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Law of Armed Conflict Deskbook, 2012 LAW OF ARMED CONFLICT DESKBOOK INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT The United States Army Judge Advocate General's Legal Center and School Charlottesville, VA 2012 International Law Private Law Public Law (conflict of laws, commercial) (intergovernmental) Law of War Law of Peace Conflict Management Rules of Hostilities Jus ad Bellum Jus in Bello U.N. Charter Hague Conventions Arms Control Geneva Conventions Customary Law Customary Law INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, U.S. ARMY CHARLOTTESVILLE, VIRGINIA LAW OF ARMED CONFLICT DESKBOOK Authors LTC Richard P. DiMeglio, JA, USA MAJ Sean M. Condron, JA, USA Maj Owen B. Bishop, JA, USAF MAJ Gregory S. Musselman, JA, USA MAJ Todd L. Lindquist, JA, USA Maj Andrew D. Gillman, JA, USAF MAJ William J. Johnson, JA, USA MAJ Daniel E. Stigall, JA, USAR To all of the faculty who have served with and before us and contributed to the literature in the field of the Law of Armed Conflict Editors MAJ William J. Johnson & Maj Andrew D. Gillman Technical Support Ms. Terri Thorne MAJ Eric C. Husby 2012 PREFACE This Law of Armed Conflict Deskbook is intended to replace, in a single bound volume, similar individual outlines that had been distributed as part of the Judge Advocate Officer Graduate and Basic Courses and departmental short courses. Together with the Operational Law Handbook and Law of Armed Conflict Documentary Supplement, these three volumes represent a range of international and operational law subjects taught to military judge advocates. These outlines, while extensive, make no pretence of comprehensively covering this complex area of law. Our audience is the beginning and intermediate level practitioner; our hope is that this material will provide a solid foundation upon which further study may be built. The proponent of this publication is the International and Operational Law Department, The Judge Advocate General’s Legal Center and School (TJAGLCS). Send comments and suggestions to TJAGLCS, International and Operational Law Department, 600 Massie Road, Charlottesville, VA 22903-1781. Our phone number is (434) 971-3370; our administrative assistant will connect you with the author for the particular chapter. This Deskbook is not a substitute for official publications. Similarly, it should not be considered to espouse an “official” position of the U.S. Army, Department of Defense, or U.S. Government. While every effort has been made to ensure that the material contained herein is current and correct, it should be remembered that these are merely a collection of teaching outlines, collected, bound, and distributed as a matter of instructional convenience, intended only to introduce students to the law and point them to primary sources of that law. Accordingly, the only proper citation to a substantive provision of this Deskbook should be for the limited proposition of how the Army JAG School teaches its judge advocate students. ii INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL CHARLOTTESVILLE, VIRGINIA LAW OF ARMED CONFLICT DESKBOOK TABLE OF CONTENTS References iv Abbreviations vi Introduction to Public International Law 1 History of the Law of Armed Conflict 7 Framework of the Law of Armed Conflict 19 Legal Basis for the Use of Force 29 Wounded and Sick in the Field 41 Prisoners of War 67 LOAC Protections for Civilians 91 Occupation and Post-Conflict Governance 121 Means and Methods of Warfare 135 War Crimes and Command Responsibility 171 Human Rights 195 Comparative Law 209 Index 243 iii Table of Contents REFERENCES This Deskbook is intended as a teaching tool, not as a collection of law review articles. The references which most chapters cite are common, so to avoid undue repetition, they are cited here in full. The Short Version citation will generally be used in the chapters. Those references which are reprinted in the Law of Armed Conflict Documentary Supplement are noted. Doc Short Version Citation Supp? HR Regulations Concerning the Laws and Customs of War on Land, X annexed to Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, T.S. 539 . UN Charter U.N. Charter. X GC I Geneva Convention for the Amelioration of the Condition of the X Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31. May also be abbreviated as GWS. GC II Geneva Convention for the Amelioration of the Condition of X Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85. May also be abbreviated as GWS(Sea). GC III Geneva Convention, Relative to the Treatment of Prisoners of War, X Aug. 12, 1949, 6 UST. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135. May also be abbreviated as GPW. GC IV Geneva Convention, Relative to the Treatment of Civilian Persons X in Time of War, Aug. 12, 1949, 6 UST. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287. May also be abbreviated as GC. AP I Protocol Additional to the Geneva Conventions of 12 August 1949, X and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3. AP II Protocol Additional to the Geneva Conventions of 12 August 1949, X and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609. References iv Doc Short Version Citation Supp? AP III Protocol Additional to the Geneva Conventions of 12 August 1949, X and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005. GC I Commentary INTERNATIONAL COMMITTEE OF THE RED CROSS, GENEVA GC II Commentary CONVENTION (I) FOR THE AMELIORATION OF THE CONDITION OF etc. THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD: COMMENTARY (Jean Pictet gen. ed., 1958). AP Commentary INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (Yves Sandoz et al. eds., 1987). G.BC Protocol for the Prohibition of the Use in War of Asphyxiating, X Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST. 571, 94 L.N.T.S. 65. CWC Convention on the Prohibition of the Development, Production, X Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 I.L.M. 800. H.CP 1954 Hague Convention for the Protection of Cultural Property in X the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216. 1972 BW Convention on the Prohibition of the Development, Production and X Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 UST. 583. CCW Convention on Prohibitions or Restrictions of the Use of Certain X Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M. 1523. FM 27-10 DEP'T OF THE ARMY, FIELD MANUAL 27-10, THE LAW OF LAND X WARFARE (July 1956). NWP 1-14M DEP'T OF THE NAVY, NAVAL WARFARE PUBLICATION 1-14M/U.S. MARINE CORPS MCPW 5-2.1, THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS (October 1995). v References ABBREVIATIONS AP I ....................................................Additional Protocol I AP II ...................................................Additional Protocol II AP III .................................................Additional Protocol III CIL .....................................................Customary International Law CJCS ..................................................Chairman of the Joint Chiefs of Staff GC I ....................................................Geneva Convention I GC II ..................................................Geneva Convention II GC III .................................................Geneva Convention III GC IV .................................................Geneva Convention IV GC…………………………………..Alternative abbreviation for GC IV GPW………………………………...Alternative abbreviation for GC III GWS………………………………...Alternative abbreviation for GC I GWS(Sea)…………………………..Alternative abbreviation for GC II HR ......................................................Hague Regulations IAC .....................................................International Armed Conflict ICJ ......................................................International Court of Justice ICRC ..................................................International Committee of the Red Cross IHL .....................................................International Humanitarian Law JA .......................................................Judge Advocate LOAC .................................................Law of Armed Conflict LOW ..................................................Law of War NIAC ..................................................Non-international Armed Conflict POW ...................................................Prisoner of War RCA ...................................................Riot Control Agents ROE....................................................Rules of Engagement SROE .................................................Standing Rules of Engagement UN ......................................................United Nations UNSC .................................................United Nations Security Council UNSCR ..............................................United Nations Security Council Resolution Abbreviations vi INTRODUCTION TO PUBLIC INTERNATIONAL LAW I. OBJECTIVES A. Understand the foundation of the international legal system. B. Understand the primary sources of international law, how
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