Law of War Workshop Deskbook - Higgins Counterterrorism ...

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. Protocol I. Effort to supplement rules governing international armedconflicts.c. Protocol II. Effort to extend protections of conventions to internal armedconflicts.V. WHY REGULATE WARFARE?1. Motivates the enemy to observe the same rules.2. Motivates the enemy to surrender.3. Guards against acts that violate basic tenets of civilization.a. Protects against unnecessary suffering.b. Safeguards certain fundamental human rights.4. Provides advance notice of the accepted limits of warfare.5. Reduces confusion and makes identification of violations more efficient.6. Helps restore peace.VI.CONCLUSION.“Wars happen. It is not necessary that war will continue to be viewed as aninstrument of national policy, but it is likely to be the case for a very long time.Those who believe in the progress and perfectibility of human nature maycontinue to hope that at some future point reason will prevail and allinternational disputes will be resolved by nonviolent means . . . Unless and untilthat occurs, our best thinkers must continue to pursue the moral issuesrelated to war. Those who romanticize war do not do mankind a service; thosewho ignore it abdicate responsibility for the future of mankind, a responsibilitywe all share even if we do not choose to do so.”Chapter 1History of the Law of War12
CHAPTER 2THE UNITED NATIONS AND LEGAL BASES FOR THEUSE OF FORCEREFERENCES1. U.N. Charter2. Treaty Providing for the Renunciation of War as an Instrument of National Policy (Kellogg-BriandPact), done at Paris, August 27, 1928, 46 Stat. 2343, T.S. No. 796, 2 Bevans 732, L.N.T.S. 573. Agreement for the Prosecution and Punishment of the Major War Criminals of the European AxisPowers and Charter of the International Military Tribunal (Nuremburg Charter), done at London,August 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 2794. U.N. General Assembly Resolution 337(V), Uniting for Peace, 5 U.H. GAOR Supp. (No. 20) 10(1950)5. U.N. General Assembly Resolution 2625, Declaration on Principles of International Law ConcerningFriendly Relations and Cooperation Among States in Accordance with the Charter of the UnitedNations, 25 U.H. GAOR Supp. (No. 28) 121 (1970).6. U.N. General Assembly Resolution 3314, Definition of Aggression, 29 U.H. GAOR Supp. (No 31)142 (1974).7. War Powers Resolution, 50 U.S.C. §§ 1541-1548; Pub. L. No. 93-148 (1972).I. INTRODUCTIONA. Origin of the United Nations.1. The name “United Nations” was devised by United States President FranklinD. Roosevelt and was first used in the “Declaration by United Nations” of 1January 1942, during the Second World War, when representatives of 26nations pledged their Governments to continue fighting together against theAxis Powers.2. The United Nations Charter was drawn up by the representatives of 50countries at the United Nations Conference on International Organization,which met at San Francisco from 25 April to 26 June 1945. Those delegatesdeliberated on the basis of proposals worked out by the representatives ofChina, the Soviet Union, the United Kingdom and the United States atDumbarton Oaks in August-October 1944. The Charter was signed on 26June 1945 by the representatives of the 50 countries. Poland, which was notrepresented at the Conference, signed it later and became one of the original51 Member States.3. The United Nations officially came into existence on 24 October 1945, whenthe Charter had been ratified by China, France, the Soviet Union, the United13Chapter 2Legal Basis for the Use of Force
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: 1. Early Charter Period. Immediatel
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
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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
Page 285 and 286:
APPENDIX BEXTRACT FROM AR 3504-41,
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