligation under the 1949 Geneva Conventions is to prosecute
or, under certain circumstances, to transfer to another State for prosecution, alleged perpetrators regardless
of their nationality (see, for example, GPW art. 129). Historically neutral or non-belligerent States have
generally not exercised jurisdiction in relation to alleged war crimes, and such efforts in recent years have
sometimes met strong objections and generally have not been successful without the consent of belligerent
States. The jurisdiction of U.S. military tribunals in connection with war crimes is not limited to offenses
committed against U.S. citizens, but extends to offenses committed against nationals of allies, co-belligerents,
and stateless persons. Persons subject to the UCMJ who commit LOAC violations are usually prosecuted for
offenses under the UCMJ via courts-martial, and the UCMJ explicitly “applies in all places” (10 U.S.C. §
805). Violations of LOAC committed in the United States or committed by other U.S. persons usually
constitute violations of federal criminal law and would ordinarily be prosecuted under such laws.
Commanders of U.S. service members and civilians must ensure that members of their command who commit
war crimes are promptly investigated and, when there is sufficient evidence, adequately punished (see
paragraphs 8-13 to 8-18).
Uniform Code of Military Justice
8-41. Persons who are subject to the UCMJ include members of the Active and Reserve Components of the
U.S. Armed Forces, POWs in the custody of the United States, and in time of declared war or contingency
operations, persons serving with or accompanying the Armed Forces in the field (UCMJ art. 2; 10 U.S.C. §
802). The UCMJ explicitly applies in all places and can be enforced against individuals subject to the UCMJ
even if they have committed crimes outside the United States. Accordingly, the UCMJ provides great |
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flexibility in prosecuting individuals for crimes committed on the battlefield and in occupied territories.
Courts-martial can be (and often are) convened outside the territorial limits of the United States by employing
military judges and other qualified military personnel who can handle cases in austere environments.
8-42. Long-standing U.S. practice is to charge war crimes as offenses under the UCMJ rather than as separate
“war crimes” offenses. Offenses under the UCMJ that could be used to punish conduct that violated LOAC
include, but are not limited to:
* Article 81 (10 U.S.C. § 881), Conspiracy;
* Article 93 (10 U.S.C. § 893), Cruelty and maltreatment;
* Article 108 (10 U.S.C. § 908), Military Property of United States – loss, damage, destruction, or
wrongful disposition;
* Article 108a (10 U.S.C. § 908a), Captured or abandoned property;
* Article 109 (10 U.S.C. § 909), Property other than military property of United States – waste,
spoilage, or destruction;
* Article 118 (10 U.S.C. § 918), Murder;
* Article 119 (10 U.S.C. § 919), Manslaughter;
* Article 119a (10 U.S.C. § 919a), Death or injury of an unborn child;
* Article 120 (10 U.S.C. § 920), Rape and sexual assault generally (including Forcible Sodomy);
* Article 120b (10 U.S.C. § 920b), Rape and sexual assault of a child;
* Article 120c (10 U.S.C. § 920c), Other sexual misconduct;
* Article 125 (10 U.S.C. § 925), Kidnapping;
* Article 126 (10 U.S.C. § 926), Arson;
* Article 128 (10 U.S.C. § 928), Assault;
* Article 128a (10 U.S.C. § 928a), Maiming; and
* Article 130 (10 U.S.C. § 920), Stalking.
8-43. Conduct that violates LOAC can also be charged using the UCMJ’s provision against disobedience of
lawful orders or general regulations (UCMJ art. 92; 10 U.S.C. § 892), as well as under the UCMJ’s general
prohibition against conduct prejudicial to good order and discipline in the Armed Forces (UCMJ art. 134; 10
U.S.C. § 934).
Other Federal Crimes
8-44. Prosecutions can also occur under U.S. domestic law for certain violations of LOAC. For example, the
War Crimes Act authorizes the prosecution of individuals for certain war crimes, whether such crimes are
committed inside or outside the United States, if the victim or the perpetrator is either a U.S. national or a
member of the U.S. Armed Forces (18 U.S.C. § 2441). Under this law, war crimes means any conduct:
* Defined as a grave breach of any of the 1949 Geneva Conventions or any protocol to one of those
conventions to which the United States is a party (currently only AP III);
* Violations of certain listed articles of the Hague Regulations;
* Which constitutes a grave breaches of Common Article 3 of the 1949 Geneva Conventions as
more specifically defined in the War Crimes Act; and
* In relation to an armed conflict and contrary to the provisions the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices (CCW Amended Protocol II),
when a person willfully kills or causes serious injury to civilians.
8-45. While an individual could be charged with a war crime in a court-martial under article 18, UCMJ, it is
difficult (especially in recent conflicts) to define the jurisdictional element of the type of conflict and the
substantive crimes under international law. In addition, the wide range of offenses that can be charged under
the UCMJ make it unnecessary to use this provision for that purpose, and also charging under this provision
may be precluded under the Preemption Doctrine as set forth in the Manual for Courts-Martial United States,
Part IV, paragraph 91.c(5)(a). Finally, the War Crimes Act is available to prosecute individuals in U.S.
Federal Court in the alternative (upon agreement between the DOD and the DOJ) and also addresses those
who are not subject to the UCMJ but otherwise fall within the jurisdiction of the War Crimes Act. |
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8-46. Other laws criminalize acts of torture, attempts to commit torture, and conspiracy to commit torture
outside the United States when the offender is a U.S. national or is located within the United States (18 U.S.C.
§2340A). Other relevant provisions of the law allow for the prosecution of:
* Genocide (18 U.S.C. § 1091);
* Murder or manslaughter of foreign officials, official guests, or internationally protected persons
(18 U.S.C. § 1116);
* Piracy (18 U.S.C. §§ 1651-1661);
* Terrorism and material support to terrorists (18 U.S.C. §§ 2331-2339D); and
* Various acts involving biological weapons, chemical weapons, weapons of mass destruction, or
nuclear weapons (18 U.S.C. §§ 175, 229, 832, 2332a).
A number of these provisions limit their application to offenses committed within the United States, or by or
against citizens of the United States; but others, such as piracy, apply regardless of the location of the offense
or the nationality of the offender or victim(s).
Prosecution of Civilians, Former Military Members, Prisoners of War, and Enemy Belligerents
8-47. While the discussion on jurisdiction and venue thus far applies to U.S. Service Members who commit
war crimes, the next sections discuss U.S. jurisdiction over and venue for trying non-U.S. service members—
civilians, former military members, enemy POWs, and enemy belligerents.
Military Extraterritorial Jurisdiction Act of 2000
8-48. The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) is a venue statute that allows the U.S.
government to prosecute individuals who commit certain offenses outside the United States either while
employed by or accompanying the U.S. Armed Forces outside the United States or while a member of the
U.S. Armed Forces subject to the UCMJ. Under MEJA, the U.S. Government can assert jurisdiction for
certain offenses that are not otherwise subject to jurisdiction under U.S. law, including certain offenses
committed outside the United States by civilians accompanying the U.S. Armed Forces (such as contractors
and civilian employees) or by persons who were military members at the time of the offense, but have been
discharged from the U.S. Armed Forces or are no longer subject to the UCMJ. Under MEJA, an individual
falling within either of these two categories is subject to prosecution for an offense committed outside the
United States if that offense would carry a punishment of more than one year if committed within the special
maritime and territorial jurisdiction of the United States. MEJA prosecutions are handled by the Department
of Justice. Although not limited to conduct that constitutes LOAC violations, MEJA allows for criminal
prosecution of individuals’ conduct that constitutes LOAC violations committed outside the United States.
Prosecution under MEJA is not limited to U.S. citizens. Foreign nationals employed by or accompanying
U.S. forces are also subject to prosecution under MEJA with the exception of host nation nationals or a person
ordinarily resident in the host nation.
8-49. A crime charged pursuant to MEJA does not need to be a crime under the law of the country where the
crime was committed. When the conduct violates both the laws of the foreign State and is a qualifying offense
for MEJA purposes, however, international agreements, such as status of forces agreements, may indicate
which country has jurisdiction to prosecute the individual.
8-50. Department of Defense policy requires that all employees or persons accompanying the force outside
the United States, particularly those who are not nationals of the United States, are informed of the potential
scope of MEJA (see DODI 5525.11). Knowledge of MEJA and its potential criminal sanctions serves a
deterrent purpose in helping preserve good order and discipline in military operations outside the United
States.
Uniform Code of Military Justice Applicable to Civilians During Military Operations
8-51. Commanders have disciplinary authority pursuant to the UCMJ over civilians accompanying the
Armed Forces overseas during military operations. “In time of declared war or a contingency operation,
persons serving with or accompanying an armed force in the field” are subject to the UCMJ (UCMJ art.
2(a)(10)). It is DOD policy that the requirement for good order and discipline of the Armed Forces outside
the United States extends to civilians employed by or accompanying the Armed Forces, and that such persons |
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who engage in conduct constituting criminal offenses shall be held accountable for their actions, as
appropriate (DODI 5525.11).
8-52. When an offense alleged to have been committed by a civilian that violates U.S. federal criminal law
occurs, DOD policies may provide for notification of responsible DOJ authorities to afford DOJ the
opportunity to pursue prosecution of the case in federal district court (Secretary of Defense Memorandum,
“UCMJ Jurisdiction Over DoD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving
With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations,”
March 10, 2008). While the notification and decision process is pending, commanders and military criminal
investigators should continue to take appropriate action to address the alleged crime. Commanders should
also ensure that any preliminary military justice procedures that would be required in support of the exercise
of UCMJ jurisdiction continue to be accomplished during the concurrent DOJ notification process.
Commanders should be prepared to act, as appropriate, should possible U.S. federal criminal jurisdiction
prove to be unavailable to address the alleged criminal behavior.
U.S. Military Commissions
8-53. In the past, military commissions have been used by the United States and other States to prosecute
enemy belligerents for violations of the law of war and for acts of unprivileged belligerency. Military
commissions have also been used for the trial of offenses under U.S. law where local courts were not open
and functioning, such as when martial law applies, and for the trial of violations of occupation ordinances
(DOD Law of War Manual, 18.19.3.7).
8-54. Generally, courts-martial may be used in lieu of military commissions to try POWs in U.S. military
custody (GPW art. 102; UCMJ art. 2(a)(9)). Military commissions are used to try others, including alien
unprivileged belligerents, for LOAC violations and other offenses. Procedures for military commissions are
similar to those for general courts-martial under the UCMJ (see, for example, 10 U.S.C. § 948b(c); Manual
for Military Commissions (MMC)).
8-55. Under the MCA, thirty-two substantive crimes are triable by military commission (10 U.S.C. § 950t).
The jurisdiction of military commissions under the MCA is limited to individuals who are alien unprivileged
enemy belligerents (10 U.S.C. §948c). The term “unprivileged enemy belligerent,” for purposes of the statute,
means an individual (other than a privileged belligerent) who:
* Has engaged in hostilities against the United States or its coalition partners;
* Has purposefully and materially supported hostilities against the United States or its coalition
partners; or
* Was a part of al Qaeda at the time of the alleged offense under the MCA (10 U.S.C. § 948a(7))
(compare to paragraph 1-64).
8-56. Under the MCA, an individual subject to a military commission is entitled to fair trial guarantees,
including defense counsel; notice of charges alleged; the exclusion of evidence obtained by torture or cruel,
inhumane, or degrading treatment; protection against self-incrimination and the inappropriate admission of
hearsay evidence; the right to be present at proceedings, offer evidence, and confront witnesses; and to
protection against former jeopardy. Procedures for military commissions also address the treatment,
admissibility, and discovery of classified information, limits on sentencing, the execution of confinement,
and post-trial review procedures (10 U.S.C. §948q(b)- 950j).
International Tribunals
8-57. On a number of occasions since the beginning of the 20th century, war crimes, crimes against
humanity, genocide, and crimes against peace were prosecuted by special international tribunals. These
tribunals were established to address crimes committed during specific periods or in connection with specific
conflicts. In general, these tribunals have applied international law, including the Geneva Conventions and
their Additional Protocols, as well as the HRICR. The statute governing each tribunal typically stipulates the
specific types of crimes addressed by the tribunal and the standards for culpability. The decisions of these
tribunals do not bind the United States and its courts. Their decisions, however, provide useful examples of
the application of international law. An example of a special international tribunal, created by Great Britain,
France, the United States, and the Union of Soviet Socialist Republics, was the International Military |
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Tribunal. This tribunal conducted the landmark Trial of Major War Criminals, with 21 Axis defendants, in
Nuremberg, Germany, from November 1945 to October 1946. Another post-war tribunal was established in
Tokyo to try war criminals in the Pacific Theater of World War II. The jurisprudence of the ICTY, established
by the UN Security Council in 1993, also provides numerous examples of war crimes prosecutions.
International Criminal Court and the Rome Statute
8-58. In 1998, 120 Nations at a Diplomatic Conference in Rome voted to approve the final text of the Rome
Statute, adopting a treaty that establishes an International Criminal Court (ICC). The Rome Statute entered
into force on July 1, 2002. Although the United States did not vote in favor of the treaty and has indicated
that it does not intend to become a party to the Rome Statute, the U.S. delegation contributed significantly to
its development, including the drafting of the elements of crimes and the inclusion of fundamental due
process protections.
8-59. Unlike tribunals that were established for specific conflicts, the ICC, which is located in The Hague,
is intended to apply to situations after the establishment of the ICC. The Rome Statute provides that the ICC
“shall have the power to exercise its jurisdiction over persons for the most serious crimes of international
concern” and “shall be complementary to national criminal jurisdictions” (Rome Statute art. 1). The latter
principle that the ICC’s jurisdiction is “complementary” means that the ICC should not investigate or
prosecute allegations when a State is or has already genuinely done so. The Rome Statute provides that the
ICC has jurisdiction with respect to:
* The crime of genocide,
* Crimes against humanity,
* War crimes, and
* The crime of aggression.
8-60. The Rome Statute generally only confers jurisdiction on the ICC when the accused is a national of a
Rome Statute Party; when the conduct occurs on the territory of a Rome Statute Party; or when the conduct
occurs in a situation that has been referred to the ICC by the UN Security Council. The ICC will not prosecute
an individual when a State has exercised or is in the process of exercising jurisdiction over the matter, unless
that State is unwilling or unable to genuinely investigate or prosecute the case (Rome Statute art. 17). While
the ICC purports to exercise jurisdiction over non-State Parties to the Rome Statute, the United States has a
longstanding and continuing objection to any assertion of jurisdiction by the ICC with respect to nationals of
States not Party to the Rome Statute in the absence of consent from such States or a referral by the Security
Council (see DOD Law of War Manual, 18.20.3.1). Further, the U.S. Government has negotiated SOFAs and
other agreements with many countries, which under a provision of the Rome Statute (art. 98) clarify that U.S.
personnel may not be turned over to the ICC by those countries absent U.S. consent. Moreover, in
multinational operations or peace operations U.S. personnel may be asked to cooperate with ICC prosecutors
who are investigating allegations of genocide, crimes against humanity, or war crimes. Any requests for
cooperation by the ICC should be forwarded to DOD because such requests implicate U.S. policy toward the
ICC and U.S. law, including the American Service Members’ Protection Act, imposes certain restrictions on
any support to the ICC.
Forum Considerations Connected to the Status of the Accused
8-61. Ordinarily, U.S. service members should be tried by courts-martial under appropriate provisions of the
UCMJ or, if separated from the military, in Federal court pursuant to MEJA (see paragraphs 8-37 and 8-50).
8-62. Civilians who commit war crimes while serving with or accompanying U.S. forces outside the United
States face prosecution in Federal court under the War Crimes Act or other Federal law. Additionally,
civilians serving with or accompanying the Armed Forces in the field are subject to trial by court-martial for
violations of the UCMJ as long as the DOJ does not assert jurisdiction to prosecute in Federal court. The
United States may prosecute enemy POWs or retained personnel captured in an international armed conflict
who commit war crimes (either pre-capture or while detained) in courts-martial or other proceedings,
provided the requirements of the GPW are met (see DOD Law of War Manual, 9.28; see paragraph 8-54). |
6-27 | 186 | Chapter 8
8-63. An accused who is not a U.S. citizen and who meets the definition of an unprivileged enemy belligerent
under the terms of the MCA is subject to trial before a military commission or in Federal court pursuant to
U.S. law (see paragraph 8-55).
Sanctions Against Misconduct in Other Military Operations
8-64. When war crimes are charged as “war crimes,” the applicable criminal statutes generally also provide
a requirement that the conduct occur in the context of and in association with an “armed conflict” (see, 18
U.S.C. § 2441). While U.S. military personnel may engage in operations that do not involve armed conflict,
it is DOD policy to comply with LOAC in all military operations regardless of how they are characterized
(DODD 2311.01E para. 4.1). The specific criminal sanctions available to enforce compliance with these
standards may vary, however, depending on the relationship with other sovereign States in any given
operation, especially the host nation. The United States always abides by the “law of the flag”—the legal
standards and enforcement mechanisms it brings with the force. Sometimes U.S. service members engaged
in peace operations or other military operations short of armed conflict are subject to the laws of the nation
in which the activity is conducted, which laws may be more restrictive concerning the use of force than may
be permitted under multinational force rules of engagement (JP 3-07.3 para. 3(h)). In general, the application
of host-nation law to these other operations is governed by an international agreement, such as a status-of-
forces agreement or, for United Nations operations, a status of mission agreement (JP 3-07.3 para. 7(b)).
These agreements define the circumstances under which the host nation may exercise jurisdiction over peace
operations personnel (both military and civilian) who commit crimes in the host nation. In all cases, however,
the UCMJ will apply to the activities of U.S. service members, regardless of the nature of the operation or
where the potential crime occurs (RCM 203).
PENALTIES
8-65. Penalties vary depending on the war crime committed and the law pursuant to which the crime is being
prosecuted. Authorized punishments can range from fines or letters of reprimand to death. For instance, for
the offense of murder under the UCMJ, the accused may be subject to death or life imprisonment (UCMJ,
art. 118). Crimes under the War Crimes Act, the MCA, or other U.S. law also carry significant penalties.
Generally, violations of the War Crimes Act that result in the death of a victim may be punishable by death
(18 U.S.C. § 2441(a)). Grave breaches that authorize the death penalty include willful killing, torture,
inhumane treatment, or willfully causing great suffering or injury (GWS art. 50; GWS Sea art. 51; GPW art.
130; GC art. 147).
DEFENSES
8-66. The availability of legal defenses to charges of war crimes may depend on the specific jurisdiction and
forum in which charges are brought. The following general information regarding affirmative defenses that
negate criminal responsibility under general principles of criminal law and war crimes may be helpful, but
commanders should request legal advice if they have specific questions.
General Legal Defenses
8-67. Individuals being tried by a U.S. court-martial for war crimes (either as violations of the UCMJ, as
violations of other Federal law, or as LOAC violations) may assert legal defenses available under the UCMJ
(RCM 916; MMC pt. II, Rule 916).
Justification
8-68. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and
not unlawful. This includes a privileged belligerent’s killing of an enemy combatant in combat and other acts
that would otherwise be offenses under local criminal law (RCM 916(c) Discussion; MMC, pt. II, Rule
916(c)). |
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Self-Defense
8-69. Self-defense generally requires the accused to demonstrate an apprehension, on reasonable grounds,
that death or bodily harm was about to be wrongfully inflicted and that the force used by the accused was
necessary for protection against such death or bodily harm (RCM 916(e)). The plea of self-defense has been
recognized in war crimes trials under much the same circumstances as in trials held under ordinary criminal
law (see, for example, MMC pt. II, Rule 916(e)).
Accident
8-70. Death, injury, or damage that occurs as the unintentional and unexpected result of doing a lawful act
in a lawful manner (for example, conduct of military operations in accordance with LOAC) is an accident
and is excusable. The defense is not available when the act that caused the death, injury, or damage was a
negligent act (RCM 916(f); MMC pt. II, Rule 916(f)).
Ignorance or Mistake of Fact
8-71. It is generally a defense to an offense that the accused held, as a result of ignorance or mistake, an
incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them,
the accused would not be guilty of the offense (RCM 916(j); MMC pt. II, Rule 916(j)).
LOAC-Specific Discussion of Defenses
8-72. There may be specific LOAC issues with respect to arguments that military necessity, lawful reprisals,
superior orders, government officials, or ignorance or mistake of law constitute a valid defense.
Military Necessity is not a Defense to Justify LOAC Violations
8-73. Following World War II, war crimes tribunals specifically rejected defense arguments that military
necessity (Kriegsraison) could be used to justify LOAC violations (see DOD Law of War Manual, 2.2.2.1,
citing the Krupp case and others). One may not justify LOAC violations by invoking the need to win the war.
Lawful Reprisals
8-74. Reprisals are acts taken against a party that are otherwise unlawful under LOAC in order to persuade
that party to cease violating the law. A reprisal is considered lawful, provided that the stringent conditions
for lawful reprisal have been met, including complying with any applicable prohibitions against reprisal. The
fact that the conduct was part of a lawful reprisal action thus means that would not need to part of a valid
defense (see paras. 8-80 to 8-86 for additional information).
Superior Orders
8-75. The fact that a person acted pursuant to orders of his or her Government or of a superior does not
relieve that person from responsibility under international law, provided it was possible in fact for that person
to make a moral choice (see DOD Law of War Manual, 18.22.4). Under the RCM and MMC, it is a defense
to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be
unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful (RCM
916(d); MMC pt. II, Rule 916(d)). An order requiring the performance of a military duty or act may be
inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a
patently illegal order, such as one that directs the commission of a crime (for example, an order directing the
murder of a civilian, a noncombatant, or a combatant who is hors de combat, or the abuse or torture of a
prisoner) (see, for example, MCM pt. IV, para. 14c(2)(a)(i)). The fact that an offense was committed pursuant
to superior orders may also be considered as mitigation to reduce the level of punishment (see, for example,
United States v. Sawada, V U.N. Law Reports 7-8, 13-22; ICTY art. 7(4)).
Government Officials
8-76. The fact that a person who committed an act that constitutes a crime under international law acted as
Head of State or responsible Government official does not relieve him or her of responsibility under |
6-27 | 188 | Chapter 8
international law (see DOD Law of War Manual, 18.22.3). Most war crimes tribunals have held that the fact
a person acted as a Head of State or as a government official is not a defense to prosecution and punishment
for war crimes, nor has acting as such been considered as a factor in mitigating punishment (see, for example,
Charter of the International Military Tribunal art. 7). Although status as a government official is not a
substantive defense to liability under international law, government officials may receive immunities or other
procedural protections from a foreign State’s exercise of jurisdiction. For example, a Status of Forces
Agreement could provide that it is for the sending State to exercise jurisdiction, rather than the host State, in
respect of allegations that the sending State’s forces had committed war crimes.
Ignorance or Mistake of the Law
8-77. Ignorance or mistake of law ordinarily is not a defense (RCM 916(l)(1); MMC pt. II, Rule 916(l)(1)).
Individuals are expected to ascertain and conduct themselves within applicable law (see, for example, United
States v. Flick (The Flick Case), VI Trials of War Criminals 1208). Ignorance or mistake of law may be a
defense in certain circumstances, such as when the mistake relates to a separate non-penal law or potentially
when the mistake results from reliance on the decision or pronouncement of an authorized public official or
agency (RCM 916(l)(1) Discussion). For example, ignorance of international law may serve as a defense
when the accused acts pursuant to superior orders and cannot, under the conditions of military discipline and
operations, be expected to weigh scrupulously the legal merits of the order received (Trial of Karl Buck and
Ten Others, V U.N. Law Reports, 39, 44). Ignorance of international law may also be a mitigating factor in
considering punishment (see, for example, United States v. Sawada, V U.N. Law Reports 7-8).
REMEDIES FOR VIOLATION OF LOAC
8-78. In the event of a LOAC violation, it may be possible for an injured State to seek to resort to one or
more of the following remedies:
* A formal or informal complaint to the offending belligerent through the protecting power or
neutral States;
* Publication of the facts, with a view to shaping public opinion against the offending belligerent;
* A formal inquiry among the parties into alleged violations (see paragraph 8-79);
* A UN Security Council resolution to take appropriate action under the UN Charter (UN Charter
art. 34);
* Complaints to the offending belligerent, including protest and demand for compensation or
punishment of individuals responsible for the violation (Hague IV art. 3; consider AP I art. 91);
* Solicitation of the good offices (that is, the diplomatic assistance), mediation, or intervention of
neutral States for purposes of making the offending belligerent observe its obligations under
LOAC;
* Punishment of captured individual offenders as war criminals, either by tribunals of the aggrieved
belligerent or its co-belligerents, or by international tribunals, if such tribunals have jurisdiction;
or
* Reprisals against the offending belligerent in order to pressure it to desist from violations of LOAC
(see paragraphs 8-80 to 8-86).
INQUIRIES UNDER THE GENEVA CONVENTIONS
8-79. The 1949 Geneva Conventions provide that, at the request of a party to the conflict, an inquiry shall
be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of
the 1949 Geneva Convention (DOD Law of War Manual, 18.14.1). If agreement has not been reached
concerning the procedure for the inquiry, the Parties should agree on the choice of an “umpire” who will
decide upon the procedure to be followed. The Conventions further provide that if the inquiry establishes that
a violation has occurred, the parties to the conflict are to put an end to the violation and to repress the violation
with the least possible delay (GWS art. 52; GWS Sea art. 53; GPW art. 132; GC art. 149). Article 90 of AP
I establishes an International Fact-Finding Commission, which operates on the basis of mutual consent (see
DOD Law of War Manual, 18.14.1.1). Although many nations have accepted this provision, the commission |
6-27 | 189 | War Crimes and Enforcement of the Law of Armed Conflict
has yet to conduct an inquiry. The United States, which is not a party to AP I has not recognized the
competence of this Commission.
REPRISALS
8-80. Reprisals are acts that are otherwise not permitted by LOAC in order to persuade a party to the
conflict to cease violating LOAC. They are taken in response to a prior act in violation of LOAC that was
committed by or is attributable to that party. This could include, for example, the use of weapons forbidden
by the Hague Regulations to counter the use of the same weapons by an enemy on combatants who have not
yet fallen into the hands of the enemy. Reprisals are extreme measures that are only adopted as a last resort
to induce the party to desist from violations of LOAC.
Conditions for Reprisals
8-81. Customary international law permits reprisals, subject to certain conditions. Reprisals are highly
restricted in treaty provisions (see paragraphs 8-87 and 8-88) and practical considerations may counsel
against their use (see DOD Law of War Manual, 18.18.4). The conditions in paragraphs 8-82 to 8-86 are
drawn from U.S. practice (see DOD Law of War Manual, Section 18.18).
Careful Inquiry That Reprisals are Justified
8-82. Reprisals shall be resorted to only after a careful inquiry into the facts to determine that the enemy has,
in fact, violated the law (see DOD Law of War Manual, 18.18.2.). In many cases, whether a law of war rule
has been violated will not be apparent to the opposing side or outside observers.
Proportionality in Reprisal
8-83. To be legal, reprisals must respond in a proportionate manner to the preceding illegal act by the party
against which they are taken. Identical reprisals are the easiest to justify as proportionate, because subjective
comparisons are not involved. However, the acts resorted to by way of reprisal need not be identical nor of
the same type as the violations committed by the enemy. A reprisal should not be unreasonable or excessive
compared to the enemy’s violation (for example, considering the death, injury, damage, or destruction that
the enemy’s violation caused).
Exhaustion of Other Means of Securing Compliance
8-84. Before resorting to reprisals, a party must consider other means of securing compliance with LOAC.
Other means of securing compliance should be exhausted before resorting to reprisals. For example, the
enemy should normally be warned in advance of the specific conduct that may be subject to reprisal and
given an opportunity to cease it unlawful acts. Leaders should consider whether reprisals will lead to
retaliation rather than compliance. In certain situations, the enemy may be more likely to be persuaded to
comply by a steady adherence to LOAC by U.S. forces.
Who May Authorize
8-85. Individual service members may not take reprisal action on their own initiative. That authority is
retained at the national level (see DOD Law of War Manual, 18.18.2.3). Commanders who believe a reprisal
is warranted should report the enemy’s violation promptly through command channels in accordance with
DODD 2311.01E, as well as any proposal for reprisal action.
Public Announcement of Reprisals
8-86. In order to fulfill their purpose of dissuading further illegal conduct, reprisals must be made public and
announced as such to the offending party.
Treaty Limitations on Reprisal
8-87. Certain treaties limit the individuals and objects against which reprisals may be directed. The following
categories are protected from reprisals: |
6-27 | 190 | Chapter 8
* Combatant personnel who are wounded, sick, or shipwrecked (GWS art. 46; GWS Sea art. 47);
* Medical and religious personnel, medical units and facilities, and hospital ships (GWS art. 46;
GWS Sea art. 47);
* POWs (GPW art. 13);
* Persons protected by the GC and their property (GC art. 33;); and
* Cultural property (1954 Hague art. 4(4); consider AP I art. 53).
8-88. Additional Protocol I specified additional restrictions on reprisals that are
applicable to AP I Parties that have not taken reservations to these restrictions, including
protections against reprisal for:
* Civilians and civilian objects (consider AP I art. 52(1));
* The natural environment (consider AP I art. 55(2));
* Objects “indispensable to the survival of the civilian population” (consider AP I art. 54(4));POWs
(GPW art. 13); and
* Public works and installations containing dangerous forces (such as dams, dykes, and nuclear
power stations) (consider AP I art. 56(4)).
Some States in ratifying AP I have taken reservations from the additional limitations on reprisal provided for
in Additional Protocol I. The U.S. position is that Additional Protocol I’s reprisal provisions are counter-
productive and remove a significant deterrent that protects civilians and war victims on all sides of a conflict.
Reprisals are generally extraordinary measures, and, therefore, generally reserved for decision at the national
level. |
6-27 | 191 | Appendix A
Major Law of Armed Conflict Treaties and Their Status
A-1. Law of Armed Conflict Treaties to Which the United States is a Party:
* Washington Convention Regarding the Rights of Neutrals at Sea of October 31, 1854 (10 Stat.
1105, TS 300, 11 Bevans 1214).
* Hague Convention for the Exemption of Hospital Ships, in Time of War, from the Payment of all
Dues and Taxes Imposed for the Benefit of the State of December 21, 1904 (35 Stat. 1854, TS
459, 1 Bevans 430).
* Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities (36 Stat. 2259,
Treaty Series 538).
* Hague Convention IV of October 18, 1907, Respecting the Laws and Customs of War on Land
(36 Stat. 2277, TS 539) (Hague IV), and the Annex thereto, entitled Regulations Respecting the
Laws and Customs of War on Land (36 Stat. 2295, TS 539) (HR).
* Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral Powers
and Persons in Case of War on Land (36 Stat. 2310, TS 540) (Hague V).
* Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic Submarine
Contact Mines (36 Stat. 2322, TS 541, 1 Bevans 669) (Hague VIII).
* Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces in Time
of War (36 Stat. 2351, TS 542) (Hague IX).
* Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard to the
Exercise of the Right of Capture in Naval War (36 Stat. 2396, TS 544, 1 Bevans 711) (Hague XI).
* Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of Neutral Powers
in Naval War (36 Stat. 2415, TS 545, 1 Bevans 723) (Hague XIII).
* Procès-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of
London of April 22, 1930 (3 Bevans 298) (London Protocol).
* Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of August 12, 1949 (6 UST 3114, T.I.A.S. 3362, 75 UNTS 31) (GWS).
* Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea of August 12, 1949 (6 UST 3217, T.I.A.S. 3363, 75 UNTS 85)
(GWS Sea).
* Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (6 UST
3216, T.I.A.S. 3364, 75 UNTS 135) (GPW).
* Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12,
1949 (6 UST 3516, T.I.A.S. 3365, 75 UNTS 287) (GC).
* Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May
14, 1954 (249 UNTS 240) (1954 Hague Cultural Property Convention).
* Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects of October 10,
1980, its Protocols I, II, III, IV, and V, its Amended Protocol II, and its extended scope of
application (1342 UNTS 137) (CCW).
* Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in
Armed Conflict, May 25, 2000 (Optional Protocol on Children in Armed Conflict).
* Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption
of an Additional Distinctive Emblem (Protocol III), December 8, 2005 (AP III).
A-2. Arms Control Agreements to Which the United States Is a Party That Are of Direct Relevance to the
Law of Armed Conflict: |
6-27 | 192 | Appendix A
* Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare of June 17, 1925 (26 UST 571, T.I.A.S. 8061, 94
LNTS 65) (1925 Geneva Gas Protocol).
* Convention on the Prohibition of Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on Their Destruction of April 10, 1972 (26 UST 583, T.I.A.S.
8062, 1015 UNTS 163) (BWC).
* Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques of May 18, 1977 (31 UST 333, TIAS 9614) (ENMOD Convention).
* Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction of January 13, 1993 (CWC).
A-3. 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 Relating to the
Protection of Victims of International Armed Conflicts of June 8, 1977 (AP I).
* Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (AP II).
A-4. Law of Armed Conflict or Relevant Arms Control Treaties to Which the United States Is Neither a
Signatory Nor a Party:
* Hague Declaration (IV, 3) Concerning Expanding Bullets of July 29, 1899.
* Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of
Hostilities of October 18, 1907.
* Hague Convention VII Relating to the Conversion of Merchant Ships into 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 on 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, 1988 (Rome Statute)
A-5. Law of Armed Conflict or Relevant Arms Control Treaties or Documents of Mainly Historical Value:
* St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under
400 Grams Weight of December 11, 1868 (1868 St. Petersburg Declaration).
* Hague Declaration IV, 1 to Prohibit for the Term of Five Years the Launching of Projectiles and
Explosives from Balloons, and Other Methods of a Similar Nature of July 29, 1899.
* Hague Declaration IV, 2 Concerning Asphyxiating Gases of July 29, 1899.
* Hague Convention II with Respect to the Laws and Customs of War on Land, with Annex of
Regulations of July 29, 1899 (32 Stat. 1803, TS 403, 1 Bevans 247) (1899 Hague II).
* Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention of October 18, 1907.
* Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from Balloons of
October 18, 1907.
* Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of February
6, 1922 (1922 Washington 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 Armies in the
Field of July 27, 1929 (47 Stat. 2074; Treaty Series 847) (1929 GWS).
* Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929 (47 Stat. 2021;
Treaty Series 846) (1929 GPW).
* Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments of April
15, 1935 (49 Stat. 3267, TS 899, 3 Bevans 254, 167 LNTS 279) (Roerich Pact). |
6-27 | 193 | Glossary
The glossary lists acronyms and terms with Army or joint definitions. Terms for which
FM 6-27 is the proponent are marked with an asterisk (*). The proponent manual for
other terms is listed in parentheses after the definition.
SECTION I – ACRONYMS AND ABBREVIATIONS
ADP Army doctrine publication
ADRP Army doctrine references publication
AP I Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts
(“Additional Protocol I”) (June 8, 1977). This nonstandard acronym, and its
definition, is for this publication only.
AP II 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). This nonstandard acronym, and its
definition, is for this publication only.
AR Army regulation
CCW 1980 United Nations Convention on Conventional Weapons (official title is the
Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects (Geneva, October 10, 1980))
CID criminal investigation division
CJCSI Chairman of the Joint Chiefs of Staff instruction
DA Department of the Army
DOD Department of Defense
DODI Department of Defense instruction
DODD Department of Defense directive
DOJ Department of Justice
FM field manual
GC Geneva Convention Relative to the Protection of Civilian Persons in Time of
War
GMT Greenwich Mean Time
GPW Geneva Convention Relative to the Treatment of Prisoners of War
GWS Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field
GWS Sea Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea
HR Hague Convention (IV) Respecting the Laws and Customs of War on Land,
Annex: Regulation Concerning the Laws and Customs of War on Land (“The
Hague Regulations”) (The Hague, October 18, 1907). This nonstandard
acronym, and its definition, is for this publication only. |
6-27 | 194 | Glossary
ICC International Criminal Court
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
JP joint publication
LOAC the law of armed conflict
MCA Military Commissions Act
MCO
Marine Corps order
MCTP
Marine Corps tactical publication
MEJA
Military Extraterritorial Jurisdiction Act
MMC
Manual for Military Commissions
NCIS
Naval Criminal Investigative Service
POW
prisoner of war
RCM
Rules for Courts-Martial
UCMJ
Uniform Code of Military Justice
UN
United Nations
U.S.
United States
USC
United States Code
SECTION II – TERMS
Armed Forces of the United States
A term used to denote collectively all components of the Army, Marine Corps, Navy, Air Force, and
Coast Guard (when mobilized under Title 10, United States Code, to augment the Navy). (JP 1).
cartel
An agreement entered into by opposing belligerents for the exchange of POWs (see Lieber Code, art.
106).
civilian internee
A civilian who is interned during armed conflict, occupation, or other miltary operation for security
reasons, for protection, or because he or she committed an offense against the detaining power. Also
called CI. (DODD 2310.01E) (ADP 1-02)
collateral damage
A form of collateral effect that causes unintentional or incidental injury or damage to persons or
objects that would not be lawful military targets in the circumstances ruling at the time. (JP 3-60)
detainee
Any person captured, detained, or otherwise under the control of Department of Defense personnel.
(JP 3-63)
displaced person
A broad term used to refer to internally and externally displaced persons collectively. (JP 3-29)
*distinction
The LOAC principle that obliges parties to a conflict to distinguish between combatants and the
civilian population and to distinguish between military objectives and and protected property and
places.
enemy
A party identified as hostile against which the use of force is authorized. (ADP 3-0) |
6-27 | 195 | Glossary
enemy combatant
In general, a person engaged in hostilities against the United States or its coalition partners during an
armed conflict. (DODD 2310.01E)
*environmental modification technique
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.
*general license
A document that generally or partially relaxes the exercise of the rights of war in regards to trade in
relation to any community or individuals liable to be affected by their operation.
*honor
The LOAC prinicple that demands a certain amount of fairness in offense and defense and a certain
mutual respect between opposing forces. Also called chivalry.
*humanity
The LOAC principle that forbids inflicting suffering, injury, or destruction unnecessary to accomplish
a legitimate military purpose. Also called unnecessary suffering or superflous injury.
*international armed conflict
Any declared war between States, or to any other armed conflict between States, even if the state of
war is not recognized by one of them.
intelligence interrogation
The systematic process of using approved interrogation approaches to question a captured or detained
person to obtain reliable information to satisfy intelligence requirements, consistent with applicable
law. (JP 2-01.2)
*jus ad bellum
That part of international law that regulates the circumstances in which States may resort to the use of
force in international relations.
*jus in bello
That part of international law relating to the conduct of hostilities and the protection of war victims,
from combatants who are wounded and out of combat, to prisoners of war and civilians.
law of armed conflict
See law of war. (JP 3-84)
law of war
That part of international law that regulates the conduct of armed hostilities. Also called the law of
armed conflict. (JP 3-84)
*levée en masse
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.
military deception
Actions executed to deliberately mislead adversary military, paramilitary, or violent extremist
organization decision makers, thereby causing the adversary to take specific actions (or inactions) that
will contribute to the accomplishment of the friendly mission. Also called MILDEC. (JP 3-13.4)
*military necessity
The principle that justifies the use of all measures needed to defeat the enemy as quickly and
efficiently as possible that are not forbidden by the law of armed conflict. |
6-27 | 196 | Glossary
*military objective
Certain persons and objects during hostilities which, by their 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.
military occupation
A condition in which territory is under the effective control of a foreign armed force. See also occupied
territory. (JP 3-0)
*military passport
A document issued by order of a commander of belligerent forces that authorizes a person or persons
named therein and residing or sojourning within territory occupied by such forces to travel unmolested
within the territory, with or without permission to pass, or to pass and return, by designated routes,
through the lines, subject to conditions or limitations imposed by the commander.
National Detainee Reporting Center
The national-level center that accounts for all persons who pass through the care, custody, and control
of the Department of Defense and that obtains and stores information concerning detainees and their
confiscated person property. Also called NDRC. (JP 3-63)
nongovernmental organization
A private, self-governing, not-for-profit organization dedicated to alleviating human suffering; and/or
promoting education, health care, economic development, environmental protection, human rights, and
conflict resolution; and/or encouraging the establishment of democratic institutions and civil society.
Also called NGO. (JP 3-08)
*non-international armed conflict
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.
objective
1.The clearly defined, decisive, and attainable goal toward which an operation is directed. 2. The
specific goal of the action taken which is essential to the commander’s plan. See also target. (JP 5-0)
occupied territory
Territory is considered occupied when it is actually placed under the authority of a hostile army. The
occupation extends only to the territory where such authority has been established and can be
exercised. (HR art. 42)
*opinio juris
A statement of customary international law resulting from a general and consistent practice of States
followed from a sense of legal obligation.
*parlementaire
Agents or envoys employed by commanders in the field to go in person within the enemy lines for the
purpose of communicating or negotiating openly and directly with the enemy commander.
pillage
Intentionally and in the absence of military necessity appropriating or seizing property for private or
personal use, without the consent of a person with authority to permit such appropriation or seizure.
(10 U.S.C. § 950t(5)). Also called looting and plunder.
prisoner of war
A detained person (as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment
of Prisoners of War of August 12, 1949) who, while engaged in combat under orders of his or her
government, is captured by the armed forces of the enemy. Also called POW. (JP 3-50) |
6-27 | 197 | Glossary
*proportionality
The LOAC principle requiring combatants to refrain from attacks in which the expected loss of civilian
life, injury to civilians, and damage to civilian objects would be excessive in relation to the concrete
and direct military advantage expected to be gained.
protected emblems
The red cross, red crescent, and other symbols that designate that persons, places, or equipment so
marked have a protected status under the law of war. Also called the distinctive emblems. (JP 3-60)
protected persons/protected places
Persons (such as enemy prisoners of war) and places (such as hospitals) that enjoy special protections
under the law of war and which may or may not be marked with protected emblems. (JP 3-84)
*protecting power
A neutral or non-belligerent State having a humanitarian role in armed conflict.
repatriation
1.The procedure whereby American citizens and their families are officially processed back into the
United States subsequent to an evacuation. See also evacuation. (JP 3-68) 2. The release and return of
enemy prisoners of war to their own country in accordance with the 1949 Geneva Convention Relative
to the Treatment of Prisoners of War. (JP 1-0)
*reprisal
Acts that are otherwise not permitted by LOAC in order to persuade a party to the conflict to cease
violating LOAC.
retained personnel
Detainees who fall into one of the following categories: a. Designated enemy medical personnel and
medical staff administrators who are engaged in either the search for, collection, transport, or treatment
of the wounded or sick, or the prevention of disease; b. Staff of National Red Cross and Red Crescent
Societies and that of other volunteer aid societies, duly recognized and authorized by their
governments to assist medical service personnel of their own armed forces, provided they are
exclusively engaged in the search for, or the collection, transport or treatment of wounded or sick, or in
the prevention of disease, and provided that the staff of such societies are subject to military laws and
regulations; c. Chaplains attached to enemy armed forces. Also called RP. See also personnel.
(JP 3-63)
safeguard
A detachment, guard, or detail posted by a commander for the protection of persons, places, or
property of the enemy, or of a neutral affected by the relationship of belligerent forces in their
prosecution of war or during circumstances amounting to a state of belligerency (see Manual for
Courts-Martial (2016), part IV, para. 26 (art. 102)).
*safe-conduct pass
A document issued by a commander of belligerent forces, but to persons residing or traveling outside
territory occupied by such forces, to enter and remain within or pass through areas occupied by such
forces.
*special license
A document that allows individuals to take a particular voyage or journey to import or export particular
goods.
*suspension of arms
A form of local armistice concluded between commanders of military forces for some local military
purpose, such as to recover and bury the dead, to collect and care for the wounded and sick, to arrange
for exchange of prisoners, or to enable a commander to communicate with his or her government or
superior. Also called a suspension of fire. |
6-27 | 198 | Glossary
target
An entity or object that performs a function for the threat considered for possible engagement or other
action. See also objective area. (JP 3-60)
targeting
The process of selecting and prioritizing targets and matching the appropriate response to them,
considering operational requirements and capabilities. See also joint targeting coordination board;
target. (JP 3-0)
*unprivileged belligerent
A person who, by engaging in hostilities, has incurred the corresponding liabilities of combatant status
(for example, being subject to attack or detention), but who is not entitled to the distinct privileges of
combatant status (for example, combatant immunity and POW status upon capture).
weaponeering
The process of determining the specific means required to create a desired effect on a given target.
(JP 3-60) |
6-27 | 199 | References
All URLS accessed on 24 July 2019.
REQUIRED PUBLICATIONS
These documents must be available to intended users of this publication.
DOD Dictionary of Military and Associated Terms. June 2019.
ADP 1-02. Terms and Military Symbols. 14 August 2018.
RELATED PUBLICATIONS
These documents contain relevant supplemental information.
JOINT AND DEPARTMENT OF DEFENSE PUBLICATIONS
CJCS issuances are available at https://www.jcs.mil/Library/. DOD issuances are available at
https://www.esd.whs.mil/DD/DoD-Issuances/. Joint publications are available at
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DODI 3020.41. Operational Contract Support (OCS). 20 December 2011.
DODI 5525.07. Implementation of the Memorandum of Understanding (MOU) Between the
Departments of Justice (DOJ) and Defense Relating to the Investigation and Prosecution of
Certain Crimes. 18 June 2007.
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Forces Outside the United States, Certain Service Members, and Former Service Members.
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+June+2015+Updated+Dec+2016/5a02f6f8-eff3-4e79-a46f-9cd7aac74a95
JP 1. Doctrine for the Armed Forces of the United States. 25 March 2013.
JP 1-0. Joint Personnel Support. 31 May 2016.
JP 3-0. Joint Operations. 17 January 2017.
JP 3-07.3. Peace Operations. 1 March 2018.
JP 3-08. Interorganizational Cooperation. 12 October 2016.
JP 3-13.4. Military Deception. 14 February 2017.
JP 3-29. Foreign Humanitarian Assistance. 14 May 2019.
JP 3-50. Personnel Recovery. 2 October 2015. |
6-27 | 200 | References
JP 3-60. Joint Targeting. 28 September 2018.
JP 3-63. Detainee Operations. 13 November 2014.
JP 3-68. Noncombatant Evacuation Operations. 18 November 2015.
JP 3-84. Legal Support. 2 August 2016.
JP 5-0. Joint Planning. 16 June 2017.
ARMY PUBLICATIONS
Unless otherwise indicated, Army publications and regulations are available on the Army Publishing
Directorate (APD) website: https://armypubs.army.mil/.
ADP 3-0. Operations. 31 July 2019.
AR 15-6. Procedures for Administrative Investigations and Boards of Officers. 1 April 2016.
AR 27-53. Review of Legality of Weapons Under International Law. 1 January 1979.
AR 190-8/OPNAVINST 3461.6/AFJI 31-304/MCO 3461.1. Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees. 1 October 1997.
AR 190-45. Law Enforcement Reporting. 27 September 2016.
AR 195-2. Criminal Investigation Activities. 9 June 2014.
AR 350-1. Army Training and Leader Development. 10 December 2017.
FM 2-22.3. Human Intelligence Collector Operations. 6 September 2006.
FM 3-24. Insurgencies and Countering Insurgencies. 13 May 2014.
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Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
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Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
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Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying
the Armed Forces Overseas During Declared War and in Contingency Operations, 10 March
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08dod-ucmj.pdf. |
6-27 | 201 | References
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Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, August 12, 1949.
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Geneva Convention, Relative to the Treatment of Prisoners of War, August 12, 1949. https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/.
Geneva Convention, Relative to the Treatment of Civilian Persons in Time of War, August 12, 1949.
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Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare of June 17, 1925 (1925 Geneva Gas Protocol).
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Hague Rules of Air Warfare of February 17, 1923. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Convention for the Exemption of Hospital Ships in Time of War, from the Payment of all Dues
and Taxes Imposed for the Benefit of the State of December 21, 1904.
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Hague Convention II with Respect to the Laws and Customs of War on Land, with Annex of
Regulations of July 29, 1899. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities.
https://www.loc.gov/law/help/us-treaties/index.php.
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IV), and the Annex thereto, entitled Regulations Respecting the Laws and Customs of War on
Land (HR). https://www.loc.gov/law/help/us-treaties/index.php.
Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land (Hague V).
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Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities of
October 18, 1907. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Convention VII Relating to the Conversion of Merchant Ships into Warships of October 18,
1907. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic Submarine Contact
Mines (Hague VIII).
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Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces in Time of
War (Hague IX). https://www.loc.gov/law/help/us-treaties/index.php.
Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention of October 18, 1907. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard to the
Exercise of the Right of Capture in Naval War (Hague XI).
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Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of Neutral Powers in
Naval War (Hague XIII). https://www.loc.gov/law/help/us-treaties/index.php.
Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from Balloons of
October 18, 1907. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/. |
6-27 | 202 | References
Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14,
1954 (1954 Hague Cultural Property Convention).
https://www.loc.gov/law/help/us-treaties/index.php.
Hague Declaration (IV, 3) Concerning Expanding Bullets of July 29, 1899.
https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Declaration IV, 1 to Prohibit for the Term of Five Years the Launching of Projectiles and
Explosives from Balloons, and Other Methods of a Similar Nature of July 29, 1899.
https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
Hague Declaration IV, 2 Concerning Asphyxiating Gases of July 29, 1899.
https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
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(Lieber Code), April 24, 1863. https://ihl-databases.icrc.org/ihl/INTRO/110.
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of Armed Conflict of March 26, 1999. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/. |
6-27 | 203 | References
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Grams Weight of December 11, 1868. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
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and-detainee-policy.
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1935. https://www.loc.gov/law/help/us-treaties/index.php.
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300, 11 Bevans 2114. https://www.loc.gov/law/help/us-treaties/index.php.
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1922. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/.
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WEBSITES
JAGCNet at https://www.jagcnet.army.mil/
JAGU at https://jagu.army.mil/
The Judge Advocate General’s Legal Center and School Publications at
https://tjaglcspublic.army.mil/publications
PRESCRIBED FORMS
This section contains no entries.
REFERENCED FORMS
Unless otherwise indicated, DA Forms are available on the APD website: https://armypubs.army.mil/.
DA Form 2028. Recommended Changes to Publications and Blank Forms. |
6-27 | 205 | Index
Entries are by paragraph number.
A human rights law, 1-117 status, 3-16
entitled to protection, 3-14
aliens, 5-79 I-J-K other persons, 3-29
armistice, 7-65 internees camps, 3-66
Protection, 5-92 communication, 3-91
attacks on facilities containing
places, 5-95 transfer , 3-153
dangerous forces, 2-117
food and clothing, 5-102 death, 3-157
B-C medical care, 5-105 prohibited labor , 6-133
camp administration religious activity, 5-110 proportionality, 1-44
discipline, 3-117
L proportionality in conducting
penal sanctions, 3-126
attacks, 2-68
law of armed conflict
capitulation, 7-121 incidental harm, 2-71
lex specialis, 1-4
captivity purpose, 1-7 excessive harm, 2-76
beginning of , 3-50 applicability, 1-8 feasible precautions, 2-82
termination of , 3-161 IAC, 1-14 protecting powers, 1-105
civilians NIAC, 1-15 International Committee of the
protection, 5-6 sources, 1-95 Red Cross (ICRC), 1-110
DPH, 2-11 training, 1-120
R
human shields, 2-20 violations, 8-10
humane treatment, 5-16 lawfulness of certain methods of retained personnel, 3-35
classes of persons warfare ruses, 2-172
lawful combatants, 1-51 denial of quarter, 2-103
S
civilians, 1-54 siege, 2-101
unprivileged belligerents, 1-62 obligations to distinguish, starvation, 2-130
2-104
combatants T
Armed Forces, 2-59 M-N targeting, 2-22
Non-state armed groups, 2-61
medical units, 4-17
hors de combat, 2-106 U-V
military necessity, 1-23
communication among undefended cities, towns and
belligerents military objectives, 2-29 villages, 2-122
opposing forces, 7-13
O unprivileged belligerents
parlementaires, 7-17
spies, 1-76
white flag, 7-41 occupation
saboteurs, 1-81
military passport, 7-47 administration, 6-35
protection of population, 6-60 W-X-Y-Z
cultural property, 5-35
relief societies, 6-92
war crimes
D treatment of enemy property,
prosecution, 8-37
6-95
distinction, 1-34
services, 6-129 penalties, 8-65
distinctive emblems, 4-31 public finance, 6-146 remedies for violations of LOAC,
E-F-G penal legislation, 6-181 8-78
occupied territories, 5-66 weapons reviews, 2-201
end of hostilities, 1-114
enemy property, 2-189 P-Q wounded and sick
basic principles, 4-1
perfidy, 2-151
H protection and care, 4-11
prisoners of war
honor, 1-31 |
6-27 | 207 | FM 6-27
07 August 2019
(cid:37)(cid:92)(cid:3)(cid:50)(cid:85)(cid:71)(cid:72)(cid:85)(cid:3)(cid:82)(cid:73)(cid:3)(cid:87)(cid:75)(cid:72)(cid:3)(cid:54)(cid:72)(cid:70)(cid:85)(cid:72)(cid:87)(cid:68)(cid:85)(cid:92)(cid:3)(cid:82)(cid:73)(cid:3)(cid:87)(cid:75)(cid:72)(cid:3)(cid:36)(cid:85)(cid:80)(cid:92)(cid:29)(cid:3)
(cid:48)(cid:36)(cid:53)(cid:46)(cid:3)(cid:36)(cid:17)(cid:3)(cid:48)(cid:44)(cid:47)(cid:47)(cid:40)(cid:60)(cid:3)
(cid:42)(cid:72)(cid:81)(cid:72)(cid:85)(cid:68)(cid:79)(cid:15)(cid:3)(cid:56)(cid:81)(cid:76)(cid:87)(cid:72)(cid:71)(cid:3)(cid:54)(cid:87)(cid:68)(cid:87)(cid:72)(cid:86)(cid:3)(cid:36)(cid:85)(cid:80)(cid:92)(cid:3)
(cid:38)(cid:75)(cid:76)(cid:72)(cid:73)(cid:3)(cid:82)(cid:73)(cid:3)(cid:54)(cid:87)(cid:68)(cid:73)(cid:73)(cid:3)
(cid:50)(cid:73)(cid:73)(cid:76)(cid:70)(cid:76)(cid:68)(cid:79)(cid:29)(cid:3)
KATHLEEN S. MILLER
Administrative Assistant
to the Secretary of the Army
1921306
(cid:37)(cid:92)(cid:3)(cid:50)(cid:85)(cid:71)(cid:72)(cid:85)(cid:3)(cid:82)(cid:73)(cid:3)(cid:87)(cid:75)(cid:72)(cid:3)Marine Corps(cid:29)(cid:3)
W.F. MULLEN III
Major General, U.S. Marine Corps
Commanding General,
Training and Education Command
DISTRIBUTION:
Active Army, Army National Guard, and United States Army Reserve: (cid:55)(cid:82)(cid:3) (cid:69)(cid:72)(cid:3) (cid:71)istributed in |
6-27 | 208 | PIN: 205504-001 |
3-14 | 1 | FM 3-14
ARMY SPACE OPERATIONS
OCTOBER 2019
DISTRIBUTION RESTRICTION:
Approved for public release; distribution is unlimited.
This publication supersedes FM 3-14, dated 19 August 2014. |
3-14 | 3 | This publication is available at the Army Publishing Directorate site
(https://armypubs.army.mil), and the Central Army Registry site |
3-14 | 5 | *FM 3-14
Field Manual Headquarters
No. 3-14 Department of the Army
Washington, DC, 30 October 2019
Army Space Operations
Contents
Page
PREFACE.............................................................................................................. iv
INTRODUCTION .................................................................................................... v
Chapter 1 ARMY SPACE OPERATIONS OVERVIEW ...................................................... 1-1
Section I – Army Space Overview ................................................................... 1-2
Dependency on Space ....................................................................................... 1-2
Army Space Capabilities .................................................................................... 1-4
Contested Space Domain................................................................................. 1-11
Unified Land Operations Use of Space Capabilities ........................................ 1-11
Section II – Space Fundamentals ................................................................. 1-11
Space Segments .............................................................................................. 1-11
Orbital Characteristics ...................................................................................... 1-12
Army Space Core Competencies ..................................................................... 1-14
Chapter 2 SPACE OPERATIONAL ENVIRONMENT ........................................................ 2-1
Space Domain Is A Warfighting Domain ............................................................ 2-1
The Space Operational Environment ................................................................. 2-2
Electromagnetic Operational Environment ......................................................... 2-7
Hazards, Threats, and Vulnerabilities .............................................................. 2-14
Risk Management ............................................................................................. 2-15
Space Policy ..................................................................................................... 2-16
Chapter 3 ARMY SPACE CAPABILITIES.......................................................................... 3-1
Section I – Space Capabilities ......................................................................... 3-1
Space Situational Awareness ............................................................................. 3-2
Positioning, Navigation, and Timing ................................................................... 3-2
Space Control ..................................................................................................... 3-3
Satellite Communications ................................................................................... 3-6
Satellite Operations .......................................................................................... 3-12
Missile Warning ................................................................................................ 3-15
Environmental Monitoring ................................................................................. 3-17
Space-Based Surveillance and Reconnaissance ............................................ 3-18
DISTRIBUTION RESTRICTION: This publication is approved for public release; distribution is unlimited.
This publication supersede FM 3-14, dated 19 August 2014. |
3-14 | 6 | Contents
Section II – Space-Enabled Capabilities ....................................................... 3-19
Friendly Force Tracking .................................................................................... 3-19
Commercial Imagery ......................................................................................... 3-21
Tactical Exploitation of National Capability ....................................................... 3-21
Section III – Army Space Proponent and Contributors ............................... 3-22
Army Space Proponent Role ............................................................................ 3-22
Cyberspace Proponent Role ............................................................................. 3-23
Signal Proponent Role ...................................................................................... 3-23
Chapter 4 ARMY SPACE OPERATIONS ........................................................................... 4-1
Section I – Army Space Operations ................................................................ 4-1
Army Space Support Elements ........................................................................... 4-2
Army Space Support Teams ............................................................................... 4-3
Army Headquarters, Corps and Division............................................................. 4-3
Unified Land Operations Use of Space Capabilities ........................................... 4-9
Army-Wide Space Training Considerations ...................................................... 4-14
Section II – Joint Space Operations .............................................................. 4-15
United States Space Command ........................................................................ 4-15
Space Coordinating Authority ........................................................................... 4-16
Chapter 5 PLANNING, PREPARING, EXECUTING, AND ASSESSING ........................... 5-1
Army Design Methodology .................................................................................. 5-1
Planning for Space Operations ........................................................................... 5-1
Preparing for Space Operations ....................................................................... 5-11
Executing Space Operations ............................................................................ 5-12
Assessing Space Operations ............................................................................ 5-12
Chapter 6 SPACE PRODUCTS........................................................................................... 6-1
Purpose of The Space Input ............................................................................... 6-1
Space Input to the Intelligence Preparation of the Battlefield Process ............... 6-2
Space Running Estimate .................................................................................... 6-7
Satellite Operational Status ................................................................................ 6-8
Appendix A ANNEX C, APPENDIX 18 TEMPLATE ............................................................. A-1
GLOSSARY .......................................................................................... Glossary-1
REFERENCES .................................................................................. References-1
INDEX ......................................................................................................... Index-1
Figures
Figure 1-1. Army space operations concept overview ........................................................... 1-3
Figure 1-2: Illustration of basic satellite orbits ...................................................................... 1-12
Figure 2-1. Space operations persistence across the joint phasing model ......................... 2-13
Figure 2-2. Space threat categories ..................................................................................... 2-15
Figure 3-1. Key satellite communications features ................................................................ 3-6
Figure 3-2. Regional satellite communications support center support assignments ......... 3-10
Figure 3-3. Regional satellite communications support center organizations ..................... 3-12
Figure 3-4. Wideband satellite communications operations centers mission overview ....... 3-14 |
3-14 | 7 | Contents
Figure 3-5. Friendly force tracking data flow overview ......................................................... 3-20
Figure 6-1. Situation template with space area of interest ..................................................... 6-3
Figure A-1. Sample Annex C, Appendix 18–Space Operations format .................................A-2
Tables
Introductory table 1. New, modified, and rescinded Army terms ............................................... vi
Table 1-1. Characteristics of satellite orbits ......................................................................... 1-13
Table 2-1. Bandwidth comparison .......................................................................................... 2-8
Table 3-1. Satellite communications attributes ....................................................................... 3-7
Table 5-1. Receipt of mission ................................................................................................. 5-3
Table 5-2. Mission analysis .................................................................................................... 5-5
Table 5-3. Course of action development .............................................................................. 5-7
Table 5-4. Course of action analysis ...................................................................................... 5-8
Table 5-5. Course of action comparison ................................................................................ 5-8
Table 5-6. Course of action approval ..................................................................................... 5-9
Table 5-7. Orders production, dissemination, and transition .................................................. 5-9
Table 6-1. Space weather impact summary ........................................................................... 6-4 |
3-14 | 8 | Preface
Field manual (FM) 3-14, Army Space Operations, provides an overview of space operations in the Army and
is consistent and compatible with joint doctrine. FM 3-14 links Army space operations doctrine to joint space
operations doctrine as expressed in joint publication (JP) 3-14, Space Operations and other joint doctrinal
publications. This FM establishes guidance for employing space and space-based systems and capabilities to
support U.S. Army land warfighting dominance. It provides a general overview of overhead support to Army
operations, reviews national guidance and direction, and outlines selected unique space-related Army
capabilities. The doctrine in this FM represents the Army’s best use of its space capabilities. This manual
also contains tactics and procedures outlining how to plan, integrate, and execute Army space operations.
The principal audience for FM 3-14 encompasses all members of the Army profession, including Army
commanders and staffs, to assist in the planning and incorporation of space capabilities into operations. It
will aid Army and joint force commanders in planning and executing cohesive joint operations throughout
the entire operational environment. Commanders and staffs of Army headquarters serving as joint task force
or multinational headquarters should also refer to applicable joint or multinational doctrine concerning the
range of military operations and joint or multinational forces. Trainers and educators throughout the Army
may also use this manual.
Commanders, staffs, and subordinates ensure their decisions and actions comply with applicable U.S.,
international, and in some cases, host-nation laws and regulations. Commanders at all levels ensure their
Soldiers operate in accordance with the law of war and the rules of engagement (see FM 6-27).
FM 3-14 uses joint terms where applicable. Selected joint and Army terms and definitions appear in both the
glossary and the text. Terms for which FM 3-14 is the proponent publication (the authority) are marked with
an asterisk (*) in the glossary. Definitions for which FM 3-14 is the proponent publication are boldfaced in
the text. For other definitions shown in the text, the term is italicized and the number of the proponent
publication follows the definition.
FM 3-14 applies to the Active Army, Army National Guard/Army National Guard of the United States, and
United States Army Reserve unless otherwise stated.
The proponent of FM 3-14 is the United States Army Space and Missile Defense Command (USASMDC).
The preparing agency is the US Army Space and Missile Defense Center of Excellence. Send comments and
recommendations on a DA Form 2028 (Recommended Changes to Publications and Blank Forms) to
Director, Army Space and Missile Defense School, Headquarters USASMDC ATTN: SMDC-CE-TI (FM 3-
14), 1330 Inverness Drive, Suite 440, Colorado Springs, Colorado 80910; by e-mail to
[email protected]; or submit an electronic DA Form 2028. |
3-14 | 9 | Introduction
Over the last three decades, assumptions of individual domain supremacy and the break in great power
security competition drove the U.S. joint force doctrine, equipment, and readiness posture. These
assumptions have evolved when faced with recent changes to peer and near-peer nation capabilities and
approaches to warfare.
In order to win in a complex operational environment (OE), Army forces should provide the joint force with
multiple options, integrate the efforts of multiple partners, operate across multiple domains, and present threat
actors with multiple dilemmas. Army space operations provide Army and joint forces with global combat
advantage using highly technical capabilities to create multiple dilemmas for threat actors on the battlefield.
The space domain is a warfighting domain with different characteristics from air, land, maritime, and
cyberspace domains. The National Military Strategy of the United States of America identified the space
domain as a global commons—those portions of the Earth, outside national jurisdiction, all actors have
rightful access to. This FM is rooted in Army operations and consistent with joint doctrine.
Nearly every Army operation relies on the advantages provided by space capabilities and effects to enhance
the effectiveness of combat forces. Space capabilities permit enhanced situational understanding; provides
global communications; enables precise and accurate fires; supports the conduct of joint expeditionary entry,
movement, and maneuver operations; and provides a conduit for cyber electromagnetic operations supporting
Unified Land Operations. These capabilities directly support large scale combat operations by enhancing
command and control, providing secure communications over extended distances and across areas without
modern infrastructure.
Potential adversaries have identified U.S. reliance on space-based capabilities as a critical vulnerability and
will attempt to exploit it in order to deter and degrade our ability to act. Army space operations seek ways to
maintain assured access to space capabilities, and when necessary, to achieve its objectives in spite of the
adversary’s counterspace efforts.
Army space operations are conducted around the globe, but engaged regionally. Army space operations often
are an integral part of a joint team used to plan, fight, and adapt operations across the range of military
operations. Army space operations continue to evolve to meet the requirements of a complex and rapidly
changing OE.
Army space doctrine refines and expands upon joint space doctrine by defining those space tactics and
procedures relevant to unified land operations and applicable to large scale combat operations. Army space
operations applies to the tactical, operational, and strategic levels of war, but the results are often challenging
to quantify which level or levels benefit as modern conflict may not be easily divided into discrete levels. In
an internet-connected world which often exploits social media, theater-level tactical actions may have far-
reaching operational and strategic-level impacts. The space capabilities form the framework for how space
operations supports the Army warfighting functions.
The principles that successfully guide unified land operations are applicable to the space domain. The Army
uses space-based capabilities to support its dominance in unified land operations. Space operations are critical
to the range of military operations as many space capabilities are embedded in Army operations. |
3-14 | 10 | Introduction
Summary of Changes
FM 3-14 was completely rewritten to document Army-centric space operations. The current manual aligns
Army doctrine with JP 3-14. FM 3-14 updates terminology, highlights the critical support Army space
operations play in joint operations, and links space operations with the warfighting functions. A summary of
changes is below.
* Adds an Army space operations overview diagram to chapter 1.
* Greatly expands on operational environment and clearly identifies how space capabilities
contribute to the operational environment.
* Removes unit specific battalion and below material which is inappropriate to an FM.
* Discusses capabilities such as positioning, navigation, and timing; satellite operations; satellite
communications; and space control as integrated effects and not isolated, stove-piped functions.
* Updates the operations process in chapter 5.
* Renames Annex N–Space Operations as Appendix 18–Space Operations to Annex C of the base
order.
The following terminology is deleted per Department of Defense Dictionary.
Introductory table 1. New, modified, and rescinded Army terms
Term Remarks
prevention Term rescinded.
space force application Term rescinded.
space force enhancement Term rescinded.
space mission areas Term rescinded.
space support Formal definition rescinded, used informally as a
commonly understood term
space surveillance Formal definition rescinded, used informally as a
commonly understood term
space system Formal definition rescinded, used informally as a
commonly understood term
theater event system No longer a defined term.
space domain New term.
space joint operating area New term.
defensive space control Modified definition.
negation Modified definition.
offensive space control Modified definition.
space coordinating authority Modified definition.
space forces Modified definition.
space situational awareness Modified definition.
space superiority Modified definition. |
3-14 | 11 | Introduction
Chapter Organization
FM 3-14 contains six chapters and one Appendix:
Chapter 1 is an overview of Army space operations. It includes a top-level operational view (known as an
OV-1) of Army operations utilizing space capabilities and serves to illustrate the dependencies upon space
operations and space-based connectivity. It categorizes and describes the functions of Army space operations
and Army space-enabled operations. It identifies and describes operations in a contested environment and
describes the space domain environment.
Chapter 2 is the space OE and how it is shaped by national and Army space policy. It includes how Army
space operations uses operational and mission variables to contribute to antiaccess and area denial operations
resulting in mission assurance. Army space operations reside in a contested space environment and the
persistence of Army space operations drives missions and space operations tempo.
Chapter 3 identifies Army space capabilities, describes Army space operations regarding those capabilities,
and identifies the various Army proponents and their roles in space operations.
Chapter 4 discusses Army space operations, roles, and responsibilities at headquarters levels, operations for
Army space elements, coordination between Army and joint forces related to space operations, and how Army
space operations supports each of the six warfighting functions, and special operations forces.
Chapter 5 discusses planning, preparing, executing, and assessing space capabilities within the operations
process.
Chapter 6 identifies space input to the intelligence preparation of the battlefield, and developing the space
running estimate.
Appendix A identifies Appendix 18–Space Operations to Annex C of the base order, its relationship to other
annexes, its content, and the considerations for preparing Appendix 18. |
3-14 | 13 | Chapter 1
Army Space Operations Overview
Unified land operations and Army space operations are indivisible. A typical Army Brigade Combat
Team has over 2,500 positioning, navigation, and timing (PNT)-enabled devices and over 250
satellite communications (SATCOM)-enabled devices used to conduct precision fires, movement,
maneuver, communications, protection, command and control, and other mission requirements.
This chapter provides a general overview of the depth and breadth of available space capabilities to
conduct unified land operations. It recognizes the different career specialties the Army uses to
support space operations and space-enabled operations. It identifies how the Army must plan to
operate in a contested space domain which may be exploited by threat actors to create a denied,
degraded, and disrupted space operational environment (D3SOE). It provides space fundamentals
lists the approved Army space core competencies.
1-1. The space capabilities the Army uses are dependent on both the space domain (the physical location
where space-based satellites transmit and receive signals) and Army space operations to conduct the planning,
coordination, integration, and synchronization of space capabilities across all functions within unified land
operations. While the Army is capable of completing its assigned mission in a D3SOE, it is more agile and
efficient when using space capabilities to their fullest ability.
1-2. Space operations are inherently joint and Army space forces routinely coordinate with Army, joint,
and unified action partners on the best way to employ space capabilities. U.S. Army space operations are
firmly established in national, Department of Defense (DOD), and Service level policies that guide space
operations. Army Space force personnel consist of trusted Army professionals who work diligently to assure
continuous access to space capabilities.
1-3. Assured access to space capabilities is a framework of capabilities, actions, and processes to assure
Soldiers can to shoot, move, and communicate where and when desired, to achieve the commander’s intent.
The Army invests in space capabilities and its use of the space domain is broad. Space capabilities enable
and enhance tactical operations across the range of military operations. Many aspects of space operations
have become normalized in Army operations and are routinely integrated into mission plans. However,
assured access to space capabilities is a necessity for agile and efficient mission operations.
1-4. The space domain is defined as the area above the altitude where atmospheric effects on airborne
objects become negligible (JP 3-14). The space domain is a physical location where military, civil, and
commercial space activities are conducted and the upper limit extends infinitely outward. Military activities
within the space domain are conducted to achieve U.S. national security objectives.
1-5. Space forces are the space and terrestrial systems, equipment, facilities, organizations, and personnel,
or combination thereof, necessary to conduct space operations (JP 3-14). A space asset is the equipment that
is an individual part of a space system, which is or can be placed in space or directly supports space activity
terrestrially (JP 3-14). The space forces and space assets support all warfighting functions and enable the
Army to communicate, navigate, target hostiles, protect our forces, and operate in a contested OE more
efficiently.
1-6. The space environment is the environment corresponding to the space domain, where electromagnetic
radiation, charged particles, and electric and magnetic fields are the dominant physical influences, and that
encompasses the earth’s ionosphere and magnetosphere, interplanetary space, and the solar atmosphere (JP
3-59). Space operations are those operations impacting or directly utilizing space-based assets to enhance the
potential of the U.S. and unified action partners. The space joint operating area is the operational area,
bounded by the space domain, assigned to Commander, United States Strategic Command, in which space
operations are conducted (JP 3-14). |
3-14 | 14 | Chapter 1
1-7. Space capabilities provide a global perspective as space-based sensors provide support to unified land
operations. Space capabilities contribute solutions to counter theater antiaccess (A2) and area denial (AD)
strategies. Antiaccess is action, activity, or capability, usually long-range, designed to prevent an advancing
enemy force from entering an operational area (JP 3-0). Area denial is action, activity, or capability, usually
short-range, designed to limit an enemy force’s freedom of action within an operational area (JP 3-0).
SECTION I – ARMY SPACE OVERVIEW
DEPENDENCY ON SPACE
1-8. For over a half century, space capabilities have enhanced the effectiveness of joint forces during times
of peace and times of war, reinforcing the significance of space capabilities when integrated across the range
of military operations. Mission planning requires consideration of space operations across all domains,
activities, and an organization processes to ensure capabilities are available, integrated, and effects used.
1-9. JP 3-14 lays the foundation of joint space doctrine by establishing principles for the integrated
employment of space capabilities. It recognizes each Service has a unique role in providing space capabilities,
and the capabilities provided by one service are integrated into the planning and operations of all services.
As designated by the DOD, each Service component provides different space-related capabilities designed
to complement the space capabilities of the other Services, not duplicate them. The Air Force provides launch
services, the Air Force and Navy acquire military satellites, the Army and Air Force manage long-haul use
of military SATCOM, and all three operate satellites. The Army, Navy, and Air Force provide ground
hardware, and all Services benefit from space capabilities.
1-10. Space superiority is the degree of control in space of one force over any others that permits the
conduct of its operations at a given time and place without prohibitive interference from terrestrial or space-
based threats (JP 3-14). In unified land operations, space superiority enables freedom of maneuver and
accurate fires, when and where needed. Space superiority is a function of the space domain and may be
maintained for long periods of time, or obtained for short windows of time for specific operations. Space
superiority contributes decisive wins in high-intensity conflicts against any adversary, anytime, and
anywhere.
1-11. The Army leverages space capabilities to support unified land operations from large scale combat
operations to individual Soldiers at the tactical level of warfare. Space capabilities enhance the Army’s ability
to communicate, navigate, accurately target the enemy, protect and sustain our forces, and enable intelligence
preparation of the battlefield (IPB). While the Army is dependent on Army space operations, it is sometimes
difficult to observe the effects or direct impact of space operations because the desired effect may be difficult
to observe.
1-12. Allied Joint Publication (AJP)-3.3, states, “To ensure effective integration, all personnel engaged in
the planning, conduct, and supervision of joint operations must have a common and clear understanding of
how space capabilities (military, civil, commercial, national, and multinational) contribute to joint operations,
and how military space operations can be integrated in military operations to achieve alliance security
objectives. They should also be aware adversaries will increasingly seek to exploit their own access to space
products with military utility; many of these can easily be purchased from commercial sources.”
1-13. Commanders at all echelons must understand the fundamental principles and advantages space
operations bring to all Army operations, the disadvantages associated with not understanding space
capabilities, and the impact to mission operations when friendly forces are denied the use of space
capabilities. Space operations bring essential capabilities with unique tools to influence, enable, and enhance
all mission areas in unified land operations. Unit commanders must have a clear understanding of the space
capabilities available that contribute to mission operations and how best to utilize those assets.
1-14. Army space operations conceptual overview is illustrated in figure 1-1. The illustration highlights
how unified land operations and Army space operations are indivisible across the range of military options
in an OE. Without these capabilities, unified land operations as they are conducted today would be
significantly different. |
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