Military

CHAPTER 1

BASIC RULES AND PRINCIPLES


Section I. GENERAL

1. Purpose and Scope

The purpose of this Manual is to provide authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral States. Although certain of the legal principles set forth herein have application to warfare at sea and in the air as well as to hostilities on land, this Manual otherwise concerns itself with the rules peculiar to naval and aerial warfare only to the extent that such rules have some direct bearing on the activities of land forces.

This Manual is an official publication of the United States Army. However, those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party should not be considered binding upon courts and tribunals applying the law of war. However, such provisions are of evidentiary value insofar as they bear upon questions of custom and practice.

2. Purposes of the Law of War

The conduct of armed hostilities on land is regulated by the law of land warfare which is both written and unwritten. It is inspired by the desire to diminish the evils of war by:

a. Protecting both combatants and noncombatants from unnecessary suffering;

b. Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians; and

c. Facilitating the restoration of peace.

3. Basic Principles

a. Prohibitory Effect. The law of war places limits on the exercise of a belligerent's power in the interests mentioned in paragraph 2 and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.

The prohibitory effect of the law of war is not minimized by "military necessity" which has been defined as that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity.

b. Binding on States and Individuals. The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces.

4. Sources

The law of war is derived from two principal sources:

a. Lawmaking Treaties (or Conventions), such as the Hague and Geneva Conventions.

b. Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.

Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law.

5. Lawmaking Treaties

a. Treaties to Which the United States Is a Party. The United States is a party to the following conventions pertinent to warfare on land:

(1) Hague Convention No. III of 18 October 1907, Relative to the Opening of Hostilities (36 Stat.1 2259, Treaty Series 538), cited herein as H. III.

(2) Hague Convention No. IV of 18 October 1907, Respecting the Laws and Customs of War on Land (36 Stat. 2277; Treaty Series 539), cited herein as H. IV, and the Annex thereto, embodying the Regulations Respecting the Laws and Customs of War on Land (36 Stat. 2295; Treaty Series 539), cited herein as HR.

(3) Hague Convention No. V of 18 October 1907, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. (36 Stat. 2310; Treaty Series 540), cited herein as H. V.

(4) Hague Convention No. IX of 18 October 1907, Concerning Bombardment by Naval Forces in Time of War (36 Stat. 2351; Treaty Series 542), cited herein as H. IX.

(5) Hague Convention No. X of 18 October 1907, for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention (36 Stat. 2371; Treaty Series No. 543), cited herein as H. X.

(6) Geneva Convention Relative to the Treatment of Prisoners of War of 27 July 1929 (47 Stat. 2021; Treaty Series 846), cited herein as GPW 1929.

(7) Geneva Convention for the Amelioration of the Condidition of the Wounded and Sick of Armies in the Field of 27 July 1929 (47 Stat. 2074; Treaty Series 847), cited herein as GWS 1929.

(8) Treaty on the Protection of Artistic and Scientific Institions and Historic Monuments of 15 April 1985 (49 Stat. 3267; Treaty Series 899), cited herein as the Roerich Pact. Only the United States and a number of the American Republics are parties to this treaty.

(9) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (T. I. A. S. 2 3362), cited herein as GWS.

(10) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (T. I. A. S. 3363), cited herein as GWS Sea.

(11) Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (T. I. A. S. 3364), cited herein as GPW.

(12) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (T. I. A. S. 3365), cited herein as GC.

* (13) Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare of 17 June 1925 (T.I.A.S.__), cited herein as Geneva Protocol of 1925.

b. Effect of the Geneva Convention of 1949. GWS replaces the previous Geneva Wounded and Sick Conventions of 22 August 1864, 6 July 1906, and 27 July 1929 in relations between parties to GWS (see GWS, art. 59). GWS Sea replaces Hague Convention No. X of 18 October 1907, for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906 in relations between parties to GWS Sea (see GWS Sea, art. 58). GPW replaces GPW 1929 in relations between parties to GPW (see GPW, art 134); in relations between parties to H. IV and the corresponding convention of 1899 and which are also parties to GPW, it is complementary to Chapter II of the HR (see GPW, art. 135). GC, in relations between parties to H. IV and the corresponding convention of 1899, is supplementary to Sections II and III of the HR (see GC, art. 154).

6. Custom

Evidence of the customary law of war, arising from the general consent of States, may be found in judicial decisions, the writings of jurists, diplomatic correspondence, and other documentary material concerning the practice of States. Even though individual States may not be parties to or otherwise strictly bound by H. IV and GPW 1929, the former convention and the general principles of the latter have been held to be declaratory of the customary law of war, to which all States are subject.

The Preamble to the HR specifically provides:

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.

Similarly, a common article of the Geneva Conventions of 1949 (GWS, art. 63; GWS Sea, art. 62; GPW, art. 142; GC, art. 158) provides that the denunciation of (withdrawal from) any of the Geneva Conventions of 1949, * * * shall in no way impair the obligations which the 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 the public conscience.

7. Force of the Law of War

a. Technical Force of Treaties and Position of the United States. Technically, each of the lawmaking treaties regarding the conduct of warfare is, to the extent established by its terms, binding only between the States that have ratified or acceded to, and have not thereafter denounced (withdrawn from), the treaty or convention and is binding only to the extent permitted by the reservations, if any, that have accompanied such ratification or accession on either side. The treaty provisions quoted in this manual in bold-face type are contained in treaties which have been ratified without reservation, except as otherwise noted, by the United States.

These treaty provisions are in large part but formal and specific applications of general principles of the unwritten law. While solemnly obligatory only as between the parties thereto, they may be said also to represent modern international public opinion as to how belligerents and neutrals should conduct themselves in the particulars indicated.

For these reasons, the treaty provisions quoted herein will be strictly observed and enforced by United States forces without regard to whether they are legally binding upon this country. Military commanders will be instructed which, if any, of the written rules herein quoted are not legally binding as between the United States and each of the States immediately concerned, and which, if any, for that reason are not for the time being to be observed or enforced.

b. Force of Treaties Under the Constitution. Under the Constitution of the United States, treaties constitute part of the "supreme Law of the Land" (art. VI, clause 2). In consequence, treaties relating to the law of war have a force equal to that of laws enacted by the Congress. Their provisions must be observed by both military and civilian personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the Constitution and statutes enacted in pursuance thereof.

c. Force of Customary Law. The unwritten or customary law of war is binding upon all nations. It will be strictly observed by United States forces, subject only to such exceptions as shall have been directed by competent authority by way of legitimate reprisals for illegal conduct of the enemy (see par. 497). The customary law of war is part of the law of the United States and, insofar as it is not inconsistent with any treaty to which this country is a party or with a controlling executive or legislative act, is binding upon the United States, citizens of the United States, and other persons serving this country.

8. Situations to Which Law of War Applicable

a. Types of Hostilities. War may be defined as a legal condition of armed hostility between States. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to or subsequent to the use of force. The outbreak of war is usually accompanied by a declaration of war (see par. 20).

Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise of armed force pursuant to a recommendation, decision, or call by the United Nations, in the exercise of the inherent right of individual or collective self-defense against armed attack, or in the performance of enforcement measures through a regional arrangement, or otherwise, in conformity with appropriate provisions of the United Nations Charter.

b. Customary Law. The customary law of war applies to all cases of declared war or any other armed conflict which may arise between the United States and other nations, even if the state of war is not recognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory by the exercise of armed force, even if the occupation meets with no armed resistance.

c. Treaties. Treaties governing land warfare are applicable to various forms of war and armed conflict as provided by their terms. The Hague Conventions apply to "war." Common Article 2 of the Geneva Conventions of 1949 states:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. (GWS, GWS Sea, GPW, GC, art. 2.)

d. Special Case of Civil Wars. See paragraph 11.

9. Applicability of Law of Land Warfare in Absence of a Declaration of War

As the customary law of war applies to cases of international armed conflict and to the forcible occupation of enemy territory generally as well as to declared war in its strict sense, a declaration of war is not an essential condition of the application of this body of law. Similarly, treaties relating to "war" may become operative notwithstanding the absence of a formal declaration of war.

10. When Law of Land Warfare Ceases To Be Applicable

The law of land warfare generally ceases to be applicable upon:

a. The termination of a war by agreement, normally in the form of a treaty of peace; or

b. The termination of a war by unilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise decline to recognize the act of its enemy; or

c. The complete subjugation of an enemy State and its allies, if prior to a or b; or

d. The termination of a declared war or armed conflict by simple cessation of hostilities.

However, certain designated provisions of the Geneva Conventions of 1949 (see GC, art. 6; par 249 herein) continue to be operative, not-withstanding the termination of any antecedent hostilities, during the continuance of a military occupation. Insofar as the unwritten law of war and the Hague Regulations extend certain fundamental safeguards to the persons and property of the populations of occupied territory, their protection continues until the termination of any occupation having its origin in the military supremacy of the occupant, not withstanding the fact the Geneva Convention relative to the Protection of Civilian Persons may have ceased to be applicable.

11. Civil War

a. Customary Law. The customary law of war becomes applicable to civil war upon recognition of the rebels as belligerents.

b. Geneva Conventions of 1949.

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. (GWS, GPW, GWS, Sea, GC, art. 3.)

12. Military Government and Martial Law Distinguished

In the practice of the United States, military government is the form of administration which may be established and maintained for the government of areas of the following types that have been subjected to military occupation:

a. Enemy territory.

b. Allied territory recovered from enemy occupation, when that territory has not been made the subject of a civil affairs agreement (see par. 354).

c. Other territory liberated from the enemy, such as neutral territory and areas unlawfully incorporated by the enemy into its own territory, when that territory has not been made the subject of a civil affairs agreement.

d. Domestic territory recovered from rebels treated as belligerents.

Although military government is an accepted concept in the law of the United States, the limits placed upon its exercise are prescribed by the international law of belligerent occupation. Other countries exercise jurisdiction in occupied areas through types of administration analogous to military government even though they may be designated by other names.

In the United States, martial law is the temporary government of the civil population of domestic territory through the military forces, without the authority of written law, as necessity may require. The most prominent distinction between military government, as that term is used herein, and martial law is that the former is generally exercised in the territory of, or territory formerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law of belligerent occupation, while the latter is invoked only in domestic territory, the local government and inhabitants of which are not treated or recognized as belligerents, and is governed solely by the domestic law of the United States.

So far as the United States forces are concerned, military government and martial law are exercised by the military commander under the direction of the President, as Commander in Chief of the Armed Forces.

13. Military Jurisdiction

Military jurisdiction is of two kinds: first, that which is conferred by that branch of a country's municipal law which regulates its military establishment; second, that which is derived from international law, including the law of war.

In the Army of the United States, military jurisdiction is exercised through the following military tribunals:

a. Courts-martial.

b. Military commissions.

c. Provost courts.

d. Other military tribunals.

While general courts-martial have concurrent jurisdiction with military commissions, provost courts, and other types of military tribunals to try any offender who by the law of war is subject to trial by military tribunals (UCMJ, art. 18), it has generally been held that military commissions and similar tribunals have no jurisdiction of such purely military offenses specified in the Uniform Code of Military Justice as are expressly made punishable by sentence of courtmartial (except where the military commission is also given express statutory authority over the offense (UCMJ, arts. 104, 106)). In practice, offenders who are not subject to the Uniform Code of Military Justice but who by the law of war are subject to trial by military tribunals, are tried by military commissions, provost courts, or other forms of military tribunals.

In areas occupied by United States forces, military jurisdiction over individuals, other than members of the Armed Forces, who are charged with violating legislation or orders of the occupant is usually exercised by military government courts. Although sometimes designated by other names, these tribunals are actually military commissions. They sit in and for the occupied area and thus exercise their jurisdiction on a territorial basis.

14. Dissemination of the 1949 Geneva Conventions

a. Wounded and Sick Convention; Wounded and Sick at Sea Convention.

The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmed of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains. (GWS, art. 47, GWS Sea, art. 48.)

b. Prisoners of War Convention.

The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmed of military and, if possible, civil instruction, so that the principles thereof may become known to all their armed forces and to the entire population.

Any military or other authorities, who in time of war assume responsibilities in respect of prisoners of war, must possess the text of the Convention and be specially instructed as to its provisions. (GPW, art. 127.)

c. Civilians Convention.

The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof in their programmed of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population.

Any civilian, military, police or other authorities, who in time of war assume responsibilities in respect of-protected persons, must possess the text of the Convention and be specially instructed as to its provisions. (GC, art. 144.)

Section II. PROTECTING POWERS

15. Protecting Powers

The Geneva Conventions of 1949 contain certain common provisions regarding the safeguarding of the interests of the belligerents by nations designated as "Protecting Powers." These provisions are set forth in the following paragraphs.

16. Functions of Protecting Powers

a. Treaty Provision.

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. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.

The Parties to the conflict shall facilitate to the greatest extent possible, the task of the representatives or delegates of the Protecting Powers.

The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties. (GWS, art. 8; GWS Sea, art. 8; GPW, art 8; GC, art. 9.)

b. Article 8, GWS and GWS Sea, contains the following additional provision:

Their activities shall only be restricted as an exceptional and temporary measure when this is rendered necessary by imperative military necessities.

Except as specifically provided otherwise by GPW and GC, the activities of representatives or delegates of the Protecting Powers under these conventions may not be restricted even in case of imperative military necessity.

17. Activities of the International Committee of the Red Cross

The provisions of the present Convention [s] constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of [persons protected by the convention] and for their relief. (GWS art. 9; GWS Sea, art. 9; GPW, art. 9; GC, art. 10.)

18. Substitutes for Protecting Powers

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.

When * * * [persons protected by the 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.

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.

Any neutral Power, or any organization invited by the Power concerned or offering itself for these purposes, 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.

No derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied.

Whenever, in the present Convention, mention is made of a Protecting Power, such mention also applies to substitute organizations in the sense of the present Article. (GWS, art. 10; GWS Sea, art. 10; GPW, art. 10; GC, art. 11.)

19. Conciliation Procedure

In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between 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.

For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, in particular of the authorities responsible for * * * [persons protected by the convention] possibly on neutral territory suitably chosen. The Parties to the conflict shall be bound to give effect to the proposals made to them for this purpose. 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, art. 11; GWS Sea, art. 11; GPW, art. 11; GC, art. 12.)


1 United States Statutes at Large.

2 Treaties and Other International Acts Series.



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