DEPARTMENT OF DEFENSE LAW OF WAR MANUAL (2015)

policy has been in addition to other DoD policies that address the reporting of criminal

incidents.¹³⁷ Individual Military Services have implemented procedures to ensure that incidents,

including war crimes, are promptly reported.¹³⁸

18.13.1.1 Requirement for All Military and U.S. Civilian Employees, Contractor

Personnel, and Subcontractors Assigned to or Accompanying a DoD Component. DoD policy

has required that all military and U.S. civilian employees, contractor personnel, and

subcontractors assigned to or accompanying a DoD Component shall report reportable incidents

through their chain of command. Contracts shall require contractor employees to report

reportable incidents to the commander of the unit they are accompanying or the installation to

which they are assigned, or to the Combatant Commander.¹³⁹

18.13.1.2 Requirement for Unit Commanders. DoD policy has required that the

commander of any unit that obtains information about a reportable incident shall immediately

report the incident through the applicable operational command and Military Department.¹⁴⁰

18.13.2 DoD Policy on Investigating Law of War Violations. DoD policy has required

that all reportable incidents be thoroughly investigated.¹⁴¹ All the Military Departments and

¹³⁷ See, e.g., DOD DIRECTIVE 7730.47, Defense Incident-Based Reporting System (DIBRS) (Oct. 15, 1996); DOD

INSTRUCTION 5240.4, Reporting of Counterintelligence and Criminal Violations (Sept. 22, 1992).

¹³⁸ See, e.g., DEPARTMENT OF THE ARMY REGULATION 190-45, Law Enforcement Reporting (Mar. 30, 2007),

Chapters 8 and 9.

¹³⁹ DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.3 (May 9, 2006, Certified Current as of Feb. 22, 2011)

(“All military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a

DoD Component shall report reportable incidents through their chain of command. Contracts shall require

contractor employees to report reportable incidents to the commander of the unit they are accompanying or the

installation to which they are assigned, or to the Combatant Commander. Such reports may be made through other

channels, such as the military police, a judge advocate, or an inspector general. Reports made to officials other than

those specified in this paragraph shall, nonetheless, be accepted and immediately forwarded through the recipient's

chain of command.”).

¹⁴⁰ DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.4 (May 9, 2006, Certified Current as of Feb. 22, 2011)

(“Initial Report. The commander of any unit that obtains information about a reportable incident shall immediately

report the incident through the applicable operational command and Military Department. Reporting requirements

are concurrent. The initial report shall be made through the most expeditious means available.”).

¹⁴¹ DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.4 (May 9, 2006, Certified Current as of Feb. 22, 2011)

(“All reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual are

reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.”); DOD

DIRECTIVE 5100.77, DoD Law of War Program, ¶4.3 (Dec. 9, 1998) (“All reportable incidents committed by or

against U.S. or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied by

corrective action.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶C(2) (Jul. 10, 1979) (“Alleged

violations of the law of war, whether committed by or against U.S. or enemy personnel, are promptly reported,

thoroughly investigated, and, whether appropriate, remedied by corrective action.”); DOD DIRECTIVE 5100.77, DoD

Program for the Implementation of the Law of War, ¶II(C) (Nov. 5, 1974) (“Ensure that alleged violations of the law

of war, whether committed by U. S. personnel or enemy personnel, are promptly reported, thoroughly investigated,

and, where appropriate, remedied by corrective action.”).

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Services have regulations for the conduct of both formal and informal administrative

investigations.¹⁴²

In addition, DoD policy has required that higher authorities receiving an initial report

request a formal investigation by the cognizant military criminal investigative organization.¹⁴³

18.14 INTERNATIONAL MECHANISMS TO INVESTIGATE ALLEGED LAW OF WAR VIOLATIONS

In some cases, international mechanisms, such as commissions of inquiry, may be used to

investigate alleged law of war violations. Commissions of inquiry might be established by

treaty.¹⁴⁴ Commissions of inquiry might also be established by the U.N. Security Council.¹⁴⁵

18.14.1 Inquiry Procedure in the 1949 Geneva Conventions. At the request of a party to

the conflict, an inquiry shall be instituted, in a manner to be decided between the interested

Parties, concerning any alleged violation of the 1949 Geneva Conventions.¹⁴⁶ If agreement has

not been reached concerning the procedure for the inquiry, the Parties should agree on the choice

of an “umpire” who will decide upon the procedure to be followed.¹⁴⁷ Once the violation has

¹⁴² See, e.g., DEPARTMENT OF THE NAVY JUDGE ADVOCATE GENERAL INSTRUCTION 5800.7D, Manual of the Judge

Advocate General (JAGMAN), Chapter II (Mar. 15, 2004); DEPARTMENT OF THE ARMY REGULATION 15-6,

Procedures for Investigating Officers and Boards of Officers (Nov. 2, 2006).

¹⁴³ DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.4 (May 9, 2006, Certified Current as of Feb. 22,

2011). Such organizations include U.S. Army Criminal Investigation Command (USACIDC/CID), Air Force

Special Investigations Command (AFOSI/OSI), or the Naval Criminal Investigative Service (NCIS).

¹⁴⁴ For example, Treaty for the Settlement of disputes that may occur between the United States of America and

Chile, art. 1, Jul. 24, 1914, 39 STAT. 1645, 1646 (“The High Contracting Parties agree that all disputes that may

arise in the future between them, shall, when diplomatic methods of adjustment have failed, be submitted for

investigation and report to an International Commission to be constituted in the manner prescribed in the next

succeeding article; and they agree not to declare war or begin hostilities during such investigation, nor before all

resources stipulated in this treaty have proved unsuccessful.”); Convention for the Pacific Settlement of International

Disputes, art. 9, Oct. 18, 1907, 36 STAT. 2199, 2214 (“In disputes of an international nature involving neither honour

nor vital interests, and arising from a difference of opinion on points of fact, the Contracting Powers deem it

expedient and desirable that the parties who have not been able to come to an agreement by means of diplomacy,

should, as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of

these disputes by elucidating the facts by means of an impartial and conscientious investigation.”); Convention for

the Pacific Settlement of International Disputes, art. 9, Jul. 29, 1899, 32 STAT. 1779, 1787 (“In differences of an

international nature involving neither honour nor vital interests, and arising from a difference of opinion on points of

fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means

of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a

solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.”).

¹⁴⁵ Refer to § 18.12.1 (Investigation by the U.N. Security Council Under the Charter of the United Nations).

¹⁴⁶ GWS art. 52 (“At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided

between the interested Parties, concerning any alleged violation of the Convention.”); GWS-SEA art. 53 (same);

GPW art. 132 (same); GC art. 149 (same).

¹⁴⁷ GWS art. 52 (“If agreement has not been reached concerning the procedure for the enquiry, the Parties should

agree on the choice of an umpire who will decide upon the procedure to be followed.”); GWS-SEA art. 53 (same);

GPW art. 132 (same); GC art. 149 (same).

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been established, the parties to the conflict “shall put an end to it and shall repress it with the

least possible delay.”¹⁴⁸

18.14.1.1 AP I - International Humanitarian Fact-Finding Commission (IHFFC).

AP I provides for the establishment of an international fact-finding commission.¹⁴⁹ This

commission is competent: (1) to inquire into any facts alleged to be a grave breach as defined in

the 1949 Geneva Conventions and AP I or other serious violation of the 1949 Geneva

Conventions or of AP I; and (2) to facilitate, through its good offices, the restoration of an

attitude of respect for the Conventions and AP I.¹⁵⁰

The commission operates on the basis of mutual consent. Any party to a conflict may ask

the commission to conduct an inquiry; but, unless the States involved previously declared that

they recognize ipso facto and without special agreement, in relation to any other Party to AP I

accepting the same obligation, the competence of the Commission, the Commission will only

investigate with the consent of the States involved.¹⁵¹

Although the IHFFC was officially constituted in 1991, it has not been used in its first

two decades.¹⁵²

The United States has not ratified AP I, and has not recognized the competence of the

IHFFC.

18.15 PROTECTING POWER AND OTHER NEUTRAL INTERMEDIARIES

The Protecting Power is an organ for the implementation of the 1949 Geneva

Conventions and the 1954 Hague Cultural Property Convention.

¹⁴⁸ GWS art. 52 (“Once the violation has been established, the Parties to the conflict shall put an end to it and shall

repress it with the least possible delay.”); GWS-SEA art. 53 (same); GPW art. 132 (same); GC art. 149 (same).

¹⁴⁹ AP I art. 90 (“An International Fact-Finding Commission 443 (hereinafter referred to as ‘the Commission’)

consisting of fifteen members of high moral standing and acknowledged impartiality shall be established.”).

¹⁵⁰ AP I art. 90(2)(c)(i-ii) (“The Commission shall be competent to: (i) Enquire into any facts alleged to be a grave

breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this

Protocol; (ii) Facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this

Protocol.”).

¹⁵¹ AP I art. 90(2) (“(a) The High Contracting Parties may at the time of signing, ratifying or acceding to the

Protocol, or at any other subsequent time, declare that they recognize ipso facto and without special agreement, in

relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to

inquire into allegations by such other Party, as authorized by this Article; … (d) In other situations, the Commission

shall institute an inquiry at the request of a Party to the conflict only with the consent of the other Party or Parties

concerned;”).

¹⁵² Charles Garraway, Fact-Finding and the International Humanitarian Fact-Finding Commission, in MORTEN

BERGSMO, QUALITY CONTROL IN FACT-FINDING 443 (Nov. 16, 2013) (“It is regrettable that in the two decades that

the Commission has been established, it has never been called into action. In the early days, little was known of the

Commission, but in recent years, a series of promotional activities have been undertaken to raise consciousness

amongst States. In the view of the Commission, it has an important role to play in the modern world and is anxious

to fulfil this.”).

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18.15.1 Background on the Protecting Power. Under international law, a State that lacks

normal diplomatic relations with a second State may, with the consent of the second State,

designate a third State act to protect the first State’s interests as they relate to the second State.¹⁵³

This third State is often called a Protecting Power. A State could be a Protecting Power for the

purposes of more than one treaty.

18.15.1.1 Protecting Power Under the 1949 Geneva Conventions. Under the

1949 Geneva Conventions, belligerents may designate neutral States as “Protecting Powers” to

help implement the Geneva Conventions. Specifically, the 1949 Geneva Conventions provide

that the Conventions shall be applied with the cooperation and under the scrutiny of the

Protecting Powers whose duty it is to safeguard the interests of the parties to the conflict.¹⁵⁴

The Detaining Power has an obligation to seek a Protecting Power if the wounded and

sick, shipwrecked, medical personnel and chaplains, POWs, or protected persons under the GC

in its custody do not benefit from one.¹⁵⁵ If such protection cannot be arranged, the 1949

Geneva Conventions contemplate that States will use the ICRC or another impartial

humanitarian organization to assume the humanitarian functions performed by Protecting

Powers.¹⁵⁶

18.15.1.2 Protecting Power Under the 1954 Hague Cultural Property

Convention. The 1954 Hague Cultural Property Convention provides that it and the Regulations

for its execution shall be applied with the co-operation of the Protecting Powers responsible for

safeguarding the interests of the parties to the conflict.¹⁵⁷

18.15.2 Appointment of a Protecting Power. Within a State, the appointment of a

Protecting Power is a decision made by authorities at the national level. Among States, the

appointment of a Protecting Power requires the consent of the States whose relations are to be

transacted through the Protecting Power. For example, during an international armed conflict,

the U.S. designation of a neutral State as its Protecting Power would require agreement of the

enemy State, but the consent of States allied with the United States would not be required.

¹⁵³ Vienna Convention on Diplomatic Relations, art. 45, Apr. 18, 1961, 500 UNTS 95, 122 (“If diplomatic relations

are broken off between two States, or if a mission is permanently or temporarily recalled: … (c) The sending State

may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving

State.”).

¹⁵⁴ GWS art. 8 (“The present Convention shall be applied with the cooperation and under the scrutiny of the

Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.”); GWS-SEA art. 8 (same);

GPW art. 8 (same); GC art. 9 (same).

¹⁵⁵ Refer to § 18.15.2.2 (Obligation on the Detaining Power to Seek a Protecting Power if Persons Protected by the

1949 Geneva Conventions Do Not Benefit From One).

¹⁵⁶ Refer to § 18.15.2.3 (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed by

Protecting Powers Under the 1949 Geneva Conventions).

¹⁵⁷ 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21 (“The present Convention and the Regulations for its

execution shall be applied with the co-operation of the Protecting Powers responsible for safeguarding the interests

of the Parties to the conflict.”).

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The State appointed to be a Protecting Power must be able to fulfill the Protecting

Power’s responsibilities.¹⁵⁸ This State should be neutral or non-belligerent with respect to the

conflict in question.¹⁵⁹ However, the State need not be a traditionally neutral power, such as

Sweden or Switzerland.¹⁶⁰ In cases where a State serving as a Protecting Power enters the armed

conflict, another State may assume the responsibilities of the Protecting Power.¹⁶¹ A State may

serve as the Protecting Power for more than one side in an armed conflict.¹⁶²

18.15.2.1 Agreement for an Impartial and Effective Organization to Perform

Protecting Power Duties Under the 1949 Geneva Conventions. The Parties to the 1949 Geneva

Conventions may at any time agree to entrust to an organization that offers all guarantees of

impartiality and efficacy the duties incumbent on Protecting Powers by virtue of the 1949

Geneva Conventions.¹⁶³

18.15.2.2 Obligation on the Detaining Power to Seek a Protecting Power if

Persons Protected by the 1949 Geneva Conventions Do Not Benefit From One. When the

wounded and sick, shipwrecked, medical personnel and chaplains, POWs, or protected persons

under the GC do not benefit or cease to benefit from the activities of a Protecting Power or an

impartial and effective organization that performs the duties of the Protecting Power, the

Detaining Power shall request a neutral State or such an organization to undertake the functions

performed under the 1949 Geneva Conventions by a Protecting Power designated by the parties

to a conflict.¹⁶⁴

¹⁵⁸ See GWS art. 10 (States and organizations fulfilling the duties of a Protecting Power “shall be required to act

with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention

depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate

functions and to discharge them impartially.”); GWS-SEA art. 10 (same); GPW art. 10 (same); GC art. 11 (same).

¹⁵⁹ See GWS art. 10 (When persons protected by the Convention do not benefit from a Protecting Power, “the

Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under

the present Convention by a Protecting Power designated by the Parties to a conflict.”); GWS-SEA art. 10 (same);

GPW art. 10 (same); GC art. 11 (same). Cf. GWS art. 8 (contemplating that “Protecting Powers may appoint, apart

from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral

Powers) (emphasis added); GWS-SEA art. 8 (same); GPW art. 8 (same); GC art. 9 (same).

¹⁶⁰ For example, during the Franco-Prussian War (1870-71), “Great Britain was charged with the protection of the

French in Germany; and the United States, Russia, and Switzerland acted as Protecting Powers in France for the

various German States.” LEVIE, POWS 256. At various times during World War II, “Spain acted as the Protecting

Power for Japan in the continental United States, while Sweden acted for her in Hawaii, and Switzerland in

American Samoa.” LEVIE, POWS 257.

¹⁶¹ See LEVIE, POWS 259 (“The practice was adopted that when a neutral which had been acting as a Protecting

Power itself became embroiled in the conflict, a successor Protecting Power would be designated to fill the

vacuum.”).

¹⁶² For example, during the “Sino-Japanese War (1894-95) each side requested the United States to act as its

Protecting Power, and so we find the same State acting as the Protecting Power for each belligerent within the

territory of the other.” LEVIE, POWS 257.

¹⁶³ GWS art. 10 (“The High Contracting Parties may at any time agree to entrust to an organization which offers all

guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present

Convention.”); GWS-SEA art. 11 (same); GPW art. 10 (same); GC art. 11 (same).

¹⁶⁴ GWS art. 10 (“When wounded and sick, or medical personnel and chaplains do not benefit or cease to benefit, no

matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first

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18.15.2.3 Impartial Humanitarian Organizations Assuming Humanitarian

Functions Performed by Protecting Powers Under the 1949 Geneva Conventions. If the

protection of a Protecting Power or an impartial and effective organization that the performs the

duties of the Protecting Power cannot be arranged, the 1949 Geneva Conventions contemplate

that States will use the ICRC or another impartial humanitarian organization to assume the

humanitarian functions performed by Protecting Powers.¹⁶⁵

The ICRC has often performed such a role during armed conflict.¹⁶⁶

18.15.3 Activities of the Protecting Power. A Protecting Power assists and verifies

compliance with the 1949 Geneva Conventions. For example, under the GPW and GC, the

Protecting Power transmits information between belligerents, monitors compliance by the

Detaining Power, and takes an active role in promoting the welfare of POWs and protected

persons.¹⁶⁷

The Protecting Power’s activities are conducted with the consent of the State on whose

territory it serves and the State whose facilities it visits. For example, the delegates of the

Protecting Power are subject to the approval of the Power with which they are to carry out their

duties.¹⁶⁸ In addition, a Protecting Power must ensure that its delegation does not exceed its

humanitarian responsibilities and takes into account the imperative necessities of security of the

State wherein they carry out their duties.¹⁶⁹

paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the

functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.”);

GWS-SEA art. 10 (“When wounded, sick and shipwrecked, or medical personnel and chaplains do not benefit or

cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for

in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake

the functions performed under the present Convention by a Protecting Power designated by the Parties to a

conflict.”); GPW art. 10 (“When prisoners of war do not benefit or cease to benefit, no matter for what reason, by

the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining

Power shall request a neutral State, or such an organization, to undertake the functions performed under the present

Convention by a Protecting Power designated by the Parties to a conflict.”); GC art. 11 (“When persons protected by

the present Convention do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting

Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral

State, or such an organization, to undertake the functions performed under the present Convention by a Protecting

Power designated by the Parties to a conflict.”).

¹⁶⁵ See GWS art. 10 (“If protection cannot be arranged accordingly, the Detaining Power shall request or shall

accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the

International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers

under the present Convention.”); GWS-SEA art. 10 (same); GPW art. 10 (same); GC art. 11 (same).

¹⁶⁶ For example, FINAL REPORT ON THE PERSIAN GULF WAR 617 (During the 1991 Persian Gulf War, “[t]he

International Committee of the Red Cross (ICRC) was provided access to Coalition EPW facilities and reviewed

their findings with Coalition representatives in periodic meetings in Riyadh, Saudi Arabia.”).

¹⁶⁷ Refer to § 9.32 (Role of the Protecting Power in the GPW); § 10.32 (Role of the Protecting Power in the GC).

¹⁶⁸ Refer to § 4.25.1 (Appointment of Delegates of the Protecting Powers).

¹⁶⁹ Refer to § 4.25.2 (Duties of the Representatives or Delegates of the Protecting Power).

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18.15.4 Lending of Good Offices to Assist in Dispute Resolution. The 1949 Geneva

Conventions contemplate that Protecting Powers shall lend their good offices with a view to

settling disagreements between the parties to the conflict regarding protected persons,

particularly in cases regarding the application or interpretation of the 1949 Geneva

Conventions.¹⁷⁰ Protecting Powers may propose to the parties to the conflict a representative of

a neutral Power or the ICRC to participate in the meeting.¹⁷¹ This mechanism developed from

State practice during World War I.¹⁷²

The 1954 Hague Cultural Property Convention also contemplates that Protecting Powers

shall lend their good offices in all cases where they may deem it useful in the interests of cultural

property, particularly if there is disagreement between the parties to the conflict as to the

application or interpretation of the provisions of the 1954 Hague Cultural Property Convention

or the Regulations for its execution.¹⁷³ The Director-General of the United Nations Educational,

Scientific, and Cultural Organization can also have a role in this process.¹⁷⁴

18.16 COMPENSATION FOR VIOLATIONS OF THE LAW OF WAR

A State that is responsible for an internationally wrongful act is under an obligation to

make full reparation for the injury caused by that act.¹⁷⁵ This principle also applies to the law of

¹⁷⁰ See GWS art. 11 (“In cases where they deem it advisable in the interest of protected persons, particularly in cases

of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the

present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.”);

GWS-SEA art. 11 (same); GPW art. 11 (same); GC art. 12 (same).

¹⁷¹ See GWS art. 11 (“The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict a

person belonging to a neutral Power, or delegated by the International Committee of the Red Cross, who shall be

invited to take part in such a meeting.”); GWS-SEA art. 11 (same); GPW art. 11 (same); GC art. 12 (same).

¹⁷² See GPW COMMENTARY 125 (“This idea of arranging a meeting of the representatives of the Parties to the

conflict on neutral territory suitably chosen is very largely the result of experience gained during the First World

War, when such meetings, which were fairly frequent, led to the conclusion of special agreements on the treatment

of prisoners of war and on other problems of a humanitarian nature.”).

¹⁷³ REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 22(1) (“The

Protecting Powers shall lend their good offices in all cases where they may deem it useful in the interests of cultural

property, particularly if there is disagreement between the Parties to the conflict as to the application or

interpretation of the provisions of the present Convention or the Regulations for its execution.”).

¹⁷⁴ REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 22(2) (“For this

purpose, each of the Protecting Powers may, either at the invitation of one Party, of the Director-General of the

United Nations Educational, Scientific and Cultural Organization, or on its own initiative, propose to the Parties to

the conflict a meeting of their representatives, and in particular of the authorities responsible for the protection of

cultural property, if considered appropriate on suitably chosen neutral territory. The Parties to the conflict shall be

bound to give effect to the proposals for meeting made to them. The Protecting Powers shall propose for approval

by the Parties to the conflict a person belonging to a neutral Power or a person presented by the Director-General of

the United Nations Educational, Scientific and Cultural Organization, which person shall be invited to take part in

such a meeting in the capacity of Chairman.”).

¹⁷⁵ U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,

with commentaries, art. 1 (2001) (“Every internationally wrongful act of a State entails the international

responsibility of that State.”); id. at art. 31(1) (“The responsible State is under an obligation to make full reparation

for the injury caused by the internationally wrongful act.”).

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war in that a State that violates the law of war shall, if the case demands, be liable to pay

compensation.¹⁷⁶

18.16.1 Agreements Between States Settling Claims. Claims may be addressed by

international agreements between States.¹⁷⁷

Peace treaties or other agreements concluded in connection with the cessation of

hostilities have sometimes addressed liability for violations of the law of war committed during

that conflict.¹⁷⁸ Parties to the 1949 Geneva Conventions, however, cannot absolve one another

of liability for grave breaches of the Geneva Conventions.¹⁷⁹

18.16.2 International Claims Commissions. Compensation claims have also been

addressed by international claims commissions established by agreement by the Parties.¹⁸⁰ A

claims commission may also be established by the U.N. Security Council.¹⁸¹

¹⁷⁶ HAGUE IV art. 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the case

demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its

armed forces.”).

¹⁷⁷ For example, GREENSPAN, MODERN LAW OF LAND WARFARE 405 (“A recent example of the obligation of a state

to pay compensation for war crimes for which it is responsible is the agreement on reparations signed at

Luxembourg on September 10, 1952, between the Federal Republic of Germany (West Germany) and Israel. This

agreement, together with the appended protocols, provides for the payment by Western Germany to Israel of

3,450,000,000 marks ($822,000,000 or £287,000,000) to make good, within the limits of its capacity, the material

damage caused by the ‘unspeakable criminal acts [which] were perpetrated against the Jewish people during the

National Socialist régime of terror.’”) (amendment in original); Dean Acheson, The Secretary of State to the Swiss

Minister, Oct. 21, 1949, 64 STAT. B1097 (“I have the honor to refer to previous correspondence, and also to oral

discussions between officials of your Government and the Government of the United States concerning claims

asserted by your Government for compensation for losses and damages inflicted on persons and property in

Switzerland during World War II by units of the United States armed forces in violation of neutral rights. On behalf

of the United States Government, I wish to offer to your Government in full and final settlement of the balance due

on all claims of the character referred to in the preceding paragraph the sum of 62,176,433.06 Swiss francs, which

includes interest through October 21, 1949. The offer is made with the understanding that the Swiss Government

accepts responsibility for making payment of the individual claims involved.”).

¹⁷⁸ GREENSPAN, MODERN LAW OF LAND WARFARE 592 (“Even apart from express provision in the peace treaty for

payment of indemnities or reparations, it will be recalled that compensation is payable in a proper case for violation

of the rules of warfare. In general, although this last obligation extends beyond the termination of the war, a state

may provide in the peace treaty for the extinguishment or restriction of its liability in this connection.”).

¹⁷⁹ Refer to § 18.9.3 (Grave Breaches of the 1949 Geneva Conventions).

¹⁸⁰ For example, Agreement Between the Government of the State of Eritrea and the Government of the Federal

Democratic Republic of Ethiopia, art. 5(1), Dec. 12, 2000, 2138 UNTS 93, 97 (“Consistent with the Framework

Agreement, in which the parties commit themselves to addressing the negative socio-economic impact of the crisis

on the civilian population, including the impact on those persons who have been deported, a neutral Claims

Commission shall be established. The mandate of the Commission is to decide through binding arbitration all

claims for loss, damage or injury by one Government against the other, and by nationals (including both natural and

juridical persons) of one party against the Government of the other party or entities owned or controlled by the other

party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its

Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international

humanitarian law, including the 1949 Geneva Conventions, or other violations of international law. The

Commission shall not hear claims arising from the cost of military operations, preparing for military operations, or

the use of force, except to the extent that such claims involve violations of international humanitarian law.”); Treaty

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18.16.3 Payment or Other Compensation Ex Gratia. In some cases, States may provide

money or other compensation to other States where not legally required (or without an admission

of legal liability or fault).¹⁸² For example, although indemnification is not required for injuries

or damage incidental to the lawful use of armed force, compensation may be provided as a

humanitarian gesture.¹⁸³ Similarly, a State may institute mechanisms to make payments to

foreign persons who have suffered loss from combat operations, even when no violation of law

of war has occurred.

between the United States and Great Britain, art. 1, May 8, 1871, 17 STAT. 863, 863-64 (“Whereas differences have

arisen between the Government of the United States and the Government of Her Britannic Majesty, and still exist,

growing out of the Acts committed by the several vessels which have given rise to the claims generically known as

the ‘Alabama Claims.’ And whereas Her Britannic Majesty has authorized Her High Commissioners and

Plenipotentiaries to express, in a friendly spirit, the regret felt by Her Majesty’s Government for the escape, under

whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by

those vessels: Now, in order to remove and adjust all complaints and claims on the part of the United States, and to

provide for the speedy settlement of such claims, which are not admitted by Her Britannic Majesty’s Government,

the High Contracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels

and generically known as the ‘Alabama Claims,’ shall be referred to a Tribunal of Arbitration to be composed of

five Arbitrators, … .”).

¹⁸¹ U.N. SECURITY COUNCIL RESOLUTION 687, U.N. Doc S/RES/687, ¶¶ 16-18 (Apr. 3, 1991) (establishing authority

for the U.N. Compensation Commission to provide a reparation mechanism for violations of international law and

“any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to

foreign governments, national and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”).

¹⁸² For example, Communication of the United States Government, Jul. 31, 1945, reprinted in Offer of Ship to

Replace “Awa Maru,” 13 DEPARTMENT OF STATE BULLETIN 249, 249-50 (Aug. 12, 1945) (“‘The United States

Government realizes that the deplorable accidental sinking of the Awa Maru prevented the Japanese Government

from giving immediate effect to its announced intention to continue to facilitate the shipment and distribution of

relief supplies for Allied nationals. In order, therefore, to assist in overcoming this difficulty the United States

Government makes the following offer to the Japanese Government, not as present indemnification for the Awa

Maru (the suggestion having previously been made that owing to the complex nature of the question of indemnity,

that matter might be deferred until the termination of hostilities) but as a replacement for the Awa Maru in its

humanitarian service.’ ‘The United States Government is prepared immediately to transfer to the Japanese

Government a vessel described below of approximately the same size and characteristics as the Awa Maru,

conditioned upon the express agreement by the Japanese Government to use the vessel so transferred for the

following purposes and no others … .’”).

¹⁸³ For example, Abraham Sofaer, Legal Adviser, Department of State, Compensation for Iranian Airbus Tragedy,

88 DEPARTMENT OF STATE BULLETIN 58 (Oct. 1988) (“Principles of international law that govern potential liability

for injuries and property damage arising out of military operations are generally well-established. First,

indemnification is not required for injuries or damage incidental to the lawful use of armed force. Second,

indemnification is required where the exercise of armed force is unlawful. Third, states may, nevertheless, pay

compensation ex gratia without acknowledging, and irrespective of, legal liability. … In the case of the Iran Air

incident, the damage caused in firing upon #655 was incidental to the lawful use of force. The Government of Iran

should not have allowed gunboats to attack our vessels and aircraft. That government also should not have allowed

a passenger airline to fly over a battle zone—especially not unless it was equipped and prepared to respond to our

Navy’s repeated warnings. The commander of the U.S.S. Vincennes evidently believed that his ship was under

imminent threat of attack from a hostile aircraft, and he attempted repeatedly to identify or contact the aircraft before

taking defensive action. Therefore, the United States does not accept legal responsibility for this incident and is not

paying ‘reparations,’ a word which implies wrongdoing and is often associated with wartime activities. Instead, the

President has decided to make an ex gratia payment as a humanitarian gesture to the families of the individuals who

were on #655.”).

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18.16.4 No Private Right to Compensation Under Customary International Law or the

1949 Geneva Conventions. The responsibility of States for violations of the law of war

committed by their agents is owed to other States.¹⁸⁴ The fact that such responsibility is owed to

other States reflects the predominately inter-State nature of international obligations.¹⁸⁵

Customary international law and the 1949 Geneva Conventions do not provide a private right for

individuals to claim compensation directly from a State; rather, such claims are made by other

States.¹⁸⁶

18.17 RETORSION

Retorsion is one of the measures that an injured party may use to seek to persuade an

adversary to cease violations of the law of war.

Retorsion may be understood to mean unfriendly conduct, (1) which is not inconsistent

with any international obligation of the State engaging in it, and (2) which is done in response to

an internationally wrongful act.¹⁸⁷ Retorsion is frequently contrasted with reprisal, which

involves measures that would otherwise be unlawful.¹⁸⁸

¹⁸⁴ See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 789 footnote 14 (1950) (“We are not holding that these prisoners

have no right which the military authorities are bound to respect. The United States, by the Geneva Convention of

July 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement

upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is,

however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is

upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and

intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by

Presidential intervention.”); Juragua Iron Co. v. United States, 212 U.S. 297, 308 (1909) (“It is true that the army,

under General Miles, was under a duty to observe the rules governing the conduct of independent nations when

engaged in war — a duty for the proper performance of which the United States may have been responsible in its

political capacity to the enemy government.”).

¹⁸⁵ Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).

¹⁸⁶ GC COMMENTARY 211 (“One other point should be made clear. The Convention does not give individual men

and women the right to claim compensation. The State is answerable to another contracting State and not to the

individual. On that point the recognized system was not in any way modified in 1949.”); GC COMMENTARY 603

(“As regards material compensation for breaches of the Convention, it is inconceivable, at least as the law stands

today, that claimants should be able to bring a direct action for damages against the State in whose service the

person committing the breach was working. Only a State can make such claims on another State, and they form

part, in general, of what is called ‘war reparations.’”).

¹⁸⁷ See U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful

Acts, with commentaries, 128 (2001) (“Countermeasures are to be contrasted with retorsion, i.e. ‘unfriendly’ conduct

which is not inconsistent with any international obligation of the State engaging in it even though it may be a

response to an internationally wrongful act. Acts of retorsion may include the prohibition of or limitations upon

normal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid

programmes.”); GWS COMMENTARY 342 (“A distinction is generally made between reprisals and retortion; the

latter is also a form of retaliation, but the measures taken do not break the law, and are in reply to acts which are

themselves generally admitted to be lawful. The acts in question on both sides are matters within the competence of

the States concerned. A case of retortion would, for example, be the withdrawal by one belligerent from retained

personnel of privileges accorded over and above those accorded under the convention, where the adverse Party had

withdrawn privileges, whether in the same or in another connection, from the corresponding personnel in his

hands.”).

¹⁸⁸ Refer to § 18.18.1.2 (Acts That Would Otherwise Be Unlawful).

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Because retorsion, by definition, does not involve the resort to actions that would

ordinarily be characterized as illegal, the stringent conditions that apply to reprisal do not apply

to retorsion.¹⁸⁹

Retorsion is a general remedy available to States under international law and is not

specific to the law of war. Retorsion might be used by States before, or in connection with,

military operations (e.g., an economic embargo). Retorsion, however, could also be used to seek

to compel an adversary to adhere to the law of war.

18.18 REPRISALS

Reprisals are extreme measures of coercion used to help enforce the law of war by

seeking to persuade an adversary to cease violations.

States may resort to reprisals only when certain conditions are met. In addition, there are

certain treaty prohibitions on reprisal, and practical considerations may counsel against their use.

18.18.1 Definition of Reprisal. Reprisals are acts taken against a party: (1) that would

otherwise be unlawful; (2) in order to persuade that party to cease violating the law.¹⁹⁰

For example, during the Civil War, the United States authorized reprisals against

Confederate forces for murdering and enslaving captured Union soldiers.¹⁹¹ Reprisals against

POWs are now prohibited.¹⁹²

18.18.1.1 Reprisal - Notes on Terminology. Some older sources used “reprisal”

in a narrower sense only to refer to taking possession of property of the enemy in response to

¹⁸⁹ Refer to § 18.18.2 (Conditions for Lawful Reprisals).

¹⁹⁰ See GC COMMENTARY 227 (“Reprisals are measures contrary to law, but which, when taken by one State with

regard to another State to ensure the cessation of certain acts or to obtain compensation for them, are considered as

lawful in the particular conditions under which they are carried out.”); United States v. Ohlendorf, et al.

(Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THE NMT 493 (“Reprisals in war are the

commission of acts which, although illegal in themselves, may, under the specific circumstances of the given case,

become justified because the guilty adversary has himself behaved illegally, and the action is taken in last resort, in

order to prevent the adversary from behaving illegally in the future.”).

¹⁹¹ Abraham Lincoln, General Order No. 252, Jul. 31, 1863, reprinted in Thos. M. O’Brien & Oliver Diefendorf,

UNITED STATES WAR DEPARTMENT, II GENERAL ORDERS OF THE WAR DEPARTMENT, EMBRACING THE YEARS 1861,

1862 & 1863, 323 (1864) (“It is the duty of every government to give protection to its citizens, of whatever class,

color, or condition, and especially to those who are duly organized as soldiers in the public service. The law of

nations and the usages and customs of war, as carried on by civilized powers, permit no distinction as to color in the

treatment of prisoners of war as public enemies. To sell or enslave any captured person on account of his color, and

for no offense against the laws of war, is a relapse into barbarism and a crime against the civilization of the age. The

Government of the United States will give the same protection to all its soldiers, and if the enemy shall sell or

enslave anyone because of his color the offense shall be punished by retaliation upon the enemy’s prisoners in our

possession. It is therefore ordered, That for every soldier of the United States killed in violation of the laws of war a

rebel soldier shall be executed, and for every one enslaved by the enemy or sold into slavery a rebel soldier shall be

placed at hard labor on the public works and continued at such labor until the other shall be released and receive the

treatment due to a prisoner of war.”).

¹⁹² Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

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violations of the law of war.¹⁹³ Some older sources used the term “retaliation” to describe what

is now commonly understood to be “reprisal.”¹⁹⁴

The term “countermeasures” is sometimes used to cover that part of the subject of

reprisals not associated with armed conflict, with the term “reprisals” or “belligerent reprisals”

sometimes reserved for action taken during international armed conflict.¹⁹⁵

18.18.1.2 Acts That Would Otherwise Be Unlawful. Reprisals involve acts that

would otherwise be unlawful. For example, responding to illegal enemy action by withdrawing

benefits extended to the enemy where such benefits are not legally required would not be

characterized as a reprisal. Rather, such action would be characterized as retorsion, i.e.,

unfriendly conduct that is not inconsistent with any international obligation of the State engaging

in it even though it may be a response to an internationally wrongful act.¹⁹⁶

18.18.1.3 In Order to Persuade a Party to Cease Violating the Law. Reprisals are

intended to influence a party to cease committing violations at present and in the future.

Reprisals are not revenge or collective punishment.

18.18.2 Conditions for Lawful Reprisals. Customary international law permits reprisals,

subject to certain conditions.

18.18.2.1 Careful Inquiry That Reprisals Are Justified. Reprisals shall be resorted

to only after a careful inquiry into the facts to determine that the enemy has, in fact, violated the

law.¹⁹⁷ In many cases, whether a law of war rule has been violated will not be apparent to the

opposing side or outside observers. For example, a bombardment that results in the death of

civilians may be the result of good faith, reasonable, mistake or may have been justified by the

importance of destroying the military objective against which the bombardment was directed.

¹⁹³ See, e.g., WINTHROP, MILITARY LAW & PRECEDENTS 798 (“Reprisal. This further method, above specified,

consists in the taking possession of property of the enemy or of his subjects, to be held as indemnity for injury

inflicted in violation of the laws of war, or as security till a pecuniary indemnity be duly rendered.”).

¹⁹⁴ LIEBER CODE art. 27 (“The law of war can no more wholly dispense with retaliation than can the law of nations,

of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless

enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous

outrage.”).

¹⁹⁵ U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,

with commentaries, 128 (2001) (“As to terminology, traditionally the term ‘reprisals’ was used to cover otherwise

unlawful action, including forcible action, taken by way of self-help in response to a breach. More recently, the

term ‘reprisals’ has been limited to action taken in time of international armed conflict; i.e. it has been taken as

equivalent to belligerent reprisals. The term ‘countermeasures’ covers that part of the subject of reprisals not

associated with armed conflict, and in accordance with modern practice and judicial decisions the term is used in

that sense in this chapter.”).

¹⁹⁶ Refer to § 18.17 (Retorsion).

¹⁹⁷ LIEBER CODE art. 28 (“Retaliation will therefore never be resorted to as a measure of mere revenge, but only as a

means of protective retribution, and moreover cautiously and unavoidably -- that is to say, retaliation shall only be

resorted to after careful inquiry into the real occurrence and the character of the misdeeds that may demand

retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules

of regular war, and by rapid steps leads them nearer to the internecine wars of savages.”).

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18.18.2.2 Exhaustion of Other Means of Securing the Adversary’s Compliance

With the Law of War. Other means of securing compliance with the law of war should be

exhausted before resorting to reprisals.¹⁹⁸ For example, consideration should be given to using

protests and demands, retorsion, or reasonable notice of the threat to use reprisals before

resorting to reprisals.¹⁹⁹

18.18.2.3 National-Level Authorization for Reprisal. Reprisals require a variety

of conditions and implicate the rights and duties of a State under international law.²⁰⁰ Thus, the

authority to conduct reprisal is generally held at the national level.²⁰¹ Service members and units

are not to take reprisal action on their own initiative.

18.18.2.4 Proportionality in Reprisal. To be legal, reprisals must respond in a

proportionate manner to the preceding illegal act by the party against which they are taken.²⁰²

Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are

not involved.²⁰³

¹⁹⁸ 1956 FM 27-10 (Change No. 1 1976) ¶497b (“Priority of Other Remedies. Other means of securing compliance

with the law of war should normally be exhausted before resort is had to reprisals. This course should be pursued

unless the safety of the troops requires immediate drastic action and the persons who actually committed the

offenses cannot be secured.”).

¹⁹⁹ Refer to § 18.10 (Methods for Responding to Violations of the Law of War by the Enemy).

²⁰⁰ See Trial of Hans Albin Rauter, Judgment, XIV U.N. LAW REPORTS 89, 132 (Netherlands Special Court of

Cassation, Jan. 12, 1949) (“In the proper sense one can speak of reprisals only when a State resorts, by means of its

organs, to measures at variance with International Law, on account of the fact that its opponent—in this case the

State with which it is at war—had begun, by means of one or more of its organs, to commit acts contrary to

International Law, quite irrespective of the question as to what organ this may have been, Government or legislator,

Commander of the Fleet, Commander of Land Forces, or of the Air Force, diplomat or colonial governor. The

measures which the appellant describes ... as ‘reprisals’ bear an entirely different character, they are indeed

retaliatory measures taken in time of war by the occupant of enemy territory as a retaliation not of unlawful acts of

the State with which he is at war, but of hostile acts of the population of the territory in question or of individual

members thereof, which, in accordance with the rights of occupation, he is not bound to suffer. Both types of

‘reprisals’ have this in common, that the right to take genuine reprisals as well as the alleged competence to take so

called ‘reprisals’ may in principle belong only to the State which applies them, … .”) (first ellipsis in original).

²⁰¹ For example, 2004 UK MANUAL ¶16.19.2 (“This means that reprisals taken in accordance with the statement are

permissible by and against the United Kingdom. However, commanders and commanders-in-chief are not to take

reprisal action on their own initiative. Requests for authority to take reprisal action must be submitted to the

Ministry of Defence and require clearance at Cabinet level.”).

²⁰² Refer to § 2.4 (Proportionality).

²⁰³ Larry A. Hammond, Deputy Assistant Attorney General, Possible Participation by the United States in Islamic

Republic of Iran v. Pahlavi, 4A OPINIONS OF THE OFFICE OF LEGAL COUNSEL 160, 163 (1980) (“Customary

international law allows reprisals, which are breaches of a treaty’s terms in response to a breach by another party.

To be legal, reprisals must respond in a proportionate manner to a preceding illegal act by the party against whom

they are taken. Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are not

involved. Thus, in the current crisis, the taking of Iranian diplomats as ‘hostages’ (or a lesser restriction on their

freedom of movement that approaches imprisonment) would clearly be a proportionate response; reducing the

immunity of Iranian diplomats from criminal prosecution would be more difficult to justify.”).

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However, the acts resorted to by way of reprisal need not be identical nor of the same

type as the violations committed by the enemy. A reprisal should not be unreasonable or

excessive compared to the adversary’s violation.²⁰⁴

18.18.2.5 Public Announcement of Reprisals. In order to fulfill their purpose of

dissuading the adversary from further illegal conduct, reprisals must be made public and

announced as such.²⁰⁵

18.18.3 Treaty Prohibitions on Reprisals. Although reprisals are generally permissible

under customary international law, certain treaties have prohibited certain types of reprisals.

18.18.3.1 Reprisals Prohibited by the CCW Amended Mines Protocol. It is

prohibited in all circumstances to direct mines, booby-traps, and other devices, either in offense,

defense, or by way of reprisals, against the civilian population as such or against individual

civilians or civilian objects.²⁰⁶

18.18.3.2 Reprisals Prohibited by the 1949 Geneva Conventions. Reprisals

against the wounded, sick, or shipwrecked persons, personnel, buildings, vessels, or equipment

protected by the GWS or GWS-Sea are prohibited.²⁰⁷ Such persons or property would include:

• combatant personnel who are wounded, sick, or shipwrecked;²⁰⁸

• medical personnel and chaplains;²⁰⁹

• medical units and facilities;²¹⁰ and

²⁰⁴ See Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928, reprinted and translated in

WILLIAM W. BISHOP, INTERNATIONAL LAW: CASES AND MATERIALS 904 (1971) (“The necessity of a proportion

between the reprisals and the offense would appear to be recognized in the German answer. Even if one admitted

that international law does not require that the reprisal be approximately measured by the offense, one should

certainly consider as excessive, and thus illegal, reprisals out of all proportion with the act which motivated them.

Now in this case ... there has been evident disproportion between the incident of Naulilaa and the six acts of reprisals

which followed it. The arbiters conclude that the German aggressions of October, November and December, 1914,

on the Angola frontier, cannot be considered as lawful reprisals for the Naulilaa incident ... , in view of the lack of

sufficient occasion, of previous demand and of admissible proportion between the alleged offense and the reprisals

taken.”) (ellipses in original).

²⁰⁵ Trial of Richard Wilhem Hermann Bruns and two others, III U.N. LAW REPORTS 15, 19 (By the Eidsivating

Lagmannstrett and The Supreme Court of Norway, Mar. 20-Jul. 3, 1946) (“Reprisals were generally understood to

aim at changing the adversary’s conduct and forcing him to keep the general accepted rules of lawful warfare. If

this aim were to be achieved, the reprisals must be made public and announced as such.”).

²⁰⁶ CCW AMENDED MINES PROTOCOL art. 3(7) (“It is prohibited in all circumstances to direct weapons to which this

Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against

individual civilians or civilian objects.”).

²⁰⁷ GWS art. 46 (“Reprisals against the wounded, sick, personnel, buildings or equipment protected by the

Convention are prohibited.”); GWS-SEA art. 47 (“Reprisals against the wounded, sick and shipwrecked persons, the

personnel, the vessels or the equipment protected by the Convention are prohibited.”).

²⁰⁸ Refer to § 7.3.1 (Definitions of Wounded, Sick, and Shipwrecked).

²⁰⁹ Refer to § 7.8 (Respect and Protection of Categories of Medical and Religious Personnel).

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• hospital ships.²¹¹

Measures of reprisal against POWs are prohibited.²¹²

Reprisals against protected persons under the GC and their property are prohibited.²¹³

18.18.3.3 Reprisals Prohibited by the 1954 Hague Cultural Property Convention.

Parties to the 1954 Hague Cultural Property Convention shall refrain from any act directed by

way of reprisals against cultural property.²¹⁴ Cultural property is defined in the 1954 Hague

Cultural Property Convention.²¹⁵

18.18.3.4 AP I Provisions on Reprisals. AP I prohibits attacks by way of reprisal

against:

• the civilian population or civilians;²¹⁶

• civilian objects;²¹⁷

• objects indispensable to the survival of the civilian population such as foodstuffs, crops,

livestock, drinking water installations and supplies, and irrigation works;²¹⁸

²¹⁰ Refer to § 7.10 (Military Medical Units and Facilities).

²¹¹ Refer to § 7.12.1 (Types of Hospital Ships and Coastal Rescue Craft).

²¹² GPW art. 13 (“Measures of reprisal against prisoners of war are prohibited.”); The Dostler Case, Trial of General

Anton Dostler, I U.N. LAW REPORTS 22, 31 (U.S. Military Commission, Rome, Oct. 8-12, 1945) (“under the law as

codified by the 1929 Convention there can be no legitimate reprisals against prisoners of war. No soldier, and still

less a Commanding General, can be heard to say that he considered the summary shooting of prisoners of war

legitimate even as a reprisal.”); Winston Churchill, Prime Minster, United Kingdom, Oral Answers to Questions,

Oct. 13, 1942, HANSARD, 383 HOUSE OF COMMONS DEBATES § 1501 (“The Geneva Convention upon the treatment

of prisoners of war does not attempt to regulate what happens in the actual fighting. It is confined solely to the

treatment of prisoners who have been securely captured and are in the responsible charge of the hostile Government.

Both His Majesty’s Government and the German Government are bound by this Convention. The German

Government by throwing into chains 1,370 British prisoners of war for whose proper treatment they are responsible

have violated Article 2 of the aforesaid Convention. They are thus attempting to use prisoners of war as if they were

hostages upon whom reprisals can be taken for occurrences on the field of battle with which the said prisoners can

have had nothing to do. This action of the German Government affronts the sanctity of the Geneva Convention

which His Majesty’s Government have always been anxious to observe punctiliously.”). Refer to § 9.3.2 (Persons

Entitled to POW Status).

²¹³ GC art. 33 (“Reprisals against protected persons and their property are prohibited.”). Refer to § 10.3 (Protected

Person Status).

²¹⁴ 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(4) (“They [High Contracting Parties] shall refrain from

any act directed by way of reprisals against cultural property.”).

²¹⁵ Refer to § 5.18.1 (Definition of Cultural Property).

²¹⁶ AP I art. 51(6) (“Attacks against the civilian population or civilians by way of reprisals are prohibited.”).

²¹⁷ AP I art. 52 (“1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects

which are not military objectives as defined in paragraph 2.”).

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• the natural environment;²¹⁹ and

• works and installations containing dangerous forces, namely dams, dykes, and nuclear

electrical generating systems.²²⁰

The United States has expressed the view that AP I’s provisions on reprisal are counter-

productive and that they remove a significant deterrent that protects civilians and war victims on

all sides of a conflict.²²¹ The United Kingdom has taken a reservation to AP I’s prohibition on

certain attacks by way of reprisal.²²² Egypt, Germany, and Italy also reserved the right to react

to serious violations of AP I with any means permitted by international law to prevent further

violations.²²³ France has declared that it will apply the provisions of paragraph 8 of Article 51

²¹⁸ AP I art. 54 (“2. …objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural

areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation

works… 4. These objects shall not be made the object of reprisals.”).

²¹⁹ AP I art. 55(2) (“Attacks against the natural environment by way of reprisals are prohibited.”).

²²⁰ AP I art. 56(1) (“Works or installations containing dangerous forces, namely dams, dykes and nuclear energy

generating stations, shall not be made the object of attack, even where these objects are military objectives, if such

attack may cause the release of dangerous forces and consequent severe losses among the civilian population.”); AP

I art. 56(4) (“It is prohibited to make any of the works, installations or military objects mentioned in paragraph 1 the

object of reprisals.”).

²²¹ The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. Sofaer,

Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF

INTERNATIONAL LAW AND POLICY 460, 469 (1987) (“To take another example, article 51 of Protocol I prohibits any

reprisal attacks against the civilian population, that is, attacks that would otherwise be forbidden but that are in

response to the enemy's own violations of the law and are intended to deter future violations. Historically,

reciprocity has been the major sanction underlying the laws of war. If article 51 were to come into force for the

United States, an enemy could deliberately carry out attacks against friendly civilian populations, and the United

States would be legally forbidden to reply in kind. As a practical matter, the United States might, for political or

humanitarian reasons, decide in a particular case not to carry out retaliatory or reprisal attacks involving unfriendly

civilian populations. To formally renounce even the option of such attacks, however, removes a significant deterrent

that presently protects civilians and other war victims on all sides of a conflict.”).

²²² United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77-78 (“(m) Re: Articles 51-

55 The obligations of Article 51 and 55 are accepted on the basis that any adverse party against which the United

Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and

deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against

civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those articles, the United

Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent

that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing

violations under those Articles, but only after formal warning to the adverse party requiring cessation of the

violations has been disregarded and then only after a decision taken at the highest level of government. Any

measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto and

will not involve any action prohibited by the Geneva Conventions of 1949, nor will such measures be continued

after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning

given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.”).

²²³ Egypt, Statement on Ratification of AP I, Oct. 9, 1992, 1712 UNTS 435, 439 (“The Arab Republic of Egypt,

while declaring its commitment to respecting all the provisions of Protocols Additional I and II, wishes to

emphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of the

obligations imposed by Protocols Additional I and II with all means admissible under international law in order to

prevent any further violation.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529

(“The Federal Republic of Germany will react against serious and systematic violations of the obligations imposed

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insofar as their interpretation does not constitute an obstacle to the use, according to international

law, of the means which it considers indispensable for the protection of its civilian population

against grave, clear and deliberate violations of the 1949 Geneva Conventions and of AP I by the

enemy.²²⁴

18.18.4 Practical Considerations in the Use of Reprisals. Apart from the strict legal

requirements for the resort to reprisal, it will be important to consider the potential practical

consequences of the use of reprisals that may counsel strongly against taking such measures.

Practical considerations, including longer-term military or political consequences, may include

the following factors:

• Taking reprisals may divert valuable and scarce military resources from the military

struggle and may not be as effective militarily as steady adherence to the law.

• Reprisals will usually have an adverse impact on the attitudes of governments not

participating in the conflict.

• Reprisals may only strengthen enemy morale and will to resist.

• Reprisals frequently lead only to further unwanted escalation of the conflict by an

adversary or a vicious cycle of counter-reprisals.

• Reprisals may render resources of an adversary less able to contribute to the

rehabilitation of an area after the cessation of hostilities.²²⁵

by Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in

order to prevent any further violation.”); Italy, Statement on Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438,

440 (“Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional

Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order to

prevent any further violation.”).

²²⁴ France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS:

A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800, 801 (2004) (“The Government of

the French Republic declares that it will apply the provisions of paragraph 8 of Article 51 insofar as their

interpretation does not constitute an obstacle to the use, according to international law, of the means which it

considers indispensable for the protection of its civilian population against grave, clear and deliberate violations of

the Geneva Conventions and of the Protocol by the enemy.”).

²²⁵ 1976 AIR FORCE PAMPHLET 110-31 ¶10-7d (“In addition to the legal requirements which regulate resort to

reprisals, there are various practical factors which governments will consider before taking reprisals. The relative

importance of these factors depends upon the degree and kind of armed conflict, the character of the adversary and

its resources, and the importance of states not participating in hostilities. These considerations including the

following: (1) Taking reprisals may divert valuable and scarce military resources from the military struggle and

may not be as effective militarily as steady adherence to the law. (2) Reprisals will usually have an adverse impact

on the attitudes of governments not participating in the conflict. (3) Reprisals may only strengthen enemy morale

and will to resist.

(4) Reprisals frequently lead only to further unwanted escalation of the conflict by an adversary.

Accordingly, an adversary’s ability to retaliate is an important factor.

(5) Reprisals may render resources of an

adversary less able to contribute to the rehabilitation of an area after the cessation of hostilities.

(6) The threat of

reprisals is usually more effective than their actual use.

(7) Reprisals, to be effective, should be carried out speedily

and must be kept under control. They will be ineffective if random, excessive or prolonged. (8) In any event, the

decision to employ reprisals would be reached only as a matter of specific national policy. The immediate

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18.19 DISCIPLINE IN NATIONAL JURISDICTIONS OF INDIVIDUALS FOR VIOLATIONS OF THE LAW OF

WAR

In most cases, individuals are disciplined in national jurisdictions for violations of the law

of war. Corrective action may take the form of adverse or corrective administrative actions.

Punishment may take the form of non-judicial punishment or judicial actions in military or

civilian courts, depending on the circumstances. In some cases, prosecutions in national courts

are carried out by charging violations of domestic law, but in other cases, prosecutions are

carried out by charging violations of international law.

18.19.1 Non-Judicial Punishment and Adverse or Corrective Administrative Actions. In

some cases, it may be appropriate to administer non-judicial punishment in order to punish and

repress violations of the law of war. Non-judicial punishment of members of the armed forces is

authorized under the Uniform Code of Military Justice.²²⁶

In some cases, it may be appropriate to take adverse or corrective administrative action to

repress violations of the law of war. Adverse and corrective administrative action for members

of the armed forces is authorized by military regulations.²²⁷

18.19.2 Charging of Domestic Prosecutions as Violations of International Law or

Domestic Law. In some cases, prosecutions in national courts for conduct constituting violations

of the law of war are carried out by charging violations of ordinary domestic law or military law,

and in other cases, such prosecutions are carried out by charging violations of international law.

For example, the murder of a POW may be prosecuted under the ordinary criminal statutes

prohibiting murder. On the other hand, the same conduct may be prosecuted under special

criminal statutes that are framed in terms of “war crimes.”²²⁸

The United States has no international law obligation to prosecute an offense as a “war

crime” as opposed to an ordinary criminal offense.

Prosecutions in national courts remain domestic prosecutions for violations of domestic

statutes, even when those domestic statutes were enacted pursuant to treaty obligations or are

framed in terms of violations of international law (e.g., war crimes).

In general, prosecutions of war crimes as such (i.e., characterized as international law

violations as opposed to violations of domestic law) have only been undertaken when a State

seeks to punish enemy nationals or persons serving the interests of the enemy State. When

advantage sought, which is to stop current and deter future violations of the law by an adversary, must be weighed

against the long range military and political consequences.”).

²²⁶ 10 U.S.C. § 815.

²²⁷ See, e.g., MARINE CORPS ORDER P1900.16F, Change 2, Marine Corps Separation and Retirement Manual (Jun.

6, 2007) (providing general and specific bases, and procedures for involuntary administrative separations);

DEPARTMENT OF THE NAVY JUDGE ADVOCATE GENERAL INSTRUCTION 5800.7F, Manual of the Judge Advocate

General, §§ 0102-0105 (Jun. 26, 2012) (providing regulations for non-punitive administrative measures).

²²⁸ Refer to § 18.19.3.8 (War Crimes Act).

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members of a State’s armed forces or other personnel violate the law of war, that State generally

prosecutes those persons for offenses under ordinary domestic law or military law.²²⁹

18.19.3 U.S. Law That Can Be Used to Punish Violations of the Law of War. A number

of U.S. statutes may be used to punish acts that constitute violations of the law of war. When

violations of the law of war are committed within the United States, such acts usually constitute

violations of Federal and State law and generally may be prosecuted under ordinary criminal

statutes. However, a number of other Federal statutes may be used to prosecute conduct that

violates the law of war, even though that conduct does not occur within the United States. The

application of any particular statute depends on the terms of that statute and the facts of a

particular case.

18.19.3.1 Uniform Code of Military Justice Offenses. The principal way for the

United States to punish members of the U.S. armed forces for violations of the law of war is

through the Uniform Code of Military Justice.

Certain persons may be tried for violations of the Uniform Code of Military Justice,

including, among others:

• members of a regular component of the U.S. armed forces;

• POWs in the custody of the U.S. armed forces;

• in time of declared war or contingency operations, persons serving with or accompanying

an armed force in the field; and

• individuals belonging to one of the eight categories enumerated in Article 4 of the GPW

who violate the law of war.²³⁰

²²⁹ For example, GARY SOLIS, MARINES AND MILITARY LAW IN VIETNAM: TRIAL BY FIRE 32-33 (1989) (“No

Marine was charged with the commission of a war crime, as such, in Vietnam. Rather, any ‘violation of the law of

war’ committed by a Marine against a Vietnamese was charged as a violation of the UCMJ. For example, the

murder of a civilian noncombatant was charged as a violation of Article 118, murder, rather than as a war crime in

violation of the Geneva or Hague conventions.”); 1956 FM 27-10 (Change No. 1 1976) ¶507b (“The United States

normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the

interests of the enemy State. Violations of the law of war committed by persons subject to the military law of the

United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted

under that Code. Violations of the law of war committed within the United States by other persons will usually

constitute violations of federal or state criminal law and preferably will be prosecuted under such law (see pars. 505

and 506).”); The Public Commission to Examine the Maritime Incident of 31 May 2010, et. al (The Turkel

Commission), Second Report, Israel’s Mechanisms for Examining and Investigating Complaints and Claims of

Violations of the Laws of Armed Conflict According to International Law, 171 (Feb. 2013) (“As in the US, the

charging practice in Canada appears to be to prosecute violations of the law of armed conflict by members of the

armed forces as general criminal law offenses or military offenses under the Code of Service Discipline, rather than

as specific offenses relating to the law of armed conflict.”). Compare § 18.7.3 (Enforcement of Law of War

Obligations Through Military Instructions, Regulations, and Procedures).

²³⁰ 10 U.S.C. § 802 (“(a) The following persons are subject to this chapter: (1) Members of a regular component of

the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from

the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into

1101

Offenses under the Uniform Code of Military Justice that may be used to punish conduct

that constitutes a violation of the law of war include, among others:

• cruelty and maltreatment;²³¹

• murder;²³²

• rape and sexual assault;²³³

• failure to obey order or regulation;²³⁴ and

• conduct prejudicial to good order and discipline.²³⁵

18.19.3.2 Incorporation of Other Non-Capital Crimes and Offenses in the

Uniform Code of Military Justice. Under the Uniform Code of Military Justice, “all disorders

and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a

nature to bring discredit upon the armed forces, and crimes and offenses not capital,” of which

persons subject to the Uniform Code of Military Justice may be guilty, shall be taken cognizance

of by a general, special, or summary court-martial, according to the nature and degree of the

offense, and shall be punished at the discretion of that court.²³⁶

the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces,

from the dates when they are required by the terms of the call or order to obey it. … (9) Prisoners of war in custody

of the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying

an armed force in the field. … (13) Individuals belonging to one of the eight categories enumerated in Article 4 of

the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who

violate the law of war.”).

²³¹ 10 U.S.C. § 893 (“Any person subject to this chapter who is guilty of cruelty toward, or oppression or

maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.”).

²³² 10 U.S.C. § 918.

²³³ 10 U.S.C. § 920.

²³⁴ See 10 U.S.C. § 892 (“Any person subject to this chapter who—(1) violates or fails to obey any lawful general

order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which

it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a

court-martial may direct.”); 10 U.S.C. § 890 (“Any person subject to this chapter who— … (2) willfully disobeys a

lawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war,

by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time,

by such punishment, other than death, as a court-martial may direct.”).

²³⁵ 10 U.S.C. § 934 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of

good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and

crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of

by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be

punished at the discretion of that court.”).

²³⁶ 10 U.S.C. § 934 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of

good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and

crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of

by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be

punished at the discretion of that court.”).

1102

This provision may also be used to prosecute conduct that violates the law of war.

However, the preemption doctrine prohibits application of this provision to conduct already

covered by specific offenses in the Uniform Code of Military Justice.²³⁷

18.19.3.3 U.S. General Court-Martial Jurisdiction to Try and Punish Persons

Under the Law of War. Under the Uniform Code of Military Justice, general courts-martial also

have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal

and may adjudge any punishment permitted by the law of war.²³⁸ For example, this authority

could be used to try enemy combatants for violations of the law of war, because such trials are

permitted by the law of war.

18.19.3.4 Title 18 Federal Crimes Punishing Conduct Outside the United States.

Certain Federal statutes specify that they apply to conduct outside the United States and could be

used to prosecute conduct that, in some circumstances, would constitute a violation of the law of

war. These statutes may specify in detail the circumstances in which they authorize prosecution,

which may vary from statute to statute.

These statutes include provisions prohibiting:

• torture;²³⁹

• genocide;²⁴⁰

• murder or manslaughter of foreign officials, official guests, or internationally protected

persons;²⁴¹

• piracy;²⁴²

• acts of terrorism and material support to terrorists;²⁴³

²³⁷ MANUAL FOR COURTS-MARTIAL IV-102 (¶60.c.(5)(a)) (2012) (“The preemption doctrine prohibits application of

Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an

element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either

under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of

larceny offense, one without the required intent, where Congress has already set the minimum requirements for such

an offense in Article 121.”).

²³⁸ 10 U.S.C. § 818 (“General courts-martial also have jurisdiction to try any person who by the law of war is subject

to trial by a military tribunal and may adjudge any punishment permitted by the law of war.”).

²³⁹ See 18 U.S.C. § 2340A(a) (“Whoever outside the United States commits or attempts to commit torture shall be

fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct

prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”).

²⁴⁰ 18 U.S.C. § 1091.

²⁴¹ 18 U.S.C. § 1116.

²⁴² 18 U.S.C. § 1651 (“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and

is afterwards brought into or found in the United States, shall be imprisoned for life.”).

²⁴³ 18 U.S.C. §§ 2332b, 2339A, 2339B.

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• certain acts involving biological weapons;²⁴⁴

• certain acts involving chemical weapons;²⁴⁵ and

• certain acts involving nuclear weapons.²⁴⁶

18.19.3.5 Extraterritorial Application of Certain Federal Offenses Through

MEJA. U.S. law makes special provision for certain conduct that is committed outside the

United States to be prosecuted as though it were committed inside the United States.

U.S. law, under the Military Extraterritorial Jurisdiction Act (MEJA), permits the United

States to prosecute individuals who committed certain offenses outside the United States (i)

while employed by or accompanying the U.S. armed forces overseas; or (ii) while a member of

the U.S. armed forces subject to the Uniform Code of Military Justice.²⁴⁷ MEJA cannot be used

against a member of the Armed Forces who is subject to the Uniform Code of Military Justice

unless (i) such member ceases to be subject to the Uniform Code of Military Justice; or (ii) an

indictment or information charges that the member committed the offense with one or more other

defendants, at least one of whom is not subject to the Uniform Code of Military Justice.²⁴⁸

Provisions of MEJA have been implemented through DoD regulations.²⁴⁹

Among other things, MEJA provides a way for U.S. domestic law to be used to punish

conduct that violates the law of war. For example, under MEJA, a former service member could

be prosecuted for a murder committed while a member of the armed forces during armed conflict

²⁴⁴ 18 U.S.C. § 175.

²⁴⁵ 18 U.S.C. § 229.

²⁴⁶ 18 U.S.C. § 831.

²⁴⁷ 18 U.S.C. § 3261(a) (“Whoever engages in conduct outside the United States that would constitute an offense

punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime

and territorial jurisdiction of the United States—(1) while employed by or accompanying the Armed Forces outside

the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of

Military Justice), shall be punished as provided for that offense.”).

²⁴⁸ 18 U.S.C. § 3261(d) (“No prosecution may be commenced against a member of the Armed Forces subject to

chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—(1) such member ceases to

be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with

one or more other defendants, at least one of whom is not subject to such chapter.”).

²⁴⁹ DOD INSTRUCTION 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed

Forces Outside the United States, Certain Service Members, and Former Service Members, ¶2.5 (Mar. 3, 2005)

(“This Instruction:

1.1. Implements policies and procedures, and assigns responsibilities, under the “Military

Extraterritorial Jurisdiction Act of 2000,” as amended by Section 1088 of the “Ronald W. Reagan National Defense

Authorization Act for Fiscal Year 2005” (reference (a)) (hereinafter the “Act”) for exercising extraterritorial

criminal jurisdiction over certain current and former members of the U.S. Armed Forces, and over civilians

employed by or accompanying the U.S. Armed Forces outside the United States. 1.2. Implements Section 3266 of

the Act.”).

1104

abroad, even though Uniform Code of Military Justice jurisdiction over that person has

ceased.²⁵⁰

18.19.3.6 Special Maritime and Territorial Jurisdiction of the United States

Under Title 18. U.S. law provides for certain offenses to be prosecuted if they are committed in

the special maritime and territorial jurisdiction of the United States.²⁵¹ Such jurisdiction may

include, for example, offenses committed by U.S. nationals on the premises of U.S. diplomatic,

consular, military, or other U.S. Government missions or entities in foreign States.²⁵² This

jurisdiction provides another method by which U.S. law may be used to punish conduct that

violates the law of war.²⁵³

18.19.3.7 U.S. Military Commissions. U.S. statutes authorize the prosecution of

alien unprivileged enemy belligerents for certain offenses.²⁵⁴ The Secretary of Defense has

promulgated additional rules of procedure and rules of evidence applicable to such

proceedings.²⁵⁵

²⁵⁰ See, e.g., United States v. Green, 654 F.3d 637, 640-41 (6th Cir. 2011) (“Steven D. Green was convicted and

sentenced to life in prison for participating in a sexual assault and multiple murders while stationed in Iraq as an

infantryman in the United States Army. Before senior Army officials became aware that Green and three fellow

servicemembers were involved in these crimes, Green was discharged due to a personality disorder. When officials

discovered Green’s involvement in the crimes, his three coconspirators were still on active duty in the Army and

thus subject to the Uniform Code of Military Justice. They were tried by courts-martial and each sentenced to

between 90 and 110 years imprisonment, which rendered them eligible for parole in ten years. However, the Army

had no authority to court-martial Green because he had already been discharged. Thus, civilian prosecutors charged

Green under the Military Extraterritorial Jurisdiction Act, which extends federal criminal jurisdiction to persons who

commit criminal acts while a member of the Armed Forces but later cease to be subject to military jurisdiction. A

federal court jury convicted Green of a number of crimes, including murder and sexual assault, and the district court

sentenced him to five consecutive life sentences.”).

²⁵¹ See, e.g., 18 U.S.C. § 1111 (“(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is

guilty of murder in the second degree, shall be imprisoned for any term of years or for life.”).

²⁵² 18 U.S.C. § 7 (“The term ‘special maritime and territorial jurisdiction of the United States’, as used in this title,

includes:

… (9) With respect to offenses committed by or against a national of the United States as that term is used

in section 101 of the Immigration and Nationality Act—(A) the premises of United States diplomatic, consular,

military or other United States Government missions or entities in foreign States, including the buildings, parts of

buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of

ownership;”).

²⁵³ See, e.g., United States v. Passaro, 577 F.3d 207, 210-12 (4th Cir. 2009) (“This case arises from the conviction in

a United States federal court of an American citizen for the brutal assault on an Afghan national in Afghanistan. A

jury in the Eastern District of North Carolina found David A. Passaro, a Central Intelligence Agency civilian

contractor, guilty of assault on Abdul Wali. The assault occurred in 2003 at Asadabad Firebase, a United States

Army outpost in Afghanistan. … The Government predicated federal criminal jurisdiction in this case on the special

maritime and territorial jurisdiction statute.”).

²⁵⁴ 10 U.S.C. § 948c (“Any alien unprivileged enemy belligerent is subject to trial by military commission as set

forth in this chapter.”).

²⁵⁵ DEPARTMENT OF DEFENSE, Manual for Military Commissions (Aug. 14, 2012); DEPARTMENT OF DEFENSE,

Manual for Military Commissions (Apr. 27, 2010).

1105

In the past, military commissions have been used by the United States and other States to

prosecute enemy belligerents for violations of the law of war and for acts of unprivileged

belligerency. Military commissions have also been used for the trial of offenses under U.S. law

where local courts were not open and acting (i.e., where martial law applies), and for the trial of

violations of occupation ordinances. These military commissions have been regarded as

instrumentalities for the more efficient execution of the war powers vested in Congress and the

power vested in the President as Commander-in-chief in war.²⁵⁶ Military commissions have

been used instead of courts-martial because U.S. courts-martial have been adapted to the

circumstances of disciplining members of the armed forces and have not been crafted with a

view towards certain other offenses that are also committed during armed conflict.²⁵⁷

Similarly, the use of military commission proceedings continues to be appropriate in

certain circumstances because the rules for such proceedings are specially adapted to reflect the

realities of the battlefield and conducting investigations in a war zone.²⁵⁸

18.19.3.8 War Crimes Act. The War Crimes Act authorizes the prosecution of

individuals for certain war crimes if the victim or the perpetrator is either a U.S. national or a

²⁵⁶ WINTHROP, MILITARY LAW & PRECEDENTS 839 (“But, in general, it is those provisions of the Constitution which

empower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war, authorize the

employment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its

original sanction. Its authority is thus the same as the authority for the making and waging of war and for the

exercise of military government and martial law. The commission is simply an instrumentality for the more

efficient execution of the war powers vested in Congress and the power vested in the President as Commander-in-

chief in war.”).

²⁵⁷ WINTHROP, MILITARY LAW & PRECEDENTS 839 (“The occasion for the military commission arises principally

from the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively to

members of the military force and to certain specific offences defined in a written code. It does not extend to many

criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required.

A commander indeed, where authorized to constitute a purely war-court, may designate it by any convenient name;

he may style it a ‘court-martial,’ and, though not a court-martial proper, it will still be a legal body under the laws of

war. But to employ the same name for the two kinds of court could scarcely but result in confusion and in questions

as to jurisdiction and power of punishment.”).

²⁵⁸ Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012 DIGEST

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 579-80 (“Military commissions are also appropriate in

proper circumstances, and we can use them as well to convict terrorists and disrupt their plots. … It’s important to

note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our

civilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.

They afford the accused the right to counsel - as well as the right to present evidence and cross-examine witnesses.

They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment. And they

secure the right to appeal to Article III judges - all the way to the United States Supreme Court. In addition, like our

federal civilian courts, reformed commissions allow for the protection of sensitive sources and methods of

intelligence gathering, and for the safety and security of participants. A key difference is that, in military

commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.

For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect

military personnel to administer warnings to an enemy captured in battle. But instead, a military judge must make

other findings - for instance, that the statement is reliable and that it was made voluntarily.”).

1106

member of the U.S. Armed Forces, whether inside or outside the United States.²⁵⁹ Under this

statute, an individual may be prosecuted for conduct:

• defined as a grave breach in any of the 1949 Geneva Conventions, or any protocol to

such convention to which the United States is a Party;

• prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV,

Respecting the Laws and Customs of War on Land, signed 18 October 1907;

• that constitutes a grave breach of common Article 3 (as defined in the statute) when

committed in the context of and in association with an armed conflict not of an

international character; or

• of a person who, in relation to an armed conflict and contrary to the provisions of the

CCW Amended Mines Protocol, when the United States is a Party to such Protocol,

willfully kills or causes serious injury to civilians.²⁶⁰

18.19.4 U.S. Domestic Law and Policy on Military Jurisdiction.

18.19.4.1 Limits on Military Jurisdiction Over U.S. Citizens Who Are Not

Members of the Armed Forces. As a matter of U.S. domestic law, the U.S. Constitution places

certain limits on the use of military tribunals to punish U.S. citizens who are not members of the

armed forces.²⁶¹ DoD policy addresses the use of the Uniform Code of Military Justice to try

civilians serving with or accompanying the U.S. armed forces.²⁶² Such law and policy may

dictate the forum for prosecution. For example, a person who has been discharged from the U.S.

armed forces and is no longer subject to the Uniform Code of Military Justice would be

²⁵⁹ 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in

any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term

of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b)

Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or

the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States

(as defined in section 101 of the Immigration and Nationality Act).”).

²⁶⁰ 18 U.S.C. § 2441(c) (“c) Definition.— As used in this section the term “war crime” means any conduct— (1)

defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol

to such convention to which the United States is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to

the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) which

constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and

in association with an armed conflict not of an international character; or (4) of a person who, in relation to an armed

conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-

Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the

United States is a party to such Protocol, willfully kills or causes serious injury to civilians.”).

²⁶¹ See, e.g., Reid v. Covert, 354 U.S. 1 (1956); Toth v. Quarles. 350 U.S. 11 (1955); Duncan v. Kahanamoku, 327

U.S. 304 (1946); Ex parte Milligan, 71 U.S. 2 (1866).

²⁶² See, e.g., Robert Gates, Secretary of Defense, Memorandum re: UCMJ Jurisdiction Over DoD Civilian

Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces

Overseas During Declared War and in Contingency Operations (Mar. 10, 2008 incorporating Change 1 Sept. 23,

2010).

1107

prosecuted under the MEJA or the War Crimes Act rather than the Uniform Code of Military

Justice.

18.19.4.2 Efforts to Maximize Court-Martial Jurisdiction Over Persons Who Are

Members of the Armed Forces. Where the United States and a foreign State both claim

jurisdiction over a service member’s conduct, DoD policy has been to make efforts to maximize

the exercise of court-martial jurisdiction over persons subject to the Uniform Code of Military

Justice to the extent possible under applicable agreements.²⁶³

18.20 PROSECUTION IN INTERNATIONAL AND HYBRID COURTS

In some cases, the prosecution of individuals for violations of the law of war has been

undertaken in international tribunals or hybrid tribunals that mix elements of national and

international law.

The jurisdiction and procedures of these tribunals vary from tribunal to tribunal, and may

depend on applicable treaties and customary international law. In general, the decisions of these

tribunals are not binding as precedent on the United States, including U.S. courts.²⁶⁴ However,

in some cases, it may be appropriate to consider their decisions as persuasive authority.

18.20.1 Post-World War II International Military Tribunals. After World War II, the

United Kingdom, France, the United States, and the Union of Soviet Socialist Republics sought

to try the major European Axis war criminals. Established by the London Agreement of August

8, 1945, the International Military Tribunal at Nuremberg conducted the landmark Trial of Major

War Criminals, with 21 defendants, in Nuremberg, Germany from November 1945 - October

1946.²⁶⁵ A similar tribunal was established in Tokyo by U.S. General MacArthur in his role as

Supreme Allied Commander to try major Japanese war criminals in the Far East.²⁶⁶

²⁶³ For example, MANUAL FOR COURTS-MARTIAL II-10 (Discussion of R.C.M. 201(d)) (2012) (“As a matter of

policy, efforts should be made to maximize the exercise of court-martial jurisdiction over persons subject to the code

to the extent possible under applicable agreements.”). See also DOD DIRECTIVE 5525.1, DoD Status of Forces

Policy and Information, ¶3 (Aug. 7, 1979, Certified Current as of Nov. 21, 2003) (“It is the policy of the Department

of Defense to protect, to the maximum extent possible, the rights of United States personnel who may be subject to

criminal trial by foreign courts and imprisonment in foreign prisons.”).

²⁶⁴ See, e.g., 18 U.S.C. 2441 note (“No foreign or international source of law shall supply a basis for a rule of

decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such

section 2441.”).

²⁶⁵ Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of

the United States of America, the Provisional Government of the French Republic and the Government of the Union

of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis,

art. 2, Aug. 8, 1945, 82 UNTS 280, 282 (“The constitution, jurisdiction and functions of the International Military

Tribunal shall be those set out in the Charter annexed to this agreement, which Charter shall form an integral part of

this Agreement.”).

²⁶⁶ See Douglas MacArthur, Supreme Commander for the Allied Powers, Special Proclamation: Establishment of

an International Military Tribunal for the Far East, Jan. 19, 1946, 4 BEVANS 20, 21 (“Now, therefore, I, Douglas

MacArthur, as Supreme Commander for the Allied Powers, by virtue of the authority so conferred upon me, in order

to implement the Term of Surrender which requires the meting out of stern justice to war criminals, do order and

provide as follows: ARTICLE 1. There shall be established an International Military Tribunal for the Far East for the

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18.20.2 International Criminal Tribunal for the Former Yugoslavia (ICTY) and

International Criminal Tribunal for Rwanda (ICTR). The U.N. Security Council has used its

authority under Chapter VII of the Charter of the United Nations to establish international

criminal tribunals to prosecute persons responsible for serious violations of international

humanitarian law committed in the territory of the former Yugoslavia since 1991, and in the

territory of Rwanda, as well as Rwandan citizens responsible for genocide and other such

violations committed in the territory of neighboring States, between January 1, 1994, and

December 31, 1994.²⁶⁷

The United States has, through its membership in the U.N. Security Council, supported

both the efforts of the ICTR and (also acting through NATO) the efforts of the ICTY.²⁶⁸

18.20.3 The International Criminal Court (ICC) Created by the Rome Statute. The Rome

Statute of the ICC established the ICC, which sits in The Hague in the Netherlands.²⁶⁹ The

United States is not a Party to the Rome Statute.

The Rome Statute provides that the ICC “shall have the power to exercise its jurisdiction

over persons for the most serious crimes of international concern” and “shall be complementary

to national criminal jurisdictions.”²⁷⁰ The Rome Statute provides that the ICC has jurisdiction in

accordance with the Statute with respect to:²⁷¹

• the crime of genocide;

• crimes against humanity;

• war crimes; and

• the crime of aggression.

trial of those persons charged individually, or as members of organizations, or in both capacities, with offenses

which include crimes against peace.”).

²⁶⁷ Refer to § 18.12.4 (Authorizing International Criminal Tribunals).

²⁶⁸ For example, since the mid-1990s, as part of NATO’s Operation JOINT ENDEAVOR, Operation JOINT

GUARD and Operation JOINT FORGE, and as part of NATO’s support to the European Union’s Operation

ALTHEA, the United States has conducted operations to apprehend, transfer, and support the prosecution of Persons

Indicted for War Crimes (PIFWC) in the ICTY.

²⁶⁹ Refer to § 19.23 (Rome Statute of the International Criminal Court).

²⁷⁰ ROME STATUTE art. 1 (“An International Criminal Court (‘the Court’) is hereby established. It shall be a

permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of

international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.

The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”).

²⁷¹ ROME STATUTE art. 5 (“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the

international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the

following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of

aggression.”).

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18.20.3.1 Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party

States. The ICC may exercise jurisdiction if a situation has been referred to it by the U.N.

Security Council acting under Chapter VII of the Charter of the United Nations.²⁷² The Rome

Statute also provides that the ICC may exercise its jurisdiction if one or more of the following

States are Parties to the Rome Statute or have accepted the jurisdiction of the ICC on an ad hoc

basis:

• the State on the territory of which the conduct in question occurred or, if the crime was

committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

• the State of which the person accused of the crime is a national.²⁷³

The first of these provisions creates the possibility that the ICC would seek to exercise

jurisdiction with respect to the actions of nationals of States that have not ratified the Rome

Statute, even if the U.N. Security Council has not referred the situation. The United States has a

longstanding and continuing objection to any assertion of jurisdiction by the ICC with respect to

nationals of States not Party to the Rome Statute in the absence of consent from such States or a

referral by the Security Council.²⁷⁴

18.20.3.2 Article 98 Agreements. The Rome Statute provides that the ICC may

not proceed with a request for surrender or assistance that would require the requested State to

act inconsistently with its obligations under international law with respect to the State or

diplomatic immunity of a person or property of a third State, unless the Court can first obtain the

cooperation of that third State for the waiver of the immunity.²⁷⁵ The Rome Statute also

²⁷² Refer to § 18.12.4 (Authorizing International Criminal Tribunals).

²⁷³ ROME STATUTE art. 12 (“In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if

one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in

accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the

crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of

which the person accused of the crime is a national.”).

²⁷⁴ See, e.g., 22 U.S.C. § 7421(11) (“It is a fundamental principle of international law that a treaty is binding upon its

parties only and that it does not create obligations for nonparties without their consent to be bound. The United

States is not a party to the Rome Statute and will not be bound by any of its terms. The United States will not

recognize the jurisdiction of the International Criminal Court over United States nationals.”); William J. Clinton,

Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III PUBLIC PAPERS OF THE

PRESIDENTS 2816 (“In particular, we are concerned that when the court comes into existence, it will not only

exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of

states that have not.”). Cf. Extracts from Comments by Governments on the Draft Convention on Genocide

Prepared by the Secretary-General, reprinted in U.N. SECRETARY-GENERAL, Historical Survey of the Question of

International Criminal Jurisdiction, U.N. Doc. A/CN.4/7/Rev.1, 137 (1949) (1. United States of America This

article contains a broad jurisdictional provision. … A third reason for opposing the provision is that it would

apparently seek to establish a rule of law applicable to nationals of States which have not consented to it, namely,

such States as may not ratify the Convention.”).

²⁷⁵ ROME STATUTE art. 98(1) (“The Court may not proceed with a request for surrender or assistance which would

require the requested State to act inconsistently with its obligations under international law with respect to the State

or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of

that third State for the waiver of the immunity.”).

1110

provides that the ICC may not proceed with a request for surrender that would require the

requested State to act inconsistently with its obligations under international agreements pursuant

to which the consent of a sending State is required to surrender a person of that State to the ICC,

unless the ICC can first obtain the cooperation of the sending State for the giving of consent for

the surrender.²⁷⁶

The United States has entered into agreements with numerous States, including Parties to

the Rome Statute, that require U.S. consent before U.S. personnel may be surrendered by that

State to the ICC.²⁷⁷

18.20.3.3 U.S. Law and Policy on Support to the ICC. U.S. law contains certain

restrictions on support to the ICC or ICC activities within the United States.²⁷⁸ U.S. policy is to

work with the international community to prevent and call to account those responsible for the

worst human rights abuses, including through support to the International Criminal Court,

consistent with U.S. law and our commitment to protecting our personnel.²⁷⁹

18.20.3.4 ICC and the Crime of Aggression. As adopted in 1998, the Rome

Statute does not define the crime of aggression, but provides that the ICC shall exercise

jurisdiction over the crime of aggression once a provision is adopted in accordance with articles

²⁷⁶ ROME STATUTE art. 98(2) (“The Court may not proceed with a request for surrender which would require the

requested State to act inconsistently with its obligations under international agreements pursuant to which the

consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first

obtain the cooperation of the sending State for the giving of consent for the surrender.”).

²⁷⁷ Such agreements have been cited in certifications required under U.S. law before U.S. personnel are authorized to

participate in certain U.N. peacekeeping and peace enforcement operations. For example, Barack Obama,

Certification Concerning U.S. Participation in the United Nations Multidimensional Integrated Stabilization

Mission in Mali Consistent with Section 2005 of the American Servicemembers’ Protection Act, Jan. 31, 2014, 79

FEDERAL REGISTER 8079 (Feb. 10, 2014) (“By the authority vested in me as President by the Constitution and the

laws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection

Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States in

certain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S.

Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali are

without risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC)

because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute

preventing the ICC from proceeding against members of the Armed Forces of the United States present in that

country.”).

²⁷⁸ See, e.g., 22 U.S.C. §§ 7421-7433; 22 U.S.C. § 7401(b).

²⁷⁹ Barak Obama, National Security Strategy of the United States, 22 (Feb. 2015) (“We will work with the

international community to prevent and call to account those responsible for the worst human rights abuses,

including through support to the International Criminal Court, consistent with U.S. law and our commitment to

protecting our personnel.”); Barak Obama, National Security Strategy of the United States, 48 (May 2010)

(“Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC),

and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern

and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the

requirements of U.S. law.”); Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international

criminal justice at the Vera Institute of Justice in New York and at Leiden University, Campus The Hague, 2012

DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 61, 67 (“So, while the United States will always

protect U.S. personnel, we are engaging with States parties to the Rome Statute on issues of concern, and we have

applied a pragmatic, case-by-case approach towards ICC issues.”).

1111

121 and 123 of the Rome Statute defining the crime and setting out the conditions under which

the ICC shall exercise jurisdiction with respect to this crime.²⁸⁰ A 2010 Review Conference in

Kampala, Uganda adopted amendments concerning the crime of aggression, but the amendments

are subject to ratification or acceptance,²⁸¹ and certain conditions must be fulfilled before the

ICC will be able to exercise jurisdiction with respect to the crime of aggression.²⁸² The United

States has expressed the view that the definitions of “act of aggression” and “crime of

aggression” in the Kampala amendments do not reflect customary international law.²⁸³ The

United States has expressed a broad range of other concerns about the Kampala amendments,

including concerns regarding the possibility of the ICC exercising jurisdiction over the crime of

aggression without a prior determination by the Security Council that a State has committed an

act of aggression.²⁸⁴

18.20.4 Hybrid or Mixed Tribunals. In some cases, an international tribunal may mix

elements of domestic and international law. For example, war crimes trials by national tribunals

were conducted after World War II under the military government formed by the Allies to

govern occupied Germany.²⁸⁵

²⁸⁰ ROME STATUTE art. 5(2) (“The Court shall exercise jurisdiction over the crime of aggression once a provision is

adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the

Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant

provisions of the Charter of the United Nations.”).

²⁸¹ See Resolution RC/Res.6, Review Conference of the Rome Statute of the International Criminal Court, Kampala,

Uganda, Jun. 11, 2010 (“1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the

International Criminal Court (hereinafter: ‘the Statute’) the amendments to the Statute contained in annex I of the

present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article

121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to

ratification or acceptance;”).

²⁸² See, e.g., Article 15 bis, Amendments to the Rome Statute of the International Criminal Court on the Crime of

Aggression, Annex I to Resolution RC/Res.6, Review Conference of the Rome Statute of the International Criminal

Court, Kampala, Uganda, Jun. 11, 2010 (“2. The Court may exercise jurisdiction only with respect to crimes of

aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3.

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a

decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an

amendment to the Statute.”).

²⁸³ Harold Hongju Koh, Legal Adviser, Department of State, Statement at the Review Conference of the

International Criminal Court, Jun. 4, 2010 (“[T]he definition of aggression does not truly reflect customary

international law, i.e., widespread and consistent state practice followed out of a sense of legal obligation.”).

²⁸⁴ Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, Remarks at the Annual

Meeting of the American Society of International Law: The ICC Crime of Aggression and the Changing

International Security Landscape, Apr. 9, 2015 (“Many of our concerns - and many of the means of mitigating them

- are linked to the uncertainty that still surrounds crucial aspects of the amendments and how they may be

interpreted and applied. The definition of the crime itself, as adopted in Kampala, was ostensibly based on an earlier

UN resolution that gave guidance to the Security Council on identifying acts of aggression. But the definition that

the parties adopted stripped away the critical requirement that the assessment of a use of force ‘must be considered

in light of all the circumstances of each particular case,’ and it shifted the role of applying this guidance and making

these judgments - which inevitably involve political judgments - from the Security Council to a judicial body meant

to remain above politics.”).

²⁸⁵ See generally DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 224-33 (Oct. 23, 1962).

1112

More recently, hybrid tribunals have been established in Sierra Leone, Cambodia, and

Lebanon. The Special Court for Sierra Leone was established by a treaty between Sierra Leone

and the United Nations.²⁸⁶ The Special Court applies both international and Sierra Leonean

law.²⁸⁷ Similarly, in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC)

was established under Cambodian domestic law, but regulated by an agreement between

Cambodia and the United Nations.²⁸⁸ The Special Tribunal for Lebanon was established

following an agreement between the United Nations and Lebanon to prosecute, inter alia,

persons responsible for the February 2005 attack resulting in the death of former Lebanese Prime

Minister Rafiq Hariri.²⁸⁹

18.21 LIMITS ON THE PUNISHMENT OF INDIVIDUALS UNDER THE LAW OF WAR

International law places certain limits on the authority of States, whether acting

individually, or together with other States, to punish individuals for violations committed during

armed conflict.

²⁸⁶ See Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a

Special Court for Sierra Leone, in Appendix II to Letter dated 6 March 2002 from the Secretary-General addressed

to the President of the Security Council, U.N. Doc S/2002/246, 17 (Mar. 8, 2002). See also U.N. SECURITY

COUNCIL RESOLUTION 1315, U.N. Doc S/RES/1315 (Aug. 14, 2000) (“Requests the Secretary-General to negotiate

an agreement with the Government of Sierra Leone to create an independent special court consistent with this

resolution,”).

²⁸⁷ Statute of the Special Court for Sierra Leone, art. 1(1) Attachment to Agreement between the United Nations and

the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, in Appendix II to Letter

dated 6 March 2002 from the Secretary-General addressed to the President of the Security Council, U.N. Doc

S/2002/246, 17 (Mar. 8, 2002) (“There is hereby established a Special Court for Sierra Leone to prosecute persons

who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law

committed in the territory of Sierra Leone since 30 November 1996.”).

²⁸⁸ See Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the

Vera Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED

STATES PRACTICE IN INTERNATIONAL LAW 61, 66 (“Similarly, in Cambodia, the international community worked

long and hard with domestic authorities to pursue accountability for atrocity crimes that took place decades ago.

The Khmer Rouge Tribunal - formally, the Extraordinary Chambers in the Courts of Cambodia (ECCC) - was a

different type of hybrid, established under domestic law but regulated by a UN-Cambodia agreement.”). See also

U.N. GENERAL ASSEMBLY, Report of the Secretary-General on Khmer Rouge trials, U.N. Doc A/60/565 (Nov. 25,

2005) (“On 28 April 2005 a notification was sent to the Government of Cambodia indicating that the legal

requirements on the United Nations side for the entry into force of the Agreement between the United Nations and

the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed

during the Period of Democratic Kampuchea, done at Phnom Penh on 6 June 2003, had been complied with. The

Agreement accordingly entered into force on 29 April 2005, the day after the notification, in accordance with its

article 32. The Government of Cambodia had previously provided its notification under that article, on 16

November 2004.”).

²⁸⁹ Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for

Lebanon, art. 1, Annex to U.N. SECURITY COUNCIL RESOLUTION 1757, U.N. Doc S/RES/1757 (2007) (“There is

hereby established a Special Tribunal for Lebanon to prosecute persons responsible for the attack of 14 February

2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other

persons.”).

1113

18.21.1 Jurisdiction Over War Crimes. States must have jurisdiction over an alleged

offense to prosecute a person for committing war crimes or other punishable offenses committed

during armed conflict.²⁹⁰

Jurisdiction over war crimes has traditionally been exercised by belligerents with respect

to offenses committed by or against their nationals.²⁹¹ In addition, belligerents have also

prosecuted war crimes committed by enemy nationals against nationals of allies and of co-

belligerents, and stateless persons.²⁹² Because jurisdiction over war crimes has sometimes been

exercised by belligerents against enemy nationals without regard to the territorial location of the

offense, it has sometimes been characterized as “universal” in character.²⁹³

²⁹⁰ See, e.g., United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE

NMT 969-70 (“We are empowered to determine the guilt or innocence of persons accused of acts described as ‘war

crimes’ and ‘crimes against humanity’ under rules of international law. At this point, in connection with cherished

doctrines of national sovereignty, it is important to distinguish between the rules of common international law which

are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are

by no means universal on the other. … This universality and superiority of international law does not necessarily

imply universality of its enforcement.”).

²⁹¹ United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE NMT 1189-90

(Separate Opinion of Judge Blair) (“[D]uring hostilities and before their formal termination belligerents have

concurrent jurisdiction over war crimes committed by the captured enemy persons in their territory or against their

nationals in time of war. … After armistice or peace agreement the matter of punishment of war crimes is

determined by the terms thereof.”); United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR

CRIMINALS BEFORE THE NMT 460 (rejecting the defense counsel’s argument that Russia’s could not participate in

the Tribunal instead explaining that “Russia's participation in the formulation of Control Council Law No. 10 is in

accordance with every recognized principle of international law,” because “[t]here is no authority which denies any

belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law” and

“no one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May

1945 was anything but war, and, being war, that Russia would not have the right to try the alleged violators of the

rules of war on her territory and against her people.”).

²⁹² 1956 FM 27-10 (Change No. 1 1976) ¶507a (“The jurisdiction of United States military tribunals in connection

with war crimes is not limited to offenses committed against nationals of the United States but extends also to all

offenses of this nature committed against nationals of allies and of cobelligerents and stateless persons.”).

²⁹³ See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 155 footnote 12 (“It is generally agreed that post

World War II practice has firmly established the so-called principle of ‘universality of jurisdiction over war crimes,’

thereby permitting belligerents to exercise jurisdiction over individuals accused of war crimes without regard to the

place where an offense was committed or to the nationality of the victims. In its most general form this principle

might well be interpreted to permit neutral states to try and punish war criminals who fall under their control. But

there is no record of neutral states making such an attempt, and the right of neutrals to do so remains doubtful.”); G.

Brand, The War Crimes Trials and the Laws of War, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 414, 416

(1951) (“Thus the doctrine of universality of war crimes is now generally accepted. Account has been taken of the

crime itself rather than of (a) the nationality of the victim, provided that he has been, from the point of view of the

court, an Allied national or could be treated as such; (b) the nationality of the accused, provided that he can be

regarded as having identified himself with the enemy; or (c) the place of the offence.”); Willard B. Cowles,

Universality of Jurisdiction over War Crimes, 33 CALIFORNIA LAW REVIEW 177, 178 (1945) (describing the

question of “whether the jurisdiction principle of universality is applicable to the punishment of war crimes” as “the

question whether, under international law, a belligerent State has jurisdiction to punish an enemy war criminal in its

custody when the victim of the war crime was a national of another State and the offense took place outside of

territory under control of the punishing State.”).

1114

In the past, neutral States generally did not exercise jurisdiction with respect to alleged

law of war violations between belligerents.²⁹⁴ For example, States have declined to exercise

jurisdiction with respect to offenses committed by enemy nationals before those States became

involved in an armed conflict with that State.²⁹⁵

Some have argued that States may exercise purely universal jurisdiction over war crimes,

i.e., jurisdiction to define and prescribe punishment based simply on the character of the offense

as a war crime.²⁹⁶ Until the 1990s, no such attempts were made by States to exercise jurisdiction

on this basis.²⁹⁷ Congress declined to authorize prosecutions for war crimes based on this

²⁹⁴ La Amistad De Rues, 18 U.S. 385, 390 (1820) (“consider[ing] it no part of the duty of a neutral nation to

interpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of a

capture between belligerents” and noting that alleged law of war violations between belligerents “have never been

held within the cognizance of the prize tribunals of neutral nations.”); Juando v. Taylor, 13 F. Cas. 1179, 1189

(S.D.N.Y. 1818) (No. 7558) (explaining that “no suit or proceeding of any sort can be maintained in the courts of a

neutral nation, by the subjects of one belligerent against the subjects of the other, for acts growing out of the war”).

²⁹⁵ See James Brown Scott and Robert Lansing, Memorandum of Reservations Presented by the Representatives of

the United States to the Report of the Commission on Responsibilities, Annex II to the Report Presented to the

Preliminary Peace Conference, Mar. 29, 1919, by the Commission on the Responsibility of the Authors of the War

and on Enforcement of Penalties, reprinted in 14 AJIL 95, 147 (1920) (“It seemed elementary to the American

representatives that a country could not take part in the trial and punishment of a violation of the laws and customs

of war committed by Germany and her Allies before the particular country in question had become a party to the

war against Germany and her Allies; that consequently the United States could not institute a military tribunal within

its own jurisdiction to pass upon violations of the laws and customs of war, unless such violations were committed

upon American persons or American property, and that the United States could not properly take part in the trial and

punishment of persons accused of violations of the laws and customs of war committed by the military or civil

authorities of Bulgaria or Turkey.”). Cf. United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR

WAR CRIMINALS BEFORE THE IMT 254 (“To constitute Crimes against Humanity, the acts relied on before the

outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the

Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been

satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal

therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the

meaning of the Charter, but from the beginning of the war in 1939 War Crimes were committed on a vast scale,

which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and

committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or

in connection with, the aggressive war, and therefore constituted Crimes against Humanity.”).

²⁹⁶ I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 254 (§404, Reporters’ Note 1)

(1987) (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the

community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft,

genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in

§ 402 is present.”); but see I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 257-58

(§404, Reporters’ Note 3) (1987) (“The previous Restatement cited only piracy as an offense subject to universal

jurisdiction. See § 34. Reporters’ Note 2 of that section listed other crimes of universal interest but indicated they

were not yet subject to universal jurisdiction as a matter of international law.”).

²⁹⁷ I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 256 (1987) (“apparently no state

has exercised such jurisdiction [over war crimes and genocide] in circumstances where no other basis for

jurisdiction under § 402 was present.”); Committee on the Judiciary, House of Representatives Report No. 104-698,

8 (Jul. 24, 1996) (“The Committee has been informed that there has never been a single case of a signatory country

to the Geneva conventions exercising its own criminal jurisdiction over an alleged war criminal on the basis of

universal jurisdiction.”).

1115

principle.²⁹⁸ Efforts by certain States to undertake prosecutions on the basis of this principle

have been controversial.²⁹⁹ Such prosecutions have generally not been successful unless the

State concerned has consented.³⁰⁰

18.21.2 Tu Quoque. The international law doctrine tu quoque may be understood as an

argument that a State does not have standing to complain about a practice in which it itself

engages.³⁰¹

For example, it would seem unfair for a State to punish members of opposing military

forces for committing acts that it considered lawful for members of its armed forces to

²⁹⁸ See Committee on the Judiciary, House of Representatives Report No. 104-698, 8 (Jul. 24, 1996) (“The

Committee decided that the expansion of H.R. 3680 to include universal jurisdiction would be an unwise [sic] at

present. Domestic prosecution based on universal jurisdiction could draw the United States into conflicts in which

this country has no place and where our national interests are slight. In addition, problems involving witnesses and

evidence would likely be daunting. This does not mean that war criminals should go unpunished. There are ample

alternative venues available which are more appropriate. Prosecutions can be handled by the nations involved or by

international tribunal. If a war criminal is discovered in the United States, the federal government can extradite the

individual upon request in order to facilitate prosecution overseas. The Committee is not presently aware that these

alternative venues are inadequate to meet the task.”).

²⁹⁹ See, e.g., Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002

I.C.J. 35, 43 (¶15) (Separate Opinion of President Guillaume) (“International criminal law has itself undergone

considerable development and constitutes today an impressive legal corpus. It recognizes in many situations the

possibility, or indeed the obligation, for a State other than that on whose territory the offence was committed to

confer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory.

International criminal courts have been created. But at no time has it been envisaged that jurisdiction should be

conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims

and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total

judicial chaos. It would also be to encourage the arbitrary, for the benefit of the powerful, purportedly acting as

agent for an ill-defined ‘international community.’ Contrary to what is advocated by certain publicists, such a

development would represent not an advance in the law but a step backward.”).

³⁰⁰ Roman Anatolevich Kolodkin, Special Rapporteur, U.N. International Law Commission, Second report on

immunity of State officials from foreign criminal jurisdiction, U.N. Doc A/CN.4/631, ¶16 (Jun. 10, 2010) (“It is

noted that until now attempts to exercise universal jurisdiction that have been successful have just taken place in

cases where the State concerned consented. In other cases, States usually react negatively to attempts to exercise

foreign criminal jurisdiction even over their former Heads of State and Government, as they also do, however, in

respect of other high-ranking officials. In the absence of cooperation with the State whose official a case concerns,

the proper and legally correct criminal prosecution of such a person is practically impossible. On the whole,

therefore, such attempts end up merely complicating relations between States.”).

³⁰¹ Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in

Information Operations 46 (May 1999) (“The lack of strong international legal sanctions for peacetime espionage

may also constitute an implicit application of the international law doctrine called “tu quoque” (roughly, a nation has

no standing to complain about a practice in which it itself engages). Whatever the reasons, the international legal

system generally imposes no sanctions upon nations for acts of espionage except for the political costs of public

denunciation, which don’t seem very onerous.”). See also FRITS KALSHOVEN, BELLIGERENT REPRISALS 364 (“There

is, however, another possible view of tu quoque, according to which this does not so much constitute a substantive

justificatory ground as an argument of a procedural order, to the effect that a belligerent cannot charge his enemy

with a particular form of illegal warfare if he has himself violated the same rule or rules, without this being justified

as a reprisal. For this argument, it is not important whether the belligerent was the first to commit that violation, nor

even whether he was aware that the enemy was guilty of the same illegal conduct: the contention is that the mere

fact of his having infringed the identical norm precludes him from charging that particular illegality against the

enemy.”).

1116

perform.³⁰² On the other hand, as a general matter, the fact that criminal acts have been

committed by opposing armed forces does not constitute a defense to criminal liability. In

addition, as a general matter, the fact that members of its armed forces have committed a

violation does not preclude a State from punishing captured members of opposing armed forces

for such violations.³⁰³ Similarly, the authority of a State to punish its own citizens, in

accordance with municipal criminal law, for violations of international law is not affected by this

rule.³⁰⁴

18.21.3 Fundamental Fairness Requirements.

18.21.3.1 Fair Trial Requirements. Any person charged with a crime under

international law has the right to a fair trial on the facts and law.³⁰⁵

In all circumstances, persons who are accused of grave breaches of the 1949 Geneva

Conventions shall benefit from safeguards of proper trial and defense, which shall not be less

favorable than those provided by Article 105 and those following of the GPW.³⁰⁶ In addition,

other fundamental fair trial guarantees should be afforded.³⁰⁷

18.21.3.2 Punishment of Violations of the Law of War. The punishment of war

crimes may vary according to the particular forum in which the prosecution is brought. For

example, what punishments are authorized may depend on a State’s domestic law or the statute

³⁰² United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 313

(“In view of all of the facts proved, and in particular of an order of the British Admiralty announced on 8 May 1940,

according to which all vessels should be sunk at night in the Skagerrak, and the answer to interrogatories by Admiral

Nimitz that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first

day that nation entered the war, the sentence of Donitz is not assessed on the ground of his breaches of the

international law of submarine warfare.”).

³⁰³ See United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE

NMT 482 (“Under general principles of law, an accused does not exculpate himself from a crime by showing that

another committed a similar crime, either before or after the alleged commission of the crime by the accused.”).

³⁰⁴ Sentence of the Bundesgerichtshof of Sept. 30, 1960, reprinted in FRITS KALSHOVEN, BELLIGERENT REPRISALS

365 footnote 15 (2005) (citing 32 International Law Reports 564) (“The rule of ‘tu quoque’ merely means that no

State may accuse another State of violations of international law and exercise criminal jurisdiction over the latter’s

citizens in respect of such violations if it is itself guilty of similar violations against the other State or its allies. The

right and duty of a State to hold its own citizens responsible, in accordance with municipal criminal law, for

violations of international law is not affected by this rule.”).

³⁰⁵ U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,

374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE V Any person charged with a crime

under international law has the right to a fair trial on the facts and law.”).

³⁰⁶ GWS art. 49 (“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence,

which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention

relative to the Treatment of Prisoners of War of August 12, 1949.”); GWS-SEA art. 50 (same); GC art. 146 (same);

GPW art. 129 (“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence,

which shall not be less favourable than those provided by Article 105 and those following of the present

Convention.”). Refer to § 9.28.4 (Rights of Defense and Trial Procedure).

³⁰⁷ Refer to § 8.16 (Criminal Procedure and Punishment).

1117

of an international criminal tribunal. In addition, special rules address the punishment of POWs

and protected persons. However, the following principles apply, as a matter of international law,

to the punishment of violations of the law of war:

• The punishment imposed for a violation of the law of war must be proportionate to the

gravity of the offense.

• The death penalty may be imposed for grave breaches of the law.

• Corporal punishment is excluded.

• Punishments should be deterrent, and in imposing a sentence of imprisonment it is not

necessary to take into consideration the end of the war, which does not of itself limit the

imprisonment to be imposed.³⁰⁸

18.21.4 Limitations on the Trial and Punishment of Certain Classes of Persons.

18.21.4.1 Limitations on the Trial and Punishment of POWs. The trial and

punishment of POWs must comport with the rules prescribed by the GPW.³⁰⁹

18.21.4.2 Limitations on the Trial and Punishment of Protected Persons. The

trial and punishment of protected persons must comport with the rules prescribed by the GC.³¹⁰

18.21.4.3 Limitations on the Trial and Punishment of Persons Entitled to the

Privileges of Combatant Status. As a matter of international law, persons who are entitled to the

privileges of combatant status have a certain legal immunity from the domestic law of foreign

States.³¹¹

18.22 PRINCIPLES OF INDIVIDUAL CRIMINAL RESPONSIBILITY FOR CRIMES UNDER INTERNATIONAL

LAW

Individual criminal responsibility exists for certain violations of the international law.

18.22.1 Individual Criminal Responsibility for Acts Constituting Crimes Under

International Law. Any person who commits an act that constitutes a crime under international

³⁰⁸ 1956 FM 27-10 (Change No. 1 1976) ¶508 (“The punishment imposed for a violation of the law of war must be

proportionate to the gravity of the offense. The death penalty may be imposed for grave breaches of the law.

Corporal punishment is excluded. Punishments should be deterrent, and in imposing a sentence of imprisonment it

is not necessary to take into consideration the end of the war, which does not of itself limit the imprisonment to be

imposed.”).

³⁰⁹ Refer to § 9.26 (General Principles Applicable to POW Discipline); § 9.28 (Judicial Proceedings and

Punishment).

³¹⁰ Refer to § 10.27 (General Provisions Applicable to Both Judicial and Disciplinary Sanctions Regarding

Internees); § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a

Belligerent’s Home Territory).

³¹¹ Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

1118

law is responsible therefor and liable to punishment.³¹² International law imposes duties and

liabilities on individuals as well as States, and individuals may be punished for violations of

international law.³¹³

18.22.2 Absence of Penalty Under Domestic Law Does Not Relieve a Person of

Responsibility. The fact that internal law does not impose a penalty for an act that constitutes a

crime under international law does not relieve the person who committed the act from

responsibility under international law.³¹⁴

For example, a State may lack domestic legislation that imposes any penalty for an act

that violates international law. Nonetheless, just as a State’s municipal law cannot excuse its

failure to comply with its international legal obligations, a person is not relieved of responsibility

for an act constituting a crime under international law because his or her State’s municipal law

does not impose any penalty for the offense.³¹⁵

18.22.3 Official Position Does Not Relieve a Person of Responsibility. The fact that a

person who committed an act which constitutes a crime under international law acted as Head of

State or responsible Government official does not relieve him or her of responsibility under

international law.³¹⁶

³¹² See U.N. International Law Commission, Principles of International Law Recognized in the Charter of the

Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its

Second Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW

COMMISSION 1950, 374 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE I Any person who

commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”).

³¹³ United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 223

(“That international law imposes duties and liabilities upon individuals as well as upon States has long been

recognized. … Many other authorities could be cited, but enough has been said to show that individuals can be

punished for violations of international law. Crimes against international law are committed by men, not by abstract

entities, and only by punishing individuals who commit such crimes can the provisions of international law be

enforced.”) (citing Ex parte Quirin, 317 U.S. 1 (1942)). Compare § 10.3.5 (State Responsibility for Its Agents’

Treatment of Protected Persons).

³¹⁴ U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,

374 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE II The fact that internal law does not impose

a penalty for an act which constitutes a crime under international law does not relieve the person who committed the

act from responsibility under international law.”).

³¹⁵ Refer to § 1.10.1.4 (Force of International Law Notwithstanding a State’s Domestic Law).

³¹⁶ U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,

374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE III The fact that a person who

committed an act which constitutes a crime under international law acted as Head of State or responsible

Government official does not relieve him from responsibility under international law.”).

1119

This principle has been reflected in the statutes of international criminal tribunals.³¹⁷

18.22.4 Acting Pursuant to Orders Does Not Relieve a Person of Responsibility. The fact

that a person acted pursuant to orders of his or her Government or of a superior does not relieve

that person from responsibility under international law, provided it was possible in fact for that

person to make a moral choice.³¹⁸ This principle has been reflected in the statutes of

international criminal tribunals.³¹⁹ It may also be understood as part of a broader principle that

military personnel cannot justify committing unlawful acts by producing the order of their

superior.³²⁰

Although it is clear that merely the fact that the act at issue was committed pursuant to

superior orders does not constitute a defense to criminal responsibility under international law,

the precise extent to which superior orders may constitute a defense or excuse may vary

according to the forum in which a violation is tried.³²¹

³¹⁷ Charter of the International Military Tribunal, art. 7, annexed to Agreement by the Government of the United

Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional

Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the

Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288

(“The official position of defendants, whether as Heads of State or responsible officials in Government Departments,

shall not be considered as freeing them from responsibility or mitigating punishment.”); ICTY STATUTE art. 7(2)

(“The official position of any accused person, whether as Head of State or Government or as a responsible

Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”).

³¹⁸ See U.N. International Law Commission, Principles of International Law Recognized in the Charter of the

Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its

Second Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW

COMMISSION 1950, 374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE IV The fact that a

person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under

international law, provided a moral choice was in fact possible to him.”).

³¹⁹ Charter of the International Military Tribunal, art. 8, annexed to Agreement by the Government of the United

Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional

Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the

Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288

(“The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from

responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so

requires.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order of a Government or

of a superior shall not relieve him of criminal responsibility, … .”); ICTR STATUTE art. 6(4) (“The fact that an

accused person acted pursuant to an order of a Government or of a superior shall not relieve him [or her] of criminal

responsibility … .”).

³²⁰ See Mitchell v. Harmony, 54 U.S. 115, 137 (1851) (“Consequently the order given was an order to do an illegal

act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was

executed

And upon principle, independent of the weight of judicial decision, it can never be maintained that a

military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may

palliate, but it cannot justify.”).

³²¹ LEVIE, POWS 389 (“The Commission of Experts convened by the ICRC in December 1948 in connection with

the grave-breaches provisions which had been approved and the Resolution which had been adopted by the 1948

Stockholm Conference, drafted a proposed article relating solely to the defense of superior orders. The 1949

Diplomatic Conference did not include such a provision in the Convention as finally approved. Accordingly, this

problem will once again have to be resolved on a national basis. Efforts to solve it on an international basis in

related areas have been undertaken by various organs of the United Nations, but those efforts have complicated,

1120

In cases in which the illegality of the order is not apparent, the subordinate might lack the

wrongful intent necessary to the commission of the crime.³²² Subordinates, absent specific

knowledge to the contrary, may presume orders to be lawful.³²³ The acts of a subordinate done

in compliance with an unlawful order given by a superior are generally excused unless the

superior’s order is one that a person of ordinary sense and understanding would, under the

circumstances, know to be unlawful (e.g., to torture or murder a detainee), or if the order in

question is actually known to the accused to be unlawful.³²⁴

On the other hand, subordinates must refuse to comply with clearly illegal orders to

commit violations of the law of war.³²⁵

That an offense was committed pursuant to superior orders may be considered in

mitigation of punishment.³²⁶ The degree to which superior orders should mitigate punishment

would depend on the specific circumstances of the case.³²⁷

rather than clarified, the problem. It is obvious that there is no clear and well-defined rule which will be applied to

the defense of superior orders when it is advanced, as it undoubtedly will be, in future trials for violations of the

grave breaches and other provisions of the 1949 Convention. However, it is believed that it may be safely stated

that, as after World War II, the mere fact that the act complained of was committed pursuant to superior orders will

not suffice as a defense.”).

³²² United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (“We are

of the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably

have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and

the interior [sic] will be protected. But the general rule is that members of the armed forces are bound to obey only

the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command

which violates international law and outrages fundamental concepts of justice.”).

³²³ Refer to § 18.3.2.1 (Clearly Illegal Orders to Commit Law of War Violations).

³²⁴ United States v. Calley, 22 U.S.C.M.A. 534, 542 (C.M.A. 1973) (“The acts of a subordinate done in compliance

with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the

superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to

be unlawful, or if the order in question is actually know to the accused to be unlawful.”).

³²⁵ Refer to § 18.3.2 (Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations).

³²⁶ See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶509a (“In all cases where the order is held not to constitute a

defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in

mitigation of punishment.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order of

a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation

of punishment if the International Tribunal determines that justice so requires.”); ICTR STATUTE art. 6(4).

³²⁷ For example, Trial of Lieutenant-General Shigeru Sawada and Three Others, V U.N. LAW REPORTS 1, 7 (U.S.

Military Commission, Shanghai, Feb. 27-Apr. 15, 1946) (“The offences of each of the accused resulted largely from

obedience to the laws and instructions of their Government and their Military Superiors. They exercised no

initiative to any marked degree. The preponderance of evidence shows beyond reasonable doubt that other officers,

including high governmental and military officials, were responsible for the enactment of the Ex Post Facto ‘Enemy

Airmen’s Law’ and the issuance of special instructions as to how these American prisoners were to be treated, tried,

sentenced and punished. The circumstances set forth above do not entirely absolve the accused from guilt.

However, they do compel unusually strong mitigating consideration, applicable to each accused in various

degrees.”).

1121

18.23 THEORIES OF INDIVIDUAL CRIMINAL LIABILITY

Individuals may be held liable for violations of the law of war whether they have

committed them directly or are complicit in the commission of such crimes.³²⁸

The theories of liability that apply to a law of war violation may vary depending on the

particular forum (e.g., U.S. Federal court, U.S. military commission, International Criminal

Tribunal for the Former Yugoslavia) in which the violation is being adjudicated. Modes of

liability for law of war offenses may include ordering, instigating or directly inciting, command

responsibility, aiding and abetting, conspiracy, and joint criminal enterprise.

In some cases, these theories of liability may be viewed as ways of attributing an offense

that is committed by one person to another person. In other cases, these theories of liability may

be viewed as distinct offenses; for example, a first offense is committed by one person and a

second offense is committed by another person that is somehow related to the first offense.

18.23.1 Ordering. A person who orders another person to commit an offense is generally

punishable as though that person had committed the offense directly.

This principle is reflected in the Uniform Code of Military Justice.³²⁹ Statutes of

international criminal tribunals have also reflected this mode of liability.³³⁰

18.23.2 Instigating or Directly Inciting. Instigating or direct incitement of an offense is

punishable.³³¹ Statutes of international criminal tribunals have also reflected this mode of

liability.³³²

³²⁸ U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg

Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,

5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,

374, 377 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE VII Complicity in the commission of a

crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under

international law.”).

³²⁹ 10 U.S.C. § 877 (“Any person punishable under this chapter who— (1) commits an offense punishable by this

chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if

directly performed by him would be punishable by this chapter; is a principal.”).

³³⁰ See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall

be individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,

committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles

2 to 4 of the present Statute, shall be individually responsible for the crime.”).

³³¹ 1956 FM 27-10 (Change No. 1 1976) ¶500 (“Conspiracy, direct incitement, and attempts to commit, as well as

complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.”).

³³² See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall

be individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,

committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles

2 to 4 of the present Statute, shall be individually responsible for the crime.”).

1122

18.23.3 Command Responsibility. Commanders have duties to take necessary and

reasonable measures to ensure that their subordinates do not commit violations of the law of

war.³³³ Failures by commanders of their duties to take necessary and reasonable measures to

ensure that their subordinates do not commit violations of the law of war can result in criminal

responsibility.³³⁴

18.23.3.1 Command Responsibility as a Distinct Offense. Commanders may be

punished directly for their failure to take necessary and reasonable measures to ensure that their

subordinates do not commit violations of the law of war. For example, such failures may be

punished under the Uniform Code of Military Justice as dereliction of duty or violation of orders

to take such measures.³³⁵

18.23.3.2 Command Responsibility as a Mode of Liability for an Offense. In

some cases, the failure by commanders to fulfill their duties to take necessary and reasonable

measures to ensure that their subordinates do not commit violations of the law of war are not

punished directly as breaches of those duties, but instead by imputing responsibility for the

offense committed by the subordinates to the commander.

Command responsibility as a mode of liability for an offense is reflected in U.S. statutes

governing military commissions.³³⁶ The statutes of international tribunals have also reflected

³³³ Refer to § 18.4 (Commanders’ Duty to Implement and Enforce the Law of War).

³³⁴ See also 1956 FM 27-10 (Change No. 1 1976) ¶501 (“In some cases, military commanders may be responsible

for war crimes committed by subordinate members of the armed forces, or other persons subject to their control.

Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory

or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the

commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an

order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have

knowledge, through reports received by him or through other means, that troops or other persons subject to his

control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to

insure compliance with the law of war or to punish violators thereof.”). Consider AP I art. 86(2) (“The fact that a

breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from

penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled

them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and

if they did not take all feasible measures within their power to prevent or repress the breach.”).

³³⁵ Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).

³³⁶ 10 U.S.C. § 950q (“Any person is punishable under this chapter who— … (3) is a superior commander who, with

regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate

was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to

prevent such acts or to punish the perpetrators thereof, is a principal.”).

1123

command responsibility as a mode of liability.³³⁷ In some cases, this theory of superior

responsibility has been applied to civilian superiors.³³⁸

Command responsibility, as a mode of liability, is not a form of strict liability.³³⁹ The

commander’s personal dereliction must have contributed to or failed to prevent the offense; there

must be a personal neglect amounting to a wanton, immoral disregard of the action of his or her

subordinates amounting to acquiescence in the crimes.³⁴⁰

18.23.4 Aiding and Abetting. The theory of aiding and abetting holds an individual liable

for an offense committed by another based on certain assistance that the individual gave in

relation to the crime. Aiding and abetting liability for a crime can be usefully analyzed as

consisting of three elements: (1) knowledge of the illegal activity that is being aided and abetted;

(2) a desire to help the activity succeed; and (3) some act of helping.³⁴¹

This theory of liability is applicable in prosecutions in Federal court under title 18,³⁴²

prosecutions under the Uniform Code of Military Justice,³⁴³ and prosecutions by U.S. military

³³⁷ See ICTY STATUTE art. 7(3) (“The fact that any of the acts referred to in articles 2 to 5 of the present Statute was

committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know

that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and

reasonable measures to prevent such acts or to punish the perpetrators thereof.”); ICTR STATUTE art. 6(3) (same);

ROME STATUTE art. 28.

³³⁸ See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, ¶132 (Jan. 27, 2000)

(“As to whether the form of individual criminal responsibility referred to under Article 6(3) of the Statute also

applies to persons in both military and civilian authority, it is important to note that during the Tokyo Trials, civilian

authorities were convicted of war crimes under this principle.”).

³³⁹ See also Prosecutor v. Kordic and Cerkez, ICTY Trial Chamber, IT-95-14/2-T, Judgment, ¶369 (Feb. 26, 2001)

(“It should be emphasised that the doctrine of command responsibility does not hold a superior responsible merely

because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or

had reason to know’ of the offences and failed to act to prevent or punish their occurrence. Superior responsibility,

which is a type of imputed responsibility, is therefore not a form of strict liability.”).

³⁴⁰ United States v. von Leeb, et al. (High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 543

(“A high commander cannot keep completely informed of the details of military operations of subordinates and most

assuredly not of every administrative measure. He has the right to assume that details entrusted to responsible

subordinates will be legally executed. The President of the United States is Commander in Chief of its military

forces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory of

subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to

every individual in this chain of command from that fact alone. There must be a personal dereliction. That can

occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates

constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton,

immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of

international law would go far beyond the basic principles of criminal law as known to civilized nations.”).

³⁴¹ Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down Civil

Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 156

(“Aiding and abetting liability for a crime can be usefully analyzed as consisting of three elements: ‘[1] knowledge

of the illegal activity that is being aided and abetted, [2] a desire to help the activity succeed, and [3] some act of

helping.’ All three elements must be present for aiding and abetting liability to attach.”) (changes in original)

(citation omitted).

³⁴² 18 U.S.C. § 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands,

induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done

1124

commission.³⁴⁴ This theory of liability has also been reflected in the statutes of international

criminal tribunals.³⁴⁵

18.23.4.1 Aiding and Abetting as a Principle of State Responsibility. The

principle of aiding and abetting is also reflected in principles of State responsibility.³⁴⁶ As with

the principle of aiding and abetting when applied to individuals, the aid or assistance must be

given with a view to facilitating the commission of the wrongful act, and must actually do so, in

order for the State giving the aid to incur liability.³⁴⁷

18.23.4.2 Aiding and Abetting Certain Conduct as a Distinct Offense Instead of a

Mode of Liability for an Offense. In some cases, aiding certain conduct is a distinct offense as

opposed to a mode of liability for an offense. These cases reflect circumstances in which (or a

judgment that) there is a duty to refrain from aiding that conduct.³⁴⁸

which if directly performed by him or another would be an offense against the United States, is punishable as a

principal.”).

³⁴³ 10 U.S.C. § 877 (“Principals. Any person punishable under this chapter who- (1) commits an offense punishable

by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done

which if directly performed by him would be punishable by this chapter; is a principal.”).

³⁴⁴ 10 U.S.C § 950q (“Any person punishable under this chapter who—(1) commits an offense punishable by this

chapter, or aids, abets, counsels, commands, or procures its commission; (2) causes an act to be done which if

directly performed by him would be punishable by this chapter;”).

³⁴⁵ ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and abetted

in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be

individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,

committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles

2 to 4 of the present Statute, shall be individually responsible for the crime.”); ROME STATUTE art. 25 (“In

accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within

the jurisdiction of the Court if that person: … [¶3(c)] For the purpose of facilitating the commission of such a crime,

aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its

commission;”).

³⁴⁶ U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,

with commentaries, art. 16 (2001) (“A State which aids or assists another State in the commission of an

internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with

knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally

wrongful if committed by that State.”).

³⁴⁷ U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,

with commentaries, 66 (2001) (“The second requirement is that the aid or assistance must be given with a view to

facilitating the commission of the wrongful act, and must actually do so. This limits the application of article 16 to

those cases where the aid or assistance given is clearly linked to the subsequent wrongful conduct. A State is not

responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance

given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually

committed by the aided or assisted State. There is no requirement that the aid or assistance should have been

essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that

act.”).

³⁴⁸ See, e.g.,10 U.S.C. § 904 (making punishable “aiding the enemy”); 10 U.S.C. § 950t(25) (making punishable by

military commission “providing material support to terrorism”); 10 U.S.C. § 950t(26) (making punishable by

military commission “wrongfully aiding the enemy”); 18 U.S.C. § 2339A (making punishable “[p]roviding material

1125

18.23.5 Conspiracy. The essence of conspiracy is the combination of minds in an

unlawful purpose.³⁴⁹

The United States has taken the position that conspiracy to violate the law of war is

punishable.³⁵⁰ The United States has used military tribunals to punish unprivileged belligerents

for the offense of conspiracy to violate the law of war.³⁵¹

Conspiracy is an offense under the Uniform Code of Military Justice.³⁵² Conspiracy is an

support to terrorists”); 18 U.S.C. § 2339B (making punishable “[p]roviding material support or resources to

designated foreign terrorist organizations”).

³⁴⁹ Smith v. United States, 133 S. Ct. 714, 719 (2013) (“The essence of conspiracy is ‘the combination of minds in

an unlawful purpose.’”) (quoting United States v. Hirsch, 100 U.S. 33, 34 (1879)).

³⁵⁰ See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶500 (“Conspiracy, direct incitement, and attempts to commit, as

well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are

punishable.”); Memorandum of Law from Tom C. Clark, Assistant Attorney General, to Major General Myron C.

Kramer, Judge Advocate General, 6 (Mar. 12, 1945) (“In view of the statements of the authorities on military law set

forth above, and the precedents established in the proceedings referred to above, it may be said to be well

established that a conspiracy to commit an offense against the laws of war is itself an offense cognizable by a

commission administering military judgment.”).

³⁵¹ See, e.g., Hamdan v. Rumsfeld, 548 U.S. 1, 23 (2006) (Thomas, J., dissenting) (“The Civil War experience

provides further support for the President’s conclusion that conspiracy to violate the laws of war is an offense

cognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a military

commission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, the

charge provided that those men had ‘combin[ed], confederat[ed], and conspir[ed]…to kill and murder’ President

Lincoln.”); Colepaugh v. Looney, 235 F.2d 429, 431 (10th Cir. 1956) (“January 11, 1945, by executive order, the

President charged the petitioner with violation of the law of war and…to convene a military commission for trial of

such offenses. The first charge specified: (1) … the petitioner and one Gimpel, acting for the German Reich,

secretly passed through, in civilian dress, contrary to the law of war, the military and naval lines of the United States

for the purpose of committing espionage, sabotage and other hostile acts; and (2) that the accused … appeared and

remained in civil dress, contrary to the law of war behind the military lines of the United States for the purpose of

committing espionage, sabotage and other hostile acts. The second charge alleged … the petitioner and one Gimpel,

acting for the German Reich, were, in time of war, found lurking and acting as spies in and about the fortifications,

posts and encampments … of the United States …, for the purpose of obtaining intelligence and communicating it to

the German Reich. The third charge alleged a conspiracy to commit the above substantive offenses.”); Ex Parte

Quirin, 317 U.S. 1, 23 (1942) (“On July 3, 1942, the Judge Advocate General’s Department of the Army prepared

and lodged with the Commission the following charges against petitioners, supported by specifications: 1. Violation

of the law of war. 2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to

relieve, or corresponding with or giving intelligence to, the enemy. 3. Violation of Article 82, defining the offense of

spying. 4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.”); but see Hamdan v. Rumsfeld, 548

U.S., 40-41 (2006) (Stevens, J., plurality) (“The crime of ‘conspiracy’ has rarely if ever been tried as such in this

country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear

in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.”).

³⁵² See 10 U.S.C. § 881 (“(a) Any person subject to this chapter who conspires with any other person to commit an

offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy,

be punished as a court-martial may direct. (b) Any person subject to this chapter who conspires with any other

person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the

conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a

court-martial or military commission may direct, and, if death does not result to any of the victims, by such

punishment, other than death, as a court-martial or military commission may direct.”).

1126

offense under the Military Commissions Act of 2009.³⁵³ Conspiracy to commit an offense is an

offense under Title 18.³⁵⁴

The use of conspiracy may vary according the forum in which charges are brought.

However, as a general matter, charges of conspiracy for violations of the law of war by persons

belonging to the enemy should be restricted to cases of offenses in which an overt act has been

committed because non-punitive measures, such as security detention, may be available to

address threats.³⁵⁵

18.23.5.1 Conspiracy to Commit Genocide. The Genocide Convention provides

that conspiracy to commit genocide shall be punishable.³⁵⁶ Thus, mere agreement by

perpetrators to commit genocide may be punishable even if no preparatory act has taken place.³⁵⁷

18.23.5.2 Conspiracy to Commit Aggressive War. The International Military

Tribunal at Nuremberg tried defendants for participation in a common plan or conspiracy to

wage a war of aggression.³⁵⁸ However, the International Military Tribunal declined to interpret

³⁵³ 10 U.S.C. § 950t(29) (“Any person subject to this chapter who conspires to commit one or more substantive

offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the

object of the conspiracy, 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.”).

³⁵⁴ See, e.g., 18 U.S.C. § 371 (“If two or more persons conspire either to commit any offense against the United

States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of

such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not

more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a

misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for

such misdemeanor.”); 18 U.S.C. § 2441 (including the act of conspiring to commit certain acts as punishable); 18

U.S.C. § 2442 (b) (“Whoever violates, or attempts or conspires to violate, subsection (a) shall be fined under this

title or imprisoned not more than 20 years, or both and, if death of any person results, shall be fined under this title

and imprisoned for any term of years or for life.”).

³⁵⁵ WINTHROP, MILITARY LAW & PRECEDENTS 841 (“It may be added that the jurisdiction of the military

commission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual

attempts to commit, and not in intentions merely. Thus what would justify in war a precautionary arrest might not

always justify a trial as for a specific offence.”).

³⁵⁶ Convention on the Prevention and Punishment of the Crime of Genocide, art. 3, Dec. 9, 1948, 78 UNTS 277, 280

(“The following acts shall be punishable: … (b) Conspiracy to commit genocide;…”).

³⁵⁷ See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, ¶185 (Jan. 27, 2000)

(“The Chamber notes that the crime of conspiracy to commit genocide covered in the Statute is taken from the

Genocide Convention. The ‘Travaux Préparatoires’ of the Genocide Convention suggest that the rationale for

including such an offence was to ensure, in view of the serious nature of the crime of genocide, that the mere

agreement to commit genocide should be punishable even if no preparatory act has taken place.”); Ferdinand

Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, ICTR Appeals Chamber, ICTR-99-52-A,

Judgment, ¶894 (Nov. 28, 2007) (“Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been

defined as ‘an agreement between two or more persons to commit the crime of genocide’. The existence of such an

agreement between individuals to commit genocide (or ‘concerted agreement to act’) is its material element (actus

reus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part a

national, ethnical, racial or religious group as such (mens rea).”).

³⁵⁸ Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of the United

Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional

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its Charter to authorize prosecutions for conspiracy to commit war crimes and crimes against

humanity.³⁵⁹

18.23.6 Other Group Criminality Theories - Joint Criminal Enterprise. In addition to

conspiracy, analogous theories of group criminality have been applied to violations of the law of

war and other violations of international law.³⁶⁰ Under recognized principles common to the

major legal systems of the world, persons who are connected with plans or enterprises involved

in the commission of a crime, or who belong to an organization or group engaged in the

commission of crime, may also be guilty of that crime.³⁶¹ Joining a criminal group may be

punishable as a distinct offense separate from the atrocities committed by that criminal group.³⁶²

Three categories of group criminality or “joint criminal enterprise” may be identified,

which vary according to the mental element (mens rea) of the defendant with respect to the crime

that is committed:³⁶³

Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the

Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288

(“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall

be individual responsibility:-

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a

war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a

common plan or conspiracy for the accomplishment of any of the foregoing;”).

³⁵⁹ United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 226

(“Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimes

and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one to

commit acts of aggressive war.”).

³⁶⁰ See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE

IMT 256 (“If satisfied of the criminal guilt of any organisation or group, this Tribunal should not hesitate to declare

it to be criminal because the theory of ‘group criminality’ is new, or because it might be unjustly applied by some

subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible

in a manner to insure that innocent persons will not be punished. A criminal organisation is analogous to a criminal

conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together

and organized for a common purpose. The group must be formed or used in connection with the commission of

crimes denounced by the Charter. Since the declaration with respect to the organisations and groups will, as has

been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge

of the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unless

they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members

of the organisation. Membership alone is not enough to come within the scope of these declarations.”).

³⁶¹ See, e.g., United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THE

NMT 372 (“In line with recognized principles common to all civilized legal systems, ¶ 2 of Article II of Control

Council Law No. 10 specifies a number of types of connection with crime which are sufficient to establish guilt.

Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission of

crime or are connected with plans or enterprises involved in its commission, those who order or abet crime, and

those who belong to an organization or group engaged in the commission of crime.”).

³⁶² James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL

297, 312, 314 (1869) (noting that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders

is a high offence against the laws of war; the offence is complete when the band is organized or joined. The

atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they

are, why such banditti are denounced by the laws of war.”).

³⁶³ Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶195 (Jul. 15, 1999) (“Many post-World

War II cases concerning war crimes proceed upon the principle that when two or more persons act together to

1128

• cases of co-perpetration where all participants in the common design possess the same

criminal intent to commit a crime (and one or more of them actually perpetrate the crime,

with intent);³⁶⁴

• cases where the requisite mens rea comprises knowledge of the nature of the system of

ill-treatment (e.g., a German concentration camp) and intent to further the common

design of ill-treatment (such intent may be proved either directly or as a matter of

inference from the nature of the accused’s authority within the camp or organizational

hierarchy);³⁶⁵ and

• cases in which a “common purpose” exists because the following requirements

concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal

enterprise and to further - individually and jointly - the criminal purposes of that

enterprise; and (ii) the foreseeability of the possible commission by other members of the

group of offenses that do not constitute the object of the common criminal purpose.³⁶⁶

further a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all the

members of the group. Close scrutiny of the relevant case law shows that broadly speaking, the notion of common

purpose encompasses three distinct categories of collective criminality.”).

³⁶⁴ Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“In sum, the Appeals

Chamber holds … that the notion of common design as a form of accomplice liability is firmly established in

customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal.

As for the objective and subjective elements of the crime, the case law shows that the notion has been applied to

three distinct categories of cases. First, in cases of co-perpetration, where all participants in the common design

possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, with

intent).”).

³⁶⁵ Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“Secondly, in the so-

called ‘concentration camp’ cases, where the requisite mens rea comprises knowledge of the nature of the system of

ill-treatment and intent to further the common design of ill-treatment. Such intent may be proved either directly or

as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy.”).

See also Prosecutor v. Krnojelac, ICTY Appeals Chamber, IT-97-25-A, Judgment, ¶96 (Sept. 17, 2003) (“The

Appeals Chamber notes that, with regard to the crimes considered within a systemic form of joint criminal

enterprise, the intent of the participants other than the principal offenders presupposes personal knowledge of the

system of ill-treatment (whether proven by express testimony or a matter of reasonable inference from the accused’s

position of authority) and the intent to further the concerted system of ill-treatment. Using these criteria, it is less

important to prove that there was a more or less formal agreement between all the participants than to prove their

involvement in the system. As the Appeals Chamber recalled in the Tadic Appeals Judgement, in his summary of

the Belsen case the Judge Advocate summed up and approved the Prosecution’s legal submissions in the following

terms: ‘The case for the Prosecution is that all the accused employed on the staff at Auschwitz knew that a system

and a course of conduct was in force, and that, in one way or another, in furtherance of a common agreement to run

the camp in a brutal way, all those people were taking part in that course of conduct.’”).

³⁶⁶ Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“With regard to the

third category of cases, it is appropriate to apply the notion of ‘common purpose’ only where the following

requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and to

further - individually and jointly - the criminal purposes of that enterprise; and (ii) the foreseeability of the possible

commission by other members of the group of offences that do not constitute the object of the common criminal

purpose. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if

such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In

order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have been

able to predict this result. It should be noted that more than negligence is required. What is required is a state of

1129

mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the

group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called

dolus eventualis is required (also called ‘advertent recklessness’ in some national legal systems).”). Cf. Pinkerton v.

United States, 328 U.S. 640, 647 (1946) (“A scheme to use the mails to defraud, which is joined in by more than one

person, is a conspiracy. Yet all members are responsible, though only one did the mailing. The governing principle

is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful

project. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator

instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was

formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who

counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is

recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all.”).

1130

XIX Documentary Appendix - Notes on Treaties and Other Relevant Documents

Chapter Contents

19.1 Introduction

19.2 Lists of Treaties and Other Documents

19.3 Lieber Code

19.4 1856 Paris Declaration Respecting Maritime Law

19.5 1864 GWS

19.6 1868 St. Petersburg Declaration

19.7 1899 and 1907 Hague Declarations on Weapons

19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations

Regarding Land Warfare

19.9 1907 Hague X

19.10 1922 Washington Treaty on Submarines and Noxious Gases

19.11 1923 Hague Air and Radio Rules

19.12 1925 Geneva Gas and Bacteriological Protocol

19.13 1929 Geneva Conventions

19.14 1930 London Treaty for the Limitation and Reduction of Naval Armament

and 1936 London Protocol

19.15 1935 Roerich Pact

19.16 1949 Geneva Conventions

19.17 1954 Hague Cultural Property Convention

19.18 Vienna Convention on the Law of Treaties

19.19 Biological Weapons Convention

19.20 1977 Additional Protocols to the 1949 Geneva Conventions

19.21 CCW, CCW Amended Article 1, and CCW Protocols

19.22 Chemical Weapons Convention

19.23 Rome Statute of the International Criminal Court

19.24 1999 U.N. Secretary General’s Bulletin for U.N. Forces

19.25 2005 ICRC Study on Customary International Humanitarian Law

19.26 AP III

19.1 INTRODUCTION

This appendix provides backg1round information about certain treaties and other

documents.

This appendix is intended to describe DoD views and practice relating to those

documents as of the date of publication of this manual.

19.2 LISTS OF TREATIES AND OTHER DOCUMENTS

This section lists: (1) law of war treaties to which the United States is a Party; (2) arms

control agreements to which the United States is a Party that are of direct relevance to the law of

war; (3) examples of treaties signed but not ratified by the United States; (4) examples of treaties

1131

that the United States has neither signed nor ratified; and (5) examples of treaties or documents

of mainly historical value.

The categorization of a treaty as a “law of war” treaty or an “arms control” treaty is

intended to help practitioners understand the context in which the treaty was concluded and its

purposes. For example, a law of war treaty generally focuses on restrictions on the use of

weapons during armed conflict, while an arms control treaty generally focuses on restricting

development and acquisition of weapons.¹ Some treaties that are characterized below as law of

war treaties have elements of arms control, and some treaties that are characterized below as

arms control treaties have elements of the law of war.

Bold type within this section indicates an abbreviation used in this manual; a full list of

abbreviations is provided at the beginning of the manual.²

19.2.1 Law of War Treaties to Which the United States Is a Party. Law of war treaties to

which the United States is a Party include:

• Washington Convention Regarding the Rights of Neutrals at Sea of October 31, 1854.³

• Hague Convention for the Exemption of Hospital Ships, in Time of War, from the

Payment of all Dues and Taxes Imposed for the Benefit of the State of December 21,

1904.⁴

• Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities.⁵

• Hague Convention IV of October 18, 1907, Respecting the Laws and Customs of War on

Land (Hague IV), and the Annex thereto, entitled Regulations Respecting the Laws and

Customs of War on Land (Hague IV Regulations).⁶

• Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral

Powers and Persons in Case of War on Land (Hague V).⁷

• Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic

Submarine Contact Mines (Hague VIII).⁸

¹ Refer to § 1.6.2 (Arms Control).

² Refer to List of Abbreviations.

³ Convention with Russia, Jul. 22, 1854, 10 STAT. 1105.

⁴ Refer to § 7.12.4.3 (Relief From Taxation in Time of War).

⁵ Convention Relative to the Opening of Hostilities, Oct. 18, 1907, 36 STAT. 2259.

⁶ Refer to § 19.8.2 (Hague IV).

⁷ Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18,

1907, 36 STAT. 2310.

⁸ Refer to § 13.11 (Naval Mines); § 13.12 (Torpedoes).

1132

•

Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces

in Time of War (Hague IX).⁹

•

Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard

to the Exercise of the Right of Capture in Naval War (Hague XI).¹⁰

•

Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of

Neutral Powers in Naval War (Hague XIII).¹¹

•

1928 Pan American Maritime Neutrality Convention.¹²

•

1930 London Treaty for the Limitation and Reduction of Naval Armament.¹³

•

Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments of

April 15, 1935 (Roerich Pact).¹⁴

•

Charter of the United Nations (U.N. Charter).¹⁵

•

1949 Geneva Conventions,¹⁶ including the

o Geneva Convention for the Amelioration of the Condition of the Wounded and

Sick in Armed Forces in the Field of August 12, 1949 (GWS);¹⁷

o Geneva Convention for the Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (GWS-Sea);¹⁸

o Geneva Convention Relative to the Treatment of Prisoners of War of August 12,

1949 (GPW);¹⁹ and

o Geneva Convention Relative to the Protection of Civilian Persons in Time of War

of August 12, 1949 (GC).²⁰

⁹ Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 STAT. 2351.

¹⁰ Convention Relative to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War,

Oct. 18, 1907, 36 STAT. 2396.

¹¹ Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 STAT. 2415.

¹² Pan American Maritime Neutrality Convention, Feb. 20, 1928, 47 STAT. 1989.

¹³ Refer to § 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London

Protocol).

¹⁴ Refer to § 19.15 (1935 Roerich Pact).

¹⁵ Refer to § 1.11.2 (U.N. Charter Framework and the U.N. Security Council).

¹⁶ Refer to § 19.16 (1949 Geneva Conventions).

¹⁷ Refer to § 19.16.2 (GWS).

¹⁸ Refer to § 19.16.3 (GWS-Sea).

¹⁹ Refer to § 19.16.4 (GPW).

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•

Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

of May 14, 1954 (1954 Hague Cultural Property Convention).²¹

•

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons

Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects of

October 10, 1980, its Protocols I, II, III, IV, and V, its Amended Protocol II, and its

Amended Article 1 (CCW);²²

o CCW Amended Article 1;²³

o Protocol on Non-Detectable Fragments (Protocol I). Geneva, October 10, 1980

(CCW Protocol I);²⁴

o Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and

Other Devices as amended on May 3, 1996 (Protocol II to the 1980 CCW

Convention as amended on May 3, 1996) (CCW Amended Mines Protocol);²⁵

o Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons

(Protocol III). Geneva, October 10, 1980 (CCW Protocol III on Incendiary

Weapons);²⁶

o Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention),

October 13, 1995 (CCW Protocol IV on Blinding Laser Weapons);²⁷ and

o Protocol on Explosives Remnants of War (Protocol V to the 1980 Convention),

November 28, 2004 (CCW Protocol V on Explosive Remnants of War).²⁸

•

Optional Protocol to the Convention on the Rights of the Child on the involvement of

Children in Armed Conflict, May 25, 2000 (Child Soldiers Protocol).²⁹

•

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the

Adoption of an Additional Distinctive Emblem (Protocol III), December 8, 2005 (AP

III).³⁰

²⁰ Refer to § 19.16.5 (GC).

²¹ Refer to § 19.17 (1954 Hague Cultural Property Convention).

²² Refer to § 19.21 (CCW, CCW Amended Article 1, and CCW Protocols).

²³ Refer to § 19.21.1.1 (CCW Amended Scope of Application).

²⁴ Refer to § 19.21.2 (CCW Protocol I).

²⁵ Refer to § 19.21.3 (CCW Amended Mines Protocol).

²⁶ Refer to § 19.21.4 (CCW Protocol III on Incendiary Weapons).

²⁷ Refer to § 19.21.5 (CCW Protocol IV on Blinding Laser Weapons).

²⁸ Refer to § 19.21.6 (CCW Protocol V on Explosive Remnants of War).

²⁹ Refer to § 4.20.5.2 (Child Soldiers Protocol).

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19.2.2 Arms Control Agreements to Which the United States Is a Party That Are of

Direct Relevance to the Law of War. The United States is a Party to the following treaties that

contain restrictions on the use of weapons during armed conflict:

• Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or

Other Gases, and of Bacteriological Methods of Warfare of June 17, 1925 (1925 Geneva

Gas and Bacteriological Protocol).³¹

• Convention on the Prohibition of Development, Production and Stockpiling of

Bacteriological (Biological) and Toxin Weapons and on Their Destruction of April 10,

1972 (Biological Weapons Convention).³²

• Convention on the Prohibition of Military or Any Other Hostile Use of Environmental

Modification Techniques of May 18, 1977 (ENMOD Convention).³³

• Convention on the Prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on Their Destruction of January 13, 1993 (Chemical Weapons

Convention).³⁴

19.2.3 Examples of Treaties Signed but Not Ratified by the United States. This section is

not comprehensive. It lists examples of treaties that the United States has signed, but not

ratified.

A State that has signed a treaty is obliged to refrain from acts that would defeat the object

and purpose of a treaty, until it shall have made its intention clear not to become a Party to the

treaty.³⁵

• Procès-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of the

Treaty of London of April 22, 1930 (1936 London Protocol).³⁶

³⁰ Refer to § 19.26 (AP III).

³¹ Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

³² Refer to § 19.19 (Biological Weapons Convention).

³³ Refer to § 6.10 (Certain Environmental Modification Techniques).

³⁴ Refer to § 19.22 (Chemical Weapons Convention).

³⁵ Consider VCLT art. 18 (“A State is obliged to refrain from acts which would defeat the object and purpose of a

treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification,

acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has

expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such

entry into force is not unduly delayed.”). See also William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE

FROM THE PRESIDENT TRANSMITTING THE VCLT 2 (“Article 18 sets forth rules governing the obligation of States not

to defeat the object and purpose of a treaty prior to its entry into force. That obligation is limited to (a) States that

have signed a treaty or exchanged ad referendum instruments constituting a treaty, until such time as they make

clear their intention not to become a party, and (b) States that have expressed consent to be bound, pending entry

into force and provided such entry into force is not unduly delayed. This rule is widely recognized in customary

international law.”).

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• Vienna Convention on the Law of Treaties (VCLT).³⁷

• Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to

the Protection of Victims of International Armed Conflicts of June 8, 1977 (AP I).³⁸

• Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to

the Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (AP

II).³⁹

• U.N. Convention on the Law of the Sea (LOS Convention).⁴⁰

• Rome Statute of the International Criminal Court of July 17, 1998 (Rome Statute).⁴¹

19.2.4 Examples of Treaties That the United States Has Neither Signed Nor Ratified.

This section is not comprehensive. It lists examples of law of war and arms control treaties that

the United States has neither signed nor ratified:

• Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain,

Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris,

April 16, 1856.⁴²

• Hague Declaration on Expanding Bullets of July 29, 1899.⁴³

• Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of

Hostilities of October 18, 1907.

• Hague Convention VII Relating to the Conversion of Merchant Ships into Warships of

October 18, 1907.

• First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in

the Event of Armed Conflict of May 14, 1954.

• Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer

of Anti-Personnel Mines and on Their Destruction of September 18, 1997.⁴⁴

³⁶ Refer to § 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London

Protocol).

³⁷ Refer to § 19.18 (Vienna Convention on the Law of Treaties).

³⁸ Refer to § 19.20.1 (AP I).

³⁹ Refer to § 19.20.2 (AP II).

⁴⁰ Refer to § 13.1.2 (The United States and the LOS Convention).

⁴¹ Refer to § 19.23 (Rome Statute of the International Criminal Court).

⁴² Refer to § 19.4 (1856 Paris Declaration Respecting Maritime Law).

⁴³ Refer to § 19.7.1 (1899 Declaration on Expanding Bullets).

⁴⁴ Refer to § 6.12.14 (Ottawa Convention on Anti-Personnel Landmines).

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• Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property

in the Event of Armed Conflict of March 26, 1999.

• Convention on Cluster Munitions of May 30, 2008.⁴⁵

19.2.5 Examples of Treaties or Documents of Mainly Historical Value. This section is

not comprehensive. It lists examples of treaties and documents that are regarded as having

mainly historical value:

•

General Order No. 100, Instructions for the Government of Armies of the United States

in the Field, 1863 (Lieber Code).⁴⁶

•

Geneva Convention for the Amelioration of the Wounded in Armies in the Field of

August 22, 1864 (1864 GWS).⁴⁷

•

St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles

under 400 Grams Weight of December 11, 1868 (1868 St. Petersburg Declaration).⁴⁸

•

Hague Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching of

Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature of July

29, 1899.⁴⁹

•

Hague Declaration on Asphyxiating Gases of July 29, 1899.⁵⁰

•

Hague Convention II with Respect to the Laws and Customs of War on Land, with

Annex of Regulations of July 29, 1899 (1899 Hague II).⁵¹

•

Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the

Geneva Convention of October 18, 1907 (Hague X).⁵²

•

Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from

Balloons of October 18, 1907.⁵³

•

Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of

February 6, 1922.⁵⁴

⁴⁵ Refer to § 6.13.4 (Convention on Cluster Munitions).

⁴⁶ Refer to § 19.3 (Lieber Code).

⁴⁷ Refer to § 19.5 (1864 GWS).

⁴⁸ Refer to § 19.6 (1868 St. Petersburg Declaration).

⁴⁹ Refer to § 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

⁵⁰ Refer to § 19.7.2 (1899 Declaration on Asphyxiating Gases).

⁵¹ Refer to § 19.8.1 (1899 Hague II).

⁵² Refer to § 19.9 (1907 Hague X).

⁵³ Refer to § 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

1137

• General Report of the Commission of Jurists to Consider and Report upon the Revision

of the Rules of Warfare, Feb. 19, 1923 (1923 Hague Air and Radio Rules).⁵⁵

• Geneva Convention Amelioration of the Condition of the Wounded and Sick of Armies

in the Field of July 27, 1929 (1929 GWS).⁵⁶

• Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929 (1929

GPW).⁵⁷

19.3 LIEBER CODE

General Order No. 100, Instructions for the Government of Armies of the United States

in the Field, 1863, issued on April 24, 1863, is often called the “Lieber Code” because it was

prepared by Francis Lieber.⁵⁸ It is an early example of the law of war being implemented

through military instructions or regulations.⁵⁹

The Lieber Code was the first comprehensive publication on the law of war for U.S.

armed forces and is regarded as an important work of historical significance in the law of war.⁶⁰

The Lieber Code established rules governing martial law, military jurisdiction, the

treatment of spies and deserters, and the treatment of POWs. Many key law of war principles,

such as the principle of military necessity, were codified in the Lieber Code.⁶¹ However, parts of

⁵⁴ Refer to § 19.10 (1922 Washington Treaty on Submarines and Noxious Gases).

⁵⁵ Refer to § 19.11 (1923 Hague Air and Radio Rules).

⁵⁶ Refer to § 19.13.1 (1929 GWS).

⁵⁷ Refer to § 19.13.2 (1929 GPW).

⁵⁸ E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armies

of the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF

THE UNITED STATES IN THE FIELD, 2 (Government Printing Office, 1898) (“The following ‘Instructions for the

Government of Armies of the United States in the Field,’ prepared by Francis Lieber, L.L.D., and revised by a Board

of Officers, of which Major General E.A. Hitchcock is president, having been approved by the President of the

United States, he commands that they be published for the information of all concerned.”).

⁵⁹ Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

⁶⁰ See, e.g., Kononov v. Latvia, European Court of Human Rights, App. No. 36376/04, ¶63 (May 17, 2010) (“The

Lieber Code 1863 is regarded as the first attempt to codify the laws and customs of war. Although only applicable

to American forces, it represented a summary of the laws and customs of war existing at the time and was influential

in later codifications.”); Elihu Root, Francis Lieber, 7 AJIL 453, 457 (1913) (“In the Brussels Conference of 1874,

convened at the instance of the Emperor of Russia for the purpose of codifying the laws and customs of war, the

Russian delegate, Baron Jomini, as president of the conference, declared that the project of an international

convention then presented had its origin in the rules of President Lincoln. The convention agreed upon at Brussels

was not ratified, but in 1880 the Institute of International Law made the work of the Brussels Conference and the

work of Lieber, which so far as it was of general application was incorporated in that convention, the basis of a

manual of the laws of war upon land; and finally, in The Hague Conferences of 1899 and 1907, the conventions with

respect to the laws and customs of war on land gave the adherence of the whole civilized world in substance and

effect to those international rules which President Lincoln made binding upon the American armies fifty years

ago.”).

⁶¹ Refer to § 2.2 (Military Necessity).

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the Lieber Code reflect 19th century understandings of the law of war that have been modified

by treaties that the United States has ratified or by subsequent customary international law. For

example, the Lieber Code permitted the denial of quarter in certain circumstances.⁶² However,

denying quarter in those circumstances is no longer acceptable.⁶³

The Lieber Code was prepared during the Civil War. The Confederate forces agreed with

some provisions of the Lieber Code, but disagreed with others.⁶⁴

The Lieber Code reflected rules for “regular war” or what today would be classified as

international armed conflict. Such rules were applied to the Confederate forces for humanitarian

reasons, even though the United States did not recognize the Confederacy as a legitimate

government or State.⁶⁵ In this way, the Lieber Code is an example of the application of the

doctrine of recognition of belligerency.⁶⁶

19.4 1856 PARIS DECLARATION RESPECTING MARITIME LAW

The 1856 Paris Declaration respecting Maritime Law is an early multilateral law of war

treaty that was intended to be open to accession by all States, including States that did not

participate in its negotiation.⁶⁷ This treaty illustrates how law of war treaties may be written

with a view towards being able to be accepted and applied by all States.

The United States is not a Party to the 1856 Paris Declaration. The 1856 Paris

Declaration’s provision that blockades must be effective in order to be binding reflects

customary international law.⁶⁸

⁶² LIEBER CODE art. 61 (“All troops of the enemy known or discovered to give no quarter in general, or to any

portion of the army, receive none.”).

⁶³ Refer to § 5.5.7 (Prohibition Against Declaring That No Quarter Be Given).

⁶⁴ James A. Seddon, Letter to Robert Ould, Jun. 24, 1863, reprinted in FRED C. AINSWORTH & JOSEPH W. KIRKLEY,

VI THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATE

ARMIES, SERIES II, 41 (1899) (“Order No. 100 is a confused, unassorted, and undiscriminating compilation from the

opinion of the publicists of the last two centuries, some of which are obsolete, others repudiated; and a military

commander under this code may pursue a line of conduct in accordance with principles of justice, faith, and honor,

or he may justify conduct correspondent with the warfare of the barbarous hordes who overran the Roman Empire,

or who, in the Middle Ages, devastated the continent of Asia and menaced the civilization of Europe.”).

⁶⁵ Refer to § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).

⁶⁶ Refer to § 3.3.3.2 (Assertion of War Powers by a State Engaged in Hostilities Against a Non-State Armed Group).

⁶⁷ Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia,

Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, reprinted in 1 AJIL SUPPLEMENT:

OFFICIAL DOCUMENTS 89 (1907) (“The Governments of the undersigned Plenipotentiaries engage to bring the

present Declaration to the knowledge of the states which have not taken part in the Congress of Paris, and to invite

them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by

the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their governments to obtain the

general adoption thereof will be crowned with full success.”).

⁶⁸ Refer to § 13.10.2.3 (Effectiveness of the Blockade).

1139

19.5 1864 GWS

The Geneva Convention for the Amelioration of the Wounded in Armies in the Field of

August 22, 1864 (1864 GWS) was one of the earliest multilateral law of war treaties.⁶⁹

The 1864 GWS provided for the use of the red cross as a distinctive emblem to help

identify medical personnel.⁷⁰ It also provided for wounded and sick combatants to be collected

and cared for regardless of the nation of their armed forces.⁷¹

The United States acceded to the 1864 GWS on March 1, 1882.⁷² The 1864 GWS was

replaced by the GWS in relations between the Parties to the GWS.⁷³

19.6 1868 ST. PETERSBURG DECLARATION

The Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Weighing

Under 400 Grams Weight (1868 St. Petersburg Declaration) was promulgated by an international

conference held in St. Petersburg, Russia on December 11, 1868. The 1868 St. Petersburg

Declaration prohibits Parties from, “in case of war among themselves, the employment, by their

military or naval forces, of any projectile of less weight than four hundred grammes, which is

explosive, or is charged with fulminating or inflammable substances.”⁷⁴

The United States is not a Party to the 1868 St. Petersburg Declaration.

The language in the Preamble of the 1868 St. Petersburg Declaration that notes that the

“employment of arms which uselessly aggravate the sufferings of disabled men” would “be

contrary to the laws of humanity” is an early statement of the prohibition against weapons

⁶⁹ Convention for the Amelioration of the Wounded in Armies in the Field, Aug. 22, 1864, 22 STAT. 940.

⁷⁰ Refer to § 7.15.1.1 (Red Cross).

⁷¹ Refer to § 7.5.2.2 (Affirmative Obligation to Provide Adequate Care).

⁷² Chester A. Arthur, Proclamation Regarding the 1864 GWS, Jul. 26, 1882, 22 STAT. 940, 950-51 (“And whereas

the President of the United States of America, by and with the advice and consent of the Senate, did, on the first day

of March, one thousand eight hundred and eighty-two, declare that the United States accede to the said Convention

of the 22d of August, 1864, and also accede to the said Convention of October 20, 1868; And whereas on the ninth

day of June, one thousand eight hundred and eighty-two, the Federal Council of the Swiss Confederation, in virtue

of the final provision of a certain minute of the exchange of the ratifications of the said Convention at Berne,

December 22, 1864, did, by a formal declaration, accept the said adhesion of the United States of America, as well

in the name of the Swiss Confederation as in that of the other contracting States; And whereas, furthermore, the

government of the Swiss Confederation has informed the Government of the United States that the exchange of the

ratifications of the aforesaid additional articles of 20th October, 1868, to which the United States of America have in

like manner adhered as aforesaid, has not yet taken place between the contracting parties, and that these articles

cannot be regarded as a treaty in full force and effect:”).

⁷³ Refer to § 19.16.2.1 (Relationship Between the GWS and Earlier Conventions).

⁷⁴ The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95, 96 (1907)

(“The contracting parties engage, mutually, to renounce, in case of war among themselves, the employment, by their

military or naval forces, of any projectile of less weight than four hundred grammes, which is explosive, or is

charged with fulminating or inflammable substances.”).

1140

calculated to cause unnecessary suffering, which is a principle that is found in treaties to which

the United States is a Party and in customary international law.⁷⁵

The prohibition in the Declaration against “any projectile of less weight than four

hundred grammes, which is explosive, or is charged with fulminating or inflammable

substances” does not reflect customary international law.⁷⁶ For example, for many decades

without legal controversy, States have used, and continue to use, tracer ammunition, grenades,

explosive bullets, or other projectiles of less weight than four hundred grams with a burning or

explosive capability.⁷⁷

19.7 1899 AND 1907 HAGUE DECLARATIONS ON WEAPONS

19.7.1 1899 Declaration on Expanding Bullets. The 1899 Declaration on Expanding

Bullets prohibits Parties from using “bullets which expand or flatten easily in the human body,

such as bullets with a hard envelope which does not entirely cover the core or is pierced with

incisions.”⁷⁸ The Declaration only creates obligations for Parties to the Declaration in

international armed conflicts in which all the parties to the conflict are also Parties to the

Declaration.⁷⁹

The United States is not a Party to the 1899 Declaration on Expanding Bullets and does

not regard the 1899 Declaration on Expanding Bullets as customary international law applicable

in either international or non-international armed conflicts.⁸⁰

⁷⁵ Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

⁷⁶ U.S. RESPONSE TO ICRC CIHL STUDY 524 (“Since the St. Petersburg Declaration, there has been considerable

State practice involving the anti-personnel use of exploding bullets, despite the ICRC’s statement that governments

have ‘adhered’ to the Declaration. Two participants in the ICRC-hosted 1974 Lucerne Meeting of Experts on

certain weapons conventional weapons concluded: ‘At present it is widely held that in view of the development in

weapons technology and state practice the St. Petersburg Declaration cannot be interpreted literally, or in any case

that it has not as such become declaratory of customary international law

[T]he prohibition contained in it serves

to illustrate the principle prohibiting the causing of unnecessary suffering, at least as it was contemplated in 1868.’

U.S. legal reviews have detailed State practice contrary to the ICRC’s statement and consistent with the conclusion

contained in the above quotation.”) (amendments to internal quote shown in U.S. Response to ICRC CIHL Study).

⁷⁷ Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General

Report, Part II: Rules of Aërial Warfare, art. 18, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL

DOCUMENTS 12, 21 (1938) (“The use of tracer, incendiary or explosive projectiles by or against an aircraft is not

prohibited. This provision applies equally to states which are parties to the Declaration of St. Petersburg, 1868, and

to those which are not.”). Refer to § 6.5.4.3 (Exploding Bullets).

⁷⁸ Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29,

1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 155-56 (1907) (“The Contracting Parties agree

to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard

envelope which does not entirely cover the core, or is pierced with incisions.”).

⁷⁹ Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29,

1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 156 (1907) (“The present Declaration is only

binding for the Contracting Powers in the case of a war between two or more of them. It shall cease to be binding

from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting

Power.”).

⁸⁰ Refer to § 6.5.4.4 (Expanding Bullets).

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19.7.2 1899 Declaration on Asphyxiating Gases. The 1899 Declaration on Asphyxiating

Gases was concluded at The Hague on July 29, 1899.⁸¹ This 1899 Declaration prohibits the use

of projectiles the object of which is the diffusion of asphyxiating or deleterious gases.⁸²

The United States did not ratify this declaration.

This declaration was followed by the 1922 Washington Treaty on Submarines and

Noxious Gases, and the 1925 Geneva Gas and Bacteriological Protocol.⁸³ The United States is a

Party to the 1925 Geneva Gas and Bacteriological Protocol and applies the broader prohibition in

it on the use of asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or

devices.⁸⁴

19.7.3 1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From

Balloons. In the 1899 Hague (IV, 1), Parties agreed to prohibit, for a term of five years, the

launching of projectiles and explosives from balloons, or by other new methods of similar

nature.⁸⁵ The United States deposited its instrument of ratification to the 1899 Hague

Declaration (IV, 1) on September 4, 1900.⁸⁶

The 1907 Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and

Explosives from Balloons sought to renew the expired 1899 Hague Declaration (IV, 1).⁸⁷ The

United States deposited its instrument of ratification to the 1907 Hague Declaration (XIV) on

⁸¹ Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating or

Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157, 158 (1907).

⁸² Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating or

Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157 (1907) (“The

Contracting Powers agree to abstain from the use of projectiles the object of which is the diffusion of asphyxiating

or deleterious gases.”).

⁸³ Refer to § 19.10 (1922 Washington Treaty on Submarines and Noxious Gases); § 19.12 (1925 Geneva Gas and

Bacteriological Protocol).

⁸⁴ Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices).

⁸⁵ Declaration Prohibiting for a Term of Five Years the Launching of Projectiles or Explosives from Balloons, or By

Any Other New Methods of Similar Nature, Jul. 29, 1899, 32 STAT. 1839 (“The Contracting Powers agree to

prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods

of similar nature.”).

⁸⁶ Theodore Roosevelt, Proclamation Regarding the 1899 Declaration Prohibiting the Launching of Projectiles or

Explosives from Balloons, Nov. 1, 1901, 32 STAT. 1839, 1842 (“And Whereas, the said Declaration was duly ratified

by the Government of the United States of America, by and with the advice and consent of the Senate thereof, and

by the Governments of the other Powers aforesaid, with the exception of those of China and Turkey; And Whereas,

in pursuance of a stipulation of the said Declaration, the ratifications thereof were deposited at the Hague on the 4th

day of September, 1900, by the Plenipotentiaries of the Governments of the United States of America, Austria-

Hungary, Belgium, Denmark, Spain, France, Italy, the Netherlands, Persia, Portugal, Roumania, Russia, Siam,

Sweden and Norway, and Bulgaria … .”).

⁸⁷ Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.

2439 (“The Undersigned, Plenipotentiaries of the Powers invited to the Second International Peace Conference at

The Hague, duly authorized to that effect by their Governments, inspired by the sentiments which found expression

in the Declaration of St. Petersburg of the 29th November (11th December), 1868, and being desirous of renewing

the declaration of The Hague of the 29th July, 1899, which was now expired,”).

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November 27, 1909.⁸⁸ This treaty was intended to have effect until the end of the Third Hague

Peace Conference.⁸⁹ The Third Hague Peace Conference never met due to the outbreak of

World War I.⁹⁰ The application of the 1907 Hague Declaration (XIV) is limited, inter alia, due

to its general participation clause providing that it only applies if all the parties to the conflict are

also Parties to the Declaration.⁹¹ During World War II, the War Department took the position

that the 1907 Hague Declaration (XIV) is not binding and will not be observed.⁹²

19.8 1899 HAGUE II AND 1907 HAGUE IV CONVENTIONS AND ANNEXED REGULATIONS

REGARDING LAND WARFARE

19.8.1 1899 Hague II. The Hague Convention II with Respect to the Laws and Customs

of War on Land of July 29, 1899 (1899 Hague II), with its annexed Regulations, was an early

multilateral law of war treaty that contains provisions that were incorporated into later law of

war treaties.

Article 1 of the 1899 Hague II Regulations addressed the criteria for militia and volunteer

corps to qualify as lawful belligerents and for their members to be entitled to POW status if

captured; these criteria are repeated in Article 4 of the GPW.⁹³ In addition, Articles 4-20 of the

1899 Hague II Regulations provide basic rules for the care and protection of POWs.

The United States deposited its instrument of ratification to the 1899 Hague II on April 5,

1902.⁹⁴

⁸⁸ William H. Taft, Proclamation Regarding the 1907 Declaration Prohibiting the Discharge of Projectiles and

Explosives from Balloons, Feb. 28, 1910, 36 STAT. 2439, 2442-43 (“And whereas the said Declaration has been duly

ratified by the Government of the United States of America, by and with the advice and consent of the Senate

thereof, and by the Governments of China, Great Britain, the Netherlands, Bolivia, and Salvador, and the

ratifications of the said Governments were, as provided for by the said Declaration, deposited by their respective

plenipotentiaries with the Netherlands Government on November 27, 1909.”).

⁸⁹ Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.

2439 (“The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference,

the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.”).

⁹⁰ SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND

OTHER DOCUMENTS 309 (2004) (“The Declaration of 1907 was to remain in force until the projected Third Peace

Conference. This Conference never having met, the Declaration of 1907 is still formally in force today.”).

⁹¹ Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.

2439, 2440 (“The present Declaration is only binding on the Contracting Powers in a case of war between two or

more of them. It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the

belligerents is joined by a non-Contracting Power.”).

⁹² WAR DEPARTMENT CIRCULAR NO. 136, § 1 (May 7, 1942) (“The Hague Declaration Number XIV, October 18,

1907, prohibiting the discharge of projectiles and explosives from balloons (H.D. XIV), is not binding and will not

be observed.”).

⁹³ Refer to § 4.6.1 (GPW 4A(2) Conditions in General).

⁹⁴ Theodore Roosevelt, Proclamation Regarding the 1899 Hague II, Apr. 11, 1902, 32 STAT. 1803, 1825 (“And

whereas the said Convention was duly ratified by the Government of the United States of America, by and with the

advice and consent of the Senate thereof, and by the Governments of the other Powers aforesaid with the exception

of Sweden and Norway and Turkey; And whereas, in pursuance of the stipulations of Article III of the said

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The 1899 Hague II was followed by Hague IV, which replaces the 1899 Hague II as

between Parties to Hague IV.⁹⁵ Not all the States that ratified the 1899 Hague II have also

ratified Hague IV.⁹⁶

19.8.2 Hague IV. States sought to expand upon and clarify provisions of 1899 Hague II

and the 1899 Hague II Regulations through the Hague Convention IV Respecting the Laws and

Customs of War on Land of October 18, 1907 (Hague IV), and annexed Regulations (Hague IV

Regulations).⁹⁷

The United States deposited its instrument of ratification to Hague IV on November 27,

1909.⁹⁸

19.8.2.1 Hague IV and Customary International Law. Provisions of Hague IV

and Hague IV Regulations have been found to reflect customary international law.⁹⁹

For example, Article 42 of the Hague IV Regulations, which provides a standard for

when the law of belligerent occupation applies, is regarded as customary international law.¹⁰⁰

Convention the ratifications of the said Convention were deposited at the Hague … on the 5th Day of April, 1902,

by the Plenipotentiary of the Government of the United States of America:”).

⁹⁵ Refer to § 19.8.2.2 (Relationship Between the 1907 Hague IV and the 1899 Hague II).

⁹⁶ ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 68-70 (3rd ed., 2000) (“[The 1907

Hague Convention] was intended to replace 1899 Hague Convention II as between states parties to both agreements.

However, of the forty-six states which had become parties to the 1899 Convention, eighteen did not become parties

to the 1907 Convention … . They or their successor states … remained formally bound by the 1899 Convention.”).

⁹⁷ Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 STAT. 2277, 2279 (The

Contracting Parties “[h]ave deemed it necessary to complete and explain in certain particulars the work of the First

Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a

wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.”).

⁹⁸ William H. Taft, Proclamation Regarding the Hague IV, Feb. 28, 1907, 36 STAT. 2277, 2309 (“And whereas the

said Convention has been duly ratified by the Government of the United States of America, by and with the advice

and consent of the Senate thereof, and by the Governments of Austria-Hungary, Bolivia, Denmark, Germany, Great

Britain, Mexico, the Netherlands, Russia, Salvador, and Sweden, and the ratifications of the said Governments were,

under the provisions of Article 5 of the said Convention, deposited by their respective plenipotentiaries with the

Netherlands Government on November 27, 1909;”).

⁹⁹ See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE

IMT 253-54 (concluding that “by 1939 these rules laid down in [Hague IV] were recognized by all civilized nations,

and were regarded as being declaratory of the laws and customs of war”); United States v. Krupp et al., IX TRIALS

OF WAR CRIMINALS BEFORE THE NMT 1340 (concurring in judgment “that the Hague Convention No. IV of 1907 to

which Germany was a party had, by 1939, become customary law and was, therefore, binding on Germany not only

as treaty law but also as customary law.”); United States v. von Leeb, et al. (The High Command Case), XI TRIALS

OF WAR CRIMINALS BEFORE THE NMT 535-38 (concluding that provisions of Hague IV Reg and 1929 GPW

reflected customary international law relating to the treatment of prisoners of war); United States, et al. v. Araki, et

al., Majority Judgment, International Military Tribunal for the Far East, 48,491, reprinted in NEIL BOISTER &

ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND

JUDGMENTS 102 (2008) (explaining that although certain treaties, such as Hague IV and Hague V, might not be

applicable by their terms, “the Convention remains as good evidence of the customary law of nations, to be

considered by the Tribunal along with all other available evidence in determining the customary law to be applied in

any given situation.”).

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19.8.2.2 Relationship Between the 1907 Hague IV and the 1899 Hague II. The

Hague IV, duly ratified, shall as between its Parties be substituted for the 1899 Hague II. The

1899 Hague II remains in force as between its Parties that do not also ratify Hague IV.¹⁰¹

19.8.3 Martens Clause. The Preamble to the 1899 Hague II contains a clause known as

the Martens Clause because of its association with a delegate to the Hague Peace Conference,

F.F. de Martens:¹⁰²

Until a more complete code of the laws of war is issued, the High Contracting

Parties think it right to declare that in cases not included in the Regulations

adopted by them, populations and belligerents remain under the protection and

empire of the principles of international law, as they result from the usages

established between civilized nations, from the laws of humanity, and the

requirements of the public conscience.¹⁰³

A similar formulation was included in subsequent treaties, such as the Hague IV, the 1949

Geneva Conventions, and the CCW.¹⁰⁴

The Martens Clause was a compromise following difficult and unresolved debates at the

1899 Hague Peace Conference about the status of resistance fighters in occupied territory.¹⁰⁵

¹⁰⁰ Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

¹⁰¹ HAGUE IV art. 4 (“The present Convention, duly ratified, shall as between the Contracting Powers, be substituted

for the Convention of the 29th July, 1899, respecting the Laws and Customs of War on Land. The Convention of

1899 remains in force as between the Powers which signed it, and which do not also ratify the present

Convention.”).

¹⁰² Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AJIL 78,

79 (2000) (“Proposed by the Russian delegate to the Hague Peace Conference, the eminent jurist F.F. de Martens,

the clause has ancient antecedents rooted in natural law and chivalry.”).

¹⁰³ 1899 HAGUE II preamble (“Until a more complete code of the laws of war is issued, the High Contracting Parties

think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents

remain under the protection and empire of the principles of international law, as they result from the usages

established between civilized nations, from the laws of humanity, and the requirements of the public conscience”).

¹⁰⁴ See, e.g., HAGUE IV preamble (“Until a more complete code of the laws of war has been issued, the High

Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the

inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as

they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the

public conscience.”); GWS art. 63 (providing that denunciation of the Convention “shall in no way impair the

obligations which Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations,

as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of

public conscience.”); GWS-SEA art. 62 (same); GPW art. 142 (same); GC art. 158 (same); CCW preamble (“in

cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian

population and the combatants shall at all times remain under the protection and authority of the principles of

international law derived from established custom, from the principles of humanity and from the dictates of public

conscience,”). Consider AP I art. 1(2) (“In cases not covered by this Protocol or by other international agreements,

civilians and combatants remain under the protection and authority of the principles of international law derived

from established custom, from the principles of humanity and from the dictates of public conscience.”); AP II

preamble (“Recalling that, in cases not covered by the law in force, the human person remains under the protection

of the principles of humanity and the dictates of the public conscience,”).

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However, the language of the clause is not limited to that specific context, and the Martens

Clause has been cited in many other contexts.¹⁰⁶

The Martens clause reflects the idea that when no specific rule applies, the principles of

the law of war form the general guide for conduct during war.¹⁰⁷

19.9 1907 HAGUE X

On November 27, 1909, the United States deposited its instrument of ratification to the

1907 Hague Convention (X) for the Adaption to Maritime Warfare of the Principles of the

Geneva Convention of October 18, 1907.¹⁰⁸

This treaty was followed by the GWS-Sea, which replaced it in relations between Parties

to the GWS-Sea.¹⁰⁹

19.10 1922 WASHINGTON TREATY ON SUBMARINES AND NOXIOUS GASES

The United States signed the Treaty Relating to the Use of Submarines and Noxious

Gases in Warfare on February 6, 1922.¹¹⁰ Article 6 of the treaty provided that the treaty shall

¹⁰⁵ See ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 9 (3rd ed., 2000) (“The wording of

the Martens Clause was agreed at the 1899 Hague Peace Conference for a specific reason: it was a compromise

following difficult and unresolved debates about whether or not the inhabitants of occupied territory had a right of

resistance.”); United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340-41 (“It must

also be pointed out that in the preamble to the Hague Convention No. IV, it is made abundantly clear that in cases

not included in the Regulations, the inhabitants and the belligerents remain under the protection and the rule of the

principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of

humanity and dictates of the public conscience. As the records of the Hague Peace Conferences of 1899 which

enacted the Hague Regulations show, great emphasis was placed by the participants on the protection of invaded

territories and the preamble just cited, also known as the “Mertens Clause,” was inserted at the request of the

Belgian delegate, Mertens, who was, as were others, not satisfied with the protection specifically guaranteed to

belligerently occupied territory. Hence, not only the wording (which specifically mentions the ‘inhabitants’ before it

mentions the ‘belligerents’) but also the discussions which took place at the time make it clear that it refers

specifically to belligerently occupied country.”).

¹⁰⁶ See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶78) (“The

Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the

Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an

effective means of addressing the rapid evolution of military technology.”).

¹⁰⁷ Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

¹⁰⁸ William H. Taft, Proclamation Regarding the Hague X, Feb. 28, 1910, 36 STAT. 2371, 2395 (“And whereas the

said Convention has been duly ratified by the Government of the United States of America, by and with the advice

and consent of the Senate thereof, and by the Governments of Germany, Austria-Hungary, China, Denmark,

Mexico, the Netherlands, Russia, Bolivia, and Salvador, and the ratifications of the said Governments were, under

the provisions of Article 23 of the said Convention, deposited by their respective plenipotentiaries with the

Netherlands Government on November 27, 1909.”).

¹⁰⁹ Refer to § 19.16.3.1 (Relationship Between the 1907 Hague X and the GWS-Sea).

¹¹⁰ Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, reprinted in 16 AJIL

SUPPLEMENT: OFFICIAL DOCUMENTS 57, 60 (1922).

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take effect on the deposit of all the ratifications.¹¹¹ France did not ratify the treaty, and it did not

enter into force.¹¹²

The language of Article 5 of the 1922 Washington Treaty dealing with gas warfare

corresponds to language in the 1925 Protocol for the Prohibition of the Use in War of

Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare signed at

Geneva, June 17, 1925.¹¹³ The 1925 Geneva Gas and Bacteriological Protocol, however, also

prohibits bacteriological methods of warfare.¹¹⁴

19.11 1923 HAGUE AIR AND RADIO RULES

In 1922, the Conference on the Limitation of Armament at Washington adopted a

resolution for the appointment of a Commission representing the United States of America, the

British Empire, France, Italy, and Japan, and later, the Netherlands, to consider the application of

the existing law of war rules to new agencies of warfare and whether changes should be

adopted.¹¹⁵ It was agreed that the program of the Commission would be limited to the

preparation of rules relating to aerial warfare, and to rules relating to the use of radio in time of

war.¹¹⁶ With John Bassett Moore as a U.S. Delegate and the President of the Commission, the

Commission prepared a set of rules for the control of radio in time of war, as well as a set of

rules for aerial warfare.¹¹⁷

¹¹¹ Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, art. 6, Feb. 6, 1922, reprinted in 16

AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922) (“The present Treaty shall be ratified as soon as possible

in accordance with the constitutional methods of the Signatory Powers and shall take effect on the deposit of all the

ratifications, which shall take place at Washington.”).

¹¹² SCHINDER & TOMAN, THE LAWS OF ARMED CONFLICTS 877 (1988) (“The Washington Conference of 1922 on the

Limitation of Armaments, in which five of the victorious Powers of World War I took part, adopted the present

Treaty, which due to the failure of France to ratify it, did not enter into force.”).

¹¹³ Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices).

¹¹⁴ Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

¹¹⁵ 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 (1938) (“The Conference on the Limitation

of Armament at Washington adopted at its sixth plenary session on the 4th February, 1922, a resolution for the

appointment of a Commission representing the United States of America, the British Empire, France, Italy and Japan

to consider the following questions: (a) Do existing rules of international law adequately cover new methods of

attack or defence resulting from the introduction or development, since The Hague Conference of 1907, of new

agencies of warfare? (b) If not so, what changes in the existing rules ought to be adopted in consequence thereof as

a part of the law of nations? … With the unanimous concurrence of the Powers mentioned in the first of the above

resolutions an invitation to participate in the work of the Commission was extended to and accepted by the

Netherlands Government.”).

¹¹⁶ 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 (1938) (“It was also agreed that the

programme of the Commission should be limited to the preparation of rules relating to aerial warfare, and to rules

relating to the use of radio in time of war.”).

¹¹⁷ 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 1-2 (1938) (“The United States Government

proposed that the Commission should meet on the 11th December, 1922, at The Hague, and the representatives of

the six Powers mentioned above assembled on that date in the Palace of Peace. At the second meeting of the

1147

The 1923 Hague Air Rules were not, however, subsequently adopted as a treaty by the

United States.

Some provisions in the 1923 Hague Air Rules may reflect customary international law.

For example, the 1923 Hague Air Rules recognize the permissibility of using tracer, incendiary,

or explosive projectiles by or against aircraft, including by States that are Parties to the 1868

Declaration of St. Petersburg.¹¹⁸

Many of the other provisions in the 1923 Hague Air Rules, however, do not reflect

customary international law. For example, the 1923 Hague Air Rules provide that the crew of

military aircraft must be exclusively military.¹¹⁹ The 1949 Geneva Conventions, however,

contemplate that crews of military aircraft may include civilian members.¹²⁰ As another

example, certain efforts in the 1923 Hague Air Rules to limit the effects of attacks also do not

reflect customary international law.¹²¹

19.12 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL

The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or

Other Gases, and of Bacteriological Methods of Warfare, of June 17, 1925, prohibits the use of

asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or devices, and the

use of bacteriological methods of warfare.¹²²

Commission the Honorable John Bassett Moore, First Delegate of the United States, was elected President of the

Commission. The Commission has prepared a set of rules for the control of radio in time of war, which are

contained in Part I of this report, and a set of rules for aërial warfare, which are contained in Part II of this report.”).

¹¹⁸ Refer to § 6.5.4.3 (Exploding Bullets); § 19.6 (1868 St. Petersburg Declaration).

¹¹⁹ Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part

II: Rules of Aërial Warfare, art. 14, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12,

18 (1938) (“A military aircraft shall be under the command of a person duly commissioned or enlisted in the

military service of the state; the crew must be exclusively military.”).

¹²⁰ Refer to § 14.3.3.3 (Military Aircraft - Command and Crew).

¹²¹ J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL

122, 123 (1973) (“In the application of the laws of war, it is important that there be a general understanding in the

world community as to what shall be legitimate military objectives which may be attacked by air bombardment

under the limitations imposed by treaty or by customary international law. Attempts to limit the effects of attacks in

an unrealistic manner, by definition or otherwise, solely to the essential war making potential of enemy States have

not been successful. For example, such attempts as the 1923 Hague Rules of Air Warfare, proposed by an

International Commission of Jurists, and the 1956 ICRC Draft Rules for the Limitation of the Dangers Incurred by

the Civilian Population in Time of War were not accepted by States and therefore do not reflect the laws of war

either as customary international law or as adopted by treaty.”).

¹²² Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices);

§ 6.9.1 (Biological Weapons - Prohibition on Use as a Method of Warfare).

1148

This treaty followed the 1899 Declaration on Asphyxiating Gases and the 1922

Washington Treaty on Submarines and Noxious Gases.¹²³ This treaty also followed widespread

use of chemical weapons in World War I.

On November 25, 1969, President Nixon announced the intention of the administration to

seek Senate advice and consent to ratification of the 1925 Geneva Gas and Bacteriological

Protocol as part of U.S. policies relating to chemical and biological weapons.¹²⁴ The United

States deposited its instrument of ratification to the 1925 Geneva Gas and Bacteriological

Protocol on April 10, 1975.¹²⁵

The United States took a reservation that the “Protocol shall cease to be binding on the

government of the United States with respect to the use in war of asphyxiating, poisonous or

other gases, and of all analogous liquids, materials, or devices, in regard to an enemy state if

such state or any of its allies fails to respect the prohibitions laid down in this Protocol.”¹²⁶ This

reservation would permit use by the United States of chemical weapons and agents in response,

but would not limit in any way the Protocol’s prohibition with respect to biological weapons.¹²⁷

Other States, including France, Belgium, Canada, the USSR (now Russia), and the United

Kingdom issued similar statements upon ratification.¹²⁸

¹²³ Refer to § 19.7.2 (1899 Declaration on Asphyxiating Gases); § 19.10 (1922 Washington Treaty on Submarines

and Noxious Gases).

¹²⁴ Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969

PUBLIC PAPERS OF THE PRESIDENTS 968 (“As to our chemical warfare program, the United States: —Reaffirms its

oft-repeated renunciation of the first use of lethal chemical weapons. -Extends this renunciation to the first use of

incapacitating chemicals. Consonant with these decisions, the administration will submit to the Senate, for its

advice and consent to ratification, the Geneva Protocol of 1925 which prohibits the first use in war of ‘asphyxiating,

poisonous or other Gases and of Bacteriological Methods of Warfare.’ The United States has long supported the

principles and objectives of this Protocol. We take this step toward formal ratification to reinforce our continuing

advocacy of international constraints on the use of these weapons.”).

¹²⁵ 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975, 1541 UNTS 484 (“RATIFICATIONS Instruments

deposited with the Government of France on: 10 April 1975 UNITED STATES OF AMERICA (With effect from

10 April 1975.)”).

¹²⁶ United States, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975,

1541 UNTS 484 (“That the said Protocol shall cease to be binding on the Government of the United States with

respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or

devices, in regard to an enemy State if such State or any of its allies fails to respect the prohibitions laid down in the

Protocol.”).

¹²⁷ William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925

GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“This reservation would permit the retaliatory use by the

United States of chemical weapons and agents, but would not limit in any way the Protocol’s prohibition with

respect to biological weapons.”).

¹²⁸ France, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 9, 1926, 94 LNTS

67 (“The said Protocol shall ipso facto cease to be binding on the Government of the French Republic in regard to

any enemy State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.”);

Belgium, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Dec. 4, 1928, 94 LNTS

67 (“(2) The said Protocol shall ipso facto cease to be binding on the Belgian Government in regard to any enemy

State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.”); Canada,

Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 6, 1930, 94 LNTS 71 (“The

said Protocol shall cease to be binding on His Britannic Majesty towards any State at enmity with Him whose armed

1149

This treaty was followed by the Chemical Weapons Convention and Biological Weapons

Convention, which, inter alia, place restrictions on the use, development, production, and

possession of weapons addressed by the 1925 Geneva Gas and Bacteriological Protocol.¹²⁹

19.13 1929 GENEVA CONVENTIONS

19.13.1 1929 GWS. The United States deposited its instrument of ratification to the 1929

GWS on February 4, 1932.¹³⁰

The 1929 GWS was replaced by the GWS in relations between Parties to the GWS.¹³¹

All the Parties to the 1929 GWS have become Parties to the GWS.

19.13.2 1929 GPW. The United States deposited its instrument of ratification to the 1929

GPW on February 4, 1932.¹³²

The 1929 GPW was replaced by the GPW in relations between Parties to the GPW.¹³³

All the Parties to the 1929 GPW have become Parties to the GPW.

Provisions of the 1929 GPW were found to reflect customary international law by war

crimes tribunals after World War II.¹³⁴ The 1929 GPW may be relevant to understanding

provisions of the 1949 GPW because some provisions of the 1949 GPW were drawn from the

1929 GPW or reflect an effort to improve upon the 1929 GPW.

forces, or whose allies de jure or in fact fail to respect the prohibitions laid down in the Protocol.”); Union of Soviet

Socialist Republics, Statement on Accession to the 1925 Geneva Gas and Bacteriological Protocol, Apr. 5, 1928, 94

LNTS 71 (“(2) The said Protocol shall cease to be binding on the Government of the Union of Soviet Socialist

Republics in regard to all enemy States whose armed forces or whose Allies de jure or in fact do not respect the

restrictions which are the object of this Protocol.”); British Empire, Statement on Ratification of the 1925 Geneva

Gas and Bacteriological Protocol, Apr. 9, 1930, 94 LNTS 69 (“The said Protocol shall cease to be binding on His

Britannic Majesty towards any Power at enmity with Him whose armed forces, or the armed forces of whose allies,

fail to respect the prohibitions laid down in the Protocol.”).

¹²⁹ Refer to § 19.22 (Chemical Weapons Convention); § 19.19 (Biological Weapons Convention).

¹³⁰ Herbert Hoover, Proclamation Regarding the 1929 GPW, Aug. 4, 1932, 47 STAT. 2021, 2073 (“And whereas, the

said Convention has been duly ratified on the part of the United States of America and the instrument of ratification

of the United States of America was deposited with the Government of Switzerland on February 4, 1932; And

whereas, in accordance with Article 92 thereof, the said Convention became effective in respect of the United States

of America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;”).

¹³¹ Refer to § 19.16.2.1 (Relationship Between the GWS and Earlier Conventions).

¹³² Herbert Hoover, Proclamation Regarding the 1929 GWS, Aug. 4, 1932, 47 STAT. 2074, 2101 (“And whereas, the

said Convention has been duly ratified on the part of the United States of America and the instrument of ratification

of the United States of America was deposited with the Government of Switzerland on February 4, 1932: And

whereas, in accordance with Article 33 thereof, the said Convention became effective in respect of the United States

of America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;”).

¹³³ Refer to § 19.16.4.1 (Relationship Between the GPW and the 1929 GPW).

¹³⁴ Refer to § 9.1.1 (Brief History of POW Law).

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19.14 1930 LONDON TREATY FOR THE LIMITATION AND REDUCTION OF NAVAL ARMAMENT AND

1936 LONDON PROTOCOL

Article 22 of the 1930 London Treaty for the Limitation and Reduction of Naval

Armament (1930 London Treaty) and the 1936 London Protocol set forth identical rules

regarding submarine warfare, and the obligations of surface warships and submarines with

respect to the sinking of merchant vessels, including the obligation to put merchant vessels’

passengers and crew in a place of safety.¹³⁵

The United States deposited its instrument of ratification to the 1930 London Treaty on

October 27, 1930.¹³⁶ Although other aspects of the treaty expired on December 31, 1936, Article

22 remains in force.¹³⁷ Signatories to the 1930 London Treaty desired that as many States as

possible accept the rules in Article 22; thus, they concluded the 1936 London Protocol with the

same language as that in Article 22 and invited other States to accede to the 1936 London

Protocol.¹³⁸ The United States signed the 1936 Protocol on November 6, 1936.¹³⁹

19.15 1935 ROERICH PACT

The 1935 Roerich Pact was concluded in Washington on April 15, 1935.¹⁴⁰ It provides

for the respect and protection of “historic monuments, museums, scientific, artistic, educational

and cultural institutions” and their personnel in time of peace as well as in war.¹⁴¹ Such

¹³⁵ Refer to § 13.7.1 (General Principle - Same Rules Applicable to Both Submarine and Surface Warships);

§ 13.5.2 (Attack of Enemy Merchant Vessels); § 15.15.3 (Destruction of Neutral Prizes).

¹³⁶ Herbert Hoover, Proclamation Regarding the 1930 Treaty for the Limitation and Reduction of Naval Armament,

Jan. 1, 1931, 46 STAT. 2858, 2885 (“AND WHEREAS the ratification by the United States of America, subject to

the understandings, set forth therein, … deposited at London on the 27th day of October, one thousand nine hundred

and thirty,”).

¹³⁷ Treaty for the Limitation and Reduction of Naval Armament art. 23, Apr. 22, 1930, 46 STAT. 2858, 2882 (“The

present Treaty shall remain in force until the 31st December, 1936, subject to the following exceptions: (1) Part IV

shall remain in force without limit of time; (2) the provisions of Articles 3, 4 and 5, and of Article 11 and Annex II

to Part II so far as they relate to aircraft carriers, shall remain in force for the same period as the Washington

Treaty.”).

¹³⁸ Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April

22, 1930, preamble, Nov. 6, 1936, 173 LNTS 353, 355 (“And whereas all the signatories of the said Treaty desire

that as great a number of Powers as possible should accept the rules contained in the said Part IV as established rules

of international law; The undersigned, representatives of their respective Governments, bearing in mind the said

Article 22 of the Treaty, hereby request the Government of the United Kingdom of Great Britain and Northern

Ireland forthwith to communicate the said rules, as annexed hereto, to the Governments of all Powers which are not

signatories of the said Treaty, with an invitation to accede thereto definitely and without limit of time.”).

¹³⁹ Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April

22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (“Signed in London, the 6th day of November, nineteen hundred and

thirty-six. For the Government of the United States of America: Robert Worth BINGHAM.”).

¹⁴⁰ Pan American Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15,

1935, 49 STAT. 3267.

¹⁴¹ ROERICH PACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions

shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection

shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded

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institutions and personnel receive protection as cultural property under the 1954 Hague Cultural

Property or the general protection afforded civilian objects and persons.¹⁴²

The United States deposited its instrument of ratification to the 1935 Roerich Pact on July

13, 1935.¹⁴³

This treaty was followed by the 1954 Hague Cultural Property Convention.¹⁴⁴ All Parties

to the Roerich Pact are Parties to the 1954 Hague Cultural Property Convention.

The 1954 Hague Cultural Property Convention is supplementary to the Roerich Pact, but

the distinctive emblem of the 1954 Hague Cultural Property Convention is to be used instead of

the distinguishing flag described in Article III of the 1935 Roerich Pact, in situations where the

1954 Hague Cultural Property Convention and the Regulations for its execution provide for the

use of this distinctive emblem.¹⁴⁵

19.16 1949 GENEVA CONVENTIONS

The four 1949 Geneva Conventions were adopted at a Diplomatic Conference at Geneva

on August 12, 1949. More than 193 States have ratified the 1949 Geneva Conventions.¹⁴⁶

The United States signed each of the 1949 Geneva Conventions on August 12, 1949. The

United States deposited its instrument of ratification to each convention on August 2, 1955.¹⁴⁷

The United States has viewed many of the protections embodied in the 1949 Geneva

Conventions as reflecting appropriate U.S. practice in armed conflict regardless of formal treaty

obligations.¹⁴⁸

to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well

as in war.”). Refer to § 5.18.1.1 (Definition of Cultural Property - Notes on Terminology).

¹⁴² Refer to § 5.18 (Protection of Cultural Property During Hostilities); § 5.6 (Discrimination in Conducting

Attacks).

¹⁴³ Franklin D. Roosevelt, Proclamation Regarding the Roerich Pact, Oct. 25, 1935, 49 STAT. 3267, 3274 (“AND

WHEREAS the said Treaty has been duly ratified by the United States of America, whose instrument of ratification

was deposited with the Pan American Union on July 13, 1935;”).

¹⁴⁴ Refer to § 19.17 (1954 Hague Cultural Property Convention).

¹⁴⁵ Refer to § 19.17.1.2 (Relationship Between the 1935 Roerich Pact and the 1954 Hague Cultural Property

Convention).

¹⁴⁶ See DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreements of the

United States in Force on January 1, 2013, 465-66 (2013).

¹⁴⁷ 213 UNTS 378 (GWS Ratification, “Instrument deposited with the Swiss Federal Council on: 2 August 1955

UNITED STATES OF AMERICA (To take effect on 2 February 1956.)”); 213 UNTS 382 (GWS-Sea Ratification,

“Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To take

effect on 2 February 1956.)”); 213 UNTS 383 (GPW Ratification, “Instrument deposited with the Swiss Federal

Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)”); 213 UNTS 384

(GC Ratification, “Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF

AMERICA (To take effect on 2 February 1956.)”).

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DEPARTMENT OF DEFENSE LAW OF WAR MANUAL (2015) - page 17