Law of War Workshop Deskbook - Higgins Counterterrorism ...

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2. Medical activities may also be focused primarily on supporting combat units.Law of war issues are most likely to arise under such circumstances. Thisraises the issue of what humanitarian standards are applicable.a. The following discussion of such standards is drawn from the GenevaWounded and Sick Convention (GWS) and experiences during OperationRestore Democracy.b. Two excellent sources of lessons learned in this area are Memorandumfrom MG George A. Fisher, MNF Medical Rules of Engagement (ROE)Policy of 1/25/95, and Asbjorn Eide, Allan Rosas, Theodor MeronCombating Lawlessness in Gray Zone Conflicts Through MinimumHumanitarian Standards 89 A.J.I.L. 215 (1995) (discussing certainminimum humanitarian standards applicable to all situations).B. Humanitarian Standards.1. Respect and protect the wounded and sick (Article 12 GWS). The obligationnot to attack the wounded and sick and to provide basic care. The type ofbasic care provided is discussed infra in terms of emergency care. Thecategories of wounded and sick persons is generally considered to includecivilians.2. Search for and collect wounded and sick and the dead (Article 15, GWS).This standard does not translate well to MOOTW. At best it can be appliedto the extent practicable and feasible. W. Hays Parks memorandum, supra.a. Note that even under the GWS, this requirement is subject to militarypracticability, i.e. the obligation is not absolute.b. Furthermore, the obligation to search for civilian wounded under GCArticle 16 (“as far as military consideration allow, each Party to theconflict shall facilitate the steps taken to search for the killed andwounded [civilians]) is not as strong as the obligation to search for thoseprotected under the GWS (primarily members of the armed forces). Thislanguage recognizes the primacy of civilian authorities in the matter ofcaring for civilians. See DEP’T OF ARMY FIELD MANUAL 8-10, HEALTHSERVICE SUPPORT IN A THEATER OF OPERATIONS, para. 3-17 (1 Mar 1991).c. Finally, consistent with the primacy of civilian authorities mentionedabove, there are also sovereignty issues at play in situations such as thoseencountered in Panama and Haiti. “Primary responsibility for theChapter 9Law of War and MOOTW238
collection, burial, and accountability for the wounded and dead lay withthe Government of Panama. U.S. assumption of any responsibility for theburial of deceased Panamanians, military or civilian, would haveconstituted a breach of Panama’s sovereignty without its expressconsent.” W. Hays Parks memorandum, supra.d. Consequently, the U.S. policy in Haiti was to render emergency carerequired to save life, limb, or eyesight to Haitian civilians. Thus, on sitemedical personnel were permitted to provide emergency stabilization,treatment, and to arrange transportation to civilian hospitals.Additionally, in Haiti, treatment was provided to those persons injured asa result of U.S. actions. See MG Fisher memorandum, supra.3. Medical, religious and other humanitarian personnel shall be respected andprotected. U.S. forces should have no difficulty complying with thisstandard.239Chapter 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
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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
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: (2) The significance of applying su
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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