Law of War Workshop Deskbook - Higgins Counterterrorism ...

More documents

Recommendations

Info

(d) For police actions in our rear areas.(2) Oleoresin Capsicum Pepper Spray (OC) a/k/a Cayenne Pepper Spray:U.S. classifies OC as a Riot Control Agent. (DAJA-IO, InformationPaper of 15 August 1996, Use of Oleoresin Capsicum (OC) PepperSpray and other Riot Control Agents (RCAs); DAJA-IO Memo of 20September 1994, Subject: Request for Legal Review - Use ofOleoresin Capsicum Pepper Spray for Law Enforcement Purposes;CJCS Memo of 1 July 1994, Subject: Use of Riot Control Agents.)b. CJCSI 3110.07A applies to RCA use during MOOTW operations. Theauthorization for RCA use is at the SECDEF or CINC level. 3110.07Astates the United States is not restricted by the chemical WeaponsConvention in its use of RCAs, including against combatants who are aparty to a conflict, in any of the following cases:(1) The conduct of peacetime military operations within an area ofongoing armed conflict when the United States is not a party to theconflict.(2) Consensual peacekeeping operations when the use of force isauthorized by the receiving state including operations pursuant toChapter VI of the UN charter.(3) Peacekeeping operations when force is authorized by the SecurityCouncil under Chapter VII of the UN charter.c. RCA Controversy. Convention prohibits RCA use as “method ofwarfare.” “Method of warfare” may be interpreted to include any actionsthat involve combatants - including traditional hostage rescue/SARmissions and human shield scenarios previously allowed by E.O. 11850.(1) The rationale for the prohibition - we do not want to give states theopportunity for subterfuge. Keep all chemical equipment off thebattlefield, even if it is supposedly only for use with RCA. Secondly,we do not want an appearance problem - with combatants confusingRCA equipment as equipment intended for chemical warfare. E.O.11850 is still in effect and RCA can be used in certain defensivemodes with presidential authority. However, any use in which“combatants” may be involved will most likely not be approvedChapter 7Methods and Means of Warfare172
(2) The Senate’s resolution of advice and consent for ratification to theCWC (S. Exec. Res. 75 - Senate Report, S3373 of 24 April 1997,section 2- conditions, (26) - riot control agents) required that thePresident must certify that the U.S. is not restricted by the CWC in itsuse of riot control agents, including the use against “combatants” inany of the following cases:(a) When the U.S. is not a party to the conflict(b) In consensual (Chapter VI, UN Charter) peacekeeping, and(c) In Chapter VII (UN Charter) peacekeeping.(3) The implementation section of the resolution requires that thePresident not modify E.O. 11850. (see S. Exec Res. 75, section 2(26)(b), s3378)(4) The Presidents certification document of 25 April 1997 states that “theUnited States is not restricted by the convention in its use of riotcontrol agents in various peacetime and peacekeeping operations.These are situations in which the U.S. is not engaged in the use offorce of a scope, duration, and intensity that would trigger the laws ofwar with respect to U.S. forces.”(5) Thus, during peacekeeping missions (such as Bosnia, Somalia,Rwanda and Haiti) it appears U.S. policy will maintain that we are notparty to the conflict for as long as possible. Therefore RCA would beavailable for all purposes under E.O. 11850. However, in armedconflicts (such as Desert Storm, Panama, and Grenada) it is unlikelythat the NCA will approve the use of RCA in situations where“combatants” are involved due to the CWC’s prohibition on the use ofRCA as a “method of warfare.” (Thus, use of RCA unlikely in theCSAR and the human shield situations used as examples of defensivemodes under E.O. 11850 .)I. Herbicides. E.O. 11850 renounces first use in armed conflicts, except fordomestic uses and to control vegetation around defensive areas. (e.g., AgentOrange in Vietnam.)J. Biological. The 1925 Geneva Protocol prohibits bacteriological methods ofwarfare. The 1972 Biological Weapons Convention (ref. 11) supplements the1925 Geneva Protocol and prohibits the production, stockpiling, and use of173Chapter 7Methods and Means of Warfare
Page 3:
INTERNATIONAL AND OPERATIONAL LAW D
Page 6:
HRAnnex to Hague Convention No. IV
Page 10 and 11:
2. War versus Armed Conflict. Histo
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
Page 59 and 60:
B. Civilians.1. Not expressly cover
Page 61 and 62:
. The second prohibition was design
Page 63 and 64:
Conqueror did not assist the shipwr
Page 65 and 66:
H. Voluntary Participation of Local
Page 67 and 68:
1,000 PWs. Those not required will
Page 69 and 70:
(1) In Afghanistan, the Soviets eng
Page 71 and 72:
. Exception - “in case of urgent
Page 73 and 74:
(2) Medical aircraft (and vehicles)
Page 75 and 76:
1. Red Cross. The distinctive emble
Page 77 and 78:
CHAPTER 5PRISONERS OF WAR AND DETAI
Page 79 and 80:
of attrition and EPW exchanges did
Page 81 and 82:
K. 1977 Additional Protocols to the
Page 83 and 84:
matter where they were located, bec
Page 85 and 86:
and to be commanded by a person res
Page 87 and 88:
(2) The standard of proof is “pre
Page 89 and 90:
. Implied - type of mission.c. Inhe
Page 91 and 92:
actions were perpetrated by the ene
Page 93 and 94:
D. Transfer of POWs (Art. 46 - 48,
Page 95 and 96:
H. Escape.(1) Military Commissions.
Page 97 and 98:
a. CW2 Hall incident 91(1) Probable
Page 99 and 100:
2. But can be punitive by analogy u
Page 101 and 102:
1 See WILLIAM FLORY, PRISONERS OF W
Page 103 and 104:
25 See BARRY E. CARTER AND PHILLIP
Page 105 and 106:
to the rear. EPWs can be on the mov
Page 107 and 108:
63 See Ministry of Defence, United
Page 109 and 110:
78 See Art. 40 & 51, GCC for an ana
Page 111 and 112:
97 See Scott R. Morris, America’s
Page 113 and 114:
R 27-13APPENDIXUNITED STATES CENTRA
Page 115 and 116:
R 27-13c. The GPW provides that any
Page 117 and 118:
R 27-13g. The servicing judge advoc
Page 119 and 120:
R 27-13particular where such person
Page 121 and 122:
R 27-13APPENDIX CTRIBUNAL PROCEDURE
Page 123 and 124:
R 27-13d. Voting. The decisions of
Page 125 and 126:
R 27-13APPENDIX DREPORT OF TRIBUNAL
Page 127 and 128:
R 27-13APPENDIX EFORM OF OATH FOR A
Page 129 and 130: R 27-13(That you have committed a b
Page 131 and 132: CHAPTER 6PROTECTION OF CIVILIANS DU
Page 133 and 134: targeting method) benefit from rest
Page 135 and 136: c. The result: Protocol I. The prim
Page 137 and 138: actual harm to the personnel and eq
Page 139 and 140: principle common to all four Geneva
Page 141 and 142: . In addition to providing for the
Page 143 and 144: (1) Attacks not directed as a speci
Page 145 and 146: whatsoever find themselves, in case
Page 147 and 148: (1) Invader has rendered the invade
Page 149 and 150: 2. SPECIFIC PROTECTIONS - LOCATION
Page 151 and 152: (i)Can only be compelled to work to
Page 153 and 154: 244. TREATMENT OF PROPERTY DURING O
Page 155 and 156: territory the civilian loses his st
Page 157 and 158: CHAPTER 7METHODS AND MEANS OF WARFA
Page 159 and 160: 5. The U.S. specifically objects to
Page 161 and 162: Army Pamphlet 27-161-2, 12 (1962) [
Page 163 and 164: above, GP I, Article 51(5) describe
Page 165 and 166: . Geneva Convention Definition. (GP
Page 167 and 168: on a hostile mission. Parachutists,
Page 169 and 170: natural environment against long-te
Page 171 and 172: (2) Enemy has duty to indicate pres
Page 173 and 174: 2. Weapons may be illegal:a. Per se
Page 175 and 176: 2. Booby Traps. Definition: A devic
Page 177 and 178: 6. U.S. Developments. On 17 Septemb
Page 179: (1) Article I. Parties agree to nev
Page 183 and 184: 2. Land Warfare. Creation of fictit
Page 185 and 186: 2. Feigning and Misuse. Distinguish
Page 187 and 188: proceeded to capture French Peaceke
Page 189 and 190: A. PrinciplesB. TargetsC. WeaponsD.
Page 191 and 192: CHAPTER 8WAR CRIMES AND COMMAND RES
Page 193 and 194: in many codes of chivalry, rape was
Page 195 and 196: 3. Panama. In a much-publicized cas
Page 197 and 198: e. Since its inception, 94 individu
Page 199 and 200: (15) Vladimir Santic, 14 January 20
Page 201 and 202: consents. This dual system of conse
Page 203 and 204: 3. Crimes Against Humanity. A colle
Page 205 and 206: national, ethnic, racial, or religi
Page 207 and 208: was purely internal. The court conc
Page 209 and 210: 1. Genocide. “For the purpose of
Page 211 and 212: D. Army Policy. “The commander is
Page 213 and 214: A. International v. Domestic Crimes
Page 215 and 216: C. The Choice of Forum(c) Violation
Page 217 and 218: (i)Cf. Yamashita, 327 U.S. 22 (cons
Page 219 and 220: inevitable. No Court will punish a
Page 221 and 222: j. International Criminal Court. Th
Page 223 and 224: 2. As discussed below, Congress has
Page 225 and 226: 6. Using authority derived from sta
Page 227 and 228: CHAPTER 9THE LAW OF WAR AND MILITAR
Page 229 and 230: conflict, but place soldiers in sit
Page 231 and 232:
(3) This situation results in a vac
Page 233 and 234:
C. JA’s must ensure that Rules of
Page 235 and 236:
7. If captured, these personnel are
Page 237 and 238:
(3) Relationship between Humanitari
Page 239 and 240:
(1) The Universal Declaration of Hu
Page 241 and 242:
(1) Attempt to identify those count
Page 243 and 244:
(1) Extraterritoriality. Although t
Page 245 and 246:
(2) The significance of applying su
Page 247 and 248:
collection, burial, and accountabil
Page 249 and 250:
2. Detainment is Typically Authoriz
Page 251 and 252:
(6) Categorization and Segregation.
Page 253 and 254:
L. Detainees retain all the civil r
Page 255 and 256:
occupied territory. Accordingly, if
Page 257 and 258:
APPENDIX CCPL AND DISPLACED PERSONS
Page 259 and 260:
. Application conditioned upon posi
Page 261 and 262:
safety of the requester against imm
Page 263 and 264:
CHAPTER 10LAW OF WAR: METHODS OF IN
Page 265 and 266:
E. Reducing The Credibility Gap. Th
Page 267 and 268:
Thereafter, judge advocates should
Page 269 and 270:
where soldiers are walked through t
Page 271 and 272:
B. Be Enthusiastic - Be an Obvious
Page 273 and 274:
. Violations of the Law of War Freq
Page 275 and 276:
3. “If we are on a sensitive miss
Page 277 and 278:
periodic review and evaluation, par
Page 279 and 280:
action) designed to discourage this
Page 281 and 282:
eviewing ROE, to ensure that miscon
Page 283 and 284:
from a Dum Dum would be the same or
Page 285 and 286:
APPENDIX BEXTRACT FROM AR 3504-41,
show all

Law of War Workshop Deskbook - Higgins Counterterrorism ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?