Law of War Workshop Deskbook - Higgins Counterterrorism ...

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d. Firing on localities which are undefended and without militarysignificance;e. Abuse of or firing on the flag of truce;f. Misuse of the Red Cross emblem;g. Use of civilian clothing by troops to conceal their military characterduring battle;h. Improper use of privileged buildings for military purposes;i. Poisoning of wells or streams;j. Pillage or purposeless destruction;k. Compelling prisoners of war to perform prohibited labor;l. Killing without trial spies or other persons who have committed hostileacts;m. Compelling civilians to perform prohibited labor;n. Violation of surrender terms. See FM 27-10, & 504.3. The Implications of Protocol I. Cf. DA Pam 27-1-1, Protocol I, arts. 11(4),85.D. Common Article 3 to the Four Geneva Conventions. Minimum standards thatParties to a conflict are bound to apply, in the case of armed conflict not of aninternational character occurring in the territory of one of the High Contractingparties. Nothing in Common Article 3 discusses individual criminal liability.1. ICTY has held that prosecutions for violations of Common Article 3 can bebrought in internal as well as international armed conflicts.2. The International Criminal Court statute provides for prosecution ofviolations of Common Article 3 in non-international armed conflicts.3. 18 U.S.C. § 2441 now permits prosecutions for violations of CommonArticle 3 in the U.S. federal court system.E. Genocide. In 1948, the U.N. General Assembly defined this crime to consist ofkilling and other acts committed with intent to destroy, in whole or in part, aChapter 8War Crimes and Command Responsibility196
national, ethnic, racial, or religious group, “whether committed in time of peaceor in time of war.” Convention on the Prevention and Punishment of the Crimeof Genocide, opened for signature Dec. 11, 1948, art. 2, 78 U.N.T.S. 277(entered into force Jan. 12, 1951). U.S. ratification was given advice andconsent by Senate in the Genocide Convention Implementation (Proxmire) Actof 1987, Pub. L. No. 100-606, 102 Stat. 3045 (codified at 18 U.S.C. § 1091).F. Other Treaties. Violations of treaties to which the United States is a party alsocreate bases for criminal liability. For example, the 1993 Chemical WeaponsConvention and the 1980 Conventional Weapons Convention.G. Conspiracy, Incitement, Attempts, and Complicity. International law allows forpunishment of these forms of crime. GPW, art. 129 (subjecting to penalsanctions “persons alleged to have committed, or to have ordered to becommitted” serious war crimes) (emphasis added); Allied Control Council LawNo. 10, art. II, & 2, Dec. 20, 1945, reprinted in 1 TRIALS OF WAR CRIMINALS 16;S. C. Res. 827, U.N. SCOR, U.N. DOC. S/RES/827 (1993), art. 7; S. C. Res.955, U.N. SCOR, U.N.DOC S/RES/955, art. 6; FM 27-10, 500.H. Violations charged in current tribunals1. International Criminal Tribunal for the Former Yugoslaviaa. Crimes against Peace are not among listed offenses to be tried.b. Violations of the Laws or Customs of War (War Crimes)--traditionaloffenses such as murder, wanton destruction of cities, towns or villages ordevastation not justified by military necessity, firing on civilians, plunderof public or private property and taking of hostages.(1) The Opinion & Judgment in the Tadic case set forth elements of proofrequired for finding that the Law of War had been violated:(a) An infringement of a rule of International humanitarian law(Hague, Geneva, other);(b) Rule must be customary law or treaty law;(c) Violation is serious; grave consequences to victim or breach of lawthat protects important values;(d) Must entail individual criminal responsibility; and197Chapter 8War Crimes and Command Responsibility
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INTERNATIONAL AND OPERATIONAL LAW D
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HRAnnex to Hague Convention No. IV
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2. War versus Armed Conflict. Histo
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1. Jus ad Bellum: Legitimate War. L
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c. The intention must be the advanc
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. EXAMPLE: National leaders began t
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1. Early Charter Period. Immediatel
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CHAPTER 2THE UNITED NATIONS AND LEG
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C. Secretariat.collective security
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c. Note that the prohibition refers
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(ii)(iii)Blockade;Land, sea or air
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c. “Inherent right” of self def
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1. History, background and purpose.
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CHAPTER 3LEGAL FRAMEWORK OF THE LAW
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(1) GW: Wounded and Sick in the Fie
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1. Common Article 2 -- Internationa
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. Providing for the interjection of
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B. Protecting Power. This refers to
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APPENDIX ACONFLICT SPECTRUMInternal
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(as defined in subsection 3.2., bel
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5.5.2. Ensure that programs are imp
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eport, established in Joint Pub 1-0
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APPENDIX CIMPLEMENTATION OF THE DOD
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(c) The Director for Operations (J-
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1. Conducting appropriate prelimina
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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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Page 155 and 156: territory the civilian loses his st
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Page 159 and 160: 5. The U.S. specifically objects to
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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 and 180: (1) Article I. Parties agree to nev
Page 181 and 182: (2) The Senate’s resolution of ad
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.
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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
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Page 201 and 202: consents. This dual system of conse
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Page 207 and 208: was purely internal. The court conc
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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
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Page 219 and 220: inevitable. No Court will punish a
Page 221 and 222: j. International Criminal Court. Th
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Page 229 and 230: conflict, but place soldiers in sit
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Page 241 and 242: (1) Attempt to identify those count
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Page 249 and 250: 2. Detainment is Typically Authoriz
Page 251 and 252: (6) Categorization and Segregation.
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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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