Law of War Workshop Deskbook - Higgins Counterterrorism ...

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(4) The right to humane treatment when in the hands of a state;(5) Freedom from torture and cruel, inhuman, or degrading treatment;(6) Freedom from murder, kidnapping, and other physical violence;(7) Freedom from arbitrary arrest and detention;(8) The right to be properly fed and cared for when detained or under theprotection of a nation;(9) Freedom from systematic racial discrimination (to include religiousdiscrimination);(10) Freedom from violation of other internationally recognized humanrights if the violation occurs as a result of state policy. (Examples ofsuch violations include systematic harassment, invasion of the privacyof the home, denial of fair trial, grossly disproportionate punishment,etc.)d. The Statutory Reinforcement. The prohibition under international lawagainst violation of these “Tier 1” rights is reinforced by various domesticstatutes intended to ensure U.S. policy does not support nations whichviolate such rights. These include:(1) United States Foreign Assistance Act: no assistance may be provided“to the government of any country which engages in a consistentpattern of gross violations of internationally recognized human rights,including torture or cruel, inhuman, or degrading treatment orpunishment, prolonged detention without charges, or other flagrantdenial of the right to life, liberty, and the security of the person . . .”22 U.S.C. § 2151n.(a);(2) The Agricultural Trade Development and Assistance Act of 1954, asamended 7 U.S.C. § 1712 (precluding agreement to finance sale ofagricultural commodities to such governments);(3) International Financial Institutions Act of 1977, 22 U.S.C. §§ 262d and262(1) (establishing United States policy to oppose assistance to suchgovernments by international financial institutions).e. Universal Declaration Reinforcement.Chapter 9Law of War and MOOTW230
(1) The Universal Declaration of Human Rights, adopted unanimously bythe United Nations General Assembly in 1948. It is not a treaty,however many provisions have attained the level of customaryinternational law.(2) U.S. position and that of most commentators is that only the corearticles within the Declaration have achieved status as customaryinternational law. These articles include:(a) The Common Article 3 “type” protections; and(b) Provisions that relate to prohibiting “any state policy to practice,encourage, or condone genocide; slavery; murder; torture; or cruel,inhuman or degrading treatment; prolonged arbitrary detention; [thedenial of] equal treatment before the law.” 27(c) Whether Declaration provisions which guarantee the right toprivate property reflect customary international law is less clear.The U.S. does recognize the customary status of at least theDeclaration’s “core of rights to private property.” 28(3) Distinguish between saying we are applying Common Article 3 typeprotections and providing protections “consistent with” theDeclaration.(a) Less flexibility. The Declaration’s core articles are reflections ofcustomary law and must be observed. No caveat of “actingconsistent with” will insulate U.S. from future obligations tocomply with these provisions.(b) Declaration provisions the U.S. does not consider reflective ofcustomary international are technically not binding on the U.S.However, these may nonetheless be integrated into the planningphase of operations and serve as guidance. The U.S. supportsthe spirit of the Declaration and acts consistent with allprovisions unless doing so is wholly impractical.27RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, at § 702.28Id. § 702 k.231Chapter 9Law of War and MOOTW
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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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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
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
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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,
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