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are not defended” in order to modify the list of places.364 Rather than a dependent clause, AP I
uses an adjective -- “non-defended” modifying the word “localities.”365 The difference in
English terms seems to reflect this underlying change in the French phrasing.
Moreover, the title of the chapter in Hague IX—“Du bombardement des ports, villes,
villages, habitations ou bâtiments non défendus” (emphasis added)—uses the same French
phrase as is used in AP I, yet the last two words of the title of the chapter in Hague IX have
typically been translated as “undefended” rather than “non-defended.”
Thus, the consistency in terminology across the French texts suggests that even though
the English terminology has varied slightly, no substantive change has been intended.
5.15.1.2 Open Versus Undefended. If “undefended” is simply understood in a
factual sense to mean a lack of defenses and “open” is simply understood in a factual sense to
mean “open” for entry by the enemy, then distinctions could be drawn between “open” cities and
“undefended” cities, because not all cities lacking defenses would be open for entry by enemy
forces. For example, a city that did not itself have defenses, but was located deep behind the
State’s defensive lines would not be “open” for entry by enemy forces.
Most sources, however, use “open” and “undefended” interchangeably.366 It appears that
these terms tend to be used interchangeably because both terms generally refer to a specific legal
category of populated areas that are protected by the law of war from attack.367
5.15.2 “By Whatever Means”. The phrase “by whatever means” was inserted in the
Hague IV Regulations to clarify that bombing attacks by air were included in the rule.368
364 See HAGUE IV REG. art. 25 (“Il est interdit d’attaquer ou de bombarder, par quelque moyen que ce soit, des villes,
villages, habitations, ou bâtiments qui ne sont pas défendus.”) (emphasis added); HAGUE IX art. 1 (“Il est interdit de
bombarder, par des forces navales, des ports, villes, villages, habitations ou bâtiments, qui ne sont pas défendus.”)
(emphasis added).
365 See AP I art. 59, 1125 UNTS 299 (“Il est interdit aux Parties au conflit d’attaquer, par quelque moyen que ce soit,
des localités non défendues.”) (emphasis added).
366 See, e.g., 1958 UK MANUAL ¶290 (“An undefended or ‘open’ town is a town which is so completely undefended
from within or without that the enemy may enter and take possession of it without fighting or incurring casualties.”).
367 See R.Y. Jennings, Open Towns, 22 BYIL 258, 260-61 (1945) (“There can be little doubt that the land warfare
rules exempted the ‘open and undefended’ town from bombardment because, being undefended, it was, under the
conditions of contemporary warfare, open for the enemy to enter and take possession of, or destroy, its military
resources. This quality of being open to entry by the enemy is the essence of the rule. … It is impossible to
conceive of a truly undefended town which is not also open in every sense of the word.”).
368 See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
104 (1920) (“The Russian and Italian proposals had the same design, and were calculated to supplement Article 25
of the 1899 Regulations with a provision securing to undefended towns, villages, dwellings or buildings absolute
immunity from all attack or bombardment, ‘even by aid of balloons or other new methods of a similar nature.’ …
The delegation of France then observed that the prohibition contemplated by the new Russian text, while entirely
conforming to its opinion as previously expressed, is already contained in the text now in force in Article 25, and
that consequently it is sufficient, if deemed necessary to avoid misunderstanding by rendering its terms precise, to
insert the words ‘by any means whatever’ after ‘to attack or bombard.’”).
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5.15.3 Declaration of a City as “Undefended”. An undefended city may be established
through negotiations with opposing forces,369 or unilaterally by the party to the conflict in
control of it. If the latter, the intent and actions of that party should be communicated to
opposing military forces through a declaration. A town, village, or city may be declared
“undefended” when it is near, or in, a zone where opposing armed forces are in contact with one
another and it is open for immediate physical occupation by an adverse party without
resistance.370
5.15.3.1 Open for Immediate Physical Occupation. The area in question must be
open for immediate physical occupation by opposing military ground forces.371 Thus, a city in
rear areas behind enemy lines cannot be “undefended.” For example, a party to a conflict cannot
declare a city or other population center to be undefended if it is several hundred miles behind
the area of ground conflict where it would not be feasible for opposing ground forces to occupy
it. By way of comparison, it would not be effective for a person to seek to surrender to an
opposing force’s aircraft that could not physically take custody of that person.372
5.15.3.2 Necessity for a Declaration of Undefended Status. Although there is no
explicit treaty requirement that a city be declared undefended before achieving that status, the
practice has been to make such declarations to the opposing party. Without them, a belligerent
would have no way of knowing whether a city was truly open for occupation without resistance.
For example, a city may not satisfy the conditions described below for undefended status, or it
may contain defenses that are concealed or that are operated from other areas.373
5.15.3.3 Refusal to Recognize a Declaration. Belligerents may refuse to
recognize a declaration that a city is undefended if they assess that it does not satisfy all of the
necessary conditions, although they should notify the opposing belligerent of that decision.374
369 Refer to § 5.15.5 (Agreements to Establish Undefended Cities).
370 1956 FM 27-10 (Change No. 1 1976) ¶39b (“An undefended place, within the meaning of Article 25, HR, is any
inhabited place near or in a zone where opposing armed forces are in contact which is open for occupation by an
adverse party without resistance.”). Consider AP art. 59(2) (“The appropriate authorities of a Party to the conflict
may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact
which is open for occupation by an adverse Party.”).
371 BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, ¶2.5.1) (“The concept intended is that it is sufficiently
close to the adverse Party’s forces that tactical movement to occupy it is a feasible course of action by the advancing
force.”).
372 Refer to § 5.10.3.3 (Under Circumstances in Which It Is Feasible to Accept).
373 R.Y. Jennings, Open Towns, 22 BYIL 258, 261 (1945) (“But it is ludicrous to suppose that a town shielded by an
army holding a line in front of it is undefended. Moreover, even the defences peculiarly appropriate to aerial
warfare are no longer purely or even mainly local defences. Defending fighter planes may be based miles from the
town. A screen of anti-aircraft guns sited on the route to the town, even though many miles away from it, may be a
more effective defence than anti-aircraft guns sited in or around the town itself.”).
374 Consider AP I art. 59(4) (“The Party to the conflict to which the declaration is addressed shall ackowledge [sic]
its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 are
not in fact fullfilled, in which event it shall immediately so inform the Party making the declaration.”).
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Absent or until recognition, military objectives in a city unilaterally designated as undefended
remain subject to attack.375
5.15.3.4 Authority to Make a Declaration or to Recognize a Declaration.
Declaration of a city being open or recognition of an opposing party’s declaration may only be
accomplished by those with authority to enforce the corresponding obligations, which may be the
immediate military commander, theater commander, or national command authorities.376 These
obligations may extend more broadly than control over the city itself as, for example, when the
city’s defenses are operated from a different location.
5.15.4 Conditions Necessary for a Place to Maintain Undefended Status. Once a party to
a conflict has validly declared a city to be undefended, the city must also satisfy certain
conditions. If the city fails to satisfy these conditions, it would not be entitled to undefended
status, or, if previously granted, it would lose that status.377 Persons and objects within that city,
however, may still receive other protections for civilians and civilian objects.378
5.15.4.1 Combatants and Mobile Military Equipment Have Been Evacuated. All
combatants, as well as their mobile weapons and mobile military equipment, must have been
evacuated.379 However, the presence of military medical personnel, the wounded and sick, and
375 Cf. Sansolini and Others v. Bentivegna and Others, Italian Court of Cassation, Jul. 19, 1957 (“The declaration
that Rome was an open city was made by the Italian Government before the armistice, viz., on July 31, 1943. It was
made to the British and the Americans but never accepted by them. It follows from this lack of acceptance that the
declaration could not create any legal obligation for the Italian Government vis-à-vis the British and the Americans.
… We must therefore reject the contention that there was any violation of an undertaking to respect Rome as an
open city because there were not agreements to this effect … .”); BOTHE, PARTSCH, & SOLF, NEW RULES 383 (AP I
art. 59, ¶2.5.2) (“Drawing on the World War II experience, the Canadian delegation pointed out that the decision not
to defend Paris and Rome had been made while defending forces still had possession of these urban centres.
Accordingly, the Canadian delegation proposed that a mechanism be developed under which the defending Party
would declare that it did not intend to defend the locality and to initiate negotiations for permitting an orderly
withdrawal. The locality was not to be attacked while such negotiation was taking place. Other delegations pointed
out that the Canadian proposal would amount to a unilateral cease fire enabling the defending force to extricate itself
from a precarious situation. This matter was left for mutual agreement between the Parties under para. 5.”).
376 For example, R.Y. Jennings, Open Towns, 22 BYIL 258, 263 (1945) (“The declaration of Rome as an open city
by the Italian Government in August 1943 was little more than a public request to the Allies to state the conditions
under which they would discontinue their bombing attacks on the city. The Allies were unable to comply with the
request for the very good reason that however anxious the Italian Government might have been to comply with any
conditions, they were in fact powerless to prevent the German Army from using the city as a military centre.”).
377 Consider AP I art. 59(7) (“A locality loses its status as a non-defended locality when it ceases to fulfil the
conditions laid down in paragraph 2 or in the agreement referred to in paragraph 5.”).
378 Consider AP I art. 59(7) (“In such an eventuality, the locality shall continue to enjoy the protection provided by
the other provisions of this Protocol and the other rules of international law applicable in armed conflict.”).
379 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled:
(1) Armed forces and all other combatants, as well as mobile weapons and mobile
military equipment, must have been evacuated, or otherwise neutralized;”). Consider AP I art. 59(2) (requiring that
in a non-defended locality “(a) All combatants, as well as mobile weapons and mobile military equipment, must
have been evacuated;”).
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civilian police forces for the purpose of maintaining local law and order would not cause a city
designated as undefended to lose that status.380
5.15.4.2 No Hostile Use of Fixed Military Facilities. No hostile use shall be made
of fixed military installations or establishments within the city.381
5.15.4.3 No Hostile Acts Against the Occupying Force. Hostile acts may not be
committed by the local civilian authorities or the civilian population against the occupying
military force.382
5.15.4.4 No Activities in Support of Military Operations. No activities in support
of military operations may be undertaken.383 For example, factories in the city should not be
used to manufacture munitions, and ports or railroads should not be used to transport military
supplies.384
5.15.5 Agreements to Establish Undefended Cities. Even if the conditions described
above are not met, parties to a conflict may agree between themselves to treat an area as an
undefended city.385 The agreement should be in writing and should define and describe, as
precisely as possible, the limits of the undefended city (such as the exact geographic limits of the
380 1956 FM 27-10 (Change No. 1 1976) ¶39b (“The presence, in the place, of medical units, wounded and sick, and
police forces retained for the sole purpose of maintaining law and order does not change the character of such an
undefended place.”). Consider AP I art. 59(3) (“The presence, in this locality, of persons specially protected under
the Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order, is
not contrary to the conditions laid down in paragraph 2.”). Compare § 4.23.1 (Police as Civilians).
381 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: … (2) no hostile use shall be made of fixed military installations or establishments;”).
Consider AP I art. 59(2) (requiring that in a non-defended locality “(b) No hostile use shall be made of fixed
military installations or establishments;”).
382 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: … (3) no acts of warfare shall be committed by the authorities or by the
population;”). Consider AP I art. 59(2) (requiring that in a non-defended locality “(c) No acts of hostility shall be
committed by the authorities or by the population;”).
383 See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: … (4) no activities in support of military operations shall be undertaken.”). Consider
AP I art. 59(2) (requiring that in a non-defended locality “(d) No activities in support of military operations shall be
undertaken.”).
384 For example, F.D. ROOSEVELT & S. ROSENMAN, THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D.
ROOSEVELT: 1943 VOLUME 309 (1950) (“The Nine Hundred and Tenth Press Conference (Excerpts) July 23, 1943
(Rome as a military center - Bombing of Rome) Q. Mr. President, is there any comment you can make, sir, upon
establishing Rome as an open city? THE PRESIDENT: I think the easiest thing is to tell you in general what has
been happening for over a year. We have been very anxious to have Rome declared an open city. However, the
Fascists would not do it; and on the contrary, it has become—probably was then—a very important military center.
That means they were making munitions, and using airports very close to Rome-actually in Rome, and the use of
Rome because it’s a railroad center for transportation of troops, guns, and ammunition down to the south of Rome.
And we used every argument, and pleaded that it be made an open city. But it didn’t work. We did our best. And
we still hope that the Germans and the Fascists will make it an open city.”).
385 Consider AP I art. 59(5) (“The Parties to the conflict may agree on the establishment of non-defended localities
even if such localities do not fulfil the conditions laid down in paragraph 2.”).
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locality, when the location is to begin to receive protection as undefended, and the duration of
undefended status). If necessary, methods of supervision to ensure that the city continues to
fulfill the conditions should be specified.386 It may also be appropriate for agreements to
specify:
(1) rules on marking the city and agreed signs;387 (2) persons authorized to enter the
city; and (3) whether and under what conditions the city may be occupied by enemy forces.
5.15.6 Actions of the Occupying Force. The occupying force may use the city, town, or
village for military operations, including by establishing defenses to prevent its recapture by the
enemy.388 In such cases, the city would lose its undefended status, and, for example, military
objectives within the city may be attacked.389
However, if the occupying force acts in a manner consistent with the conditions
necessary for the inhabited place to maintain undefended status,390 the place would remain
undefended for the purpose of protecting it against military operations by all parties to the
conflict.
5.16 PROHIBITION ON USING PROTECTED PERSONS AND OBJECTS TO SHIELD, FAVOR, OR IMPEDE
MILITARY OPERATIONS
Parties to a conflict may not use the presence or movement of protected persons391 or
objects392:
(1) to attempt to make certain points or areas immune from seizure or attack; (2) to
386 Consider AP I art. 59(5) (“The agreement should define and describe, as precisely as possible, the limits of the
non-defended locality; if necessary, it may lay down the methods of supervision.”).
387 Consider AP I art. 59(6) (“The Party which is in control of a locality governed by such an agreement shall mark
it, so far as possible, by such signs as may be agreed upon with the other Party, which shall be displayed where they
are clearly visible, especially on its perimeter and limits and on highways.”).
388 BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, ¶2.4) (“Once in possession of a previously non-
defended locality a Party is not bound to refrain from organizing its defense to maintain the security of the locality
against an attempt to recapture the locality.”).
389 See The Legal Adviser (Hackworth) to Secretary of State Hull, memorandum, Aug. 19, 1943, X WHITEMAN’S
DIGEST 437 (“If our troops were in Rome [after the United States had recognized it as an open city] or passing
through Rome, they would be subject to bombardment by Germany and hence the city would be in the same position
as French cities, including Paris, were after they were occupied by German forces or were being used for military
purposes. It appears that in the last war French cities, such as Vouziers, Charleville, and Mézières, regarded as open
cities were bombarded by the French after they had been occupied by Germany. The sum and substance of these
examples is that the status of a city may change from an undefended to a defended place as military operations
change, and that recognition by use of Rome as an open city would mean only that we could not bomb it while it
was so recognized, but that if we later used it ourselves, it would again become subject to bombardment.”).
390 Refer to § 5.15.4 (Conditions Necessary for a Place to Maintain Undefended Status).
391 Cf. 10 U.S.C. § 950t (“(9) USING PROTECTED PERSONS AS A SHIELD.—Any person subject to this chapter who
positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from
attack. [sic] or to shield, favor, or impede military operations, shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other than death, as a military commission under this
chapter may direct.”); 10 U.S.C. § 950p (a)(3) (“The term ‘protected person’ means any person entitled to protection
under one or more of the Geneva Conventions, including civilians not taking an active part in hostilities, military
personnel placed out of combat by sickness, wounds, or detention, and military medical or religious personnel.”).
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shield military objectives from attack; or (3) otherwise to shield or favor one’s own military
operations or to impede the adversary’s military operations.
5.16.1
Protected Persons and Objects. In particular, the civilian population,393
protected
persons under the GC,394 POWs,395 fixed medical establishments and medical units,
parlementaires and other persons protected by a flag of truce,396 and cultural property are
protected persons and objects that may not be used for the above purposes.
Although persons and objects that are protected by the law of war may not be used in
these ways, this rule does not prohibit a party from using what would otherwise be a civilian
object for military purposes and thereby converting it to a military objective that is not protected
by the law of war. For example, a building that previously was a civilian object could be used
for military purposes (including as cover) and would not implicate this rule because it would no
longer be a protected object. Similarly, this rule does not prohibit persons who would otherwise
be civilians from participating in hostilities or assuming the risks inherent in supporting military
operations. Incidental harm to those individuals would be understood not to prohibit attacks
under the proportionality rule, and thus would not implicate this rule.397
5.16.2 Intent to Endanger Protected Persons or Objects to Deter Enemy Military
Operations. The essence of this rule is to refrain from deliberately endangering protected
persons or objects for the purpose of deterring enemy military operations.398 This absolute duty
392 Cf. 10 U.S.C. § 950t (“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who
positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military
objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission
under this chapter may direct.”); 10 U.S.C. § 950p(a)(3) (“The term ‘protected property’ means any property
specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or
charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, but only if
and to the extent such property is not being used for military purposes or is not otherwise a military objective. The
term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not
include civilian property that is a military objective.”).
393 Consider AP I 51(7) (“The presence or movements of the civilian population or individual civilians shall not be
used to render certain points or areas immune from military operations, in particular in attempts to shield military
objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct
the movement of the civilian population or individual civilians in order to attempt to shield military objectives from
attacks or to shield military operations.”).
394 GC art. 28 (“The presence of a protected person may not be used to render certain points or areas immune from
military operations.”).
395 Refer to § 9.5.2.3 (No Exposure to a Combat Zone or Use as a Human Shield).
396 Refer to § 12.4.2.1 (Prohibition on Improper Use of the Flag of Truce).
397 Compare § 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives).
398 BOTHE, PARTSCH & SOLF, NEW RULES 316 (AP I art. 51, ¶2.8.2) (“The mandatory provisions of para. 7 are
intended to prohibit any deliberate use of the physical presence or physical movement of civilians for the purpose of
shielding or favouring friendly military operations against enemy action or to impede enemy military operations. …
In practice this means that in some close cases the location of a military objective in the midst of a populated town
may violate para. 7 if the purpose of the location is to shield the military unit or facility from attack. On the other
hand, the same act could be innocent if it were militarily necessary to so situate the unit or facility. Thus the
subjective intent of military commander is the controlling element in determining whether there has been a breach of
para. 7, a negligent failure to take the precautions urged by Art. 58, or a legitimate act of war.”).
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to refrain from purposeful misconduct may be contrasted with the affirmative obligation that
parties have to take feasible precautions to separate the civilian population,399 civilian
internees,400 POWs,401 fixed medical establishments and medical units,402 and cultural
property,403 from the dangers of military operations.
An adversary’s intention to violate this rule is likely to be clear because that adversary
normally would make it apparent to the opposing party that attacks against the military objective
being shielded would risk harming protected persons or objects.404
On the other hand, in the absence of purposeful action to put protected persons and
objects at risk of harm from enemy military operations, there would be no violation of this rule.
For example, this rule would not prohibit restricting the movement of civilians in order to
conduct military operations without their interference. In addition, it would also not prohibit the
evacuation of civilians for their own security or for imperative military reasons.405
In addition, this rule must not be understood to alter the rules on spying and sabotage. In
other words, this rule does not prohibit a spy from hiding among civilians in order to gather
intelligence. However, the spy runs the risk of prosecution by the enemy State if he or she is
discovered and captured while spying.
5.16.3
Prohibition on Taking Hostages. The taking of hostages is prohibited.406
This
prohibition is understood to include a prohibition against threatening to harm detainees whose
399 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
400 Refer to § 10.11.1.1 (Avoidance of Particularly Dangerous Areas).
401 Refer to § 9.11.3 (Location of POW Camps).
402 Refer to § 7.10.2 (Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives).
403 Refer to § 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or
Damage).
404 For example, STUART I. ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICAN
PRISONERS OF WAR IN SOUTHEAST ASIA, 1961-1973 316-21 (1998) (“Between June and October 1967 the North
Vietnamese confined more than 30 U.S. PWs in the vicinity of the Yen Phu thermal power plant in northern Hanoi.
… Although the Communists would deny it, their conspicuous display and virtual announcement of the PWs’
presence at the power plant evidenced a transparent attempt to use the prisoners as hostages to discourage U.S.
bombing of the facility. … Through calculated disclosures to visiting journalists and diplomats, local placard
publicity, and exhibiting the captives in full view of civilians—all sharp departures from their normal practice—the
Vietnamese could be certain the PWs’ presence would be reported to the U.S. government. … The hostage charade
did not deter U.S. strikes on the target. The plant was attacked regularly after 13 August, with apparently no
casualties and conflicting reports on the extent of damage to the power facility and PW cellblocks.”).
405 Cf. BOTHE, PARTSCH & SOLF, NEW RULES 317 (AP I art. 51, ¶2.8.3) (“Paragraph 7 [of Article 51 of AP I] does
not prohibit measures to restrict the movement of civilians so as to avoid their interference with military movement,
nor does it prohibit ordering their evacuation if their security or imperative military reasons so demand.”).
406 GC art. 34 (“The taking of hostages is prohibited.”). Cf. 18 U.S.C. § 2441(d)(1)(I) (defining “Taking hostages”
as “The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or
continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or
group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such
person or persons.”); 10 U.S.C. § 950t(7) (“TAKING HOSTAGES.—Any person subject to this chapter who, having
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lives are valued by the adversary in order to induce the adversary not to attack, but is also
understood to include the prohibition against using hostages as human shields.407
The taking of hostages is also prohibited in non-international armed conflict.408
5.16.4 Violations by Defenders Do Not Relieve Attackers of the Duty to Discriminate in
Conducting Attacks. Violations by the adversary of the prohibition on using protected persons
and objects to shield, favor, or impede military operations do not relieve those conducting attacks
from their obligation to seek to discriminate between lawful and unlawful objects of attack.409
However, such violations by the adversary may impair the attacking force’s ability to
discriminate and increase the risk of harm to protected persons and objects.410
5.17 SEIZURE AND DESTRUCTION OF ENEMY PROPERTY
Outside the context of attacks, certain rules apply to the seizure and destruction of enemy
property:
• Enemy property may not be seized or destroyed unless imperatively demanded by the
necessities of war;
knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or
persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain
from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished,
if death results to one or more of the victims, by death or such other punishment as a military commission under this
chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.”).
407 GC COMMENTARY 230 (giving as examples of hostage taking: (1) “taking as hostages persons generally selected
from among prominent persons in a city or a district in order to prevent disorders or attacks on occupation troops”;
(2) “arresting after an attack a certain number of inhabitants of the occupied territory and announcing that they will
be kept captive or executed if the guilty are not given up”; and (3) “the practice of taking so-called accompanying
hostages consists of placing inhabitants of occupied territory on board lorry convoys or trains in order to prevent
attacks by their compatriots”).
408 Refer to § 17.6.2 (Prohibition on the Taking of Hostages).
409 Refer to § 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).
410 FINAL REPORT ON THE PERSIAN GULF WAR 613 (“Another reason for collateral damage to civilian objects and
injury to civilians during Operation Desert Storm lay in the policy of the Government of Iraq, which purposely used
both Iraqi and Kuwaiti civilian populations and civilian objects as shields for military objects. Contrary to the
admonishment against such conduct contained in Article 19, GWS, Articles 18 and 28, GC, Article 4(1), 1954
Hague, and certain principles of customary law codified in Protocol I (discussed below), the Government of Iraq
placed military assets (personnel, weapons, and equipment) in civilian populated areas and next to protected objects
(mosques, medical facilities, and cultural sites) in an effort to protect them from attack. For this purpose, Iraqi
military helicopters were dispersed into residential areas; and military supplies were stored in mosques, schools, and
hospitals in Iraq and Kuwait. Similarly, a cache of Iraqi Silkworm surface-to-surface missiles was found inside a
school in a populated area in Kuwait City. UN inspectors uncovered chemical bomb production equipment while
inspecting a sugar factory in Iraq. The equipment had been moved to the site to escape Coalition air strikes. This
intentional mingling of military objects with civilian objects naturally placed the civilian population living nearby,
working within, or using those civilian objects at risk from legitimate military attacks on those military objects.”).
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• Public movable property and certain types of private movable property may customarily
be captured as war booty;
• Enemy private movable property that is not susceptible of direct military use may be
appropriated only to the extent that such taking is permissible in occupied areas;
• Pillage is prohibited; and
• Feasible precautions should be taken to mitigate the burden on civilians, but there is no
obligation to compensate the owners of enemy property that is lawfully damaged.
During occupation, other rules relating to the treatment of enemy property apply.411
5.17.1 Definition of Enemy Property. All property located in enemy territory is regarded
as enemy property regardless of its ownership.412
5.17.2 Enemy Property - Military Necessity Standard. Enemy property may not be
seized or destroyed unless imperatively demanded by the necessities of war.413 In particular,
devastation or destruction may not be pursued as an end in itself.414 The measure of permissible
seizure or destruction of enemy property is found in the strict necessities of war.415 There must
be some reasonable connection between the seizure or destruction of the enemy property and the
overcoming of enemy forces.416
Extensive destruction and appropriation of property protected by the GC, not justified by
military necessity and carried out unlawfully and wantonly, constitutes a grave breach of the
GC.417
5.17.2.1 Using the Military Objective Definition to Assess Whether the Seizure or
Destruction of Enemy Property Is Justified by Military Necessity. The definition of military
411 Refer to § 11.18 (Enemy Property During Occupation).
412 See, e.g., Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391 (Ct. Cl. 1970) (collecting cases and describing
“the general rule that all property located in enemy territory, regardless of its ownership, is in time of war regarded
as enemy property subject to the laws of war”).
413 HAGUE IV REG. art. 23(g) (“[I]t is especially forbidden: … (g.) To destroy or seize the enemy’s property, unless
such destruction or seizure be imperatively demanded by the necessities of war;”). For general discussion of
military necessity, refer to § 2.2 (Military Necessity).
414 1956 FM 27-10 (Change No. 1 1976) ¶56 (“Devastation as an end in itself or as a separate measure of war is not
sanctioned by the law of war.”); United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS
BEFORE THE NMT 1253 (“Destruction as an end in itself is a violation of international law.”). Refer to § 2.3.1
(Humanity as a Prohibition).
415 1956 FM 27-10 (Change No. 1 1976) ¶56 (“The measure of permissible devastation is found in the strict
necessities of war.”).
416 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54
(“There must be some reasonable connection between the destruction of property and the overcoming of the enemy
forces.”).
417 Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).
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objective (that has been developed to assess whether objects may be made the object of attack)
may be applied outside the context of attacks to assess whether an object’s seizure or destruction
is justified by imperative military necessity.418 After all, if sufficient military necessity exists to
justify attacking an object as reflected by that object meeting the definition of military objective,
then imperative military necessity would also exist to justify seizing or destroying that object by
measures short of attack.
On the other hand, if imperative military necessity justifies the seizure or destruction of
an object, that object does not necessarily satisfy the definition of a military objective. Rather,
the object must be assessed as to whether it meets the definition of military objective and may be
made the object of attack.
5.17.2.2 Seizure or Destruction of Enemy Property to Support Military
Operations. It may be imperatively demanded by the necessities of war to seize or destroy
enemy property in order to support military operations. These examples are illustrative and not
exhaustive:
• using enemy land for the construction of military bases, air fields, and other facilities to
support military operations;419
• using enemy buildings to billet military personnel and others supporting them, to house
the wounded and sick, for observation and reconnaissance, for concealment and cover,
and for defensive purposes;420
• demolishing, cutting down, or removing enemy walls, forests, and buildings to clear a
field of fire or to provide construction material;421 or
• seizing means of transportation for use in military operations.422
418 Refer to § 5.7.5 (Definition of Military Objective for Objects: A Two-Part Test).
419 1956 FM 27-10 (Change No. 1 1976) ¶56 (“[R]eal estate may be used for marches, camp sites, construction of
field fortifications, etc.”).
420 1956 FM 27-10 (Change No. 1 1976) ¶56 (“Buildings may be destroyed for sanitary purposes or used for shelter
for troops, the wounded and sick and vehicles and for reconnaissance, cover, and defense.”); LAUTERPACHT, II
OPPENHEIM’S INTERNATIONAL LAW 398 (§136) (“So far as the necessities of war demand, a belligerent may make
use of public enemy buildings for all kinds of purposes. Troops must be housed, horses stabled, the sick and
wounded looked after. Public buildings may in the first instance, therefore, be made use of for such purposes,
although they may thereby be considerably damaged.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 403
(§140) (“What has been said above with regard to utilisation of public buildings applies equally to private
buildings.”).
421 1956 FM 27-10 (Change No. 1 1976) ¶56 (“Fences, woods, crops, buildings, etc., may be demolished, cut down,
and removed to clear a field of fire, to clear the ground for landing fields, or to furnish building materials or fuel if
imperatively needed for the army.”).
422 For example, Interview by Robert K. Wright, Jr., Department of the Army, with Col. Barry S. Baer, Commander,
18th Finance Group, in Fort Bragg, N.C. (Mar. 15, 1990), available at
http://www.history.army.mil/documents/panama/JCIT/JCIT31.htm (recounting how U.S. forces commandeered
rental cars in Panama to increase tactical mobility in Operation JUST CAUSE).
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5.17.2.3 Destruction of Enemy Property to Diminish the Enemy’s Ability to
Conduct or Sustain Operations. It may be imperatively demanded by the necessities of war to
seize or destroy enemy property in order to diminish the enemy’s ability to conduct or sustain
operations, such as railways, lines of communication, and other war fighting and war sustaining
infrastructure.423 For instance, Union forces destroyed the Confederacy’s cotton during the Civil
War in order to deprive the Confederacy of the ability to fund its military operations.424
Similarly, coalition forces during Operation ENDURING FREEDOM destroyed narcotics in order to
weaken the Taliban and al Qaeda’s ability to finance their operations.425
5.17.2.4 Incidental Damage to Enemy Property. Military necessity also justifies
damage to property incidental to combat operations that is reasonably related to overcoming
enemy forces.426 For example, the movement of armed forces and equipment may damage roads
or fields.427
423 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1254 (“It is
lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy.
Private homes and churches even may be destroyed if necessary for military operations.”); LIEBER CODE art. 15
(“Military necessity … allows of all destruction of property, and obstruction of the ways and channels of traffic,
travel, or communication, and of all withholding of sustenance or means of life from the enemy.”). Compare
§ 5.7.6.2 (Make an Effective Contribution to Military Action).
424 In re Mrs. Alexander’s Cotton, 69 U.S. 404, 419-20, 421 (1864) (holding that 72 bales of cotton taken from a
barn by Union naval forces could lawfully be captured as enemy property based on “the peculiar character of the
property” as “one of [the rebels’] main sinews of war,” but that the cotton was not a maritime prize because it had
been captured on land).
425 International Security Assistance Force (ISAF) Joint Command - Afghanistan, Press Release: Combined Force
Finds, Destroys Drugs, Weapons Cache (Sept. 7, 2010) (describing a patrol’s destruction of a cache of opium and
weapons in order to “significantly reduce[] the insurgent’s ability to … procure financial resources”); April
Campbell, Afghan Forces Becoming Increasingly Effective Against Drug Producers, AFGHANISTAN INTERNATIONAL
SECURITY ASSISTANCE FORCE - NEWS (Sept. 29, 2011) (describing Afghan counter-narcotics forces’ seizure and
destruction of narcotics laboratories and narcotics as “dealing a significant blow to the insurgency’s ability to fund
operations”).
426 See also GREENSPAN, MODERN LAW OF LAND WARFARE 282-83 (“While the seizure or destruction of enemy
personnel and war material are actual objectives of warfare, the operations of war must also result in the incidental
destruction and seizure of much property, not as the prime object of attack, but which becomes involved in the
struggle.
… Troops march, ride, and fight wherever the battle takes them, whether over fields of growing crops or
in the streets of cities, towns, or villages. Land is used for camp sites, entrenchments, and other defenses
constructed in or on it, streets may be torn up, bridges demolished, dwellings and factories converted into strong
points, furniture and bedding may provide the cover for a sharpshooter hidden in some dwelling. Practically every
shell or bomb that explodes damages property in one form or another, whether or not it attains its objective. Most
bullets that are fired strike, not humans, but property. Each missile that is launched must finally come to earth
somewhere.”).
427 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶56 (explaining that “the rule requiring respect for private
property is not violated through damage resulting from operations, movements, or combat activity of the army”);
1958 UK MANUAL ¶589 (“The rule that private property must be respected admits, however, of exceptions
necessitated by the exigencies of war. In the first instance, practically every operation, movement or combat
occasions damage to private property.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 414 (§151)
(“Destruction of enemy property in marching troops, in conducting military transport, and in reconnoitring, is lawful
if unavoidable. A reconnoitring party need not keep on the road if they can better serve their purpose by riding
across tilled fields. Troops may be marched, and transport may be conducted, over crops when necessary. A
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5.17.3 Enemy Movable Property on the Battlefield (War Booty). Any enemy public
movable property on the battlefield may be seized.428 Property is public if it belongs to the
enemy State or an agency of that State.429
In general, enemy private movable property on the battlefield may be seized if the
property is susceptible to direct military use, i.e., it is necessary and indispensable for the
conduct of war.430 This includes arms, ammunition, military papers, or property that can be used
as military equipment (e.g., as a means of transportation or communication).431 However,
certain types of military equipment used for clothing, feeding, or personal protection (e.g.,
helmets and gas masks) may not be seized from POWs, and should remain in their possession.432
5.17.3.1 Private Military Property Not Susceptible to Direct Military Use.
Private enemy property that is not susceptible to direct military use (e.g., arms, ammunition,
military papers, or military equipment) may be appropriated only to the extent such taking is
permissible in occupied areas.433 In particular, receipts should be given and compensation paid,
when feasible.434
5.17.3.2 Ownership of Captured or Found Property on the Battlefield. All enemy
property that is captured or found on the battlefield becomes the property of the capturing
State.435 During international armed conflict, personal property recovered from enemy dead
humane commander will not unnecessarily allow his troops and transport to march and ride over tilled fields and
crops. But if the purpose of war necessitates it, he is justified in so doing.”).
428 1956 FM 27-10 (Change No. 1 1976) ¶59a (“All enemy public movable property captured or found on a
battlefield becomes the property of the capturing State.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 402
(§139) (“[Movable] public enemy property on the battlefield may be appropriated by belligerents.”).
429 See, e.g., William Gerald Downey, Jr., Captured Enemy Property: Booty of War and Seized Enemy Property, 44
AJIL 488, 489 (1950) (“Enemy public property is defined as chattels, the title to which is vested in a state or in any
agency of such state.”).
430 See Menzel v. List, 267 N.Y.S.2d 804, 820 (N.Y. Sup. Ct. 1966) (“Booty is defined as property necessary and
indispensable for the conduct of war, such as food, means of transportation, and means of communication; and is
lawfully taken.”).
4311958 UK MANUAL ¶615 (“Private enemy property on the battlefield is not (as it was in former times) in every
case booty. Arms and ammunition and military equipment and papers are booty, even if they are the property of
individuals, but cash, jewellery, and other private articles of value are not.”); GREENSPAN, MODERN LAW OF LAND
WARFARE 281 (“Private property in the following categories belonging to members of the enemy forces falls within
the description of booty: arms, horses, military equipment, and military documents.”); LAUTERPACHT, II
OPPENHEIM’S INTERNATIONAL LAW 406 (§144) (“Private enemy property on the battlefield is no longer in every
case an object of booty. Arms, horses, and military papers may indeed be appropriated, even if they are private
property, as may also private means of transport, such as cars and other vehicles which an enemy may make use
of.”).
432 Refer to § 9.7 (POW Effects and Articles of Personal Use).
433 See 1956 FM 27-10 (Change No. 1 1976) ¶59b (“Enemy private movable property, other than arms, military
papers, horses, and the like captured or found on a battlefield, may be appropriated only to the extent that such
taking is permissible in occupied areas.”). Refer to § 11.18.6 (Treatment of Enemy Private Property).
434 Refer to § 11.18.6.2 (Seizure of Private Property Susceptible to Direct Military Use).
435 1956 FM 27-10 (Change No. 1 1976) ¶59a-b (providing that “[a]ll enemy public movable property captured or
found on a battlefield becomes the property of the capturing State” and that “[e]nemy private movable property,
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becomes the property of the capturing State for the purpose of returning it to the next-of-kin of
the deceased.436 The individual military member or person accompanying the armed forces who
captures or finds enemy property acquires no title or claim.437
Failure to turn over such property to the proper authorities, or disposal of such property
for personal profit, is punishable under Article 103 of the Uniform Code of Military Justice.438
5.17.4
Pillage Prohibited. Pillage is prohibited, both in general439
and specifically with
respect to:
• the wounded, sick, shipwrecked, and dead;440
• POWs;441
• protected persons under the GC;442
• persons in occupied territory443 and in areas of non-international armed conflict;444 and
other than arms, military papers, horses, and the like captured or found on a battlefield, may be appropriated only to
the extent that such taking is permissible in occupied areas (see pars. 405-411).”); 1956 FM 27-10 (Change No. 1
1976) ¶396 (“Public property captured or seized from the enemy, as well as private property validly captured on the
battlefield and abandoned property, is property of the United States … .”); 1958 UK MANUAL ¶615 (“Public enemy
property found or captured on a battlefield becomes, as a general rule, the property of the opposing belligerent.”).
436 Refer to § 7.7.2.2 (Forwarding Valuable Articles Found on the Dead).
437 Foster v. United States, 98 F. Supp. 349, 352 (Ct. Cl. 1951) (“[A] soldier may not make a profit out of the
disorder and flight which ensues from war. In the abandoned property which he comes upon, and which he must
turn over to the proper authority without delay, he does not acquire any proprietary interest. His taking possession
of it is done as an agent of the Government, and if it is not reclaimed by the owner who abandoned it, it belongs to
the Government.”).
438 See 10 U.S.C. § 903 (“(a) All persons subject to this chapter shall secure all public property taken from the
enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay
all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter
who—(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or
disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to
himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be
punished as a court-martial may direct.”).
439 See, e.g., HAGUE IV REG. art. 28 (“The pillage of a town or place, even when taken by assault, is prohibited.”);
1899 HAGUE II art. 28 (same); LIEBER CODE art. 44 (“[A]ll robbery, all pillage or sacking, even after taking a place
by main force … are prohibited under the penalty of death, or such other severe punishment as may seem adequate
for the gravity of the offense.”).
440 Refer to § 7.4.2 (Affirmative Measures to Protect Against Pillage and Ill-Treatment); § 7.7.2.1 (Measures to
Prevent the Dead From Being Despoiled); § 17.14.3 (Search, Collection, and Protection of the Wounded, Sick,
Shipwrecked, and Dead).
441 Refer to § 9.7 (POW Effects and Articles of Personal Use).
442 Refer to § 10.5.3.3 (Pillage Against Protected Persons).
443 Refer to § 11.18.1 (Prohibition Against Pillage in Occupied Territory).
444 Refer to § 17.6.4 (Prohibition on Pillage).
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• cultural property.445
In certain cases, there is an affirmative obligation to prohibit and prevent pillage.446
5.17.4.1 Pillage - Definition and Notes on Terminology. Pillage is the taking of
private or public movable property (including enemy military equipment) for private or personal
use.447 It does not include an appropriation of property justified by military necessity.448 For
example, if ordinary requisitions are unavailable, the taking of food does not constitute
pillage.449 Pillage also has been referred to as “looting”450 and “plunder.”451
5.17.4.2 History of Pillage. In the medieval era, pillage served as a form of
compensation for private armies, but it ceased to be regarded as lawful with the widespread
adoption of standing armies at the end of the Eighteenth Century. The prohibition on pillage has,
in part, been intended to maintain discipline among the armed forces.452 For example, a member
445 Refer to § 5.18.6 (Prohibition Against and Prevention of Theft, Pillage, Misappropriation, or Acts of Vandalism,
and Prohibition Against Requisition of Foreign Cultural Property).
446 Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism
Against, Cultural Property); § 7.4.2 (Affirmative Measures to Protect Against Pillage and Ill-Treatment); § 17.14.3
(Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).
447 10 U.S.C. § 950t(5) (“(5) PILLAGING.--Any person subject to this chapter who intentionally and in the absence of
military necessity appropriates or seizes property for private or personal use, without the consent of a person with
authority to permit such appropriation or seizure, shall be punished….”). Consider ROME STATUTE, ELEMENTS OF
CRIMES, art. 8(2)(b)(xvi), Official Records of the Assembly of States Parties to the Rome Statute of the International
Criminal Court, First session, New York, ICC-ASP/1/3, 112, 145-6 (Sept. 3-10, 2002) (defining the elements of the
war crime of pillaging as including (1) appropriation of property, (2) intent “to deprive the owner of the property
and to appropriate it for private or personal use,” and (3) “appropriation … without the consent of the owner”).
448 Consider ROME STATUTE, ELEMENTS OF CRIMES art. 8(2)(b)(xvi), Official Records of the Assembly of States
Parties to the Rome Statute of the International Criminal Court, First session, New York, ICC-ASP/1/3, 112, 146
footnote 47 (Sept. 3-10, 2002) (“As indicated by the use of the term ‘private or personal use’, appropriations
justified by military necessity cannot constitute the crime of pillaging.”).
449 LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 405 (§143) (“If there is no time for ordinary requisitions to
provide food, forage, clothing, and fuel, or if the inhabitants of a locality have fled so that ordinary requisitions
cannot be made, a belligerent must take these articles wherever he can get them, and he is justified in so doing.”).
Refer to § 11.18.7 (Requisitions of Private Enemy Property).
450 10 U.S.C. § 903 (“(b) Any person subject to this chapter who- ... (3) engages in looting or pillaging; shall be
punished as a court-martial may direct.”); MANUAL FOR COURTS-MARTIAL IV-40 (¶27.c.(4)) (2012) (“‘Looting or
pillaging’ means unlawfully seizing or appropriating property which is located in enemy or occupied territory.”).
451 See, e.g., MANUAL FOR COURTS-MARTIAL IV-35 (¶23.c.(6)(b)) (2012) (“‘Plunder or pillage’ means to seize or
appropriate public or private property unlawfully.”); Prosecutor v. Jelisić, ICTY Trial Chamber, IT-95-10-T,
Judgment, ¶¶48-49 (Dec. 14, 1999) (noting that “[p]lunder is defined as the fraudulent appropriation of public or
private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto”
and confirming the guilt of the accused on the charge of plunder because he “stole money, watches, jewellery and
other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over their
possessions with death”).
452 1958 UK MANUAL ¶589 (noting that the prohibitions contained in Hague IV Regulations “did not constitute new
rules at the time they were promulgated” and that “it has for a long time past been embodied in the regulations of
every civilized army, for nothing is more demoralizing to troops or more subversive of discipline than plundering.”).
267
of the armed forces who before or in the presence of the enemy quits his or her place of duty to
plunder or pillage is guilty of the offense of misbehavior before the enemy.453
5.17.5 Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians. In
seizing or destroying enemy property, feasible precautions should be taken to mitigate the
burdens imposed on civilians.
For example, in the practice of the United States, religious buildings, shrines, and
consecrated places employed for worship are used only for aid stations, medical installations, or
the housing of wounded personnel awaiting evacuation, provided in each case that a situation of
emergency requires such use.454
Similarly, if armed forces use a private residence, they must treat its inhabitants and
owners humanely and with as much consideration as the circumstances permit.455 In particular,
the armed forces should generally allow the inhabitants to continue to live in part of their own
homes, and should not expel them in the absence of alternate shelter.456 But if imperative
military necessity requires the removal of the inhabitants, then efforts should be made to give
them notice and to aid them in taking their essential possessions.457 If the armed forces take
anything, they should leave a note to this effect.458
However, there is no obligation to protect abandoned property in the area of active
operations.459
453 10 U.S.C. § 899 (“Any member of the armed forces who before or in the presence of the enemy— … (6) quits his
place of duty to plunder or pillage; … shall be punished by death or such other punishment as a court-martial may
direct.”).
454 Refer to § 11.18.6.4 (Municipal, Religious, Charitable, and Cultural Property).
455 GREENSPAN, MODERN LAW OF LAND WARFARE 283 (“Where private dwellings are taken over by troops, the
inhabitants must be treated humanely and afforded as much consideration as the circumstances permit.”). For
example, DICK COUCH, THE SHERIFF OF RAMADI 69 (2008) (“‘On yet another SR [special reconnaissance] mission,
we had intelligence that a restaurant was being used as a meeting place for insurgents, but there were a lot of other
Iraqis coming and going there as well. We needed an OP [observation post] that was close to the restaurant but not
too close -- a secure perch from which we could observe the target for several days and still be safe from informers.
We found this three-story house that was several hundred yards from the restaurant entrance. It was perfect. We
sent one of our interpreters to speak with the residents and to make arrangements to use one of their upper-floor
rooms for a few days. We paid them well, but the key was that after being coached by the terp and our scouts, we
were very polite and respectful of their customs.’”) (second alteration in original).
456 1958 UK MANUAL ¶615 (“When troops are quartered in private dwellings some rooms should be left to the
inhabitants; the latter should not be driven into the streets and left without shelter.”).
457 1958 UK MANUAL ¶615 (“If for military reasons, whether for operational purposes or to protect men and animals
from the weather, it is imperative to remove the inhabitants, efforts should be made to give them notice and provide
them with facilities for taking essential baggage with them.”).
458 1958 UK MANUAL ¶615 (“A note should be left if anything is taken.”); GREENSPAN, MODERN LAW OF LAND
WARFARE 284 (“For anything validly taken, a note to this effect should be left.”).
459 1958 UK MANUAL ¶615 (“There is … no obligation to protect abandoned property.”); GREENSPAN, MODERN
LAW OF LAND Warfare 284 (“[T]here is no obligation on the part of the invader to protect abandoned property in the
area of active operations … .”).
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5.17.5.1 Compensation for Property Seizure or Damage. Although reasonable
efforts should be made to spare civilians from unnecessary harm when seizing or destroying
enemy property, the law of war imposes no obligation to compensate for loss of, or damage to,
private property imperatively demanded by the necessities of war, including damage incidental
to combat operations.460 However, if time allows, a record of the use or damage should be kept,
or given to the owner, so that in the event of funds being provided by either belligerent at the
close of hostilities to compensate the owners, there may be evidence to assist the assessors.461
As a matter of practice, during counter-insurgency operations, U.S. forces have often
made payments to, or taken other actions on behalf of, civilians suffering loss.462
5.18 PROTECTION OF CULTURAL PROPERTY DURING HOSTILITIES
Certain types of property receive additional protection as cultural property. Cultural
property, the areas immediately surrounding it, and appliances in use for its protection should be
safeguarded and respected.
Some obligations with respect to cultural property apply during non-international armed
conflict.463 There are also obligations with respect to cultural property during occupation464 and
peacetime.465 Certain treaty obligations with respect to cultural property may only apply on the
territory of Parties to the 1954 Hague Cultural Property Convention,466 but the United States has
previously identified some of these obligations as customary international law.467 DoD
personnel, therefore, in the absence of contrary guidance by competent authority, should act as if
they were legally bound by the rules for the protection of cultural property in the 1954 Hague
Cultural Property Convention during hostilities even when conducting operations in the territory
of a State that is not a Party to the 1954 Hague Cultural Property Convention.468
460 See, e.g., 1958 UK MANUAL ¶593 (“The owner of property may claim neither rent for its use nor compensation
for damage caused by the necessities of war.”).
461 1958 UK MANUAL ¶593 (“If time allows, however, a note of the use or damage should be kept, or given to the
owner, so that in the event of funds being provided by either belligerent at the close of hostilities to compensate the
inhabitants, there may be evidence to assist the assessors.”).
462 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, ¶7-89 (Apr.
2009) (“Recent experiences have shown the effectiveness of using money to win popular support and further the
interests and goals of units conducting counterinsurgency operations. … A counterinsurgency force can use money
to … • Repair damage resulting from combined and coalition operations. • Provide condolence payments to civilians
for casualties from combined and coalition operations.”).
463 Refer to § 17.11 (Protection of Cultural Property in NIAC).
464 Refer to § 11.19 (Protection of Cultural Property During Occupation).
465 Refer to § 5.18.2.1 (Peacetime Obligations to Prepare for the Safeguarding of Cultural Property).
466 See, e.g., 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to
respect cultural property situated within their own territory as well as within the territory of other High Contracting
Parties.”).
467 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).
468 Refer to § 3.1.1 (DoD Practice of Applying Law of War Rules Even When Not Technically Applicable).
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5.18.1 Definition of Cultural Property. For the purpose of the 1954 Hague Cultural
Property Convention and this manual, cultural property includes, irrespective of origin or
ownership:469
• movable or immovable property of great importance to the cultural heritage of every
people;470
• buildings intended to shelter cultural property;471 and
• centers containing monuments.472
5.18.1.1 Definition of Cultural Property - Notes on Terminology. “Cultural
property” is a term of art that is defined in the 1954 Hague Cultural Property Convention. The
definition in the 1954 Hague Cultural Property Convention may be more limited than cultural
property described and protected by other instruments.
For example, the Lieber Code contemplates protection for property belonging to
“establishments of an exclusively charitable character, to establishments of education, or
foundations for the promotion of knowledge, whether public schools, universities, academies of
learning or observatories, museums of the fine arts, or of a scientific character,” as well as
“[c]lassical works of art, libraries, scientific collections, or precious instruments, such as
astronomical telescopes.”473 The Hague IV Regulations seek to protect “buildings dedicated to
religion, art, science, or charitable purposes, historic monuments.”474 Hague IX seeks to protect
“sacred edifices, buildings used for artistic, scientific, or charitable purposes, [and] historic
monuments.”475 The Roerich Pact seeks to protect “historic monuments, museums, scientific,
artistic, educational and cultural institutions.”476 AP I seeks to protect “historic monuments,
469 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1 (“For the purposes of the present Convention, the term
‘cultural property’ shall cover, irrespective of origin or ownership:
(a) movable or immovable property of great
importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether
religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest;
works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as
scientific collections and important collections of books or archives or of reproductions of the property defined
above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property
defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to
shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a); (c) centres
containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as ‘centres
containing monuments’.”).
470 Refer to § 5.18.1.2 (Movable or Immovable Property of Great Importance to the Cultural Heritage of Every
People).
471 Refer to § 5.18.1.3 (Buildings Intended to Preserve Cultural Property).
472 Refer to § 5.18.1.4 (Centers Containing Monuments).
473 LIEBER CODE arts. 34-36.
474 HAGUE IV REG. art. 27.
475 HAGUE IX art. 5.
476 ROERICH PACT art. 1.
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works of art or places of worship which constitute the cultural or spiritual heritage of
peoples.”477
Because the definition of cultural property in the 1954 Hague Cultural Property
Convention is different from the categories of property protected by other instruments, the scope
of objects being protected by each instrument is not the same (although there may be overlap).
Nevertheless, the protections afforded cultural property by the 1954 Hague Cultural Property
Convention are supplementary to those afforded by earlier treaties, although the distinctive
emblem for cultural property established in the 1954 Hague Cultural Property Convention is to
be used where appropriate instead of emblems established in earlier treaties.478
5.18.1.2 Movable or Immovable Property of Great Importance to the Cultural
Heritage of Every People. Property must be “of great importance to the cultural heritage of
every people” to qualify as cultural property. Ordinary property (such as churches or works of
art) that are not of great importance to the cultural heritage of every people would not qualify as
cultural property, although such property may benefit from other protections, such as those
afforded civilian objects or enemy property.479
The question of whether cultural property is “of great importance to the cultural heritage
of every people” may involve delicate and somewhat subjective judgments.480 Items that can
easily be replaced would not qualify as being of great importance.481 On the other hand,
irreplaceable items may be of great cultural importance, even if they have little monetary
value.482
Cultural property may include, but is not limited to, the following types of property
(provided the property is of great importance to the cultural heritage of every people):
• monuments of architecture, art, or history, whether religious or secular;483
477 AP I art. 53.
478 Refer to § 19.17.1 (Relationship Between the 1954 Hague Cultural Property Convention and Earlier Treaties).
479 Refer to § 5.6.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack);
§ 5.17 (Seizure and Destruction of Enemy Property).
480 See ROGERS, LAW ON THE BATTLEFIELD 90 (“It must be property of great importance to the cultural heritage of
every people. This may involve delicate decisions about whether, for example, an original manuscript by a minor
composer, say Spohr, was of great importance to the cultural heritage of every people, perhaps not. The situation
would be different if it were an original manuscript by one of the great composers, say Schubert.”).
481 See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 50 (1996) (“Certain objects, although of limited value, may
be important for the national culture while others, even though of great value, can be replaced and are therefore less
important.”).
482 For example, JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 49-50 (1996) (“[A] papyrus reporting a marriage
that took place three thousand years ago, although it was of no intrinsic cultural value, was of very great cultural
importance because of the fact that it enabled an institution, on which no such ancient information existed, to be
studied.”) (internal quotation marks omitted).
483 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 50-51 (1996) (“[W]orks of architecture, sculpture,
specially designed to perpetuate the memory of a person, action, period, event or thing, or as buildings, structures,
271
• archaeological sites;
• groups of buildings that, as a whole, are of historical or artistic interest;484
• works of art;
• manuscripts, books, and other objects of artistic, historical, or archaeological interest;
• scientific collections;485 and
• important collections of books or archives or of reproductions of the property defined
above.486
Natural sites of great beauty are not included within the definition of cultural property.487
5.18.1.3 Buildings Intended to Preserve Cultural Property. Cultural property is
also understood to include buildings whose main and effective purpose is to preserve or exhibit
movable cultural property, such as museums, large libraries, and depositories of archives, and
refuges intended to shelter cultural property in the event of armed conflict.488
For these types of buildings, protection is gained from the structure’s purpose and
contents as opposed to the physical structure itself constituting immovable property of great
importance to the cultural heritage of every people. The building must be intended to contain
edifices remarkable for their archaeological, historical or aesthetic interest or intended to commemorate a notable
person, action or event.”).
484 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 51 (1996) (During the drafting of the 1954 Hague
Cultural Property Convention “the Scandinavian countries proposed the protection of certain sites which, although
not containing particularly remarkable monuments, were of undoubted value from a cultural point of view and for
that reason had a right to be protected. It was explained that the Scandinavian countries had very little cultural
property and that their gift to culture consisted mainly in distant mediaeval villages or lonely farms.”) (internal
quotation marks omitted).
485 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 52 (1996) (Scientific “collections are made up of
scientific books but also cover other objects such as Boissier’s herbarium in Geneva or the collections of important
laboratories ...
[and] national monuments that were objects of valuable scientific research, such as rare animals or
plants that were becoming extinct.”).
486 See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 52 (1996) (“[P]rotection is accorded to important
collections of books without their necessarily having to be of artistic, historical or archaeological interest. Any
important library is thus protected, probably in the spirit of protecting human knowledge.”).
487 See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 53 (1996) (“The [1954 Hague Cultural Property] Conference
also discussed the protection of ‘natural sites of great beauty’ (United States of America and Japan), but appears to
have given up the idea for reasons mentioned by the delegation of France, who considered that ‘it was probably
difficult to define the protection of natural sites as their value was of a subjective nature. At best, only a diluted
form of protection could result. Finally, it had been observed that natural sites could often be restored very
quickly.”).
488 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1(b) (defining the term cultural property to include, inter
alia, “buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in
sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in
the event of armed conflict, the movable cultural property defined in subparagraph (a)”).
272
and, in fact, contain, conserve, or exhibit movable cultural property as its primary purpose.489
Alternatively, the structure may be intended to store movable cultural property for protection in
the event of armed conflict. Some of these refuges may be subject to special protection.490
5.18.1.4 Centers Containing Monuments. Cultural property also includes centers
containing monuments, i.e., centers containing a large amount of cultural property or buildings
intended to preserve cultural property.491 This includes monument complexes or major groups of
buildings containing movable and immovable cultural property.
5.18.2 Respect and Safeguarding of Cultural Property. The protection of cultural
property comprises the safeguarding of and respect for such property.492 Safeguarding consists
of the affirmative acts that are to be taken to ensure the protection of cultural property.493 On the
other hand, respect essentially requires parties to refrain from certain acts, such as placing
cultural property in peril or causing damage to it.494
Safeguarding and respect are mutually reinforcing obligations that help ensure the
protection of cultural property.
5.18.2.1 Peacetime Obligations to Prepare for the Safeguarding of Cultural
Property. Parties to 1954 Hague Cultural Property Convention are obliged to undertake to
prepare in time of peace for the safeguarding of cultural property situated within their own
territory against the foreseeable effects of an armed conflict, by taking such measures as they
489 See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 53-54 (1996) (“According to subparagraph (b), such
buildings are protected not because of their own historical value but because of their purpose and their content. The
purpose must be the primary one, the very aim and raison d'etre of such a building; it must also be effectively true --
the building must in fact contain, conserve or exhibit movable cultural property.”).
490 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).
491 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1(c) (defining the term cultural property to include, inter
alia, “centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b) to be known as
‘centres containing monuments’”). See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 54 (1996) (“The term
‘centres containing monuments’ was preferred to the terms ‘groups’ or ‘groups of buildings’ when the reference was
to larger areas containing a considerable amount of cultural property coming under subparagraphs (a) and (b). The
term comprises a group of historical or artistic monuments situated in the same vicinity, such as the districts of
certain cities or even entire cities.”).
492 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“For the purposes of the present Convention, the
protection of cultural property shall comprise the safeguarding of and respect for such property.”).
493 JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 57 (1996) (“‘Safeguarding’ consists of all the positive measures
(defining the action to be taken) which are designed to ensure the best possible material conditions for the protection
of cultural property.”).
494 JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 57 (1996) (“Respect … has an essentially negative character: it
represents an obligation not to commit a number of prohibited acts. Respect therefore implies a requirement to
refrain from certain acts, such as placing cultural property in peril or causing damage to it.”).
273
consider appropriate.495 This obligation reflects the opinion that measures for the protection of
cultural property during armed conflict, in order to be effective, must begin in peacetime.496
The failure of a State to fulfill its obligations in peacetime to safeguard cultural property
during armed conflict does not relieve other States of their obligation to respect cultural
property.497
5.18.3 Refraining From Any Use for Purposes That Are Likely to Expose It to
Destruction or Damage. In general, no use should be made of cultural property, its immediate
surroundings, or appliances in use for its protection, for purposes that are likely to expose it to
destruction or damage in the event of armed conflict.498 However, such use is permissible when
military necessity imperatively requires such use.499
Uses that would be likely to expose cultural property to destruction or damage in the
event of armed conflict would include: (1) using the cultural property for military purposes;500
(2) placing military objectives near cultural property; or (3) using the cultural property in such a
way that an adversary would likely regard it as a military objective.501 For example, such uses
would include billeting military personnel in buildings that constitute cultural property, or
emplacing artillery, mortars, or anti-air systems on the grounds of cultural property.
In addition, it is prohibited to use deliberately the threat of potential harm to cultural
property to shield military objectives from attack, or otherwise to shield, favor, or impede
military operations.502 There is no waiver of this obligation in cases of imperative military
necessity.
495 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 3 (“The High Contracting Parties undertake to prepare in
time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable
effects of an armed conflict, by taking such measures as they consider appropriate.”).
496 1954 HAGUE CULTURAL PROPERTY CONVENTION preamble (“Guided by the principles concerning the protection
of cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 and
in the Washington Pact of 15 April, 1935; Being of the opinion that such protection cannot be effective unless both
national and international measures have been taken to organize it in time of peace;”).
497 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(5) (“No High Contracting Party may evade the
obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of
the fact that the latter as not applied the measures of safeguard referred to in Article 3.”).
498 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect
cultural property situated within their own territory as well as within the territory of other High Contracting Parties
by refraining from any use of the property and its immediate surroundings or of the appliances in use for its
protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict … .”).
499 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(2) (“The obligations mentioned in paragraph 1 of the
present Article may be waived only in cases where military necessity imperatively requires such a waiver.”).
500 Compare § 5.18.8.2 (Conditions for the Granting of Special Protection - No Use for Military Purposes).
501 Refer to § 5.7 (Military Objectives).
502 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
274
5.18.3.1 Imperative Military Necessity Waiver. Cultural property, its immediate
surroundings, and appliances in use for its protection may be used for purposes that are likely to
expose it to destruction or damage if military necessity imperatively requires such use. The
requirement that military necessity imperatively require such acts should not be confused with
convenience or be used to cloak slackness or indifference to the preservation of cultural
property.503 This waiver of obligations with respect to cultural property is analogous to the
requirement that enemy property may only be seized or destroyed if imperatively required by the
necessities of war.504
5.18.4 Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property.
Other feasible precautions should be taken to reduce the risk of harm to cultural property.505
Such precautions may include:
• determining the location of cultural property and disseminating that information among
the armed forces;506
• compiling and promulgating lists of cultural property and areas that are not to be
attacked;507
503 See General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding the Protection
of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (“If we have to choose between
destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the
building must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared
without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is
an accepted principle. But the phrase ‘military necessity’ is sometimes used where it would be more truthful to
speak of military convenience or even personal convenience. I do not want it to cloak slackness or indifference.”).
504 Refer to § 5.17.2 (Enemy Property - Military Necessity Standard). For general discussion of military necessity
refer to § 2.2 (Military Necessity).
505 Refer to § 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
506 For example, General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding the
Protection of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (“It is a
responsibility of higher commanders to determine through A.M.G. Officers the locations of historical monuments
whether they be immediately ahead of our front lines or in areas occupied by us. This information passed to lower
echelons through normal channels places the responsibility on all Commanders of complying with the spirit of this
letter.”).
507 For example, Strobe Talbot, Letter of Submittal, May 12, 1998, MESSAGE FROM THE PRESIDENT TRANSMITTING
THE 1954 HAGUE CULTURAL PROPERTY CONVENTION VIII (1999) (“During Operation Desert Storm, for example,
intelligence resources were utilized to look for cultural property in order to properly identify it. Target intelligence
officers identified cultural property or cultural property sites in Iraq; a ‘no-strike’ target list was prepared, placing
known cultural property off limits from attack, as well as some otherwise legitimate targets if their attack might
place nearby cultural property at risk of damage.”); 7th Air Force Operations Order 71-17 (Rules of Engagement),
reprinted in 121 CONGRESSIONAL RECORD 17555 (Jun. 6, 1975) (specifying during the Vietnam War “Angkor Wat
Park: This area will not be attacked for any reason. Under no circumstances will [forward air controllers] control or
assist air strikes of any nation within the Angkor Wat area. Should a [forward air controller] observe such a strike
being made, he will advise the [Forces Armée Nationale Khmer] ground commander and depart the area
immediately. Other Areas of Cultural Value: Except during [combat search and rescue] operations, no U.S. air
strikes will be made within 1,000 meters of any of the areas of cultural value [nearly 100 other sites specifically
275
• establishing civil authorities to assume responsibility for planning and acting to ensure
respect for cultural property under its control;508
• physically shielding cultural property from harm; and
• establishing refuges and evacuating movable cultural property to them.509
5.18.5 Refraining From Any Act of Hostility. In general, acts of hostility may not be
directed against cultural property, its immediate surroundings, or appliances in use for its
protection.510 Acts of hostility may, however, be directed against cultural property, its
immediate surroundings, or appliances in use for its protection, when military necessity
imperatively requires such acts.511
5.18.5.1 Imperative Military Necessity Waiver. Acts of hostility may be directed
against cultural property, its immediate surroundings, or appliances in use for its protection when
military necessity imperatively requires such acts. The requirement that military necessity
imperatively require such acts should not be confused with convenience or be used to cloak
slackness or indifference to the preservation of cultural property.512 This waiver of obligations
with respect to cultural property is analogous to the requirement that enemy property may only
be seized if imperatively required by the necessities of war.513
For example, if cultural property is being used by an opposing force for military
purposes, then military necessity generally would imperatively require its seizure or
destruction.514
listed in the directive]. U.S. [forward air controllers] will not control or assist air strikes of any nation within 1,000
meters of these areas regardless of [Forces Armée Nationale Khmer] request of validation.”).
508 These include museum curators and staff, local fire and law enforcement authorities, and civil defense personnel.
509 Refer to § 5.18.1.3 (Buildings Intended to Preserve Cultural Property).
510 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect
cultural property situated within their own territory as well as within the territory of other High Contracting Parties
… by refraining from any act of hostility directed against such property.”).
511 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(2) (“The obligations mentioned in paragraph 1 of the
present Article may be waived only in cases where military necessity imperatively requires such a waiver.”).
512 Refer to footnote 503 in § 5.18.3.1 (Imperative Military Necessity Waiver).
513 Refer to § 5.17.2 (Enemy Property - Military Necessity Standard). For general discussion of military necessity,
refer to § 2.2 (Military Necessity).
514 Cf. ROERICH PACT art. 5 (“The monuments and institutions mentioned in article I shall cease to enjoy the
privileges recognized in the present treaty in case they are made use of for military purposes.”); HAGUE IV REG. art.
27 (“In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated
to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and
wounded are collected, provided they are not being used at the time for military purposes.”) (emphasis added);
HAGUE IX art. 5 (“In bombardments by naval forces all the necessary measures must be taken by the commander to
spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic
monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not
used at the same time for military purposes.”) (emphasis added). Compare § 5.18.8.2 (Conditions for the Granting
of Special Protection - No Use for Military Purposes).
276
Similarly, if an opposing force uses cultural property and its immediate surroundings to
protect military objectives, then the attack of those military objectives may be imperatively
required by military necessity.515 Or, if a military objective was located near cultural property,
the protection afforded the area surrounding the cultural property could be subject to waiver for
reasons of imperative military necessity such that the attack of the military objective would be
permissible, despite its proximity to cultural property.516
Even where the waiver of the protection afforded cultural property, its immediate
surroundings, or appliances in use for its protection may be warranted for reasons of imperative
military necessity, the risk of harm to the cultural property must be considered in a
proportionality analysis517 and feasible precautions should be taken to reduce the risk of harm to
the cultural property.518 And, even where waiver of the protection of cultural property may be
warranted as a matter of law, as a matter of policy, decision-makers may still seek to refrain from
harming cultural property.519
5.18.6 Prohibition Against and Prevention of Theft, Pillage, Misappropriation, or Acts of
Vandalism, and Prohibition Against Requisition of Foreign Cultural Property. Any form of theft,
pillage, or misappropriation of, and any acts of vandalism directed against, cultural property are
prohibited.520 In addition, Parties to the 1954 Hague Cultural Property Convention shall refrain
from requisitioning movable cultural property situated in the territory of another Party to the
1954 Hague Cultural Property Convention.
There are no “imperative military necessity” waivers from these obligations.
515 FINAL REPORT ON THE PERSIAN GULF WAR 610 (“While Article 4(1) of the 1954 Hague Convention provides
specific protection for cultural property, Article 4(2) permits waiver of that protection where military necessity
makes such a waiver imperative; such ‘imperative military necessity’ can occur when an enemy uses cultural
property and its immediate surroundings to protect legitimate military targets, in violation of Article 4(1).”).
516 Strobe Talbot, Letter of Submittal, May 12, 1998, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954
HAGUE CULTURAL PROPERTY CONVENTION VIII (1999) (During Operation DESERT STORM, when “attacking
legitimate targets in the vicinity of cultural objects, to the extent possible, weapons were selected that would
accomplish destruction of the target while minimizing the risk of collateral damage to nearby cultural or civilian
property. However, the proximity of military objectives to cultural property did not render those military objectives
immune from attack, nor would it under the [1954 Hague Cultural Property] Convention.”).
517 Refer to § 5.12 (Proportionality in Conducting Attacks).
518 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
519 For example, H. STIMSON, ON SERVICE IN PEACE AND WAR 625 (1948) (“With President Truman’s warm support
I struck off the list of suggest targets the city of Kyoto. Although it was a target of considerable military
importance, it had been the ancient capital of Japan and was a shrine of Japanese art and culture. We determined
that it should be spared. I approved four other targets including the cities of Hiroshima and Nagasaki.”).
520 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(3) (“The High Contracting Parties further undertake to
prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of
vandalism directed against, cultural property.”). See also LIEBER CODE art. 36 (“In no case shall [classical works of
art, libraries, scientific collections, or precious instruments] be sold or given away, if captured by the armies of the
United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.”).
277
Pillage is prohibited more broadly.521
5.18.6.1 Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and
Acts of Vandalism Against, Cultural Property. Military commanders have an obligation to take
reasonable measures to prevent or stop any form of theft, pillage, or misappropriation of, and any
acts of vandalism directed against, cultural property. This obligation may also be viewed as part
of the obligation to take feasible precautions to reduce the risk of harm to cultural property.522
What efforts would be reasonable would depend on a variety of factors, such as
availability of forces, the commander’s mission, and enemy threats. What efforts would be
reasonable would also depend on the information available to the commander at the time.523
Some measures to ensure adherence to this obligation may include training members of
the armed forces and persons authorized to accompany the armed forces on the protection of
cultural property in general (and the prohibition of theft, pillage, or vandalism in particular) as
part of general procedures for the dissemination and implementation of the law of war.524 Other
measures may include: (1) issuing and enforcing orders to the same effect;525 (2) investigating
alleged or suspected offenses and taking disciplinary or punitive action, as appropriate under
U.S. law;526 and (3) taking measures to facilitate the recovery and return of stolen or
misappropriated cultural property.
Although it may not always be feasible to prevent or stop theft, pillage, or
misappropriation of, or acts of vandalism against, cultural property, efforts to identify cultural
property within an area of operations and to secure it from theft or pillage are a prudent part of
the planning process of military operations. For example, such efforts may deny opposing forces
the opportunity to exploit harm to cultural property for propaganda purposes.
5.18.6.2 Prohibition Against Requisition of Movable Cultural Property Situated
in the Territory of Another Party to the 1954 Hague Cultural Property Convention. Parties to
the 1954 Hague Cultural Property Convention shall refrain from requisitioning movable cultural
property situated in the territory of another Party to the 1954 Hague Cultural Property
Convention.527
521 Refer to § 5.17.4 (Pillage Prohibited).
522 Refer to § 5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property).
523 Refer to § 5.4 (Assessing Information Under the Law of War).
524 Refer to § 18.6 (Dissemination, Study, and Other Measures to Facilitate Understanding of Duties Under the Law
of War).
525 For example, General John P. Abizaid, U.S. Central Command, General Order 1B (GO-1B), Prohibited Activities
for U.S. Department of Defense Personnel Present Within the United States Central Command (USCENTCOM)
Area of Responsibility (AOR), ¶2h (Mar. 13, 2006) (prohibiting “[r]emoving, possessing, selling, defacing or
destroying archaeological artifacts or national treasures.”).
526 Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).
527 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(3) (“They [the High Contracting Parties] shall, refrain
from requisitioning movable cultural property situated in the territory of another High Contracting Party.”).
278
This rule makes no distinction between movable property of nationals of the country in
which it is located and property of nationals of another High Contracting Party. As such, it
would also protect from requisition any movable property from a third State temporarily on loan
for an exhibition within the territory of a State participating in an armed conflict.528
5.18.7 Marking of Cultural Property With the Distinctive Emblem. Cultural property
may bear a distinctive emblem so as to facilitate its recognition.529 This distinctive emblem is
described in Article 16 of the 1954 Hague Cultural Property Convention.530 There is a degree of
discretion as to the placing of the distinctive emblem and its degree of visibility.531 The emblem
may be displayed on flags or armlets, and it may be painted on an object or represented in any
other appropriate form.532
5.18.7.1 Distinctive Emblem Facilitates Identification Rather Than Confers Status
as Such. As is the case with distinctive emblems for medical personnel, units, transport, and
facilities, the distinctive emblem for cultural property facilitates identification, rather than
confers cultural property status as such.533 For example, cultural property may be protected,
even though it is not marked with the distinctive emblem. On the other hand, a distinctive
emblem placed on property does not make that property cultural property (and grant
corresponding protections) if that property does not meet the criteria for cultural property (or the
corresponding criteria for protection).534
5.18.7.2 Display of the Distinctive Emblem for Cultural Property - Once Versus
Three Times. In some cases, the distinctive emblem for cultural property is to be used once,
while in other cases, the distinctive emblem for cultural property is to be displayed three times in
a triangular formation (one shield below the other two shields).535
528 JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 71 (1996) (“[T]he prohibition of requisitioning should also apply
to property existing on the territory of a High Contracting Party but belonging to the nationals of another High
Contracting Party, as in the case of the collections of the historical or scientific institutes in Athens, Cairo, Paris, and
Rome. The same guarantee would also apply in respect of movable cultural property made available on loan for an
exhibition
”).
529 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 6 (“In accordance with the provisions of Article 16, cultural
property may bear a distinctive emblem so as to facilitate its recognition.”).
530 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 16(1) (“The distinctive emblem of the Convention shall
take the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of
the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either
side being taken up by a white triangle).”).
531 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(1) (“The
placing of the distinctive emblem and its degree of visibility shall be left to the discretion of the competent
authorities of each High Contracting Party.”).
532 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(1) (“It may
be displayed on flags or armlets; it may be painted on an object or represented in any other appropriate form.”).
533 Compare § 7.15 (Display of the Distinctive Emblem to Facilitate Identification).
534 Refer to § 5.18.1 (Definition of Cultural Property).
535 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 16(2) (“The emblem shall be used alone, or repeated three
times in a triangular formation (one shield below), under the conditions provided for in Article 17.”).
279
The distinctive emblem for cultural property used once may only be used as a means of
identification of:
• cultural property not under special protection;
• the persons responsible for the duties of control in accordance with the Regulations for
the Execution of the 1954 Hague Cultural Property Convention;536
• the personnel engaged in the protection of cultural property;537 and
• the identity cards mentioned in the Regulations for the Execution of the 1954 Hague
Cultural Property Convention.538
The distinctive emblem, repeated three times, may be used only as a means of
identification of:539
• immovable cultural property under special protection;540
• the transport of cultural property under the special protection or in urgent cases;541 and
• improvised refuges, under the conditions provided for in the Regulations for the
Execution of the 1954 Hague Cultural Property Convention.542
5.18.7.3 Display of the Distinctive Emblem on Immovable Cultural Property. The
distinctive emblem for cultural property may not be placed on any immovable cultural property
unless at the same time there is displayed an authorization duly dated and signed by the
competent authority of the relevant State.543
536 Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).
537 Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).
538 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(2) (“The distinctive emblem may be used alone only as
a means of identification of: (a) cultural property not under special protection; (b) the persons responsible for the
duties of control in accordance with the Regulations for the execution of the Convention; (c) the personnel engaged
in the protection of cultural property; (d) the identity cards mentioned in the Regulations for the execution of the
Convention.”).
539 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(1) (“The distinctive emblem repeated three times may
be used only as a means of identification of: (a) immovable cultural property under special protection; (b) the
transport of cultural property under the conditions provided for in Articles 12 and 13; (c) improvised refuges, under
the conditions provided for in the Regulations for the execution of the Convention.”).
540 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).
541 Refer to § 5.18.9 (Transport of Cultural Property).
542 Refer to § 5.18.8 (Special Protection for Certain Cultural Property).
543 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(4) (“The distinctive emblem may not be placed on any
immovable cultural property unless at the same time there is displayed an authorization duly dated and signed by the
competent authority of the High Contracting Party.”).
280
5.18.7.4 Other Uses of the Distinctive Emblem for Cultural Property Prohibited
During Armed Conflict. During armed conflict, the use of the distinctive emblem for cultural
property in any other cases than those mentioned in the 1954 Hague Cultural Property
Convention, and the use for any purpose whatsoever of a sign resembling the distinctive emblem,
is forbidden.544
5.18.8 Special Protection for Certain Cultural Property. A highly limited category of
cultural property receives special protection by its entry in an International Register.545
The standards governing the protection of such cultural property are essentially the same
as the standards governing the protection of cultural property under customary law546 and the
protection afforded all cultural property under the 1954 Hague Cultural Property Convention.547
However, the special procedures applicable to cultural property under special protection facilitate
its protection beyond that afforded cultural property that is not under special protection.
Special protection can apply to:548
544 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(3) (“During an armed conflict, the use of the distinctive
emblem in any other cases than those mentioned in the Cultural Property Convention, and the use for any purpose
whatever of a sign resembling the distinctive emblem, shall be forbidden.”). Consider AP I art. 38(1)(a) (“It is also
prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or
signals, including the flag of truce, and the protective emblem of cultural property.”).
545 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(6) (“Special protection is granted to cultural property by
its entry in the ‘International Register of Cultural Property under Special Protection’. This entry shall only be made,
in accordance with the provisions of the present Convention and under the conditions provided for in the
Regulations for the execution of the Convention.”).
546 See United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 2009,
2575 UNTS 7, 8 (“It is the understanding of the United States of America that ‘special protection’, as defined in
Chapter II of the Convention, codifies customary international law in that it, first, prohibits the use of any cultural
property to shield any legitimate military targets from attack and, second, allows all property to be attacked using
any lawful and proportionate means, if required by military necessity and notwithstanding possible collateral
damage to such property.”).
547 Compare 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 9 (“The High Contracting Parties undertake to
ensure the immunity of cultural property under special protection by refraining, from the time of entry in the
International Register, from any act of hostility directed against such property and, except for the cases provided for
in paragraph 5 of Article 8, from any use of such property or its surroundings for military purposes.”) with 1954
HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect cultural
property situated within their own territory as well as within the territory of other High Contracting Parties by
refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection
for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining
from any act of hostility directed against such property.”).
548 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (“There may be placed under special protection a
limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres
containing monuments and other immovable cultural property of very great importance, provided that they: (a) are
situated at an adequate distance from any large industrial centre or from any important military objective
constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged
upon work of national defence, a port or railway station of relative importance or a main line of communication; (b)
are not used for military purposes.”).
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• a limited number of refuges intended to shelter movable cultural property in the event of
armed conflict;
• a limited number of centers containing monuments and other immovable property of very
great importance; and
• improvised refuges under the procedures specified in the Regulations for the Execution of
the 1954 Hague Cultural Property Convention.549
Property granted special protection must be marked with the distinctive emblem for
special protection, and opened to international control as provided for in the Regulations for the
Execution of the 1954 Hague Cultural Property Convention.550
5.18.8.1 Conditions for the Granting of Special Protection - Adequate Distance
From Military Objectives. In order to qualify for special protection, these categories of property
must: (1) be situated an adequate distance from any large industrial center, or from any
important military objective constituting a vulnerable point; and (2) not be used for military
purposes.
The property must be situated at an adequate distance from any large industrial center or
from any important military objective, such as an airport, railway station, or marshalling yards,
port facilities, key lines of communication, command and control activity, or other defense
facility.551 The term “adequate distance” is not defined within the 1954 Hague Cultural Property
Convention, but relies upon determinations and actions by the State Party requesting “special
protection” status, and by States Parties in determining whether the distance set forth by the
requesting nation is sufficient to support approval of the request.
549 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11 (“1. If,
during an armed conflict, any High Contracting Party is induced by unforeseen circumstances to set up an
improvised refuge and desires that it should be placed under special protection, it shall communicate this fact
forthwith to the Commissioner-General accredited to that Party. 2. If the Commissioner-General considers that such
a measure is justified by the circumstances and by the importance of the cultural property sheltered in this
improvised refuge, he may authorize the High Contracting Party to display on such refuge the distinctive emblem
defined in Article 16 of the Convention. He shall communicate his decision without delay to the delegates of the
Protecting Powers who are concerned, each of whom may, within a time-limit of 30 days, order the immediate
withdrawal of the emblem. 3. As soon as such delegates have signified their agreement or if the time-limit of 30
days has passed without any of the delegates concerned having made an objection, and if, in the view of the
Commissioner-General, the refuge fulfils the conditions laid down in Article 8 of the Convention, the
Commissioner-General shall request the Director-General of the United Nations Educational, Scientific and Cultural
Organization to enter the refuge in the Register of Cultural Property under Special Protection.”).
550 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 10 (“During an armed conflict, cultural property under
special protection shall be marked with the distinctive emblem described in Article 16, and shall be open to
international control as provided for in the Regulations for the execution of the Convention.”).
551 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (Refuges and centers may only be placed under special
protection if “they:
(a) are situated at an adequate distance from any large industrial centre or from any important
military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station,
establishment engaged upon work of national defence, a port or railway station of relative importance or a main line
of communication.”). Refer to § 5.7 (Military Objectives).
282
Immovable cultural property of very great importance adjacent to a military objective
may retain its special protection status provided, in the event of armed conflict, all use of the
military objective ceases.552 For example, if the military objective in question is an airport, port
facility, or railway station or marshaling yards, all activity must cease, and military traffic must
be diverted, in order for the site to maintain its protected status.
A refuge for storing and protecting movable cultural property may also be placed under
special protection, whatever its location, if it is so constructed that, in all probability, it will not
be damaged by bombs.553
5.18.8.2 Conditions for the Granting of Special Protection - No Use for Military
Purposes. A “center containing monuments”554 shall be deemed to be used for military purposes
whenever it is used for the movement of military personnel or material, even in transit. The
same shall apply whenever activities directly connected with military operations, the stationing
of military personnel, or the production of war material are carried on within the center.555
The guarding of cultural property under special protection by armed custodians specially
empowered to do so, or the presence, in the vicinity of such cultural property, of police forces
normally responsible for the maintenance of public order, however, shall not be deemed to be
use for military purposes.556 Such activities may fulfill the obligation to safeguard cultural
property, especially against looters.557 Employment of law enforcement personnel to protect
cultural property is analogous to activities of armed military medical personnel deployed in and
around military medical units and facilities in order to provide security from criminal acts.558
552 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(5) (“If any cultural property mentioned in paragraph 1 of
the present Article is situated near an important military objective as defined in the said paragraph, it may
nevertheless be placed under special protection if the High Contracting Party asking for that protection undertakes,
in the event of armed conflict, to make no use of the objective and particularly, in the case of a port, railway station
or aerodrome, to divert all traffic therefrom. In that event, such diversion shall be prepared in time of peace.”).
553 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(2) (“A refuge for movable cultural property may also be
placed under special protection, whatever its location, if it is so constructed that, in all probability, it will not be
damaged by bombs.”).
554 Refer to § 5.18.1.4 (Centers Containing Monuments).
555 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(3) (“A centre containing monuments shall be deemed to
be used for military purposes whenever it is used for the movement of military personnel or material, even in transit.
The same shall apply whenever activities directly connected with military operations, the stationing of military
personnel, or the production of war material are carried on within the centre.”).
556 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(4) (“The guarding of cultural property mentioned in
paragraph 1 above by armed custodians specially empowered to do so, or the presence, in the vicinity of such
cultural property, of police forces normally responsible for the maintenance of public order shall not be deemed to
be used for military purposes.”). Compare § 4.23.1 (Police as Civilians).
557 Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism
Against, Cultural Property).
558 Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).
283
5.18.8.3 Marking of Cultural Property Under Special Protection. The distinctive
emblem for cultural property is to be displayed three times in a triangular formation to indicate
cultural property under special protection.559
The emblem shall be visible from the ground: (a) at regular intervals sufficient to
indicate clearly the perimeter of a center containing monuments under special protection; and (b)
at the entrance to other immovable cultural property under special protection.560
5.18.8.4 Withdrawal of Special Protection. If a Party to 1954 Hague Cultural
Property Convention commits, in respect of any item of cultural property under special
protection, a violation of its obligations to refrain from any act of hostility directed against such
property and from use of such property or its surroundings for military purposes, the opposing
Party shall, so long as this violation persists, be released from the obligation to ensure the
immunity of the property concerned.561 Nevertheless, whenever possible, the latter Party shall
first request the cessation of such violation within a reasonable time.562
Apart from violations by the opposing Party, immunity shall be withdrawn from cultural
property under special protection only in exceptional cases of unavoidable military necessity,
and only for such time as that necessity continues.563 Such necessity can be established only by
an officer commanding a force the equivalent of a division in size or larger.564 However, such
necessity should not be construed to impose an unreasonable and disproportionate responsibility
on the attacker to avoid damage to cultural property.565 Moreover, all property may be attacked
559 Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property - Once Versus Three Times).
560 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(2) (“The
emblem shall be visible from the ground: (a) at regular intervals sufficient to indicate clearly the perimeter of a
centre containing monuments under special protection; (b) at the entrance to other immovable cultural property
under special protection.”).
561 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(1) (“If one of the High Contracting Parties commits, in
respect of any item of cultural property under special protection, a violation of the obligations under Article 9, the
opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the
property concerned.”).
562 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(1) (“Nevertheless, whenever possible, the latter Party
shall first request the cessation of such violation within a reasonable time.”).
563 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Apart from the case provided for in paragraph I of
the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional
cases of unavoidable military necessity, and only for such time as that necessity continues.”).
564 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Such necessity can be established only by the
officer commanding a force the equivalent of a division in size or larger.”).
565 Section-by-Section Analysis of Provisions, 6, Tab 1 to Strobe Talbot, Letter of Submittal, May 12, 1998,
MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954 HAGUE CULTURAL PROPERTY CONVENTION 7 (“Due to
ambiguous modifiers such as those in the Article 11 phrase ‘‘exceptional cases of ‘unavoidable’ military necessity,’’
the provisions may be misconstrued to impose an unreasonable and disproportionate responsibility on the attacker to
avoid damage to cultural property. Clarification would help avoid a suggestion that strict compliance with the
Convention would mean that any collateral damage would constitute a violation of the Convention.”).
284
using any lawful and proportionate means if required by military necessity and notwithstanding
possible collateral damage to such property.566
Whenever circumstances permit, the opposing Party shall be notified, a reasonable time
in advance, of the decision to withdraw immunity.567 The Party withdrawing immunity is also to
notify the Commissioner-General for Cultural Property as soon as possible as provided for in the
Regulations for the Execution of the 1954 Hague Cultural Property Convention, in writing,
stating the reasons for withdrawing immunity.568
5.18.9 Transport of Cultural Property. The transport of cultural property may take place:
(1) under special protection through procedures provided in the Regulations for the Execution of
the 1954 Hague Cultural Property Convention; and (2) in urgent cases without such procedures.
Additional rules apply to the transport of cultural property in occupied territory.569
The distinctive emblem for cultural property should be placed on vehicles of transport so
as to be clearly visible in daylight from the air as well as from the ground.570
5.18.9.1 Transport Under Special Protection. Transport exclusively engaged in
the transfer of cultural property, whether within a territory or to another territory, may, at the
request of the State concerned, take place under special protection in accordance with the
conditions specified in the Regulations for the Execution of the 1954 Hague Cultural Property
Convention.571 No acts of hostility may be directed against transport under special protection.572
A request for such transport should be addressed to the Commissioner-General for
Cultural Property and should contain all relevant information, including the reason for the
transfer, the approximate number and importance of objects to be transferred, their present
566 See United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 2009,
2575 UNTS 7, 8 (“It is the understanding of the United States of America that ‘special protection’, as defined in
Chapter II of the Convention, … allows all property to be attacked using any lawful and proportionate means, if
required by military necessity and notwithstanding possible collateral damage to such property.”).
567 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Whenever circumstances permit, the opposing
Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.”).
568 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(3) (“The Party withdrawing immunity shall, as soon as
possible, so inform the Commissioner-General for cultural property provided for in the Regulations for the
execution of the Convention, in writing, stating the reasons.”).
569 Refer to § 11.19 (Protection of Cultural Property During Occupation).
570 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(2)
(“However, without prejudice to any possible fuller markings, the emblem shall, in the event of armed conflict and
in the cases mentioned in Articles 12 and 13 of the Convention, be placed on vehicles of transport so as to be clearly
visible in daylight from the air as well as from the ground.”).
571 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(1) (“Transport exclusively engaged in the transfer of
cultural property, whether within a territory or to another territory, may, at the request of the High Contracting Party
concerned, take place under special protection in accordance with the conditions specified in the Regulations for the
execution of the Convention.”).
572 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(3) (“The High Contracting Parties shall refrain from any
act of hostility directed against transport under special protection.”).
285
location, the intended destination, the means of transport to be used, the route to be followed, and
the date proposed for transfer.573 The Commissioner-General for Cultural Property determines
whether such transfer is justified and notifies parties to the conflict concerned of the transfer.574
Transport under special protection shall take place under the international supervision
provided for in the Regulations for the Execution of the 1954 Hague Cultural Property
Convention and shall display the distinctive emblem described in Article 16.575 The distinctive
emblem for cultural property is to be displayed repeated three times in a triangular formation to
indicate that the transport occurs under special protection.576
The transport of cultural property to the territory of another State is subject to additional
rules.577
5.18.9.2 Transport in Urgent Cases. If a State that is a Party to the 1954 Hague
Cultural Property Convention considers that the safety of certain cultural property requires
transfer, and that the matter is of such urgency that the request procedure to the Commissioner-
General for Cultural Property cannot be followed, the transport may display the distinctive
emblem for cultural property, provided that a request for transport under special protection has
573 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(1) (“The
request mentioned in paragraph 1 of Article 12 of the Convention shall be addressed to the Commissioner-General
for Cultural Property. It shall mention the reasons on which it is based and specify the approximate number and the
importance of the objects to be transferred, their present location, the location now envisaged, the means of transport
to be used, the route to be followed, the date proposed for the transfer, and any other relevant information.”).
574 REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(2) (“If the
Commissioner-General, after taking such opinions as he deems fit, considers that such transfer is justified, he shall
consult those delegates of the Protecting Powers who are concerned, on the measures proposed for carrying it out.
Following such consultation, he shall notify the Parties to the conflict concerned of the transfer, including in such
notification all useful information.”).
575 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(2) (“Transport under special protection shall take place
under the international supervision provided for in the aforesaid Regulations and shall display the distinctive
emblem described in Article 16.”). See also REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL
PROPERTY CONVENTION art. 17(3) (“The Commission-General shall appoint one or more inspectors, who shall
satisfy themselves that only the property stated in the request is to be transferred and that the transport is to be by the
approved methods and bears the distinctive emblem. The inspector or inspectors shall accompany the property to its
destination.”).
576 Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property - Once Versus Three Times).
577 See REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 18 (“(a)
[W]hile the cultural property remains on the territory of another State, that State shall be its depositary and shall
extend to it as great a measure of care as that which it bestows upon its own cultural property of comparable
importance; (b) the depositary State shall return the property only on the cessation of the conflict; such return shall
be effected within six months from the date on which it was requested; (c) during the various transfer operations,
and while it remains on the territory of another State, the cultural property shall be exempt from confiscation and
may not be disposed of either by the depositor or by the depositary. Nevertheless, when the safety of the property
requires it, the depositary may, with the assent of the depositor, have the property transported to the territory of a
third country, under the conditions laid down in the present article; (d) the request for special protection shall
indicate that the State to whose territory the property is to be transferred accepts the provisions of the present Article
[of the Regulations for the Execution of the 1954 Hague Cultural Property Convention].”).
286
not already been made and refused.578 As far as possible, notification of transfer should be made
to the opposing Parties.579 Nevertheless, transport conveying cultural property to the territory of
another State may not display the distinctive emblem unless immunity has been expressly
granted to it.580
As far as possible, necessary precautions shall be taken to avoid acts of hostility directed
against transport of cultural property under the protection provided in urgent cases and while
displaying the distinctive emblem.581
5.18.9.3 Immunity From Seizure, Capture, and Prize. Transport of cultural
property under special protection or under the protection provided in urgent cases is immune
from seizure, placing in prize, or capture.582 Means of transport exclusively engaged in the
transport of such property is similarly immune.583 However, such immunity does not limit the
right of visit and search of such transportation or property.584
5.18.10 AP I Provision on the Protection of Objects Which Constitute the Cultural or
Spiritual Heritage of Peoples. Article 53 of AP I provides certain protections to “historic
monuments, works of art or places of worship which constitute the cultural or spiritual heritage
of peoples.”585 This provision has been interpreted in a more limited fashion than its text would
suggest.
For example, based on the statements of national delegations, including the U.S.
delegation, during the negotiations of this provision, it appears that objects that qualify for
578 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“If a High Contracting Party considers that the safety
of certain cultural property requires its transfer and that the matter is of such urgency that the procedure laid down in
Article 12 cannot be followed, especially at the beginning of an armed conflict, the transport may display the
distinctive emblem described in Article 16, provided that an application for immunity referred to in Article 12 has
not already been made and refused.”).
579 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“As far as possible, notification of transfer should be
made to the opposing Parties.”).
580 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“Nevertheless, transport conveying cultural property
to the territory of another country may not display the distinctive emblem unless immunity has been expressly
granted to it.”).
581 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(2) (“The High Contracting Parties shall take, so far as
possible, the necessary precautions to avoid acts of hostility directed against the transport described in paragraph 1
of the present Article and displaying the distinctive emblem.”).
582 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 14(1) (“Immunity from seizure, placing in prize, or capture
shall be granted to: (a) cultural property enjoying the protection provided for in Article 12 or that provided for in
Article 13; (b) the means of transport exclusively engaged in the transfer of such cultural property.”).
583 Compare § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).
584 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 14(2) (“Nothing in the present Article shall limit the right
of visit and search.”). Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels).
585 AP I art. 53 (“Without prejudice to the provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is
prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places of
worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the
military effort; (c) to make such objects the object of reprisals.”).
287
special protection under Article 53 of AP I are substantially those that qualify for special
protection under the 1954 Hague Cultural Property Convention.586
In addition, protection is waived when an object is used in support of the military effort
or for military purposes.587 In addition, Canada has interpreted Article 53 to permit waiver of its
obligations when military necessity imperatively requires such waiver.588
5.19 SIEGES AND ENCIRCLED AREAS
It is lawful to besiege enemy forces. Commanders must seek to make arrangements to
permit the passage of certain consignments and should seek to make arrangements for the
passage of certain categories of civilians, and of religious and medical personnel. Different rules
apply to blockade.589
5.19.1 Siege and Encirclement Permissible. It is lawful to besiege enemy forces, i.e., to
encircle them with a view towards inducing their surrender by cutting them off from
reinforcements, supplies, and communications with the outside world.590 In particular, it is
permissible to seek to starve enemy forces into submission.591
586 BOTHE, PARTSCH, & SOLF, NEW RULES 333 (AP I art. 53, ¶2.5.1) (“In light of this understanding [by the U.S.
delegation], it appears that the objects which qualify for special protection under Art. 53 are substantially those
which would qualify for special protection under Art. 8 of the Hague Convention of 1954 without, however,
imposing a requirement for the procedural measures required by that Convention to effect such special protection.”).
587 See, e.g., France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED
CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 801 (2004) (“The
Government of the French Republic declares that if the objects protected by Article 53 are used for military
purposes, they will lose protection which they would otherwise have according to the provisions of the Protocol.”);
Ireland, Statement on Ratification of AP I, Nov. 19, 1999, 2073 UNTS 28, 30 (“It is the understanding of Ireland in
relation to the protection of cultural objects in Article 53 that if the objects protected by this Article are unlawfully
used for military purposes they will thereby lose protection from attacks directed against such unlawful military
use.”); Italy, Statement on Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 439 (“If and so long as the
objectives protected by Article 53 are unlawfully used for military purposes, they will thereby lose protection.”);
United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“The United Kingdom
declares that if the objects protected by this Article are unlawfully used for military purposes they will thereby lose
protection from attacks directed against such unlawful military uses.”).
588 Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“It is the understanding of the
Government of Canada in relation to Article 53 that: a. Such protection as is afforded by the Article will be lost
during such time as the protected property is used for military purposes, and b. The prohibitions contained in
subparagraphs (a) and (b) of this Article can only be waived when military necessity imperatively requires such a
waiver.”).
589 Refer to § 13.10 (Blockade).
590 1956 FM 27-10 (Change No. 1 1976) ¶40 (“Investment, bombardment, assault, and siege have always been
recognized as legitimate means of land warfare.”). See also 2004 UK MANUAL ¶5.34.1 (“Attacks can be costly in
casualties and incidental loss or damage. A more effective method may be to encircle enemy forces, cutting them
off from supplies and communications with the outside world and forcing their surrender. The same is true of
besieging a town or stronghold. Siege is a legitimate method of warfare as long as it is directed against enemy
armed forces. It would be unlawful to besiege an undefended town since it could be occupied without resistance.”).
591 Refer to § 5.20 (Starvation).
288
5.19.1.1 Belligerent Authority to Exercise Control in the Immediate Vicinity of
Military Operations. The conduct of a siege or encirclement may require the imposition of
measures of control to ensure that outsiders may not deliver supplies to enemy forces. Thus, the
right to conduct a siege or encirclement impliedly recognizes the authority of the military
commander to exercise control (e.g., stopping, searching, and diverting traffic) over civilians
and other persons in the immediate vicinity of military operations. For example, commanders
may also impose certain restrictions on neutral vessels or aircraft (such as restricting
communications) within the immediate vicinity of the belligerent’s operations.592
5.19.2 Removal and Passage of Certain Personnel - Vulnerable Civilians, Diplomatic and
Consular Personnel, the Wounded and Sick, and Medical Personnel. Although the commander
of the force laying siege has the right to forbid all communications and access between the
besieged place and the outside, the parties to the conflict should attempt to conclude local
agreements for the removal of wounded, sick, infirm and aged persons, children, and maternity
cases, or for the passage of ministers of all religions, medical personnel, and medical equipment
on their way to such areas.593 Concluding such agreements is not compulsory. A commander of
an encircling force is not required to agree to the passage of medical or religious personnel,
supplies, and equipment if he or she has legitimate military reasons denying such requests (e.g.,
if denying passage may increase the likelihood of surrender of enemy forces in the encircled
area). Nonetheless, commanders should make reasonable, good-faith efforts to do so when
possible.594
Diplomatic and consular personnel of a neutral State should not be prevented from
leaving a besieged place before hostilities commence, but this privilege cannot be claimed while
hostilities are in progress. If diplomatic and consular personnel of a neutral State voluntarily
decide to remain, they are subject to the same risks as other inhabitants.595
5.19.3 Passage of Relief Consignments. Commanders should make arrangements to
permit the free passage of certain consignments:
592 Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations); § 14.6 (Belligerent Control of
Aviation in the Immediate Vicinity of Hostilities).
593 GC art. 17 (“The Parties to the conflict shall endeavour to conclude local agreements for the removal from
besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the
passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.”); GWS
art. 15 (“Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchange
of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and
equipment on their way to that area.”); GWS-SEA art. 18 (“Whenever circumstances permit, the Parties to the
conflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or
encircled area and for the passage of medical and religious personnel and equipment on their way to that area.”).
594 GC COMMENTARY 139 (“The words ‘The Parties to the conflict shall endeavor’ show that under the Convention
evacuation is not compulsory; belligerents should nevertheless regard this provision as a very strong
recommendation to arrange for evacuation whenever it is in the interest of the civilian population and the military
situation makes it possible.”).
595 1956 FM 27-10 (Change No. 1 1976) ¶44b (“Diplomatic and consular personnel of a neutral State should not be
prevented from leaving a besieged place before hostilities commence, but this privilege cannot be claimed while
hostilities are in progress. Should they voluntarily decide to remain, they must undergo the same risks as other
inhabitants.”).
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• all consignments of medical and hospital stores and objects necessary for religious
worship intended only for civilians; and
• all consignments of essential foodstuffs, clothing, and tonics (i.e., medicine) intended for
children under fifteen, expectant mothers, and maternity cases.596
However, allowing passage of these items is not required by the party controlling the area
unless that party is satisfied that there are no serious reasons for fearing that:
• the consignments may be diverted from their destination;
• the control may not be effective; or
• a definite advantage may accrue to the military efforts or economy of the enemy.597
5.19.3.1 Technical Arrangements for the Passage and Distribution of Relief
Consignments. Commanders may require, as a condition for allowing the passage of
consignments listed above, that the consignments be distributed under the local supervision of
the Protecting Powers.598 Commanders may prescribe other rules and regulations for how
consignments are to be distributed, although consignments should be forwarded as rapidly as
possible.599
5.19.4 Attacks by Forces Laying Siege. The general rules that apply to conducting
attacks also apply to attacks by forces laying siege.600
5.19.4.1 Use of Force to Drive Fleeing Civilians Back to Besieged Areas. In the
past, it was permissible, but an extreme measure, to refuse to allow civilians to leave a besieged
locality and to use force to drive any who attempted to flee back to the besieged locality.601
596 GC art. 23 (“Each High Contracting Party shall allow the free passage of all consignments of medical and
hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting
Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential
foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.”).
597 GC art. 23 (“The obligation of a High Contracting Party to allow the free passage of the consignments indicated
in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for
fearing:
(a) that the consignments may be diverted from their destination, (b) that the control may not be effective,
or (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution
of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or
through the release of such material, services or facilities as would otherwise be required for the production of such
goods.”).
598 GC art. 23 (“The Power which allows the passage of the consignments indicated in the first paragraph of this
Article may make such permission conditional on the distribution to the persons benefited thereby being made under
the local supervision of the Protecting Powers.”).
599 GC art. 23 (“Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free
passage shall have the right to prescribe the technical arrangements under which such passage is allowed.”).
600 Refer to § 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks).
601 See, e.g., United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE
THE NMT 563 (“Leningrad was encircled and besieged. Its defenders and the civilian population were in great
290
However, such actions would now be prohibited because they would not be consistent with the
duty to take feasible precautions for the protection of civilians.602 Permitting civilians to flee
may also be militarily advantageous.603
5.19.5 Duties of Forces Under Siege to Take Feasible Precautions to Reduce the Risk of
Incidental Harm. Besieged forces should take feasible precautions to reduce the risk of
incidental harm.604 For example, it may be appropriate to mark protected buildings to indicate
their protected status to enemy forces.605 Similarly, it may be appropriate to concentrate the
wounded and sick and civilians in areas remote from military objectives606 or in areas neutralized
by arrangement with the enemy.607
5.20 STARVATION
Starvation is a legitimate method of warfare, but it must be conducted in accordance with
the principles of distinction and proportionality, as well as other law of war rules. Starvation of
civilians as a method of combat is also prohibited in non-international armed conflict.608
5.20.1 Starvation - Distinction. It is a legitimate method of war to starve enemy
forces.609 For example, it is permitted to destroy food intended as sustenance for enemy forces
straits and it was feared the population would undertake to flee through the German lines. Orders were issued to use
artillery to ‘prevent any such attempt at the greatest possible distance from our own lines by opening fire as early as
possible, so that the infantry, if possible, is spared shooting on civilians.’ … It is said that if the commander of a
besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of
provisions, it is lawful, though an extreme measure, to drive them back so as to hasten the surrender.’ We might
wish the law were otherwise but we must administer it as we find it. Consequently, we hold no criminality attached
on this charge.”).
602 Refer to § 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
603 See ROGERS, LAW ON THE BATTLEFIELD 62 (“In fact, the besieging commander would be better advised to allow
all civilians and the wounded and sick to leave the besieged area. He would then legitimately be able to prevent all
supplies from reaching the enemy forces and bombardment and assault would be considerably eased.”).
604 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
605 Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).
606 Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).
607 Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).
608 Refer to § 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).
609 See LIEBER CODE art. 17 (“It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the
speedier subjection of the enemy.”). Consider AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to
such of the objects covered by it as are used by an adverse Party: (a) As sustenance solely for the members of its
armed forces; or (b) If not as sustenance, then in direct support of military action, provided, however, that in no
event shall actions against these objects be taken which may be expected to leave the civilian population with such
inadequate food or water as to cause its starvation or force its movement.”).
291
with a view towards weakening them and diverting their resources.610 Enemy forces, for the
purpose of this rule, means those persons constituting military objectives.611
Starvation specifically directed against the enemy civilian population, however, is
prohibited.612 For example, it would be prohibited to destroy food or water supplies for the
purpose of denying sustenance to the civilian population.
5.20.2 Starvation - Proportionality. Military action intended to starve enemy forces,
however, must not be taken where it is expected to result in incidental harm to the civilian
population that is excessive in relation to the military advantage anticipated to be gained.613
Feasible precautions to reduce the risk of harm to the civilian population or other
reasonable measures to mitigate the burden to the civilian population may also be warranted
when seeking to starve enemy forces.614 For example, it may be appropriate to seek to
compensate civilians whose food has been inadvertently destroyed.615 Moreover, an Occupying
610 For example, Department of the Air Force, Headquarters Pacific Air Forces, Directorate of Operations Analysis,
Project CHECO [Contemporary Historical Examination of Current Operations] Report, “Ranch Hand: Herbicide
Operations in SEA [Southeast Asia]” 19 (Jul. 13, 1971) (“The enemy documents revealed that the VC [Viet Cong]
had suffered serious personnel losses due to the lack of food. Troops normally used in fighting had to be detailed to
crop raising, and in one case the 95th North Vietnamese Army (NVA) regiment had to fast for one or two days on
several occasions due to a lack of food. The overall conclusion of the PACOM report was that crop destruction was
‘an integral, essential and effective part of the total effort in South Vietnam.’”).
611 Refer to § 5.7.2 (Persons Who Are Military Objectives).
612 See J. Fred Buzhardt, DoD General Counsel, Letter to Chairman Fulbright, Senate Committee on Foreign
Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“But an attack by any means
against crops intended solely for consumption by noncombatants not contributing to the enemy’s war effort would
be unlawful for such would not be an attack upon a legitimate military objective.”). Consider AP I art. 54(1)
(“Starvation of civilians as a method of warfare is prohibited.”).
613 Cf. J. Fred Buzhardt, DoD General Counsel, Letter to Chairman Fulbright, Senate Committee on Foreign
Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“Where it cannot be determined
whether crops were intended solely for consumption by the enemy’s armed forces, crop destruction would be lawful
if a reasonable inquiry indicated that the intended destruction is justified by military necessity under the principles of
Hague Regulation Article 23(g), and that the devastation occasioned is not disproportionate to the military
advantage gained.”).
614 Refer to § 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
615 For example, Department of State, Telegram From the Department of State to the Embassy in Vietnam,
Washington, May 7, 1963, reprinted in III FOREIGN RELATIONS OF THE UNITED STATES, 1961-1963, VIETNAM,
JANUARY-AUGUST 1963, DOCUMENT 110, p. 275 (“All herbicide operations [including crop destruction] to be
undertaken only after it is clear both PsyWar preparations and compensation and relief machinery [for peasants
whose crops are inadvertently destroyed] are adequate. Would appear GVN [Government of Vietnam] should
increase compensation efforts.”); Memorandum Prepared in the Department of State, Chemical Defoliation and
Crop Destruction in South Viet-Nam, Washington, Apr. 18, 1963, reprinted in III FOREIGN RELATIONS OF THE
UNITED STATES, 1961-1963, VIETNAM, JANUARY-AUGUST 1963, DOCUMENT 96, pp. 240 (“The GVN [Government
of Vietnam] has set up a mechanism for compensating peasants whose crops are inadvertently destroyed. We do not
have much information on the results of the compensation program, but there are indications that it was not
adequately carried out, in part because of security difficulties.”).
292
Power would have additional duties to ensure food and water for the civilian population.616
5.20.3 Starvation and Other Law of War Rules. Starvation as a method of warfare must
comply with other applicable law of war rules. For example, it would be unlawful to poison
food or water.617 Additionally, starvation, for example, may involve sieges or encirclement,
blockades, attacks, or the seizure and destruction of enemy property.618 In each case, the rules
applicable to those situations must be followed.
5.20.4 AP I Provision on Objects Indispensable to the Survival of the Civilian
Population. Article 54(2) of AP I makes it prohibited for Parties to AP I “to attack, destroy,
remove or render useless objects indispensable to the survival of the enemy civilian population,
such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking
water installations, and supplies for irrigation works, for the specific purpose of denying them for
their sustenance value to the civilian population or to the adverse party, whatever the motive,
whether in order to starve out civilians, cause them to move away, or for any other motive.”619
This rule would not apply to attacks that are carried out for specific purposes other than
to deny sustenance.620 For example, this rule would not prohibit destroying a field of crops to
prevent it from being used as concealment by the enemy or destroying a supply route that is used
to move military supplies but is also used to supply the civilian population with food.621
Similarly, this AP I prohibition does not apply to objects that would otherwise be covered
by it if those objects are used by an adverse party “as sustenance solely for the members of its
armed forces” or “if not as sustenance, then in direct support of military action.”622 Actions
against this latter category of objects forfeiting protection, however, may not be taken if they
616 Refer to § 11.14 (Food and Medical Supplies for the Civilian Population).
617 Refer to § 6.8 (Poison).
618 Refer to § 5.19 (Sieges and Encircled Areas); § 13.10 (Blockade); § 5.5 (Rules on Conducting Assaults,
Bombardments, and Other Attacks); § 5.17 (Seizure and Destruction of Enemy Property).
619 AP I art. 54(2).
620 See, e.g., APPENDIX TO 1985 CJCS MEMO ON AP I 56 (The restrictions of Article 54(2) “do not apply to attacks
that are not for the specific purpose of denying sustenance;”); United Kingdom, Statement on Ratification of AP I,
Jan. 28, 1998, 2020 UNTS 75, 77 (Article 54(2) of AP I “has no application to attacks that are carried out for a
specific purpose other than denying sustenance to the civilian population or the adverse party.”).
621 2004 UK MANUAL ¶5.27.2 (“The law is not violated if military operations are not intended to cause starvation but
have that incidental effect, for example, by cutting off enemy supply routes which are also used for the
transportation of food, or if civilians through fear of military operations abandon agricultural land or are not
prepared to risk bringing food supplies into areas where fighting is going on.”); BOTHE, PARTSCH, & SOLF, NEW
RULES 339 (AP I art. 54, ¶2.3) (“This paragraph does not prohibit the incidental distress of civilians resulting from
otherwise lawful military operations. It would not, for example, be unlawful to attack or destroy a railroad line
simply because the railroad was used to transport food needed to supply the population of a city, if the railroad was
otherwise a military objective under Art. 52 [of AP I].”).
622 AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used
by an adverse Party: (a) As sustenance solely for the members of its armed forces; or (b) If not as sustenance, then
in direct support of military action, provided, however, that in no event shall actions against these objects be taken
which may be expected to leave the civilian population with such inadequate food or water as to cause its starvation
or force its movement.”).
293
“may be expected to leave the civilian population with such inadequate food or water as to cause
its starvation or force its movement.”623
Further exception is made for a State to engage in a “scorched earth” defense of a party’s
own territory.624
When adopted, this AP I prohibition was novel and the product of extensive diplomatic
negotiation. Given the intricacy of this provision of AP I, it would be difficult to conclude that
all of its particulars reflect customary international law. Nonetheless, the United States has
supported the underlying principle that starvation of civilians may not be used as a method of
warfare, as discussed in the sub-sections above.625
5.21 OVERVIEW OF GOOD FAITH, PERFIDY, AND RUSES
Absolute good faith with the enemy must be observed as a rule of conduct.626 The line
between those deceptions that good faith permits and those that good faith prohibits may appear
indistinct and has varied according to State practice.627 Good faith prohibits:
• killing or wounding enemy persons by resort to perfidy;628
• misusing certain signs;629
623 AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used
by an adverse Party: … (b) If not as sustenance, then in direct support of military action, provided, however, that in
no event shall actions against these objects be taken which may be expected to leave the civilian population with
such inadequate food or water as to cause its starvation or force its movement.”).
624 AP I art. 54(5) (“In recognition of the vital requirements of any Party to the conflict in the defence of its national
territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to the
conflict within such territory under its own control where required by imperative military necessity.”).
625 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law
(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426 (1987) (“We
support the principle that starvation of civilians not be used as a method of warfare, and subject to the requirements
of imperative military necessity, that impartial relief actions necessary for the survival of the civilian population be
permitted and encouraged. These principles can be found, though in a somewhat different form, in articles 54 and
70.”).
626 1956 FM 27-10 (Change No. 1 1976) ¶49 (“Absolute good faith with the enemy must be observed as a rule of
conduct; but this does not prevent measures such as using spies and secret agents, encouraging defection or
insurrection among the enemy civilian population, corrupting enemy civilians or soldiers by bribes, or inducing the
enemy’s soldiers to desert, surrender, or rebel.”).
627 1958 UK MANUAL ¶310 (“The borderline between legitimate ruses and forbidden treachery has varied at
different times, and it is difficult to lay down hard and fast rules in the matter. Many of the doubtful cases, however,
which arose at a time when, from the nature of their weapons, troops could only engage at close range, can now
seldom or never occur.”).
628 Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).
629 Refer to § 5.24 (Improper Use of Certain Signs).
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• fighting in the enemy’s uniform;630
• feigning non-hostile relations in order to seek a military advantage;631 and
• compelling nationals of a hostile party to take part in the operations of war directed
against their own country.632
However, good faith permits:
• ruses of war or other lawful deceptive activities;633
• intelligence collection;634
• military information support operations, including propaganda;635 and
• certain types of bribery.636
5.21.1 Harms From Breaches of Good Faith. Breaches of good faith may: (1) undermine
the protections afforded by the law of war to classes of persons and objects; (2) impair non-
hostile relations between opposing belligerents; and (3) damage the basis for the restoration of
peace short of complete annihilation of one belligerent by another.
Breaches of good faith, principally perfidious conduct, may undermine the protections
afforded by the law of war to civilians, persons who are hors de combat, or certain other classes
of persons and objects.637
Breaches of good faith also impair other non-hostile relations between opposing
belligerents during the war. For example, such breaches may diminish the legitimate activities
that depend upon a degree of mutual respect and trust between hostile forces, such as effecting
surrender or collection of the dead, wounded, or sick (enemy or friendly force) on the battlefield.
It also may make it more difficult for military commanders to ensure that their forces comply
630 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms).
631 Refer to § 12.2 (Principle of Good Faith in Non-Hostile Relations).
632 Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
633 Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).
634 Refer to § 5.26.1 (Propaganda).
635 Refer to § 5.26.2 (Information Gathering).
636 Refer to § 5.26.3 (Bribery or Offering of Rewards).
637 BOTHE, PARTSCH, & SOLF, NEW RULES 202 (AP I art. 37, ¶2.1) (“Combatants, in practice, find it difficult to
respect protected persons and objects if experience causes them to believe or suspect that their adversaries are
abusing their claim to protection under the rules of international law applicable in armed conflict in order to achieve
a military advantage. The prohibitions of perfidy are thus directly related to protection for the wounded and sick,
hors de combat combatants, prisoners of war and civilians.”). See also footnote 164, § 4.6.4 (Having a Fixed
Distinctive Sign Recognizable at a Distance).
295
with the law of war where treacherous acts by the enemy have resulted in casualties among their
own forces.
Breaches of good faith also damage, and may destroy, the basis for restoration of peace
short of the complete annihilation of one belligerent by another.638 A degree of mutual respect
and trust is essential for the negotiation of cease-fires, truces, surrenders, and other agreements
necessary to bring an end to hostilities.
5.22 TREACHERY OR PERFIDY USED TO KILL OR WOUND
During international armed conflict, it is prohibited to kill or wound the enemy by resort
to perfidy.639
5.22.1 Definition of Perfidy. Acts of perfidy are acts that invite the confidence of enemy
persons to lead them to believe that they are entitled to, or are obliged to accord, protection under
the law of war, with intent to betray that confidence.640
The key element in perfidy is the false claim to protections under the law of war in order
to secure a military advantage over the opponent.641 The claim must be to legal protections.642
5.22.1.1 Perfidy and Treachery - Notes on Terminology. “Treachery” and
“perfidy” have been used interchangeably.643 Article 23(b) of the Hague IV Regulations uses the
word “treacherously,” which was also used in Article 13(b) of the 1874 Brussels Declaration.644
638 1956 FM 27-10 (Change No. 1 1976) ¶50 (“Treacherous or perfidious conduct in war is forbidden because it
destroys the basis for a restoration of peace short of the complete annihilation of one belligerent by the other.”).
639 HAGUE IV REG. art. 23(b) (It is especially forbidden “[t]o kill or wound treacherously individuals belonging to
the hostile nation or army”); LIEBER Code art. 101 (noting that “the common law of war allows even capital
punishment for clandestine or treacherous attempts to injure an enemy”). Consider ROME STATUTE art. 8(2)(b)(xi)
(defining war crimes in international armed conflict to include “[k]illing or wounding treacherously individuals
belonging to the hostile nation or army”).
640 Consider AP I art. 37(1) (“Acts inviting the confidence of an adversary to lead him to believe that he is entitled
to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to
betray that confidence, shall constitute perfidy.”); APPENDIX TO 1985 CJCS MEMO ON AP I 26 (“Rather than
‘treachery,’ paragraph 1 of Article 37 uses the modern term ‘perfidy,’ and defines it as ‘acts inviting the confidence
of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of
international law applicable in armed conflict, with the intent to betray that confidence.’ This definition, and the
examples provided, are an accurate and helpful clarification of existing law.”).
641 ICRC AP COMMENTARY 435 (¶1500) (“The central element of the definition of perfidy is the deliberate claim to
legal protection for hostile purposes.”).
642 BOTHE, PARTSCH, & SOLF, NEW RULES 204-05 (AP I art. 37, ¶2.4.2) (“The ICRC draft of the article referred to
‘confidence’ without elaborating that confidence must be based on a norm of international law. It would have
involved confidence in moral obligations as well as in binding legal obligations. This was considered to be overly
abstract and ambiguous by delegations representing several regional groups.”).
643 For example, XV OFFICIAL RECORDS OF THE CDDH 99 (CDDH/III/SR.47 ¶78) (“Mr. Reed (United States of
America) said that article 35, paragraph 1, was a reaffirmation and development of Article 23 b) of The Hague
Regulations respecting the Laws and Customs of War on Land annexed to The Hague Convention No. IV of 1907
296
Sometimes, “perfidy” is used to refer to conduct that is, by definition, prohibited.645
Other times, as, for example, in AP I, “perfidy” is used to refer to a certain type of deception,
which might not, by itself, be prohibited (e.g., feigning death would not be prohibited in order to
facilitate escape).646 It will be important to examine closely the context to determine which
usage is intended. This manual generally uses “perfidy” in the latter sense.
5.22.2 Perfidy - “Kill or Wound”. It is prohibited to use perfidy to kill or wound the
enemy. It may not be prohibited to invite the confidence of the adversary that he or she is
obligated to accord protection under the law of war, for certain purposes (e.g., to facilitate
spying, sabotage, capturing enemy personnel, or evading enemy forces). However, such
deception may not rely on certain signs and symbols.647 Moreover, persons who use perfidy to
engage in spying and sabotage may forfeit POW status or be liable to certain penalties under the
domestic law of enemy States.648
5.22.2.1 AP I Prohibition on “Capture” by Resort to Perfidy. In addition to
killing or wounding, Article 37 of AP I prohibits “capture” by resort to perfidy. The Department
of Defense has not interpreted customary international law to prohibit U.S. forces from seeking
to capture by resort to perfidy.
5.22.3 Examples of Killing or Wounding by Resort to Perfidy. Examples of killing or
wounding by resort to perfidy include:
• feigning an intent to negotiate under a flag of truce and then attacking,649 which takes
advantage of the rule that flags of truce may not be used to shield military operations.650
• feigning surrender and then attacking,651 which takes advantage of the rule that the
enemy may not attack those who have surrendered;652
concerning the Laws and Customs of War on Land. The word ‘treacherously’ in Article 23 b) was synonymous
with ‘perfidy’ in article 35 of draft Protocol I.”).
644 SPAIGHT, WAR RIGHTS ON LAND 86 (“The word ‘Treachery’ in Article XXIII(b) seems hardly applicable to an
enemy’s act, and one of the Brussels delegates proposed to substitute ‘perfidy’ for it. The original word was,
however, retained, as being the equivalent of the German Meuchelmord (‘murder by treachery’)”).
645 1956 FM 27-10 (Change No. 1 1976) ¶50 (providing that “[t]reacherous or perfidious conduct in war is
forbidden”).
646 BOTHE, PARTSCH, & SOLF, NEW RULES 203 (AP I art. 37, ¶2.4) (“It should be noted that Art. 37 [of AP I] does
not prohibit perfidy per se, although the term is defined with precision.”).
647 Refer to § 5.24 (Improper Use of Certain Signs).
648 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
649 For example, William Gerald Downey, The Law of War and Military Necessity, 47 AJIL 251, 260 (1953) (“A
good example of the use of deception which involved a breach of good faith is one that happened in this writer’s
presence during the Battle of Metz in 1944. At that time the German forces held several forts south and east of
Metz. One November morning, just as our attack was getting under way, a German unit of some 20 men came out
of one of the forts under a white flag. The American battalion commander gave the order to cease fire, and the
Germans marched under the protection of the white flag down the road toward our lines. As they came abreast of a
large bunker they pulled down their white flag, ran into the bunker and immediately opened fire on our positions.”).
650 Refer to § 5.24.7 (Flags of Truce).
297
• feigning of death or incapacitation by wounds or sickness653 and then attacking, which
takes advantage of the respect afforded the dead654 or the protection afforded those who
are hors de combat;655
• feigning civilian status and then attacking;656 and
• calling out “do not fire; we are friends” and then attacking.657
5.23 USE OF ENEMY FLAGS, INSIGNIA, AND MILITARY UNIFORMS
During international armed conflict, improper use of enemy flags, military emblems,
insignia, or uniforms, is prohibited.658
5.23.1 Improper Use of Enemy Flags, Insignia, and Military Uniforms Prohibited. In
general, the use of enemy flags, insignia, and military uniforms is prohibited during combat, but
is permissible outside of combat.659
A similar rule is applied during naval operations.660
5.23.1.1 Improper Use of Enemy Uniforms and “Perfidy”. The prohibition on the
use of enemy uniforms in combat has been described as a prohibition against using enemy
651 See FINAL REPORT ON THE PERSIAN GULF WAR 621 (“During the same battle, an Iraqi officer approached
Coalition forces with his hands in the air, indicating his intention to surrender. When near his would-be captors, he
drew a concealed pistol from his boot, fired, and was killed during the combat that followed.”).
652 Refer to § 5.10.3 (Persons Who Have Surrendered).
653 1958 UK MANUAL ¶115 note 2 (“For instance, it would be treachery for a soldier to sham wounded or dead and
then to attack enemy soldiers who approached him without hostile intent, or to pretend he had surrendered and
afterwards to open fire upon or attack an enemy who was treating him as hors de combat or a prisoner.).
654 Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).
655 Refer to § 5.10.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or
Shipwreck).
656 Refer to § 5.5.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).
657 2004 UK MANUAL ¶5.9 footnote 35 (“Examples of treachery included calling out ‘Do no fire, we are friends’ and
then firing at enemy troops who had lowered their guard, especially if coupled with the wearing of enemy uniforms
or civilian clothing;”); 1958 UK MANUAL ¶311 note 1 (giving as an example of treacherous killing or wounding
“calling out ‘Do not fire, we are friends’, and then firing” which “is often accompanied by the use of enemy
uniforms or civilian clothing”); 1914 1914 RULES OF LAND WARFARE ¶178 note 1 (“It would be treacherous to call
out, ‘Do not fire; we are friends,’ and then fire a volley.”).
658 HAGUE IV REG. art. 23(f) (making it especially forbidden “[t]o make improper use … of the national flag, or of
the military insignia and uniform of the enemy,”).
659 APPENDIX TO 1985 CJCS MEMO ON AP I 28 (“Existing international law prohibits ‘improper’ use of the enemy
uniform or insignia. The United States interprets this rule to prohibit their use in combat, but not in situations
preceding or following combat.”); 1956 FM 27-10 (Change No. 1 1976) ¶54 (“It is certainly forbidden to employ
[national flags, insignia, and uniforms] during combat, but their use at other times is not forbidden.”).
660 Refer to § 13.13.1 (Belligerent Warship’s Use of False Colors and Other Disguises).
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uniforms to kill or wound treacherously.661 However, feigning enemy military status is not
technically “perfidy” as the term is used in this manual because perfidy requires the feigning of
protected status, and the law of war generally does not protect enemy military personnel from
being made the object of attack.662
5.23.1.2 Use of Enemy Uniforms and Other Equipment Without the Intent to
Deceive. Uses of enemy uniforms and other equipment without any intention to deceive the
enemy are not prohibited. For example, if there is a shortage of clothing it may be necessary to
use enemy uniforms.663 Similarly, the immediate use of captured enemy weapons or equipment
during combat is permissible. When circumstances permit, however, enemy insignia should
generally be removed or alternative measures taken to distinguish U.S. forces from the enemy.664
5.23.1.3 Deceptive Use of Enemy Flags, Insignia, and Military Uniforms Outside
of Combat. It is a legitimate ruse to use enemy flags, insignia, and military uniforms outside of
combat.665
5.23.1.4 Use of Enemy Uniforms to Evade Capture or Escape. Military
personnel, such as aircrew downed behind enemy lines, may use enemy uniforms to evade
capture. Similarly, escaping prisoners of war may use enemy military uniforms to facilitate their
escape from a POW camp to return to friendly lines.666
However, those using enemy uniforms to evade capture or escape must not engage in
combat while in the enemy’s uniform, and, if they are not escaping POWs, they may be liable to
treatment as spies and saboteurs if caught behind enemy lines.667
661 For example, Trial of Otto Skorzeny and Others, IX U.N. LAW REPORTS 90 (General Military Government Court
of the U.S. Zone of Germany, Aug. 18-Sept. 9, 1947) (“The ten accused involved in this trial were all officers in the
150th Panzer Brigade commanded by the accused Skorzeny. They were charged with participating in the improper
use of American uniforms by entering into combat disguised therewith and treacherously firing upon and killing
members of the armed forces of the United States.”).
662 Refer to § 5.22.1 (Definition of Perfidy).
663 See 1958 UK MANUAL ¶322 (“If, owing to shortage of clothing, it becomes necessary to utilise apparel captured
from the enemy, the badges should be removed before the articles are worn.”); 1958 UK MANUAL ¶322 note 1
(“Articles of uniform which are distinctive of a particular army—such as the beret of the French Chasseurs des
Alpes or the coloured berets of certain British troops, the kilt of some regiments, or the Turkish fez—should not be
used except in cases of absolute necessity.”).
664 See LIEBER CODE art. 64 (“If American troops capture a train containing uniforms of the enemy, and the
commander considers it advisable to distribute them for use among his men, some striking mark or sign must be
adopted to distinguish the American soldier from the enemy.”).
665 For example, 1958 UK MANUAL ¶320 note 3 (“During the Second World War the German intelligence service in
Belgium used German soldiers disguised as British airmen ‘to discover the attitude of the Belgian population
towards individual British airmen landing in Belgium. The operation was completely successful. Active assistance
was rendered by an organised network which was uncovered. The mass of the population was not involved’.
(Extract from a captured German teleprint dated 9th January, 1943.) It would seem that this use of enemy uniform
outside of battle operations is a legitimate ruse.”).
666 Refer to § 9.25.2.3 (Disciplinary Punishment for Certain Offenses Committed in Connection With Escape).
667 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
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5.23.1.5 Use of Enemy Codes, Passwords, and Countersigns Not Restricted. The
prohibition on misuse of enemy flags, insignia, and military uniforms refers only to concrete
visual objects, rather than enemy codes, passwords, and countersigns.668 Enemy codes,
passwords, and countersigns may be used as a ruse to aid military operations.669 Enemy use of
these measures is permissible because military forces are expected to take measures to guard
against the use of their codes, passwords, and countersigns by the enemy.
5.23.2 Persons Using Enemy Uniforms May Be Liable to Treatment as Spies and
Saboteurs. Although the use of enemy uniforms outside of combat generally is neither
prohibited by the customary law of war nor by law of war treaties to which the United States is a
Party, combatants captured by an opposing party behind the opposing party’s lines while wearing
the uniform of the opposing party may be liable to treatment as spies and saboteurs.670
5.23.3 AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect,
or Impede Military Operations. In addition to prohibiting the use of enemy uniforms while
engaging in attacks, AP I also prohibits the use of flags, military emblems, insignia, or uniforms
of an enemy in order to shield, favor, protect, or impede military operations.671 Canada has
taken a reservation from this rule.672
This provision of AP I is unclear as to what uses would be permissible and what uses
would be prohibited.673 However, because the United States is not a Party to AP I and because
the rule is not part of customary international law, U.S. military personnel are not subject to this
more restrictive rule.
5.24 IMPROPER USE OF CERTAIN SIGNS
Certain signs, symbols, or signals reflect a status that receives special protection under
the law of war, and thus these signs may not be improperly used. They may not be used: (1)
while engaging in attacks; (2) in order to shield, favor, or protect one’s own military operations;
668 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 214 (AP I art. 29, ¶2.3.3) (“The term ‘emblem, insignia, or uniforms’
[in AP I art. 39(2)] refers only to concrete visual objects, including the national symbols marked on military vehicles
and aircraft. This prohibition does not apply to the ruse of using the adversary’s codes, passwords and countersigns
to aid military operations.”).
669 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 207 footnote 25 (AP I art. 37, ¶2.5) (“It would be a legitimate
ruse to use the electronic transponder aboard a combatant aircraft to respond with the code used for identifying
friendly aircraft,”); SPAIGHT, AIR POWER AND WAR RIGHTS 176 (“The greatly developed use of wireless telephony
afforded opportunities for deception of which the airmen were not slow to avail themselves. The feigning of orders
to enemy machines to return to their base, for instance, was a common ruse.”).
670 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
671 AP I art. 39(2) (“It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse
Parties while engaging in attacks or in order to shield, favour, protect or impede military operations.”).
672 Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 463 (“The Government of Canada
does not intend to be bound by the prohibitions contained in paragraph 2 of Article 39 to make use of military
emblems, insignia or uniforms of adverse parties in order to shield, favour, protect or impede military operations.”).
673 BOTHE, PARTSCH, & SOLF, NEW RULES 214 (AP I art. 39, ¶2.3) (Article 39(2) of AP I “suggests that some uses
[of the enemy uniform] are not breaches of the Protocol, but the boundary between forbidden and permissible uses is
not very distinct.”).
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or (3) to impede enemy military operations. Thus, their use may be improper even when that use
does not involve killing or wounding, and they may not be used to facilitate espionage (except
for signs, emblems, or uniforms of a neutral or non-belligerent State). The following types of
signs are subject to this broader rule against improper use:
5.24.1 Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State. During
international armed conflict, the use of signs, emblems, or uniforms of a neutral or other nation
not a party to the conflict is prohibited.674
However, recognized exceptions exist concerning espionage675 and warfare at sea.676
5.24.2 Distinctive Emblems of the Geneva Conventions (e.g., Red Cross). The
distinctive emblems of the red cross, red crescent, and red crystal are symbols that identify
military medical and religious personnel, medical units, and medical transports, or certain other
categories of persons engaged in humanitarian work as personnel and objects entitled to special
protection.677 These emblems may not be used except to identify these protected persons and
objects.678
5.24.3 Markings for POW or Civilian Internee Camps. Only POW camps under the
GPW should be marked using internationally agreed symbols, such as the PW or PG
designation.679
Only civilian internee camps under the GC should be marked with an IC designation.680
674 Consider AP I art. 39(1) (“It is prohibited to make use in an armed conflict of the flags or military emblems,
insignia or uniforms of neutral or other States not Parties to the conflict.”); AP I art. 37(1)(d) (giving as an example
of perfidy the feigning of protected status by the use of signs, emblems or uniforms “of neutral or other States not
Parties to the conflict.”); BOTHE, PARTSCH, & SOLF, NEW RULES 213 (AP I art. 39, ¶2.2) (“The purpose behind the
rule is to avoid escalation of armed conflict to neutral countries in the mistaken belief that the neutral State had
abandoned its neutrality.”).
675 See SPAIGHT, WAR RIGHTS ON LAND 203-04 (“The spy in modern war is usually a soldier who dons civilian
dress, or the uniform of the enemy, or of a neutral country; and in all these cases, he would be liable to punishment,
apart from this article, for assuming a disguise to further a hostile act.”). Although Article 37(1)(d) of AP I lists
“[t]he feigning of protected status by the use of signs, emblems or uniforms ... of neutral or other States not Parties
to the conflict” as an example of perfidy, and Article 39(1) prohibits the “use in an armed conflict of the flags or
military emblems, insignia or uniforms of neutral or other States not Parties to the conflict,” Article 39(3) of AP I
clarifies that “[n]othing in this Article or in Article 37, paragraph 1 (d), shall affect the existing generally recognized
rules of international law applicable to espionage
”
676 APPENDIX TO 1985 CJCS MEMO ON AP I 28 (“Article 39, paragraph 1, of the Protocol prohibits the use of neutral
flags, uniforms or emblems in armed conflict. This is already a rule of customary law, to which recognized
exceptions exists governing espionage and warfare at sea. The exceptions are preserved by paragraph 3 of the
Article.”). Refer to § 13.13.1 (Belligerent Warship’s Use of False Colors and Other Disguises).
677 Refer to § 7.15 (Display of the Distinctive Emblem to Facilitate Identification).
678 Refer to § 7.15.4 (Prohibitions on Unauthorized Uses of the Distinctive Emblem).
679 Refer to § 9.11.4.3 (Marking of POW Camps).
680 Refer to § 10.11.1.3 (Marking of Internment Camps).
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5.24.4 Markings for Hospital, Safety, or Neutralized Zones. Markings that distinguish
hospital or safety zones or neutralized zones established under the 1949 Geneva Conventions
may not be used for other purposes.681
5.24.5 Distinctive and Visible Signs to Identify Civilian Objects as Such. Certain
distinctive and visible signs that are intended to identify that an object is protected as a civilian
object under the law of war must not be used for other purposes.682
5.24.6 Markings for Cultural Property. The distinctive emblem for cultural property may
not be used for other purposes.683
5.24.7
Flags of Truce. The improper use of a flag of truce is strictly prohibited.684
5.25 RUSES OF WAR AND OTHER LAWFUL DECEPTIONS
Ruses of war are considered permissible.685 In general, a belligerent may resort to those
measures for mystifying or misleading the enemy against which the enemy ought to take
measures to protect itself.686 Apart from ruses of war, certain other deceptions are not
prohibited, but may expose combatants employing them to liability as spies and saboteurs.
5.25.1 Definition of Ruses of War. Ruses of war are acts that are intended to mislead an
adversary or to induce him to act recklessly, but that do not infringe upon any rule of
international law applicable in armed conflict and that are not perfidious because they do not
invite the confidence of an adversary with respect to protection under that law.687
Ruses of war are methods, resources, and techniques that can be used either to convey
false information or deny information to opposing forces. They can include physical, technical,
or administrative means, such as electronic warfare measures, flares, smoke, chaff, aerosol
material, or dissemination devices.
5.25.1.1 Acts That Are Intended to Mislead an Adversary or to Induce an
Adversary to Act Recklessly. Ruses may be used for a variety of purposes, such as:
681 Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).
682 Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).
683 Refer to § 5.18.7.4 (Other Uses of the Distinctive Emblem for Cultural Property Prohibited During Armed
Conflict).
684 Refer to § 12.4.2.1 (Prohibition on Improper Use of the Flag of Truce).
685 HAGUE IV REG. 24 (“Ruses of war and the employment of measures necessary for obtaining information about
the enemy and the country are considered permissible.”). Consider AP I art. 37(2) (“Ruses of war are not
prohibited.).
686 1956 FM 27-10 (Change No. 1 1976) ¶49 (“In general, a belligerent may resort to those measures for mystifying
or misleading the enemy against which the enemy ought to take measures to protect himself.”).
687 Consider AP I art. 37(2) (“Such ruses are acts which are intended to mislead an adversary or to induce him to act
recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious
because they do not invite thé confidence of an adversary with respect to protection under that law.”). Refer to
§ 5.22.1 (Definition of Perfidy).
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• facilitating surprise attacks or ambushes,688 such as by
o misleading the enemy as to the planned targets or locations of military
operations;689
o baiting the enemy into a trap; or
o distracting or disorienting the enemy;
• inducing enemy forces to waste their resources;
• inducing enemy forces to surrender by falsely alleging military superiority;
• provoking friendly fire among enemy forces; or
• causing confusion among enemy forces.
5.25.1.2 But That Do Not Infringe Upon Any Rule of International Law
Applicable in Armed Conflict. According to the definition in AP I, ruses do not infringe upon
any rule of international law applicable in armed conflict. For example, misusing certain signs
and symbols would not constitute ruses.690 Similarly, although fighting in the enemy’s uniform
would not be perfidy since enemy military personnel are not generally protected by the law of
war, fighting in the enemy’s uniform also would not be a ruse, since such action would infringe
upon the rule against improper use of the enemy’s uniform.691
5.25.1.3 And That Are Not Perfidious Because They Do Not Invite the Confidence
of an Adversary With Respect to Protection Under That Law. The ruses described in AP I do not
invite the confidence of the enemy with respect to protection under the law of war.692 For
688 Refer to § 5.5.6.1 (Surprise Attacks).
689 For example, FINAL REPORT ON THE PERSIAN GULF WAR 247 (“CINCCENT [Commander-in-Chief, U.S. Central
Command] placed a high priority on deception operations which were intended to convince Iraq that the main attack
would be directly into Kuwait, supported by an amphibious assault. All components contributed to the deception
operation. Aggressive ground force patrolling, artillery raids, amphibious feints and ship movements, and air
operations all were part of CINCCENT’s orchestrated deception operation.”); SPAIGHT, AIR POWER AND WAR
RIGHTS 185 (“‘The greatest hoax in military history’ was the description officially applied to the scheme of
deception used to induce the Germans to believe that the invasion of the Continent in June, 1944, was coming in the
Pas de Calais and not in Normandy. It was carried out by a force of 105 aircraft of the R.A.F., by 34 ships of the
Royal Navy, and by ‘R.C.M.’ (Radio Counter-Measures). On the night of 5 June, 18 small ships of the Navy
steamed towards Cap d’Antifer to give the impression of an intended landing, while a bomber squadron, No. 617,
under G/Capt. G. L. Chesire, V.C., circled over them, dropping bundles of ‘Window,’ the thin metallised strips
which produce false echoes on the enemy’s radar screens and so confuse their plotting. Another squadron, No. 218,
with 16 ships, made a similar feint towards Boulogne, and other methods of deception were practised elsewhere
along the Channel. The result was that the enemy were led to believe that convoys were moving to points other than
that at which the landing was in fact made with complete success and without opposition by air or sea.”).
690 Refer to § 5.24 (Improper Use of Certain Signs).
691 Refer to § 5.23.1 (Improper Use of Enemy Flags, Insignia, and Military Uniforms Prohibited).
692 Refer to § 5.22.1 (Definition of Perfidy).
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example, pretending to be a civilian would not constitute a ruse, although it may be a permissible
deception in certain circumstances.693
5.25.1.4 Ruses - Notes on Terminology. The term “ruse” is sometimes used as a
legal term of art to mean deceptions that are not prohibited by the law of war. In other cases,
“ruse” may be used as a factual term to mean a deception that may or may not be prohibited by
the law of war, and thus the distinction is made between “lawful” and “unlawful” ruses.694
In this manual, the term “ruse” is used to indicate a certain category of permissible
deceptions.
5.25.2 Examples of Ruses. Often, ruses of war operate by misleading the enemy as to the
identity, strength, position, or disposition of one’s own forces. Ruses of war include, but are not
limited to:695
• decoys or dummy materials, such as dummy weapons, equipment, ships, aircraft, and
buildings;696
• feigned activity or inactivity, such as
o simulating quiet;
o feigned flights, retreats, attacks, marches,697 movements (e.g., approaching a
destination indirectly698), supply movements, operations, withdrawals, or camp;
• mimicking other friendly forces;699
693 Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).
694 1956 FM 27-10 (Change No. 1 1976) ¶50 (“Ruses of war are legitimate so long as they do not involve treachery
or perfidy on the party of the belligerent resorting to them.”).
695 Consider AP I art. 37 (giving as examples of lawful ruses “the use of camouflage, decoys, mock operations and
misinformation”).
696 For example, SPAIGHT, WAR RIGHTS ON LAND 153-54 (“The ‘Quaker guns’—logs shaped like ordinary cannon
and mounted on wheels—which the Confederates used at Vicksburg to induce the besieging Federals to credit them
with an heavier armament than they possessed…[were a] legitimate ruse[] of war.”).
697 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 186 (“The ruse of reversing temporarily the direction of a
march was used on both sides in the first world war. ‘Aeroplane observers can easily be deceived by a body of the
enemy who, on sighting the aeroplane, move at once in a contrary direction to that of the real march, and turn back
as soon as the machine has gone to give the news.’…[A] Turkish order which was captured in the Kara Tepe
operations in Mesopotamia in December, 1917, instruct[ed] the Turkish infantry to try to deceive the British
aeroplanes by setting out at once upon the march towards Jebel Hamrin if the aeroplanes came into sight and only to
return to Kara Tepe upon the withdrawal of the aeroplanes.”).
698 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 187 (“The outstanding example of the technique of indirect
approach is to be found in the raid on Munich on the night of 24 April, 1944. A force of Lancasters left England in
the evening and made for north Italy; they crossed the French Alps and flew nearly to Milan; then they suddenly
changed direction to the north-east and flew to Munich, which was heavily bombed. The feint took the Germans
completely by surprise and the raiders’ losses were extremely low. The bewilderment of the defences was increased
by the fact that Karlsruhe was attacked, after direct approach, on the same night.”).
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• camouflage or deceptive lighting;700
• removing or altering identifying information, including moving identifying landmarks;
• planting false information in a manner that allows enemy forces to intercept it,701 such as
through the use of
o false messages among one’s own forces;
o intensifying or minimizing message traffic; or
o bogus messages, dispatches, or newspapers;
• lying in the course of a POW interrogation in answering questions where no obligation to
answer correctly exists;
• feigning enemy military status by using enemy flags, insignia, or military uniforms
outside of combat;702 or
• using enemy codes, signals, or passwords.703
5.25.2.1 Mimicking Other Friendly Forces. It is a permissible ruse of war for
combatant forces to mimic other friendly forces. For example, small forces may simulate larger
units.704 Units of one type may pretend to be units of another type.705 Markings that identify
699 Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).
700 For example, SPAIGHT, WAR RIGHTS ON LAND 154 (“The concealment of cannon in deftly arranged branches or
brushwood is a common device of gunners, but the Japanese reached a dizzy and dramatic height of stratagem when
they actually transformed the face of nature as a means of masking their batteries. On the night before the battle of
the Yalu they transplanted trees to hide the tell-tale discharge of their artillery, choosing those growing either
directly in front or directly behind the entrenchment that was to be concealed. Thus next morning the landscape
appeared unchanged from the Russian side of the river, as the fact that a tree of a particular shape had advanced or
retired 200 or 300 yards during the night was naturally imperceptible.”) (internal quotations omitted).
701 For example, ALBERT N. GARLAND & HOWARD M. SMYTH, SICILY AND THE SURRENDER OF ITALY 64-65 (1993)
(“One part of this plan, known as Operation Mincemeat, was designed to convince the enemy high command that
the objectives of the impending Allied offensive in the Mediterranean were Sardinia and the Peloponnesus rather
than Sicily. The plan itself was simple but highly imaginative. With painstaking care a counterfeit letter from
‘Archie Nye’ of the British War Office in London was drawn up….[i]ndicating that a feint against Sicily would be a
deception maneuver to screen an invasion of Sardinia…. To get this letter into Axis hands, British intelligence
obtained with great difficulty the body of a service man who had been a victim of pneumonia.… With a courier’s
briefcase realistically chained to the wrist, the body was cast adrift at a predesignated spot where tide and current
would carry it to [the Axis-controlled] shore.… The information reached the Germans who accepted it as
authentic.”).
702 Refer to § 5.23.1.3 (Deceptive Use of Enemy Flags, Insignia, and Military Uniforms Outside of Combat).
703 Refer to § 5.23.1.5 (Use of Enemy Codes, Passwords, and Countersigns Not Restricted).
704 For example, HUGH M. COLE, THE LORRAINE CAMPAIGN 162 (1993) (“General Walker asked for a ‘deception
team’ to simulate a stronger force in the cavalry sector. This team finally arrived from 12th Army Group
headquarters and operated for some weeks in the area as an ‘armored division.’ (The Germans seem to have been
well deceived for the OB WEST maps show the ‘14th Armored Division’ in this area.)”).
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equipment or personnel as belonging to a particular unit may be removed. Individuals or units
may also dress like friendly forces.706
5.25.3 Examples of Other Deceptions That Are Not Prohibited. Certain deceptions may
not meet the definition of “ruses” because they may invite the confidence of an adversary with
respect to protection under the law of war. Nevertheless, these deceptions are not technically
prohibited by the law of war, even though, in some cases, they may expose the persons
performing them to liability under an enemy State’s domestic law.707 These include:
• feigning incapacitation or death in order to escape the enemy,708 such as
o a soldier who feigns death in the hope that he or she will be left alone by enemy
forces, permitting him or her subsequently to take evasive actions to return to
friendly forces without engaging the enemy;709 and
o an aircraft crew that feigns loss of control and the appearance that the aircraft was
about to crash in order to dissuade further enemy attack and to break contact with
enemy forces;710
705 For example, R. FRANK FUTRELL, ET AL., ACES AND AERIAL VICTORIES: THE UNITED STATES AIR FORCE IN
SOUTHEAST ASIA 1965-1973, 37-43 (1976) (“The West Force used an elaborate ruse to make the Phantoms appear
to the enemy as an F-105 Rolling Thunder strike force. The F4C’s used F-105 tanker anchors, refueling altitudes,
approach routes, approach altitudes, airspeeds, and radio call signs and communications to simulate a normal
Thunderchief strike force. This was intended to deceive the enemy on NVN [North Vietnamese] radars. … An
opportunity to perpetuate another ruse presented itself a few days later, when RF-4C weather reconnaissance aircraft
were forced to abort their planned weather reconnaissance missions in North Vietnam because of MIG attacks on 3
and 4 January 1967. To lure the MIG’s into the air, two F4C’s on the following day flew, in close formation, a route
similar to that normally flown by weather reconnaissance aircraft. The intent of the F4C’s was to deceive the enemy
radar operators into believing that only one aircraft was flying a weather reconnaissance mission.”).
706 For example, W. Hays Parks, Special Forces’ Wear of Non-Standard Uniform, 4 CHICAGO JOURNAL OF
INTERNATIONAL LAW 493, 554 (2003) (“In response to the September 11, 2001 al Qaeda terrorist attacks against the
World Trade Center and the Pentagon, US and Coalition Special Forces began operations in Afghanistan in late
September 2001. At the request— initially insistence—of the leaders of the indigenous forces they supported, they
dressed in indigenous attire. For identification purposes within the Northern Alliance, this included the Massoud
pakol (a round brownish-tan or gray wool cap) and Massoud checkered scarf, each named for former Northern
Alliance leader Ahmad Shah Massoud, who was assassinated days before the al Qaeda attacks on the World Trade
Center and Pentagon. This attire was not worn to appear as civilians, or to blend in with the civilian population, but
rather to lower the visibility of US forces vis-à-vis the forces they supported.”).
707 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
708 ICRC AP COMMENTARY 438 (¶1505) (“[P]erfidious use always involves the abuse of the adversary’s confidence.
Thus, for example, feigning death simply to save one’s life would not be an act of perfidy, while feigning death to
kill an enemy once his back is turned, would constitute an act of perfidy.”).
709 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 173 (“A ruse which is mentioned by Major C. J. Biddle,
American Aviation, appears to have been a legitimate one. An American pilot was forced down in the German
lines.
‘When he landed he left his motor turning over slowly and lay over in his cockpit, as though he had been shot,
the Huns all the time circling above his head. They evidently thought he was done for, for after looking him over
they flew away, whereupon our pilot took off and came home.”).
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• feigning civilian status to facilitate spying or sabotage, such as
o false use of journalist credentials; and
• using an informal ceasefire for the purpose of collecting wounded and dead and to
withdraw unseen by the enemy.711
5.26 NON-FORCIBLE MEANS AND METHODS OF WARFARE
In general, propaganda, information gathering, and bribery are permissible means and
methods of warfare.
5.26.1 Propaganda. In general, the use of propaganda is permissible under the law of
war, even when it encourages acts that violate an enemy State’s domestic law or is directed
towards civilian or neutral audiences. However, certain types of propaganda are prohibited.
5.26.1.1 Propaganda - Notes on Terminology. Propaganda has been referred to
as psychological warfare, psychological operations (PSYOP), or military information support
operations (MISO).712 The word “propaganda” often has been used with a pejorative
connotation to refer to misleading or false statements, but “propaganda” is used in this section
without intending any such connotation.
5.26.1.2 Propaganda Generally Permissible. In general, propaganda is a
permissible means of warfare.713 Propaganda has been disseminated through a variety of
communications media, including printed materials, loudspeakers, radio or television broadcast,
710 SPAIGHT, AIR POWER AND WAR RIGHTS 170-71 (“The chief ruse practised in air fighting in the first world war
was the vertical nose-dive or spin, used by a pilot who was outfought or outnumbered, or whose gun had jammed or
engine failed, to escape by simulating a fall out of control.”).
711 For example, 1958 UK MANUAL ¶319 note 1 (“[A]t 1 p.m. on 7th March, 1905, during the battle of Mukden, a
group of Russians bearing Red Cross and white flags advanced towards the 1st Japanese Army and asked for a
suspension of arms for several hours to remove the wounded and dead. The Japanese agreed, as they themselves
had many wounded, but the suspension was made without any formal agreement (sans entente bien dèfinie). In the
evening, when the Japanese reopened fire, there was no reply and it was found that the Russians had retired during
the suspension of arms.”).
712 Robert Gates, Secretary of Defense, Memorandum: Changing the Term Psychological Operations (PSYOP) to
Military Information Support Operations (MISO), OSD 1012-10 (Dec. 3, 2010) (“Since the 1940s, military
information activities, undertaken both in wartime and peacetime, have been described as ‘psychological warfare,’
‘psychological operations,’ or PSYOP. These terms helped draw a useful distinction between lethal military
operations, on the one hand, and military efforts to change minds and reduce or prevent conflict through truthful,
persuasive information, on the other. Today, however, the term ‘Psychological Operations’ has become
anachronistic and misleading. Although PSYOP activities rely on truthful information, credibly conveyed, the term
PSYOP tends to connote propaganda, brainwashing, manipulation, and deceit.”).
713 GREENSPAN, MODERN LAW OF LAND WARFARE 323 (“Propaganda must be considered a legal means of warfare,
since there are no specific rules of war which forbid its use, nor is it as such incompatible with the existing rules of
war.”).
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aircraft, or the internet. Propaganda is sometimes used with bribery714 or to support intelligence
gathering.715 Propaganda may be directed at enemy civilians and neutrals.716
Propaganda may encourage enemy persons to commit acts that would violate the
domestic law of the enemy State.717 For example, it would be permissible to encourage enemy
combatants to defect, desert, or surrender.718 Similarly, it is generally permissible to encourage
insurrection among the enemy civilian population.719
5.26.1.3 Prohibited Types of Propaganda. Propaganda must not: (1) incite
violations of the law of war; nor (2) itself violate a law of war rule.
714 1976 AIR FORCE PAMPHLET 110-31 ¶5-6 (“In World War I, Austrian airmen dropped leaflets over Italian lines
inviting desertion with the promise of compensation for every airplane surrendered intact. In the Korean conflict, an
award was offered to any enemy flier who would defect with his plane intact to the United Nations Command. In
fact $100,000 was paid to a North Korean pilot for such a defection.”).
715 Robert Gates, Secretary of Defense, Memorandum: Changing the Term Psychological Operations (PSYOP) to
Military Information Support Operations (MISO), OSD 1012-10 (Dec. 3, 2010) (“In Iraq and Afghanistan, U.S.
military information programs urging civilians to report possible insurgent activity led to valuable information,
enabling our forces to disarm hundreds of improvised explosive devices safely and capture numerous key insurgent
leaders.”).
716 For example, 1958 UK MANUAL ¶313 note 3 (“In the Second World War both sides established regular wireless
services for spreading war news among both the enemy and neutrals. They also resorted on a large scale to
propaganda disseminated from aircraft and from the ground.”).
717 See SPAIGHT, AIR POWER AND WAR RIGHTS 333 (“To drop a pamphlet inciting to assassination would no doubt
be an offence under the laws of war, assassination being forbidden by those laws. It is an entirely different matter
when the act which the message seeks to accomplish is one not repugnant to natural law, not malum in se, but
merely contrary to the law (because to the interest) of the State affected, or malum prohibitum. It cannot be held that
to try to persuade a modern civilized nation to change its form of government is to incite to an act of the former
category.”).
718 For example, FINAL REPORT ON THE PERSIAN GULF WAR xxvi (“Coalition strategy also benefitted immensely
from psychological operations, the success of which is evidenced primarily by the large number of Iraqi soldiers
who deserted Iraqi ranks or surrendered without putting up any resistance during the ground offensive. Our efforts
built on, among other factors, the disheartening effect on Iraqi troops of the unanswered and intensive Coalition
aerial bombardment, the privations they suffered due to the degradation of the Iraqi logistics system, and the threat
of the impending ground campaign. Radio transmissions and leaflets exploited this demoralization by explaining to
the Iraqi troops how to surrender and assuring them of humane treatment if they did. More specific messages
reduced Iraqi readiness by warning troops to stay away from their equipment (which was vulnerable to attack by
precision munitions) and induced desertions by warning troops that their positions were about to be attacked by B-
52s.”).
719 For example, LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 426-27 (§162a) (“The legitimacy, formerly
controversial, of inciting enemy subjects to rise against the Government in power is now no longer disputed. …
While, in the Second World War, both sides established regular wireless services for spreading war news among
both the enemy and the neutrals, the Allies resorted on a large scale to propaganda disseminated from aircraft as a
means of inducing the population of Germany to remove a dictatorial régime which, it was asserted, was solely
responsible for the war.”).
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Propaganda must not incite acts that are prohibited by the law of war.720 For example,
propaganda intended to incite attacks against civilians is prohibited. In certain cases, individuals
may be liable for instigating or inciting violations of the law of war.721
Propaganda is also prohibited when it would violate other law of war rules. For example,
it is specifically prohibited for an Occupying Power to use propaganda that aims at securing
voluntary enlistment of protected persons in its armed or auxiliary forces.722 Similarly, it is
prohibited to declare that no quarter will be given, and propaganda in the form of a declaration to
the adversary that no quarter will be given would be prohibited.723 In addition, propaganda
would be prohibited if it constituted a measure of intimidation or terrorism against the civilian
population, such as the threats of violence whose primary purpose is to spread terror among the
civilian population.724 Similarly, propaganda may not be used to subject a detainee to public
curiosity or other humiliating or degrading treatment.725 Additionally, the delivery of the
propaganda should be consistent with other law of war obligations.726
5.26.2 Information Gathering. The employment of measures necessary for obtaining
information about the enemy and their country is considered permissible.727
Information gathering measures, however, may not violate specific law of war rules.728
For example, it would be unlawful, of course, to use torture or abuse to interrogate detainees for
purposes of gathering information. Similarly, it is prohibited to make improper use of a flag of
truce to obtain information.729
Some forms of deception used to gather information, although not prohibited by the law
of war, may put the persons engaging in them at risk of being treated as spies.730
720 1976 AIR FORCE PAMPHLET 110-31 ¶5-6 (“Propaganda which would incite illegal acts of warfare, as for example
killing civilians, killing or wounding by treachery or the use of poison or poisonous weapons, is forbidden.”).
721 Refer to § 18.23.2 (Instigating or Directly Inciting).
722 Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).
723 Refer to § 5.5.7 (Prohibition Against Declaring That No Quarter Be Given).
724 Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).
725 Refer to § 8.2.2 (Protection Against Humiliating or Degrading Treatment).
726 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 324 (“It would appear to be improper to induce enemy
nationals to listen to propaganda emanating from the opposing side by such methods as doling out a few names of
prisoners of war on the occasion of each broadcast and deliberately holding other next of kin in suspense, instead of
transmitting such information by the most rapid means possible.”).
727 HAGUE IV REG. 24 (“[T]he employment of measures necessary for obtaining information about the enemy and
the country are considered permissible.”).
728 GREENSPAN, MODERN LAW OF LAND WARFARE 325 (“In obtaining information, a belligerent must not
contravene specific rules of war.”).
729 Refer to § 5.24.7 (Flags of Truce).
730 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
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5.26.3 Bribery or Offering of Rewards. In general, it is permissible to offer rewards for
assistance in the conduct of hostilities, including rewards intended to corrupt enemy combatants
or civilians.731 Rewards, however, may not be offered for the commission of violations of the
law of war, and rewards may not be offered for the killing of enemy persons.
5.26.3.1 Prohibition on Offering Rewards for Enemy Persons Dead or Alive. It is
forbidden to place a price on the head of enemy persons or to offer a reward for enemy persons
“dead or alive.”732 Such actions encourage the denial of quarter or encourage private persons to
take up arms whose participation in hostilities is often undisciplined and associated with the
commission of war crimes.733 This prohibition extends to offers of rewards for the killing or
wounding of all enemies, including specific individuals or a class of enemy persons (e.g.,
officers).
However, this rule would not prohibit offering rewards for the capture of unharmed
enemy personnel generally or of particular enemy personnel.734 Similarly, this rule does not
prohibit offering rewards for information that may be used by combatants to conduct military
operations that attack enemy combatants.
5.27 PROHIBITION AGAINST COMPELLING ENEMY NATIONALS TO TAKE PART IN THE OPERATIONS
OF WAR DIRECTED AGAINST THEIR OWN COUNTRY
During international armed conflict, it is prohibited to compel the nationals of the hostile
party to take part in the operations of war directed against their own country, even if they were in
the belligerent’s service before the commencement of the war.735 Underlying this prohibition is
the principle that States must not compel foreign nationals to commit treason or otherwise to
violate their allegiance to their country.736
731 1958 UK MANUAL ¶313 (“It is not unlawful to employ spies; or to corrupt enemy civilians or soldiers by bribes
in order to induce them to give information, to desert with or without technical equipment, new weapons, vehicles or
aircraft, to surrender, to rebel, or to mutiny; or to give false information to the enemy.”).
732 1956 FM 27-10 (Change No. 1 1976) ¶31 (Article 23 of the Hague IV Regulations “is construed as prohibiting …
putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive.’”).
733 Refer to § 4.18.3 (Private Persons Who Engage in Hostilities - Lack of the Privileges of Combatant Status).
734 See 2004 UK MANUAL ¶5.14.1 (“[O]ffers of rewards for the capture unharmed of enemy personnel generally or
of particular enemy personnel would be lawful.”).
735 HAGUE IV REG. art. 23 (“A belligerent is likewise forbidden to compel the nationals of the hostile party to take
part in the operations of war directed against their own country, even if they were in the belligerent’s service before
the commencement of the war.”).
736 See Johnson v. Eisentrager, 339 U.S. 763, 773 (1950) (“The United States does not invoke this enemy allegiance
only for its own interest, but respects it also when to the enemy’s advantage. In World War I, our conscription act
did not subject the alien enemy to compulsory military service. 40 Stat. 885, c. XII, § 4. The Selective Service Act
of 1948, 62 Stat. 604, 50 U.S.C. Appendix, § 454(a), exempts aliens who have not formally declared their intention
to become citizens from military training, service and registration, if they make application, but if so relieved, they
are barred from becoming citizens. Thus, the alien enemy status carries important immunities, as well as
disadvantages. The United States does not ask him to violate his allegiance or to commit treason toward his own
country for the sake of ours. This also is the doctrine and the practice of other states comprising our Western
Civilization.”).
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Additional restrictions are applicable with respect to POWs, retained personnel, protected
persons in the home territory of a belligerent, and protected persons in occupied territory.737
5.27.1 Compel. This prohibition applies to attempts to compel enemy nationals, rather
than measures short of compulsion, such as bribing enemy nationals or seeking to influence them
through propaganda.738 However, it is specifically prohibited for an Occupying Power to use
propaganda that aims at securing voluntary enlistment of protected persons in its armed or
auxiliary forces.739
5.27.2 Nationals of a Hostile Party … Against Their Own Country. This rule applies to
nationals of a hostile party; States are not prohibited by the law of war from compelling their
nationals to serve in the armed forces.740 Similarly, this rule would not prohibit States from
compelling persons to betray an allegiance to a non-State armed group during non-international
armed conflict.741
737 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 7.9.5.6 (No Other Compulsory Duties);
§ 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on
Compulsory Service in an Occupying Power’s Armed Forces).
738 United States v. Weizsaecker, et al. (The Ministries Case), XIV TRIALS OF WAR CRIMINALS BEFORE THE NMT
549 (“As the war progressed Germany suffered severe losses of manpower. It adopted conscription as to its own
nationals and in many instances of foreign nationals living within its borders. We hold that it is not illegal to recruit
prisoners of war who volunteer to fight against their own country, but pressure or coercion to compel such persons
to enter into the armed services obviously violates international law.”). Refer to § 5.26.1 (Propaganda); § 5.26.3
(Bribery or Offering of Rewards).
739 Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).
740 Refer to § 4.5.2.4 (Draftees).
741 Refer to § 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).
311
VI - Weapons
Chapter Contents
6.1 Introduction
6.2 DoD Policy of Reviewing the Legality of Weapons
6.3 Other Practices to Help Implement Law of War Obligations With Respect to
Weapons
6.4 Prohibited Weapons
6.5 Lawful Weapons
6.6 Weapons Calculated to Cause Superfluous Injury
6.7 Inherently Indiscriminate Weapons
6.8 Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons
6.9 Biological Weapons
6.10 Certain Environmental Modification Techniques
6.11 Weapons Injuring by Fragments Not Detectable by X-Rays
6.12 Landmines, Booby-Traps, and Other Devices
6.13 Cluster Munitions
6.14 Incendiary Weapons
6.15 Laser Weapons
6.16 Riot Control Agents
6.17 Herbicides
6.18 Nuclear Weapons
6.19 Explosive Ordnance
6.20 Explosive Remnants of War
6.1 INTRODUCTION
This Chapter addresses the legal review of new weapons and legal rules specific to
certain types of weapons, including whether certain weapons are illegal per se, specific rules for
the use of certain other weapons, and obligations that may arise after certain weapons are used.
In addition to the law of war, other law, policy, and regulation may apply to certain
weapons. Such law, policy, or regulation may include arms control agreements, U.S. domestic
law, U.S. policy, applicable rules of engagement, and other military orders. This Chapter notes
some provisions of such law, policy, and regulation where relevant, but does not seek to address
exhaustively all of them.1 In advising on the legality of specific weapons, one must take care to
identify all applicable restrictions and not rely unduly on the absence of discussion in this
Chapter as reflecting the absence of any such restrictions.
6.1.1 Legality of the Weapon Itself (Per Se) Distinguished From the Legality of the Use
of the Weapon. A weapon may be illegal per se if a treaty to which the United States is a Party
1 Refer to § 1.2.2.4 (Citation of Policies and Regulations).
312
or customary international law has prohibited its use under all circumstances.2 For example, the
use of “blinding laser” weapons is prohibited, regardless of how they are used.3
On the other hand, most weapons are not illegal per se. That is, their use may be lawful
in some circumstances, although unlawful in others, such as if they are used to attack combatants
placed hors de combat.4
Law of war issues related to targeting (e.g., the requirement that an attack may only be
directed against a military objective) generally are not determinative of the lawfulness of a
weapon. However, weapons that are inherently indiscriminate are prohibited.5 In addition,
certain weapons, such as mines, are subject to specific rules on their use in order to reduce the
risk of harm to the civilian population.6
6.2 DOD POLICY OF REVIEWING THE LEGALITY OF WEAPONS
As provided in DoD issuances, DoD policy for many years has required the legal review
of the intended acquisition or procurement of weapons or weapon systems; this review includes
ensuring that such acquisition or procurement is consistent with the law of war.7 These DoD
policy requirements have been implemented in Military Department regulations.8
2 1976 AIR FORCE PAMPHLET 110-31 ¶6-2 (“A weapon may be illegal per se if either international custom or treaty
has forbidden its use under all circumstances.”). Refer to § 6.4.2 (Specifically Prohibited Types of Weapons).
3 Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).
4 Refer to § 5.10 (Persons Placed Hors de Combat).
5 Refer to § 6.7 (Inherently Indiscriminate Weapons).
6 Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines,
Booby-Traps, and Other Devices).
7 For example, DOD DIRECTIVE 5000.01, The Defense Acquisition System, ¶E1.1.15 (May 12, 2003, certified current
as of Nov. 20, 2007) (“The acquisition and procurement of DoD weapons and weapon systems shall be consistent
with all applicable domestic law and treaties and international agreements (for arms control agreements, see DoD
Directive 2060.1 (Reference (m), customary international law, and the law of armed conflict (also known as the laws
and customs of war)[)]. An attorney authorized to conduct such legal reviews in the Department shall conduct the
legal review of the intended acquisition of weapons or weapons systems.”); DOD DIRECTIVE 5000.01, The Defense
Acquisition System, ¶4.2.10 (Mar. 15, 1996, cancelled by DoD Directive 5000.1 Oct. 23, 2000) (“DoD acquisition
and procurement of weapons shall be consistent with applicable domestic law and all applicable treaties, customary
international law, and the law of armed conflict (also known as the laws and customs of war).”); DOD INSTRUCTION
5500.15, Review of Legality of Weapons Under International Law, ¶II (Oct. 16, 1974, cancelled by DoD Instruction
5000.2 Feb. 23, 1991) (“All actions of the Department of Defense with respect to the acquisition and procurement of
weapons, and their intended use in armed conflict, shall be consistent with the obligations assumed by the United
States Government under all applicable treaties, with customary international law, and, in particular, with the laws
of war.”).
8 For example, DEPARTMENT OF THE ARMY REGULATION 27-53, Review of Legality of Weapons Under International
Law (Jan. 1, 1979); SECRETARY OF THE NAVY INSTRUCTION 5000.2E, Department of the Navy Implementation and
Operation of the Defense Acquisition System and the Joint Capabilities Integration and Development System (Sept.
1, 2011); DEPARTMENT OF THE AIR FORCE INSTRUCTION 51-402, Legal Reviews of Weapons and Cyber Capabilities
(Jul. 27, 2011).
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The fact that the legality of a weapon is discussed in this manual does not obviate the
requirement under applicable directives or regulations for a legal review of a weapon or weapon
system that is to be acquired or procured.
6.2.1 Review of New Types of Weapons. The development of new types of weapons has
often resulted in public denunciation of their allegedly cruel effects and in attempts to prohibit
their use in armed conflict.9 This has been true of the crossbow, siege engines for hurling
projectiles, firearms, gunpowder, bayonets, and other weapons that have since been widely
recognized as not prohibited by the law of war.
Like other aspects of the law of war, the rules relating to weapons are generally
characterized as prohibitive law forbidding certain weapons or the use of weapons in certain
instances rather than positive law authorizing the weapon or its use.10 The lawfulness of the use
of a type of weapon does not depend on the presence or absence of authorization, but, on the
contrary, on whether the weapon is prohibited.11 Thus, the mere fact that a weapon is novel or
employs new technology does not mean that the weapon is illegal.12 The law of war does not
require States to establish a general practice of using a weapon before it is to be regarded as
legal. Moreover, it would appear absurd to suggest that a new type of weapon should
automatically be prohibited because there is no State practice supporting such use, or to suggest
that States must continue using a weapon in each conflict simply to maintain its legality.
6.2.2 Questions Considered in the Legal Review of Weapons for Consistency With U.S.
Law of War Obligations. The review of the acquisition or procurement of a weapon for
consistency with U.S. law of war obligations should consider three questions to determine
whether the weapon’s acquisition or procurement is prohibited:
• whether the weapon’s intended use is calculated to cause superfluous injury;13
• whether the weapon is inherently indiscriminate;14 and
• whether the weapon falls within a class of weapons that has been specifically
prohibited.15
9 1976 AIR FORCE PAMPHLET 110-31 ¶6-7a (“The development of new weapons or methods of warfare has often
resulted in public denunciation of their allegedly cruel effects, and attempts to prohibit their use in warfare. This has
been true of the crossbow, siege engines for hurling projectiles, firearms, gunpowder, bayonets and other less
efficient methods of warfare.”).
10 Refer to § 1.3.3.1 (Law of War as Prohibitive Law).
11 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 247 (¶52) (“Nor, however,
is there any principle or rule of international law which would make the legality of the threat or use of nuclear
weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of
the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is
formulated in terms of prohibition.”).
12 1976 AIR FORCE PAMPHLET 110-31 ¶6-7a (“A weapon or method of warfare may not be considered illegal solely
because it is new or has not previously been used in warfare.”).
13 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
14 Refer to § 6.7 (Inherently Indiscriminate Weapons).
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If the weapon is not prohibited, the review should also consider whether there are legal
restrictions on the weapon’s use that are specific to that type of weapon.16 If any specific
restrictions apply, then the intended concept of employment of the weapon should be reviewed
for consistency with those restrictions.
Lastly, it may be appropriate to advise whether other measures should be taken that
would assist in ensuring compliance with law of war obligations related to the type of weapon
being acquired or procured. For example, it may be appropriate to advise on the need for
training programs and other practical measures, such as promulgating doctrine and rules of
engagement related to that type of weapon.17
6.2.3 AP I Requirement for Legal Review of a New Weapon, Means, or Method of
Warfare. Article 36 of AP I provides:
In the study, development, acquisition or adoption of a new weapon, means or
method of warfare, a High Contracting Party is under an obligation to determine
whether its employment would, in some or all circumstances, be prohibited by
this Protocol or by any other rule of international law applicable to the High
Contracting Party.
The DoD policy and practice of conducting legal reviews of weapons preceded this AP I
provision.18
6.2.4 Policy and Processes for Review of Applicable Arms Control Obligations. DoD
has had a separate, but complementary, policy and practice requiring review of its activities (e.g.,
research, development, and testing of weapons) to ensure that these activities are consistent with
the arms control agreements to which the United States is a Party.19
15 Refer to § 6.4.2 (Specifically Prohibited Types of Weapons).
16 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).
17 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
18 For example, DOD INSTRUCTION 5500.15, Review of Legality of Weapons Under International Law, ¶II (Oct. 16,
1974, cancelled by DoD Instruction 5000.2 Feb. 23, 1991) (“All actions of the Department of Defense with respect
to the acquisition and procurement of weapons, and their intended use in armed conflict, shall be consistent with the
obligations assumed by the United States Government under all applicable treaties, with customary international
law, and, in particular, with the laws of war.”).
19 DOD DIRECTIVE 2060.1, Implementation of, and Compliance with, Arms Control Agreements, ¶4.6.7 (Jan. 9,
2001, certified current Nov. 24, 2003) (“For specific DoD-planned activities, [Heads of DoD components are to]
seek clearance from the USD(AT&L), through the appropriate CRG [Compliance Review Group], on a timely basis,
before taking any action, including but not limited to research, tests, development, exercises and operations that
reasonably raises an issue of DoD compliance with an arms control agreement. For other compliance issues
requiring resolution (such as those arising from an on-site inspection), seek resolution from the USD(AT&L),
through the appropriate CRG. When there is doubt whether clearance or resolution is necessary, it shall be sought.
If the issue involves a DoD SAP [Special Access Program], contact the Director of the cognizant DoD SAP Central
Office and the Chairman of the DoD SAP Senior Review Group (SRG). The SRG Chairman will effect
coordination with the appropriate CRG.”).
315
6.3 OTHER PRACTICES TO HELP IMPLEMENT LAW OF WAR OBLIGATIONS WITH RESPECT TO
WEAPONS
A number of practices contribute to the effective implementation of law of war
obligations with respect to weapons (although these practices are not necessarily required by the
law of war): (1) using weapons in accordance with their design intent and the doctrine that has
been promulgated for their use; (2) refraining from modifying weapons without proper
authorization; (3) refraining from using personal firearms during military operations; and (4)
refraining from using captured weapons in combat, except on a field-expedient basis.
6.3.1 Using Weapons in Accordance With Their Design Intent and Promulgated
Doctrine. The use of weapons in accordance with their design intent and the doctrine that has
been promulgated for their use contributes to compliance with law of war obligations with
respect to weapons because the legality of the weapon would have been reviewed based on its
intended use.20 However, the use of weapons outside their design intent does not necessarily
violate the law of war.
Certain weapon systems may also be subject to law of war restrictions on how they are to
be used, such as incendiary weapons or mines.21 In such cases, the use of the weapon in
accordance with doctrine and policy is required by international law because that doctrine and
policy incorporates certain international obligations.
6.3.1.1 Using Weapons for Purposes Other Than Those for Which a Weapon or
Tool Is Designed. Although in some cases military orders may restrict the use of certain
weapons to only certain authorized purposes, there is not a law of war rule that requires that
weapons or tools only be used for the purposes for which they were designed.
For example, an entrenching tool may be designed for digging fighting positions.
However, its use as a weapon is not prohibited by the law of war.22 Similarly, it is not prohibited
to use a laser that is not designed to blind enemy persons as a weapon to blind an attacking
enemy.23 It also generally would not be prohibited to use a weapon that has been designed to
destroy enemy material, such as a large-caliber machine gun, against enemy personnel.24
6.3.2 Refraining From Modifying Weapons Without Proper Authorization. For a variety
of reasons, DoD practice has been not to permit the modification of weapons without proper
authorization.
20 Refer to § 6.6.3.4 (Superfluous Injury Rule - the Circumstances to Be Assessed and Design Intent); § 6.7.2
(Inherently Indiscriminate Weapons - Circumstances to Be Assessed and Design Intent).
21 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).
22 Refer to § 6.5.3.2 (Use of Tools to Stab or Cut).
23 Refer to § 6.15.2.1 (Use of Non-Prohibited Laser Systems to Blind Is Not Absolutely Prohibited).
24 Refer to § 6.5.4.7 (Anti-Personnel Use of Larger (e.g., .50) Caliber Guns or Cannons).
316
In particular, weapons must not be modified in the field for the purposes of aggravating
the harm inflicted on incapacitated persons.25 For example, substances designed to inflame
wounds must not be added to bullets or edged weapons for the purpose of making wounds more
painful or difficult to treat.
6.3.3 Refraining From the Use of Personal Firearms and Ammunition. DoD personnel
have normally not been permitted to deploy with, or use, personal firearms or ammunition during
military operations.26 This practice is based on a variety of reasons, including to help ensure
compliance with the law of war and U.S. domestic law.
6.3.4 Refraining From the Use of Captured Weapons, Except on a Field-Expedient Basis.
Under DoD practice, captured or other foreign weapons have been used on a field-expedient
basis, but otherwise have not been used in combat unless they have undergone the required legal
review and have been duly issued to personnel.
Any weapon, ammunition, or munition captured, found, or recovered on the battlefield by
DoD personnel is the property of the United States and not the individual who recovered it,
regardless of whether the property is of U.S., enemy, allied, or unknown origin.27
6.4 PROHIBITED WEAPONS
Two general prohibitions apply to all types of weapons. In addition, certain types of
weapons are specifically prohibited.
6.4.1 General Prohibitions Applicable to All Types of Weapons. Two fundamental
prohibitions based in customary international law apply to all weapons. It is prohibited to use:
• weapons calculated to cause superfluous injury;28 or
• inherently indiscriminate weapons.29
6.4.2 Specifically Prohibited Types of Weapons. In addition, the use of the following
types of weapons is prohibited by treaty or customary international law:
25 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).
26 For example, General John P. Abizaid, U.S. Central Command, General Order 1B (GO-1B), Prohibited Activities
for U.S. Department of Defense Personnel Present Within the United States Central Command (USCENTCOM)
Area of Responsibility (AOR), ¶2a (Mar. 13, 2006) (prohibiting “[p]urchase, possession, use or sale of privately
owned firearms, ammunition, explosives or the introduction of these items into the USCENTCOM AOR.”); General
Tommy R. Franks, U.S. Central Command, General Order 1A (GO-1A), Prohibited Activities for U.S. Department
of Defense Personnel Present Within the United States Central Command (USCENTCOM) AOR, ¶2a (Dec. 19,
2000) (prohibiting “[p]urchase, possession, use or sale of privately owned firearms, ammunition, explosives, or the
introduction of these items into the USCENTCOM AOR.”).
27 Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).
28 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
29 Refer to § 6.7 (Inherently Indiscriminate Weapons).
317
• poison, poisoned weapons, poisonous gases, and other chemical weapons;30
• biological weapons;31
• certain environmental modification techniques;32
• weapons that injure by fragments that are non-detectable by X-rays;33
• certain types of mines, booby-traps, and other devices;34 and
• blinding lasers.35
6.4.3 Relationship Between the Specific Prohibitions and the General Prohibitions.
When a specific prohibition on a weapon is viewed as reflecting customary international law,
such prohibition may sometimes be viewed as, in effect, a declaration that the weapon is
prohibited as one calculated to cause superfluous injury or as one that is inherently
indiscriminate.36
However, a specific treaty prohibition on a weapon does not necessarily reflect a State
Party’s view that the weapon is prohibited by customary international law (e.g., that the weapon
is calculated to cause superfluous injury or is inherently indiscriminate). For example, the mere
prohibition or restriction of a weapon in the CCW or its Protocols does not necessarily reflect the
conclusion that the weapon is calculated to cause superfluous injury or is inherently
indiscriminate.37
6.5 LAWFUL WEAPONS
Apart from the categories of weapons described in § 6.4 (Prohibited Weapons), all other
types of weapons are lawful for use by the U.S. armed forces; that is, they are not illegal per se.
In other words, other types of weapons are prohibited only to the extent that they fall under the
categories of weapons described in § 6.4 (Prohibited Weapons). For example, a landmine is not
30 Refer to § 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).
31 Refer to § 6.9 (Biological Weapons).
32 Refer to § 6.10 (Certain Environmental Modification Techniques).
33 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).
34 Refer to § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).
35 Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).
36 J. Fred Buzhardt, DoD General Counsel, Letter to Chairman Fulbright, Senate Committee on Foreign Relations,
Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“The thrust of the phrase ‘harmless to
man’ made part of the discussion of the rules draws attention to Article 23(e) of the Hague Regulations of 1907,
wherein combatants are forbidden to employ weapons ‘calculated to cause unnecessary suffering.’ However, the
provision in Hague Regulation Article 23(a) concerning the prohibition against using poison or poisoned weapons is
a special case of this rule since it, in effect, declares that any use of a lethal substance against human beings is, per
se, a use which is calculated to cause unnecessary suffering.”).
37 Refer to § 19.21.1.3 (CCW and Customary International Law).
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necessarily a legally prohibited weapon; it is only prohibited if it falls under one of the specific
classes of prohibited mines listed in § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and
Other Devices).
The rules that apply to the use of all weapons are addressed in § 5.5.2 (Overview of Rules
in Conducting Attacks).
6.5.1 Certain Types of Weapons With Specific Rules on Use. Certain types of weapons,
however, are subject to specific rules that apply to their use by the U.S. armed forces. These
rules may reflect U.S. obligations under international law or national policy. These weapons
include:
• mines, booby-traps, and other devices (except certain specific classes of prohibited
mines, booby-traps, and other devices);38
• cluster munitions;39
• incendiary weapons;40
• laser weapons (except blinding lasers);41
• riot control agents;42
• herbicides;43
• nuclear weapons; 44 and
• explosive ordnance.45
6.5.2 Other Examples of Lawful Weapons. In particular, aside from the rules prohibiting
weapons calculated to cause superfluous injury and inherently indiscriminate weapons,46 there
are no law of war rules specifically prohibiting or restricting the following types of weapons by
the U.S. armed forces:
38 Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).
39 Refer to § 6.13 (Cluster Munitions).
40 Refer to § 6.14 (Incendiary Weapons).
41 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
42 Refer to § 6.16 (Riot Control Agents).
43 Refer to § 6.17 (Herbicides).
44 Refer to § 6.18 (Nuclear Weapons).
45 Refer to § 6.19 (Explosive Ordnance).
46 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury); § 6.7 (Inherently Indiscriminate Weapons).
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• edged or pointed weapons, including weapons with serrated edges or entrenching tools
used as weapons;47
• small arms, cannons, and other guns, including shotguns, exploding bullets, expanding
bullets, suppressors, or large-caliber guns;48
• blast weapons;49
• fragmentation weapons;50
• depleted uranium munitions;51
• remotely piloted aircraft;52
• autonomy in weapons systems;53 and
• non-lethal weapons.54
6.5.3 Edged or Pointed Weapons. Stabbing or cutting weapons (e.g., knives, bayonets,
swords, lances, and tomahawks) are not specifically prohibited or restricted by the law of war.
Like other weapons, however, they must not be calculated to cause superfluous injury.55 Thus, it
is prohibited to modify the weapon for the purpose of making wounds more difficult to treat,
such as by adding a barbed head to a lance or by applying to the blade or point a poison or
substance that is designed to inflame wounds.56
6.5.3.1 Serrated Edges. The law of war does not prohibit the use of serrated-
edged weapons by military forces, including against enemy personnel.
Many bayonets or knives have a serrated edge (a formation resembling the toothed edge
of a saw). Provided that the design intent of the serrated edge is not to aggravate suffering
unnecessarily, such as by making the wound more difficult to treat, the serrated edge is not
prohibited. For example, a serrated edge may improve the capabilities of the blade as a multi-
purpose field utility tool, rather than be intended to increase the pain and suffering of enemy
personnel injured by the blade.
47 Refer to § 6.5.3 (Edged or Pointed Weapons).
48 Refer to § 6.5.4 (Small Arms, Cannons, and Other Guns).
49 Refer to § 6.5.5 (Blast Weapons).
50 Refer to § 6.5.6 (Fragmentation Weapons).
51 Refer to § 6.5.7 (Depleted Uranium Munitions).
52 Refer to § 6.5.8 (Remotely Piloted Aircraft).
53 Refer to § 6.5.9 (Autonomy in Weapon Systems).
54 Refer to § 6.5.10 (Non-Lethal (Less-Lethal) Weapons).
55 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
56 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).
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6.5.3.2 Use of Tools to Stab or Cut. Edged tools, such as over-size knives,
machetes, and entrenching tools, have often been employed both as tools and as weapons. Such
tools are not prohibited by the law of war, and the law of war does not prohibit the use of tools as
weapons to bludgeon, stab, or cut.
6.5.4 Small Arms, Cannons, and Other Guns. Small arms, cannons, and other guns are
not specifically restricted or prohibited by the law of war. In particular, there are no specific
rules against shotguns, exploding bullets, expanding bullets, suppressors, or anti-personnel use of
larger caliber guns or cannons.
6.5.4.1 Small Arms, Cannons, and Other Guns - Other Rules on Weapons, as
Applicable. Although no law of war rule regulates small arms, cannons, and other guns as a
specific category, these weapons are subject to other law of war rules on weapons, as applicable.
For example, the use of ammunition, the primary effect of which is to injure by fragments
that in the human body escape detection by X-rays, is prohibited.57 In addition, poison must not
be added to bullets or other projectiles.58 As with other weapons, small arms, cannons, and other
guns must not be calculated to cause superfluous injury.59 For example, modifying guns or
ammunition for the purpose of aggravating the harm inflicted upon incapacitated persons would
be prohibited (e.g., adding a substance to bullets with the intent to inflame wounds).60
Guns that fall under the definition of incendiary weapons would be regulated as
incendiary weapons.61 However, tracer ammunition is not an “incendiary weapon” because any
incendiary effects are incidental.62 In addition, even certain projectiles designed to have
incendiary effects that are combined with other effects (e.g., penetration, blast, or fragmentation
effects) would not be regulated as incendiary weapons.63
6.5.4.2 Shotguns. There is no law of war prohibition on the use (including anti-
personnel use) of the shotgun in combat.64 The fact that multiple fragments are used in many
shotgun rounds to wound does not prohibit their use.65
57 Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).
58 Refer to § 6.8.1 (Poison and Poisoned Weapons).
59 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
60 Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).
61 Refer to § 6.14 (Incendiary Weapons).
62 Refer to § 6.14.1.3 (Excluded From the Definition of Incendiary Weapons - Weapons With Incidental Incendiary
Effects).
63 Refer to § 6.14.1.4 (Excluded From the Definition of Incendiary Weapons - Certain Combined-Effects
Munitions).
64 For example, The Secretary of State to the Swiss Chargé (Oderlin) (Sept. 28, 1918), reprinted in PAPERS
RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, 1918, SUPPLEMENT 2, THE WORLD WAR 785-86
(1933) (“In reply to the German protest, the Government of the United States has to say that the provision of the
Hague convention [Hague IV Reg. art. 23(e)], cited in the protest, does not in its opinion forbid the use of this kind
of weapon. Moreover, in view of the history of the shotgun as a weapon of warfare, and in view of the well-known
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Shotguns have been used as anti-personnel weapons for close-combat, for guarding
enemy prisoners of war, and for anti-materiel purposes during armed conflict for many years.66
Shotgun munitions may include, for example, buckshot ammunition, flechette ammunition, non-
lethal projectiles, and breaching rounds.
Breaching rounds are an anti-materiel munition designed to dislodge door hinges or door
locks and are used to enable military forces to enter a room or building. As with other weapons
designed for anti-material use, the use of an anti-material round against enemy personnel is not
prohibited.67 For example, a breaching round may be used against an enemy combatant who
opens the door or appears in the doorway just as the door is about to be breached.
6.5.4.3 Exploding Bullets. The use of exploding bullets, including use against
enemy personnel, is not prohibited by the law of war. For example, explosive bullets have been
lawfully used during armed conflict, against both enemy material and enemy combatants.68
Exploding bullets, like all weapons, however, are subject to the superfluous injury rule.69
For example, without a valid military reason, bullets that are specifically designed to explode
within the human body would be prohibited, since a non-exploding bullet would be just as
effective and efficient at incapacitating an enemy combatant.70
effects of its present use, and in the light of a comparison of it with other weapons approved in warfare, the shotgun
now in use by the American Army cannot be the subject of legitimate or reasonable protest.”).
65 Refer to § 6.5.6 (Fragmentation Weapons).
66 For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of The Judge Advocate General,
U.S. Army, Joint Service Combat Shotgun Program, THE ARMY LAWYER 16, 17-18 (Oct. 1997) (“The combat
shotgun or military rifle with a shotgun-type munition continued to be used in the United States. In the American
Revolution, General George Washington encouraged his troops to load their muskets with ‘buck and ball,’ a load
consisting of one standard musket ball and three to six buckshot, in order to increase the probability of achieving a
hit. … United States Air Force security police employed shotguns in base security operations in Saudi Arabia during
Operations Desert Shield and Desert Storm (1990-91) to protect them from attack by terrorists or Iraqi military
units, and some personnel in British armored units were armed with shotguns as individual weapons during that
conflict.”).
67 Refer to § 6.3.1.1 (Using Weapons for Purposes Other Than Those for Which a Weapon or Tool Is Designed).
68 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 213 (“In the second world war projectiles of the kind
referred to [in the 1868 St. Petersburg Declaration] were freely used by all the belligerent air forces. The explosive
bullet gave place to the small cannon shell, but the latter, fired normally from a gun of 20 mm. bore, was equally
within the prohibited limit, since its weight was only 130 grammes as compared with the 400 grammes specified in
the Declaration. Cannon guns of 40 mm. were also mounted in aircraft and the projectiles were outside the ban.
The incendiary bullets used were usually fired from machine guns with bores of .303 inch and .5 inch.”).
69 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
70 For example, ULYSSES S. GRANT, I PERSONAL MEMOIRS OF U.S. GRANT 538 (1892) (“The enemy used in their
defence explosive musket-balls, no doubt thinking that, bursting over our men in the trenches, they would do some
execution; but I do not remember a single case where a man was injured by a piece of one of these shells. When
they were hit and the ball exploded, the wound was terrible. In these cases a solid ball would have hit as well. Their
use is barbarous, because they produce increased suffering without any corresponding advantage to those using
them.”).
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On the other hand, an explosive bullet that was designed to explode in order to increase
the probability of striking an enemy combatant or to strike an enemy combatant behind cover
would not be prohibited.71 Similarly, bullets that explode in order to neutralize enemy material
more effectively are not prohibited, and there is no objection to using these bullets also against
enemy combatants.72
The United States is not a Party to the 1868 St. Petersburg Declaration on Exploding
Bullets, and its prohibition on the use of certain projectiles does not reflect customary
international law.73
6.5.4.4 Expanding Bullets. The law of war does not prohibit the use of bullets
that expand or flatten easily in the human body. Like other weapons, such bullets are only
prohibited if they are calculated to cause superfluous injury.74 The U.S. armed forces have used
expanding bullets in various counterterrorism and hostage rescue operations, some of which have
been conducted in the context of armed conflict.
The 1899 Declaration on Expanding Bullets prohibits the use of expanding bullets in
armed conflicts in which all States that are parties to the conflict are also Party to the 1899
Declaration on Expanding Bullets.75 The United States is not a Party to the 1899 Declaration on
Expanding Bullets, in part because evidence was not presented at the diplomatic conference that
expanding bullets produced unnecessarily severe or cruel wounds.76
71 For example, C. Todd Lopez, Army wants 36 more “Punisher” weapons in 2012, ARMY NEWS SERVICE, Feb. 3,
2011 (“The XM25 allows Soldiers to engage defilade targets -- those behind a barrier, protected from oncoming
weapons fire. The XM25 measures the distance to the enemy’s protective barrier, and can then program the round
to detonate a user-adjustable distance past that -- allowing Soldiers to put an air-bursting round directly above the
enemy’s head, inside their protected area. … The five prototype weapons entered theater in November, and were
first used in combat Dec. 3.”).
72 U.S. RESPONSE TO ICRC CIHL STUDY 524 (“States widely have employed bullets that may detonate on impact
with materiel for both anti-materiel and anti-personnel purposes. Such ammunition was in common use by all States
that participated in World War II, and in conflicts thereafter including in widespread aircraft strafing of enemy
forces, a practice common to every conflict since World War I in which aircraft were employed.”). See
also Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report,
Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1, 20-21 (1938) (“In the form in which the
proposal was first brought forward its provisions were limited to a stipulation that the use of tracer bullets against
aircraft generally was not prohibited. Various criticisms were, however, made about the proposed text, chiefly
founded on the impracticability for an airman while in flight to change the ammunition which he is using in the
machine-gun in his aircraft. He cannot employ different bullets in accordance with the target at which he is aiming,
one sort of ammunition for other aircraft and another sort for land forces by whom he may be attacked. The
Commission, therefore, came to the conclusion that the most satisfactory solution of the problem would be to state
specifically that the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited.”).
73 Refer to § 19.6 (1868 St. Petersburg Declaration).
74 Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).
75 Refer to § 19.7.1 (1899 Declaration on Expanding Bullets).
76 William Crozier, Captain of Ordnance, U.S. Army, Report of Captain Crozier to the American Delegation to the
First Hague Conference, Regarding the Work of the First Committee of the Conference and its Subcommittee,
reprinted in INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONFERENCES AND THEIR
OFFICIAL REPORTS 34 (1916) (noting the objection of the U.S. representative that the 1899 Declaration “condemned
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