INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY CHARLOTTESVILLE, VIRGINIA LAW OF WAR WORKSHOP DESKBOOK CDR Brian J. Bill, JAGC, USN Editor Contributing Authors CDR Brian J. Bill, JAGC, USN MAJ Geoffrey S. Corn, JA, USA LT Patrick J. Gibbons, JAGC, USN LtCol Michael C. Jordan, USMC MAJ Michael 0. Lacey, JA, USA MAJ Shannon M. Morningstar, JA, USA MAJ Michael L. Smidt, JA, USA All of the faculty who have served with and before us and contributed to the literature in the field of the Law of War June 2000 7066 ACLU-RDI 1096 p.1 DOD 004280 ii 7067 ACLU-RDI 1096 p.2 DOD 004281 INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT THE JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILLE, VIRGINIA LAW OF WAR WORKSHOP DESKBOOK TABLE OF CONTENTS Major Treaties Governing Land Warfare iv List of Append ices vii History of the Law of War 1 Legal Bases for the Use of Force 13 Legal Framework of the Law of War 25 The 1949 Convention on Wounded and Sick in the Field 49 Prisoners of War and Detainees 69 Protection of Civilians During Armed Conflict 123 Means and Methods of Warfare 149 War Crimes and Command Responsibility 183 The Law of War & Operations Other Than War 219 The Law of War: Methods of Instruction 255 iii 7068 ACLU-RDI 1096 p.3 DOD 004282 iv 7069 ACLU-RDI 1096 p.4 DOD 004283 MAJOR TREATIES GOVERNING LAND WARFARE Abbreviated Name Full Name GWS/lst GC Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, DA Pam 27-1. GWS Sea/2d GC Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, DA Pam 27-1. GPW/3d GC Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, DA Pam 27- GC/4th GC Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, DA Pam 27-1. GP I/Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 10 June 1977, DA Pam 27-1-1. (Not Ratified by U.S.) GP II/Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts, 10 June 1977, DA Pam 27-1-1. (Not Ratified by U.S.) H. III Hague Convention No. III Relative to the Opening of Hostilities, 18 October 1907, DA Pam 27-1. H. IV Hague Convention No. IV Respecting the Laws and Customs of War on Land, 18 October 1907, DA Pam 27-1. V 7070 ACLU-RDI 1096 p.5 DOD 004284 HR Annex to Hague Convention No. IV embodying the Regulations Respecting the Laws and Customs of War on Land, 18 October 1907, DA Pam 27- H. V Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907, DA Pam 27-1. 1925 Gas Protocol Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, of Other Gases, and of BacteriolOgical Methods of Warfare of 17 June 1925, 26 U.S.T. 571. BWC/Biological Weapons Convention on the Prohibition of the Convention Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 U.S.T. 583. CWC/Chemical Weapons 1993 Convention on the Prohibition of the Convention Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 I.L.M. 800. 1954 Hague CP Convention 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216. ENMOD Convention The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 U.S.T. 333. CCW/Conventional Weapons Convention on Prohibitions or Restrictions on Convention the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M. 1525. vi 7071 ACLU-RDI 1096 p.6 DOD 004285 LIST OF APPENDICES Chapter 3: Legal Framework of the Law of War Appendix A. Conflict Spectrum. Appendix B. Department of Defense Directive 5100.77, DoD Law of War Program, 9 December 1998. Appendix C. Chairman of the Joint Chiefs of Staff Instruction 5810.01A, Implementation of the DoD Law of War Program, 29 August 1999. Chapter 5: Prisoners of War and Detainees Appendix. U.S. Central Command, Regulation 27-13, Legal Services - Captured Persons: Determination of Eligibility for Enemy Prisoner of War Status (7 Feb. 1995). Chapter 8: War Crimes and Command Responsibility Appendix. War Crimes Act of 1996, P.L. 104 - 192, 110 Stat. 2104 (1996). Chapter 9: The Law of War & Operations Other Than War Appendix A. CPL and Civilian Detainment. Appendix B. CPL and the Treatment of Property. Appendix C. CPL and Displaced Persons. Chapter 10:The Law of War: Methods of Instruction Appendix A. Operational Law Training: Tough Questions Practical Exercise Appendix B. Dep't of the Army, Regulation 350-41, Training in Units, Sec. 14-1 - 14-5 (19 Mar. 1993). 7072 ACLU-RDI 1096 p.7 DOD 004286 VIII 7073 ACLU-RDI 1096 p.8 DOD 004287 CHAPTER 1 HISTORY OF THE LAW OF WAR REFERENCES 1. Dept. of Army, Field Manual 27-10, The Law of Land Warfare (18 July 1956). 2. Dept. of Army, Pamphlet 27-1, Treaties Governing Land Warfare (7 December 1956). 3. Dept. of Army, Pamphlet 27-1-1, Protocols To The Geneva Conventions of 12 August 1949 (1 September 1979). 4. Dept. of Army, Pamphlet 27-161-2, International Law, Vol. 11 (23 October 1962). 5. Leon Friedman, THE LAW OF WAR—A DOCUMENTARY HISTORY—VOL. 1 (1972). 6. Lothar Kotzsch, THE CONCEPT OF WAR IN CONTEMPORARY HISTORY AND INTERNATIONAL LAW (1956). 7. Julius Stone, LEGAL CONTROLS OF INTERNATIONAL CONFLICT (1954). 8. John N. Moore, NATIONAL SECURITY LAW (1990). 9. L. Oppenheim, INTERNATIONAL LAW VOL. 11 DISPUTES, WAR AND NEUTRALITY (7t1 ed. 1952). 10. Gerhard von Glahn, LAW AMONG NATIONS (1992). 11. Michael Walzer, JUST AND UNJUST WARS (1977). I. INTRODUCTION. A. OBJECTIVES: 1. Identify common historical themes which 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. WHAT IS WAR? "[i]t is universally recognized that war is a contention, i.e., a violent struggle through the application of armed force." 1. International Legal Definition: The Four Elements Test. a. A contention; b. Between at least two nation states; c. Wherein armed force is employed; d. With an intent to overwhelm. Chapter .1 Histoty qf the Law of War 7074 ACLU-RDI 1096 p.9 DOD 004288 2. War versus Armed Conflict. Historically, only conflict meeting the four elements test for "war" triggered law of war application. Accordingly, some nations asserted the law of war was not triggered by all instances of armed conflict. As a result, the applicability of the law of war depended upon the subjective national classification of a conflict. a. Post WW II response. Recognition of a state of war is no longer required to trigger the law of war. Instead, the law of war is applicable to any international armed conflict: (1)"Any difference arising between two States and leading to the intervention of armed forces is an armed conflict ... [i]t makes no difference how long the conflict lasts, or how much slaughter takes place." H. THE UNIFYING THEMES OF THE LAW OF WAR. A. Law exists either to (1) prevent conduct, or (2) control conduct. These characteristics permeate the law of war, as exemplified by the two prongs. Jus ad Bellum serves to prevent conduct, while Jus in Bello serves to regulate or control conduct. 1. Validity. Although critics of regulating warfare cite historic examples of violations of evolving laws of war, history provides the greatest evidence of the validity of this body of law. a. History shows that in the vast majority of instances the law of war works. "Violated or ignored as they often are, enough of the rules are observed enough of the time so that mankind is very much better off with them than without them." b. History demonstrates that mankind has always sought to "diminish the corrosive effect of mortal combat on the participants," and has come to regard war not as a state of anarchy justifying infliction of unlimited suffering, but as an unfortunate reality which must be governed by some rule of law. (1)This point is exemplified by Article 22 of the Hague Convention: "the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity." Chapter 1 2 History nJ the Law of War 7075 ACLU-RDI 1096 p.10 DOD 004289 (2)That regulating the conduct of warfare is ironically essential to the preservation of a civilized world was exemplified by General MacArthur, when in confirming the death sentence for Japanese General Yamashita, he wrote: "The soldier, be he friend or foe, is charged with the protection of the weak and unarmed.