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Law of War Handbook 2005 LAW OF WAR HANDBOOK (2005) MAJ Keith E. Puls Editor 'Contributing Authors Maj Derek Grimes, USAF Lt Col Thomas Hamilton, USMC MAJ Eric Jensen LCDR William O'Brien, USN MAJ Keith Puls NIAJ Randolph Swansiger LTC Daria Wollschlaeger All of the faculty who have served before us and contributed to the literature in the field of operational law. Technical Support CDR Brian J. Bill, USN Ms. Janice D. Prince, Secretary JA 423 International and Operational Law Department The Judge Advocate General's Legal Center and School Charlottesville, Virginia 22903 PREFACE The Law of War Handbook should be a start point for Judge Advocates looking for information on the Law of War. It is the second volume of a three volume set and is to be used in conjunction with the Operational Law Handbook (JA422) and the Documentary Supplement (JA424). The Operational Law Handbook covers the myriad of non-Law of War issues a deployed Judge Advocate may face and the Documentary Supplement reproduces many of the primary source documents referred to in either of the other two volumes. The Law of War Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide "the school solution" to a particular problem, but to help Judge Advocates recognize, analyze, and resolve the problems they will encounter when dealing with the Law of War. The Handbook was designed and written for the Judge Advocates practicing the Law of War. This body of law is known by several names including the Law of War, the Law of Armed Conflict and International Humanitarian Law. While these terms may largely be used interchangeably, for historical and contextual reasons, the Law of War will be used in this publication. Unless otherwise stated, masculine pronouns apply to both men and women. The proponent for this publication is the International and Operational Law Department, The Judge Advocate General's Legal Center and School (TJAGLCS). Send comments, suggestions, and work product from the field to TJAGLCS, International and Operational Law Department, Attention: MAJ Keith Puls, 600 Massie Road, Charlottesville, Virginia 22903-1781. To gain more detailed information or to discuss an issue with the author of a particular chapter or appendix call MAJ Puls at DSN 521-33 10; Commercial (434) 971-33 10; or email [email protected]. The 2004 Law of War Handbook is on the Internet at www.jagcnet.army.mil. After accessing this site, Enter JAGCNet, then go to the International and Operational Law sub-directory. The 2004 edition is also linked to the CLAMO General database under the keyword Law of War Handbook - 2004 edition. The digital copies are particularly valuable research tools because they contain many hypertext links to the various treaties, statutes, DoD Directives/Instructions/Manuals,CJCS Instructions, Joint Publications, Army Regulations, and Field Manuals that are referenced in the text. If you find a blue link, click on it and Lotus Notes will retrieve the cited document from the Internet for you. The hypertext linking is an ongoing project and will only get better with time. A word of caution: some Internet links require that your computer contain Adobe Acrobat software. To order copies of the 2004 Law of War Handbook, please call CLAMO at (434) 971 3339 or email [email protected]. TABLE OF CONTENTS History of the Law of War ............................................................................................... Chapter 1 Framework of the Law of War ..................................................................................... Chapter 2 Legal Basis for the Use of Force ........................................................................................ Chapter 3 Geneva Convention I (Wounded and Sick in the Field) ................................................... Chapter 4 Geneva Convention 111 (Prisoners of War) ........................................................................ Chapter 5 Geneva Convention N (Civilians) .................................................................................... Chapter 6 Means and Methods of Warfare......................................................................................... Chapter 7 War Crimes and Command Responsibility ...................................................................... Chapter 8 Applying the Law of War in Operations Other Than War .............................................. Chapter 9 Human Rights .................................................................................................................. Chapter 10 EXPANDED TABLE OF CONTENTS History of the Law of War ........................................................................................................ 1 Framework of the Law of War ............................................................................................ 19 Legal Basis for the Use of Force ............................................................................................. 35 Geneva Convention I: Wounded and Sick in the Field ........................................................ 51 Geneva Convention 111: Prisoners of War ............................................................................. 75 Appendix A . CENTCOM Reg 27-13 (Determination of EPW Status) ......................... 116 Geneva Convention IV:Protection of Civilians in Armed Conflict .................................... 137 Means and Methods of Warfare ............................................................................................ 163 War Crimes and Command Responsibility ....................................................................... 199 Appendix A . US Position regarding ICC ....................................................................... 228 Appendix B. Milosevic Indictment Excerpt................................................................. 234 The Law of War and Military Operations Other Than War .................................................. 241 Appendix A. CPL and Civilian Detainment .................................................................. 262 Appendix B. CPL and the Treatment of Property .......................................................... 268 Appendix C. CPL and Displaced Persons ............................................................... 271 Human Rights ....................................................................................................................... 281 Appendix A . Universal Declaration of Human Rights .................................................. 291 HISTORY OF THE LAW OF WAR REFERENCES Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956) [- hereinafter DAPAM 27-11 (reprinted in Documentary Supplement). Dept. of Army, Pamphlet 27-1-1, Protocols To The Geneva Conventions of 12 August 1949 (1 September 1979). [hereinafter DA PAM 27-1-11 (reprinted in Documentary Supplement). Dept. of Army, Pamphlet 27-161-2, Intemational Law, Vol. I1 (23 October 1962). [hereinafter DA PAM 27-1 6 1-21 (no longer in print). Intemational Committee of the Red Cross, Commentary on the Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Jean S. Pictet ed., 1952) [hereinafter Pictet] Leon Fnedman, The Law of War--A Documentary History--Vol. I (1972). Lothar Kotzsch, The Concept of War In Contemporary History and Intemational Law (1956). Julius Stone, Legal Controls of International Conflict (1954). John N. Moore, National Security Law (1990). L. Oppenheim, Intemational Law Vol. I1 Disputes, War and Neutrality (7Ih ed. 1952). 10. Gerhard von Glahn, Law Among Nations (1992). 11. Michael Walzer, Just and Unjust Wars (1977). 12. Percy Bordwell, The Law of War Between Belligerents: A History and Commentary (1908). 13. Chris Jochnick and Roger Normand, The Legitimization of Violence: A Critical History of the Laws of War, 35 HARV.INT'L. L. J. 49 (Winter, 1994). 14. Eric S. Kra~issand Mike 0. Lacey, Utilitarian vs. Humanitarian: The Battle Over the Law of War,PARAMETERS,Summer 2002. 15. Scott Morris, The Laws of War: Rules for Warriors by Warriors,ARMYLAWYER,Dec. 1997. 16. Gregory P. Noone, The History and Evolution of the Law of War Prior to World War II,47 NAVALL. REV. 176 (2000). I. INTRODUCTION. A. OBJECTIVES: 1. Identify common historical themes that continue to support the validity of laws regulating warfare. 2. Identify the two "prongs" of legal regulation of warfare. 3. Trace the historical "cause and effect" evolution of laws related to the conduct of war. 4. Begin to analyze the legitimacy of injecting law into warfare. B. The "law of war" is the "customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral states." (FM 27-10, para. 1). It "requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry." FM 27-10, para. 3. It is also referred to as the Law of Armed Conflict or Humanitarian Law, though some object to the latter reference as it is sometimes used to broaden the traditional content of the law of war. C. As illustrated by the diagram on page 3, the law of war is a part of the broader body of law known as public international law. International law is defined as "rules and principles of general application dealing
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