Law of War Workshop Deskbook - Higgins Counterterrorism ...

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2. War versus Armed Conflict. Historically, only conflict meeting the fourelements test for “war” triggered law of war application. Accordingly, somenations asserted the law of war was not triggered by all instances of armedconflict. As a result, the applicability of the law of war depended upon thesubjective national classification of a conflict.a. Post WW II response. Recognition of a state of war is no longer requiredto trigger the law of war. Instead, the law of war is applicable to anyinternational armed conflict:(1) “Any difference arising between two States and leading to theintervention of armed forces is an armed conflict . . . [i]t makes nodifference how long the conflict lasts, or how much slaughter takesplace.”II. THE UNIFYING THEMES OF THE LAW OF WAR.A. Law exists either to (1) prevent conduct, or (2) control conduct. Thesecharacteristics permeate the law of war, as exemplified by the two prongs. Jusad Bellum serves to prevent conduct, while Jus in Bello serves to regulate orcontrol conduct.1. Validity. Although critics of regulating warfare cite historic examples ofviolations of evolving laws of war, history provides the greatest evidence ofthe 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 observedenough of the time so that mankind is very much better off with them thanwithout them.”b. History demonstrates that mankind has always sought to “diminish thecorrosive effect of mortal combat on the participants,” and has come toregard war not as a state of anarchy justifying infliction of unlimitedsuffering, but as an unfortunate reality which must be governed by somerule of law.(1) This point is exemplified by Article 22 of the Hague Convention: “theright of belligerents to adopt means of injuring the enemy is notunlimited, and this rule does not lose its binding force in a case ofnecessity.”Chapter 1History of the Law of War2
(2) That regulating the conduct of warfare is ironically essential to thepreservation of a civilized world was exemplified by GeneralMacArthur, when in confirming the death sentence for JapaneseGeneral Yamashita, he wrote: “The soldier, be he friend or foe, ischarged with the protection of the weak and unarmed. It is the veryessence and reason of his being. When he violates this sacred trust, henot only profanes his entire cult but threatens the fabric of internationalsociety.”B. The trend toward regulation grew over time in scope and recognition. Whenconsidering whether these rules have validity, the student and the teacher (judgeadvocates teaching soldiers) must consider the objectives of the law of War.1. The purpose of the law of war is to (1) integrate humanity into war and (2)serve as a tactical combat multiplier.2. The validity of the law of war is best explained in terms of both objectives.For instance, many cite the German massacre at Malmedy as providingAmerican forces with the inspiration to break the German advance duringWorld War II’s Battle of the Bulge. Accordingly, observance of the law ofwar denies the enemy a rallying cry fight against difficult odds.III.THE “PRONGS” OF REGULATIONA. Throughout history, the law focused on two primary issues related to war:1. Under what circumstances was the use of military power legally and morallyjustified. This is referred to as Jus ad Bellum (or Legal Basis for the Use ofForce by contemporary military lawyers).2. What legal and moral restraints apply to the conduct of waging war. Thisprong is referred to as Jus in Bello (the Regulation of Hostilities orHague/Geneva Law by contemporary military lawyers).3. The concepts of Jus ad Bellum and Jus in Bello developed both unevenly andconcurrently. For example, during the majority of the Jus ad Bellum period,most societies only dealt with rules concerning the legitimacy of using force.Once the conditions were present that justified war, there were often nolimits on the methods used to wage war. At a certain point both theoriesbegan to evolve together.B. THE TWO THEORIES.3Chapter 1History of the Law of War
Page 3: INTERNATIONAL AND OPERATIONAL LAW D
Page 6: HRAnnex to Hague Convention No. IV
Page 12 and 13: 1. Jus ad Bellum: Legitimate War. L
Page 15 and 16: c. The intention must be the advanc
Page 17 and 18: . EXAMPLE: National leaders began t
Page 19 and 20: 1. Early Charter Period. Immediatel
Page 21 and 22: CHAPTER 2THE UNITED NATIONS AND LEG
Page 23 and 24: C. Secretariat.collective security
Page 25 and 26: c. Note that the prohibition refers
Page 27 and 28: (ii)(iii)Blockade;Land, sea or air
Page 29 and 30: c. “Inherent right” of self def
Page 31 and 32: 1. History, background and purpose.
Page 33 and 34: CHAPTER 3LEGAL FRAMEWORK OF THE LAW
Page 35 and 36: (1) GW: Wounded and Sick in the Fie
Page 37 and 38: 1. Common Article 2 -- Internationa
Page 39 and 40: . Providing for the interjection of
Page 41 and 42: B. Protecting Power. This refers to
Page 43 and 44: APPENDIX ACONFLICT SPECTRUMInternal
Page 45 and 46: (as defined in subsection 3.2., bel
Page 47 and 48: 5.5.2. Ensure that programs are imp
Page 49 and 50: eport, established in Joint Pub 1-0
Page 51 and 52: APPENDIX CIMPLEMENTATION OF THE DOD
Page 53 and 54: (c) The Director for Operations (J-
Page 55 and 56: 1. Conducting appropriate prelimina
Page 57 and 58: CHAPTER 4THE 1949 GENEVA CONVENTION
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B. Civilians.1. Not expressly cover
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. The second prohibition was design
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Conqueror did not assist the shipwr
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H. Voluntary Participation of Local
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1,000 PWs. Those not required will
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(1) In Afghanistan, the Soviets eng
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. Exception - “in case of urgent
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(2) Medical aircraft (and vehicles)
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1. Red Cross. The distinctive emble
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CHAPTER 5PRISONERS OF WAR AND DETAI
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of attrition and EPW exchanges did
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K. 1977 Additional Protocols to the
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matter where they were located, bec
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and to be commanded by a person res
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(2) The standard of proof is “pre
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. Implied - type of mission.c. Inhe
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actions were perpetrated by the ene
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D. Transfer of POWs (Art. 46 - 48,
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H. Escape.(1) Military Commissions.
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a. CW2 Hall incident 91(1) Probable
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2. But can be punitive by analogy u
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1 See WILLIAM FLORY, PRISONERS OF W
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25 See BARRY E. CARTER AND PHILLIP
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to the rear. EPWs can be on the mov
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63 See Ministry of Defence, United
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78 See Art. 40 & 51, GCC for an ana
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97 See Scott R. Morris, America’s
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R 27-13APPENDIXUNITED STATES CENTRA
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R 27-13c. The GPW provides that any
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R 27-13g. The servicing judge advoc
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R 27-13particular where such person
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R 27-13APPENDIX CTRIBUNAL PROCEDURE
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R 27-13d. Voting. The decisions of
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R 27-13APPENDIX DREPORT OF TRIBUNAL
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R 27-13APPENDIX EFORM OF OATH FOR A
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R 27-13(That you have committed a b
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CHAPTER 6PROTECTION OF CIVILIANS DU
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targeting method) benefit from rest
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c. The result: Protocol I. The prim
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actual harm to the personnel and eq
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principle common to all four Geneva
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. In addition to providing for the
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(1) Attacks not directed as a speci
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whatsoever find themselves, in case
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(1) Invader has rendered the invade
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2. SPECIFIC PROTECTIONS - LOCATION
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(i)Can only be compelled to work to
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244. TREATMENT OF PROPERTY DURING O
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territory the civilian loses his st
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CHAPTER 7METHODS AND MEANS OF WARFA
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5. The U.S. specifically objects to
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Army Pamphlet 27-161-2, 12 (1962) [
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above, GP I, Article 51(5) describe
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. Geneva Convention Definition. (GP
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on a hostile mission. Parachutists,
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natural environment against long-te
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(2) Enemy has duty to indicate pres
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2. Weapons may be illegal:a. Per se
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2. Booby Traps. Definition: A devic
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6. U.S. Developments. On 17 Septemb
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(1) Article I. Parties agree to nev
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(2) The Senate’s resolution of ad
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2. Land Warfare. Creation of fictit
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2. Feigning and Misuse. Distinguish
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proceeded to capture French Peaceke
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A. PrinciplesB. TargetsC. WeaponsD.
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CHAPTER 8WAR CRIMES AND COMMAND RES
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in many codes of chivalry, rape was
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3. Panama. In a much-publicized cas
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e. Since its inception, 94 individu
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(15) Vladimir Santic, 14 January 20
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consents. This dual system of conse
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3. Crimes Against Humanity. A colle
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national, ethnic, racial, or religi
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was purely internal. The court conc
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1. Genocide. “For the purpose of
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D. Army Policy. “The commander is
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A. International v. Domestic Crimes
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C. The Choice of Forum(c) Violation
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(i)Cf. Yamashita, 327 U.S. 22 (cons
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inevitable. No Court will punish a
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j. International Criminal Court. Th
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2. As discussed below, Congress has
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6. Using authority derived from sta
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CHAPTER 9THE LAW OF WAR AND MILITAR
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conflict, but place soldiers in sit
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(3) This situation results in a vac
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C. JA’s must ensure that Rules of
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7. If captured, these personnel are
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(3) Relationship between Humanitari
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(1) The Universal Declaration of Hu
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(1) Attempt to identify those count
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(1) Extraterritoriality. Although t
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(2) The significance of applying su
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collection, burial, and accountabil
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2. Detainment is Typically Authoriz
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(6) Categorization and Segregation.
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L. Detainees retain all the civil r
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occupied territory. Accordingly, if
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APPENDIX CCPL AND DISPLACED PERSONS
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. Application conditioned upon posi
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safety of the requester against imm
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CHAPTER 10LAW OF WAR: METHODS OF IN
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E. Reducing The Credibility Gap. Th
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Thereafter, judge advocates should
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where soldiers are walked through t
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B. Be Enthusiastic - Be an Obvious
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. Violations of the Law of War Freq
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3. “If we are on a sensitive miss
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periodic review and evaluation, par
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action) designed to discourage this
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eviewing ROE, to ensure that miscon
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from a Dum Dum would be the same or
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APPENDIX BEXTRACT FROM AR 3504-41,
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