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XVIII Implementation and Enforcement of the Law of War

Chapter Contents
18.1 Introduction
18.2 Prudential Reasons Supporting the Implementation and Enforcement of the
Law of War
18.3 Duties of Individual Members of the Armed Forces
18.4 Commanders Duty to Implement and Enforce the Law of War
18.5 Role of Judge Advocates and Legal Advisers
18.6 Dissemination, Study, and Other Measures to Facilitate Understanding of
Duties Under the Law of War
18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law
of War
18.8 Considering Law of War Obligations in the Planning of Military Operations
18.9 States Obligations With Respect to Violations of the Law of War
18.10 Methods for Responding to Violations of the Law of War by the Enemy
18.11 Protests and Demands to the Offending Party
18.12 U.N. Security Council and Enforcement of the Law of War
18.13 National Investigations of Alleged Violations of the Law of War
18.14 International Mechanisms to Investigate Alleged Law of War Violations
18.15 Protecting Power and Other Neutral Intermediaries
18.16 Compensation for Violations of the Law of War
18.17 Retorsion
18.18 Reprisals
18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law
of War
18.20 Prosecution in International and Hybrid Courts
18.21 Limits on the Punishment of Individuals Under the Law of War
18.22 Principles of Individual Criminal Responsibility for Crimes Under
International Law
18.23 Theories of Individual Criminal Liability
18.1 INTRODUCTION
This Chapter addresses the implementation and enforcement of the law of war. It
discusses activities that are undertaken in order to prevent violations of the law of war (such as
training and the promulgation of policies, regulations, and orders). It discusses activities to
respond to alleged violations, such as reporting, investigation, and corrective or punitive
measures.

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18.1.1 DoD Policy on Implementing and Enforcing the Law of War. DoD policy has
addressed the policies and responsibilities for ensuring DoD compliance with the law of war
obligations of the United States. 1 It has been DoD policy that:

Members of the DoD Components comply with the law of war during all armed conflicts,
however such conflicts are characterized, and in all other military operations; 2

The law of war obligations of the United States are observed and enforced by the DoD
Components and DoD contractors assigned to, or accompanying, deployed armed
forces; 3

An effective program to prevent violations of the law of war is implemented by the DoD
Components. 4
These policies follow a longer tradition of compliance with the law of war by U.S. armed

forces.

See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, 1 (May 9, 2006, Certified Current as of Feb. 22,
2011) (This Directive: 1.1. Reissues Reference (a) to update the policies and responsibilities ensuring DoD
compliance with the law of war obligations of the United States.); DOD DIRECTIVE 5100.77, DoD Program for the
Implementation of the Law of War, I (Nov. 5, 1974) (This Directive provides policy guidance and assigns
responsibilities within the Department of Defense for a program to insure implementation of the law of war.).
2

See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, 4.1 (May 9, 2006, Certified Current as of Feb.
22, 2011) (Members of the DoD Components comply with the law of war during all armed conflicts, however such
conflicts are characterized, and in all other military operations.); DOD DIRECTIVE 5100.77, DoD Law of War
Program, 5.3 (Dec. 9, 1998) (The Heads of the DoD Components shall: 5.3.1. Ensure that the members of their
DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized,
and with the principles and spirit of the law of war during all other operations.); DOD DIRECTIVE 5100.77, DoD
Law of War Program, E(1)(a) (Jul. 10, 1979) (The Armed Forces of the United States shall comply with the law
of war in the conduct of military operations and related activities in armed conflict, however such conflicts are
characterized.); DOD DIRECTIVE 5100.77, DoD Program for the Implementation of the Law of War, V(A) (Nov. 5,
1974) (The Armed Forces of the United States will comply with the law of war in the conduct of military
operations and related activities in armed conflict however such conflicts are characterized.).
3

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 4.2 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(The law of war obligations of the United States are observed and enforced by the DoD Components and DoD
contractors assigned to or accompanying deployed Armed Forces.).
4

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 4.3 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(An effective program to prevent violations of the law of war is implemented by the DoD Components.).
5

See, e.g., 1956 FM 27-10 (Change No. 1 1976) 7 (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. 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).);
U.S. Navy Regulations Article 0505 (1948) (Observance of International Law. 1. In the event of war between
nations with which the United States is at peace, a commander shall observe, and require his command to observe,
the principles of international law. He shall make every effort consistent with those principles to preserve and
protect the lives and property of citizens of the United States wherever situated. 2. When the United States is at war,
he shall observe, and require his command to observe, the principles of international law and the rules of humane

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18.1.2 National Obligations to Implement and Enforce the Law of War. States, as Parties
to treaties, have certain obligations to implement and enforce those treaties. These obligations
may be written as a general obligation to undertake to respect and to ensure respect for the treaty.
In addition, treaties may provide for more specific obligations to help implement and
enforce their provisions, such as obligations with respect to violations of the treaty or
dissemination of the text of the treaty.
Different treaties may have different mechanisms to implement and to ensure compliance
with that treaty.
18.1.2.1 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty 1949 Geneva Conventions. Parties to the 1949 Geneva Conventions
undertake to respect and ensure respect for the conventions in all circumstances. 6 This is a
general obligation to take the measures that the State deems appropriate in order to fulfill its
obligations under the conventions.
18.1.2.2 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty AP III. Parties to AP III undertake to respect and to ensure respect for
AP III in all circumstances. 7
18.1.2.3 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty CCW Amended Mines Protocol. Parties to the CCW Amended Mines
Protocol shall take all appropriate steps, including legislative and other measures, to prevent and
suppress violations of that Protocol by persons or on territory under its jurisdiction or control. 8
18.1.2.4 General Treaty Obligations to Take Appropriate Actions to Implement
and Enforce the Treaty Child Soldiers Protocol. Each Party to the Child Soldiers Protocol
shall take all necessary legal, administrative, and other measures to ensure the effective
implementation and enforcement of the provisions of this Protocol within its jurisdiction. 9

warfare. He shall respect the rights of neutrals as prescribed by international law and by pertinent provisions of
treaties, and shall exact a like observance from neutrals.).
6

GWS art. 1 (The High Contracting Parties undertake to respect and to ensure respect for the present Convention
in all circumstances.); GWS-SEA art. 1 (same); GPW art. 1 (same); GC art. 1 (same).

AP III art. 1(1) (The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all
circumstances.).

CCW AMENDED MINES PROTOCOL art. 14 (1. Each High Contracting Party shall take all appropriate steps,
including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on
territory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article include
appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed
conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring
such persons to justice.).
9

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
art. 6(1), May 25, 2000, 2173 UNTS 222, 238 (Each State Party shall take all necessary legal, administrative and
other measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its
jurisdiction.).

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18.1.3 International or Multi-National Actions to Implement and Enforce the Law of


War. States sometimes take actions on the international or multinational level to implement and
enforce the law of war.
For example, NATO Standardization Agreements might specify common procedures to
implement obligations under the 1949 Geneva Conventions for the treatment of POWs. States
may investigate alleged violations of the law of war through international commissions of
inquiry. 10 As another example, States may establish international criminal tribunals to try enemy
belligerents. 11
18.1.4 Law of War Obligations and International Organizations. International
organizations, such as the United Nations or NATO, are not Parties to law of war treaties, such
as the 1949 Geneva Conventions. Thus, these organizations do not have obligations under those
treaty instruments. However, the member States of international organizations are Parties to
these treaties, and as a general matter, a States obligations under law of war treaties would not
be rendered inapplicable simply because its forces are part of an international or multinational
force or are acting through an international organization.
18.1.5 Application of Implementation and Enforcement Measures Outside the Context of
International Armed Conflict. Certain treaty obligations with respect to the implementation and
enforcement of the law of war may not apply outside the context of international armed conflict.
Nonetheless, many of the domestic law, policies, and regulations that are used to
implement and enforce the law of war are applicable outside the context of international armed
conflict. Thus, for example, many of the provisions of the Uniform Code of Military Justice may
be used to punish crimes that have been committed in the context of a non-international armed
conflict or a military operation other than war.
18.2 PRUDENTIAL REASONS SUPPORTING THE IMPLEMENTATION AND ENFORCEMENT OF THE LAW
OF WAR
The implementation and enforcement of the law of war have been supported by strong
practical considerations. Compliance with the law of war is not only legally required but also in
the strong self-interest of everyone subject to the law of war. 12
18.2.1 Reinforcing Military Effectiveness. Conducting military operations in accordance
with the law of war is not fighting with one hand tied behind ones back. Rather, law of war

10

Refer to 18.14 (International Mechanisms to Investigate Alleged Law of War Violations).

11

Refer to 18.20.1 (Post-World War II International Military Tribunals).

12
1976 AIR FORCE PAMPHLET 110-31 1-6 (The law of armed conflict developed from an amalgam of social,
political and military considerations. The primary basis for the law, and the principal reason for its respect, is that it
generally serves the self-interest of everyone subject to its commands.).

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principles and rules are consistent with military doctrines for a profession of arms that are the
basis for effective combat operations. 13
For example, various military doctrines, such as accuracy of targeting, concentration of
effort, maximization of military advantage, conservation of resources, avoidance of excessive
collateral damage, and economy of force are not only fully consistent with compliance with the
law of war, but also reinforce its observance. Use of indiscriminate and excessive force is costly,
highly inefficient, and a waste of scarce resources. 14
Similarly, the necessity of discipline for an effective armed force reinforces the
implementation and enforcement of the law of war. An undisciplined force is more likely to
commit law of war violations, such as pillaging, detainee abuse, or atrocities against the civilian
population. 15
18.2.2 Encouraging Reciprocal Adherence by the Adversary. The requirement to comply
with many law of war rules (such as the obligation to treat detainees humanely) does not depend
on whether the enemy complies with that rule. 16
Nevertheless, reciprocity may be a critical factor in the actual observance of the law of
war. Adherence to law of war rules in conducting military operations can encourage an
adversary also to comply with those law of war rules. 17 For example, humane treatment of
enemy persons detained by U.S. forces can encourage enemy forces to treat detained U.S.
persons humanely. 18 Conversely, the maltreatment of detained personnel by U.S. forces may
have a dramatic and negative effect on how U.S. personnel in the hands of the enemy are treated
and the degree to which the law of war is respected generally. 19
13

Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 33 (132) (1999) (It should not be assumed, however, that
humanitarian law and military requirements will necessarily be opposed to one another. On the contrary, most rules
of humanitarian law reflect good military practice, and adherence by armed forces to those rules is likely to reinforce
discipline and good order within the forces concerned.).
14

1976 AIR FORCE PAMPHLET 110-31 1-6b (More importantly, various military doctrines, such as accuracy of
targeting, concentration of effort, maximization of military advantage, conservation of resources, avoidance of
excessive collateral damage, and economy of force are not only fully consistent with compliance with the law of
armed conflict but reinforce its observance. Use of excessive force is not only costly and highly inefficientand to
be avoided for those reasonsit may also be a waste of scarce resources.).
15

Compare 4.18.3 (Private Persons Who Engage in Hostilities Lack of the Privileges of Combatant Status).

16

Refer to 3.6 (Reciprocity and Law of War Rules).

17

1976 AIR FORCE PAMPHLET 110-31 10-1b (The most important relevant treaties, the 1949 Geneva Conventions
for the Protection of War Victims, are not formally conditioned on reciprocity. Yet reciprocity is an implied
condition in other rules and obligations including generally the law of armed conflict. It is moreover a critical factor
in actual observance of the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine of
reprisals.).
18

Refer to 9.2.5 (Reciprocity in the Treatment of POWs).

19
United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1274 (It is
almost inevitable that the murder of innocent members of the population, including the relatives and friends of the
franc-tireurs, would generate a hatred that was bound to express itself in counterreprisals and acts of atrocity.).

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18.2.3 Maintaining Public Support and Political Legitimacy. The implementation and
enforcement of the law of war are also supported by the fact that violations of the law of war are
counterproductive to the political goals sought to be achieved by military operations. 20 For
example, violations of the law of war in counter-insurgency operations may diminish the support
of the local population. Violations of the law of war may also diminish the support of the
populace in democratic States, including the United States and other States that would otherwise
support or participate in coalition operations. Violations of the law of war committed by one
side may encourage third parties to support the opposing side.
18.3 DUTIES OF INDIVIDUAL MEMBERS OF THE ARMED FORCES
Each member of the armed services has a duty to: (1) comply with the law of war in
good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of
war.
18.3.1 Comply With the Law of War in Good Faith. Each member of the armed forces
has a duty to comply with the law of war in good faith. 21 This duty of individual service
members rests within a broader framework of law of war implementation by the U.S. armed
forces.
For example, certain law of war obligations only apply to commanders or to specialized
units, such as units providing medical care, conducting detention operations, or engaging in the
protection of cultural property.
Similarly, individual service members are not expected to be experts in the law of war;
service members should ask questions through appropriate channels and consult with the
command legal adviser on issues relating to the law of war.
In addition, law of war requirements have also been incorporated into domestic law,
policy, regulations, and orders. 22 Moreover, in most cases, the requirements and standards in
applicable policies, regulations, and orders will exceed the requirements of the law of war. 23
Thus, in practice, the obligation of individual service members to comply with the law of
war in good faith is met when service members: (1) perform their duties as they have been
trained and directed; and (2) apply the training on the law of war that they have received. 24

20

1976 AIR FORCE PAMPHLET 110-31 1-6a (However, the application of military force has never been an end in
itself. In many respects, the overall political context has increased in importance in recent years although that
political context has always influenced the means of destruction or tactics used in warfare. Violations of the law of
armed conflict have been recognized as counterproductive to the political goals sought to be achieved. For example,
they may arouse public opinion and induce neutrals to become involved in the conflict on the adversarys side, such
as the entry of the United States into World War I.).
21

Refer to 1.10.2 (Force of the Law of War Under U.S. Domestic Law).

22

Refer to 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

23

Refer to 18.7.2.3 (Setting Higher Standards as a Matter of Policy).

24

Refer to 18.6.2 (Special Instruction or Training).

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18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations.
Members of the armed forces must refuse to comply with clearly illegal orders to commit law of
war violations. In addition, orders should not be construed to authorize implicitly violations of
law of war.
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The
requirement to refuse to comply with orders to commit law of war violations applies to orders to
perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal.
For example, orders to fire upon the shipwrecked would be clearly illegal. 25 Similarly, orders to
kill defenseless persons who have submitted to and are under effective physical control would
also be clearly illegal. 26
Subordinates are not required to screen the orders of superiors for questionable points of
legality, and may, absent specific knowledge to the contrary, presume that orders have been
lawfully issued. 27

25

Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship Llandovery Castle (Second Criminal
Senate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922) (It is
certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of
their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an
order is universally known to everybody, including also the accused, to be without any doubt whatever against the
law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present
instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else
but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter has
strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case
here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They
could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out
a breach of the law. They should, therefore, have refused to obey.).
26

United States v. Calley, 22 U.S.C.M.A. 534, 543-44 (C.M.A. 1973) (In the stress of combat, a member of the
armed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible if
he guesses wrong on a question as to which there may be considerable disagreement. But there is no disagreement
as to the illegality of the order to kill in this case. For 100 years, it has been a settled rule of American law that even
in war the summary killing of an enemy, who has submitted to, and is under, effective physical control, is murder.).
27

United States v. von Leeb, et al. (The High Command Case), XI TRIAL OF WAR CRIMINALS BEFORE THE NMT
510-11 (Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are
issued to be carried out. Its discipline is built upon its principle. Without it, no army can be effective and it is
certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable
points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state
which he serves and which are issued to him are in conformity with international law. He has the right to
presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly
determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to
disputable legal questions.); WINTHROP, MILITARY LAW & PRECEDENTS 296-97 (But for the inferior to assume to
determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule,
amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where
the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has
proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of
obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of
no rational doubt of their unlawfulness. Except in such instances of palpable illegality, which must be of rare
occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in
obeying it can scarcely fail to be held justified by a military court .).

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18.3.2.2 Commands and Orders Should Not Be Understood as Implicitly


Authorizing Violations of the Law of War. Commands and orders should not be understood as
implicitly authorizing violations of the law of war where other interpretations are reasonably
available. 28
For example, if a commander issues an order to attack a town, one should assume that the
order directs attacks on military objectives located in that area. 29 Similarly, speeches by
commanders before combat operations to rally members of their command should not be
understood to authorize implicitly law of war violations against the enemy. 30
18.4 COMMANDERS DUTY TO IMPLEMENT AND ENFORCE THE LAW OF WAR
Military commanders have a duty to take appropriate measures as are within their power
to control the forces under their command for the prevention of violations of the law of war. 31
28

See Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson Plan
Second Hour, 5b, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva Conventions
of 1949 and Hague Convention No. IV of 1907, 11 (Aug. 29, 1975) (You should not presume that an order is
criminal. If you think it is criminal, it is probably because the order is unclear. For example, while on patrol we
capture a prisoner. On our return the patrol leader questions him. When the patrol leader finishes the questioning he
tells you get rid of that man. That order is not clear. The patrol leader undoubtedly means to take the man to the
Detainee Collection Point. Rather than presume that an unclear order directs you to commit a crime, ask your
superior for a clarification of the order. Above all, remember that if you are the leader, make your order clear and
understandable. Dont put your subordinates in the position where they may think you are giving a criminal
order.).
29

For example, Prosecutor v. Gotovina and Marka, ICTY Appellate Chamber, IT-06-09-A, Judgment, 77 (Nov.
16, 2012) (More specifically, the Trial Chamber relied on the Impact Analysis to discount Witness Rajis
assertion that the 2 August Order called for shelling only lawful military targets. In addition, neither Witness
Konings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction to
commence indiscriminate attacks on the Four Towns. Given that the relevant portion of the 2 August Order was
relatively short, and did not explicitly call for unlawful attacks on the Four Towns, the text of the 2 August Order
could not, alone, reasonably be relied upon to support a finding that unlawful artillery attacks took place.).
30

For example, L.C. GREEN, SUPERIOR ORDERS IN NATIONAL AND INTERNATIONAL LAW 131-32 (1976) (The
controversy arose over Pattons prepared remarks, which included these statements: The fact we are operating in
enemy country does not permit us to forget our American tradition of respect for private property, non-combatants,
and women. Attack rapidly, ruthlessly, viciously and without rest, and kill even civilians who have the stupidity to
fight us. Several days after the operation began, during which time the fighting was extremely fierce, a Captain
Compton, who had lost several of his men, lined up forty-three captured Germans, some of whom were wearing
civilian clothes, and had them executed by machine gun. At about the same time and in the same general location, a
Sergeant West (of another company) shot and killed thirty-six Germans whom he was escorting to the prisoner-ofwar cage in the rear. When General Patton learned of these incidents, he ordered both men court-martialed on
charges of premeditated murder. At their trials, the two men asserted as a defence the orders issued by General
Patton on June 27, 1943 in his preparatory speech. The defences assertions prompted a subsequent inquiry into
the speech given by Patton in which he was ultimately exonerated after producing the prepared text of the speech
and delivering it orally to a board of investigating officers. Captain Compton and Sergeant West, however, were
convicted as charged.) (first ellipsis in original).
31

See In re Yamashita, 327 U.S. 1, 16 (1946) (The question, then, is whether the law of war imposes on an army
commander a duty to take such appropriate measures as are within his power to control the troops under his
command for the prevention of the specified acts which are violations of the law of war and which are likely to
attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when violations result. These provisions [of the Hague IV
Reg., the Hague X, and the 1929 GWS] plainly imposed on petitioner, who at the time specified was military

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For example, commanders have obligations to take appropriate measures to prevent pillage and
to protect the wounded, sick, and shipwrecked within their control. 32
18.4.1 Background on Commanders Duties to Implement and Enforce the Law of War.
The law of war presupposes that its violation is to be avoided through the control of the
operations of war by commanders who are to some extent responsible for their subordinates. 33
One of the requirements for armed forces to receive the privileges of combatant status is that
they operate under a responsible command. 34 In addition, law of war treaties have specified that
commanders must take appropriate measures to ensure that the provisions of those treaties are
observed. 35
18.4.2 Discipline of Subordinates. In carrying out their duties to implement and enforce
the law of war, commanders may use disciplinary or penal measures. 36 Under international law,
commanders have discretion about how to implement and enforce their law of war obligations;
governor of the Philippines as well as commander of the Japanese forces, an affirmative duty to take such measures
as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian
population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own
military tribunals.); Elihu Root, Secretary of War, Memorandum Transmitting the Record and Proceedings of the
Trial of Brigadier General Jacob H. Smith, Jul. 12, 1902, reprinted in H.C. Corbin, Adjutant General, Major
General, U.S. Army, General Orders, No. 80, 2, 3 Jul. 16, 1902, GENERAL ORDERS AND CIRCULARS OF THE
ADJUTANT GENERALS OFFICE, 1902 (1903) (It is the duty of a general officer whose age and experience have
brought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them the
application of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part and
supplement their comparative inexperience by his wise control. In this General Smith has signally failed, and for
this he has been justly convicted.).
32

Refer to 5.17.4 (Pillage Prohibited); 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick,
Shipwrecked, and Dead).
33

In re Yamashita, 327 U.S. 1, 15 (1946) (It is evident that the conduct of military operations by troops whose
excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations
which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war
from brutality would largely be defeated if the commander of an invading army could, with impunity, neglect to take
reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided
through the control of the operations of war by commanders who are to some extent responsible for their
subordinates.). Consider AP I art. 87(1) (The High Contracting Parties and the Parties to the conflict shall require
military commanders, with respect to members of the armed forces under their command and other persons under
their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the
[Geneva] Conventions and of this Protocol.).
34

Refer to 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

35

See, e.g., GWS art. 45 (Each Party to the conflict, acting through its Commanders-in-Chief, shall ensure the
detailed execution of the preceding Articles and provide for unforeseen cases, in conformity with the general
principles of the present Convention.); GWS-SEA art. 46 (same). Consider HAGUE X art. 19 (The Commandersin-chief of the belligerent fleets must see that the above Articles are properly carried out; they will have also to see
to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity
with the general principles of the present Convention.).
36

Consider AP I art. 87(3) (The High Contracting Parties and Parties to the conflict shall require any commander
who is aware that subordinates or other persons under his control are going to commit or have committed a breach
of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the
Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators
thereof.). Refer to 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

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there is no absolute or automatic requirement under international law to punish particular


offenders within their armed forces in a specific way. 37
18.4.3 Duty to Investigate Reports of Alleged Law of War Violations. Commanders
have a duty to investigate reports of alleged law of war violations committed by persons under
their command or against persons to whom they have a legal duty to protect. 38
18.4.4 Issuance of Guidance, Training of Subordinates, and Other Preventive or
Corrective Measures. Apart from disciplinary measures, a variety of other measures may be
appropriate to prevent or address violations of the law of war by subordinates. For example,
commanders should ensure that members of the armed forces under their command are,
commensurate with their duties, aware of their duties under the law of war. 39 After violations
have occurred, retraining personnel or revising procedures may be appropriate, particularly
where the underlying facts or nature of the violations do not warrant punitive measures.
18.5 ROLE OF JUDGE ADVOCATES AND LEGAL ADVISERS
18.5.1 Legal Advisers. The United States has provided for legal advisers to advise
military commanders on the law of war. 40 For example, DoD policy has required that each head
of a DoD component make qualified legal advisers available at all levels of command to provide
advice about law of war compliance during planning and execution of exercises and operations. 41
18.5.1.1 Review of Plans, Policies, Directives, and Rules of Engagement by Legal
Advisers. DoD policy has required that commanders of the combatant commands ensure that all
plans, policies, directives, and rules of engagement, and those of subordinate commands and
37

United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT
524 (With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit
offences against the indigenous population, this obligation as a matter of International Law is considered doubtful.
The duty imposed upon a military commander is the protection of the civilian population. Whether this protection
be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it be
assured by disciplinary measures or otherwise, is immaterial from an international standpoint.).

38

Refer to 18.13 (National Investigations of Alleged Violations of the Law of War).

39

Consider AP I art. 87(2) (In order to prevent and suppress breaches, High Contracting Parties and Parties to the
conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the
armed forces under their command are aware of their obligations under the Conventions and this Protocol.).

40

Consider AP I art. 82 (The High Contracting Parties at all times, and the Parties to the conflict in time of armed
conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the
appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be
given to the armed forces on this subject.).

41

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.1 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(The Heads of the DoD Components shall: [5.7.3] Make qualified legal advisers at all levels of command
available to provide advice about law of war compliance during planning and execution of exercises and operations;
and institute and implement programs to comply with the reporting requirements established in section 6.); DOD
DIRECTIVE 5100.77, DoD Law of War Program, 5.3 (Dec. 9, 1998) (The Heads of the DoD Components shall:
[5.3.3] Ensure that qualified legal advisers are immediately available at all levels of command to provide advice
about law of war compliance during planning and execution of exercises and operations; and institute and
implement programs to comply with the reporting requirements established in section 6., below.).

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components, are reviewed by legal advisers to ensure their consistency with the law of war and
DoD policy on the law of war. 42
18.5.1.2 Supervision of Administration of Programs to Address Enemy Violations
of the Law of War. DoD policy has required that commanders of the combatant commands
designate a command legal adviser to supervise the administration of those aspects of the
commands program dealing with possible, suspected, or alleged enemy violations of the law of
war. 43
18.5.1.3 Review of the Acquisition of Weapons. DoD policy has required the legal
review of the intended acquisition of weapons. 44
18.5.2 Law of War Questions During Military Operations. During military operations,
questions on the law of war from U.S. forces or coalition partners related to a specific issue
should be referred through the operational chain of command for resolution. It may also be
appropriate to refer questions to either the office of the Judge Advocate General of a Military
Department, the Staff Judge Advocate to the Commandant of the Marines Corps, the General
Counsel of a Military Department, the Legal Counsel to the Chairman of the Joint Chiefs of
Staff, or the DoD General Counsel.
18.5.3 Role of the DoD Law of War Working Group. The DoD Law of War Working
Group is a DoD internal mechanism for coordination on law of war issues. It consists of
representatives of the General Counsel, Department of Defense; representatives, at the election
of each, of the General Counsel of each Military Department, the Judge Advocate General of
each Military Department, the Staff Judge Advocate to the Commandant of the Marine Corps,
and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. 45 The DoD Law of War
42

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.11 (May 9, 2006, Certified Current as of Feb. 22,
2011) (The Commanders of the Combatant Commands shall: [5.11.8] Ensure all plans, policies, directives, and
rules of engagement issued by the command and its subordinate commands and components are reviewed by legal
advisers to ensure their consistency with this Directive and the law of war.); DOD DIRECTIVE 5100.77, DoD Law of
War Program, 5.8 (Dec. 9, 1998) (The Commanders of the Combatant Commands shall: [5.8.6] Ensure all
plans, policies, directives, and rules of engagement issued by the command and its subordinate commands and
components are reviewed by legal advisers to ensure their consistency with this Directive and the law of war.).

43

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.11 (May 9, 2006, Certified Current as of Feb. 22,
2011) (The Commanders of the Combatant Commands shall: [5.11.5] Designate the command legal adviser to
supervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemy
violations of the law of war.); DOD DIRECTIVE 5100.77, DoD Law of War Program, 5.8 (Dec. 9, 1998) (The
Commanders of the Combatant Commands shall: [5.8.3] Designate the command legal adviser to supervise the
administration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of the
law of war.).
44

Refer to 6.2 (DoD Policy of Reviewing the Legality of Weapons).

45

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.1.4 (May 9, 2006, Certified Current as of Feb. 22,
2011) (The General Counsel of the Department of Defense (GC, DoD) shall: Supervise and assign a chair for the
DoD Law of War Working Group, consisting of representatives, at the election by each of the GC, DoD; the General
Counsel of each Military Department; the Counsel to the Commandant of the Marine Corps; the Judge Advocate
General of each Military Department; the Staff Judge Advocate to the Commandant of the Marine Corps; and the
Legal Counsel to the Chairman of the Joint Chiefs of Staff.); DOD DIRECTIVE 5100.77, DoD Law of War Program,
5.1.2 (Dec. 9, 1998) (The General Counsel of the Department of Defense shall: Establish a DoD Law of War
Working Group consisting of representatives from the General Counsel of the Department of Defense (GC, DoD),

1062

Working Group develops and coordinates law of war initiatives and issues, manages other law of
war matters as they arise, and provides advice to the DoD General Counsel on legal matters
covered by DoD Directive 2311.01E. 46 This includes the preparation, review, and updating of
this manual.
18.6 DISSEMINATION, STUDY, AND OTHER MEASURES TO FACILITATE UNDERSTANDING OF DUTIES
UNDER THE LAW OF WAR
A basic step in implementing and enforcing the law of war is to ensure that people
understand its requirements. Certain treaties require that Parties disseminate the text of that
treaty and promote its study, especially by those personnel who are assigned to implement its
obligations.
18.6.1 General Dissemination and Study of Treaties. Certain treaties require that Parties
disseminate the treaty and promote study of that treaty by the armed forces and the civilian
population.
18.6.1.1 Dissemination and Study - 1949 Geneva Conventions. Parties to 1949
Geneva Conventions undertake, in time of peace, as in time of war, to disseminate the text of
those Conventions widely as possible in their respective countries, and in particular, to include
the study of the Conventions in their programs of military and, if possible, civil instruction. 47 In
addition to the entire population of the Party to the GPW, the GPW emphasizes that Parties
armed forces should know the principles of the GPW.48 Similarly, the GWS and GWS-Sea
emphasize that the armed fighting forces, medical personnel, and chaplains should know the
principles of those treaties. 49

the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the International and Operational Law Division of
the Office of the Judge Advocate General of each Military Department, and the Operational Law Branch of the
Office of the Staff Judge Advocate to the Commandant of the Marine Corps.).
46

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.1.4 (May 9, 2006, Certified Current as of Feb. 22,
2011) (The DoD Law of War Working Group shall develop and coordinate law of war initiatives and issues;
support the research, preparation, review, and updating of the DoD Law of War Manual; manage other law of war
matters as they arise; and provide advice to the General Counsel on legal matters covered by this Directive.); DOD
DIRECTIVE 5100.77, DoD Law of War Program, 5.1.2 (Dec. 9, 1998) (The DoD Law of War Working Group shall
develop and coordinate law of war initiatives and issues, manage other law of war matters as they arise, and provide
advice to the General Counsel on legal matters covered by this Directive.).
47

GC art. 144 (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 programmes of military and, if possible, civil instruction, so that the principles thereof may become
known to the entire population.).
48

GPW art. 127 (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 programmes 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.).
49

GWS art. 47 (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 programmes of military and, if possible, civil instruction, so that the principles thereof may become

1063

18.6.1.2 Dissemination and Study - CCW and Protocols. Parties to the CCW also
undertake, in time of peace as in time of armed conflict, to disseminate the CCW and those of its
annexed Protocols by which they are bound as widely as possible in their respective countries
and, in particular, to include the study of these instruments in their program of military
instruction, so that those instruments may become known to their armed forces. 50
18.6.1.3 Dissemination and Study AP III. Parties to AP III undertake, in time of
peace as in time of armed conflict, to disseminate this Protocol as widely as possible in their
respective countries and, in particular, to include the study of it in their program of military
instruction and to encourage the study of it by the civilian population, so that this instrument may
become known to the armed forces and to the civilian population. 51
18.6.1.4 Dissemination and Study 1954 Hague Cultural Property Convention.
Parties to the 1954 Hague Cultural Property Convention undertake, in time of peace as in time of
armed conflict, to disseminate the text of the Convention and the Regulations for its execution as
widely as possible in their respective countries. They undertake, in particular, to include the
study thereof in their programs of military and, if possible, civilian training, so that its principles
are made known to the whole population, especially the armed forces and personnel engaged in
the protection of cultural property. 52
18.6.1.5 Dissemination and Study Child Soldiers Protocol. Parties to the Child
Soldiers Protocol undertake to make the principles and provisions of the Child Soldiers Protocol
widely known and promoted by appropriate means, to adults and children alike. 53
18.6.2 Special Instruction or Training. In addition to requirements to disseminate and to
promote the study of treaties, treaties also require States to ensure that members of the armed
forces who have duties under those treaties are trained commensurate with those duties. DoD

known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.);
GWS-SEA art. 48 (same).
50

CCW art. 6 (The High Contracting Parties undertake, in time of peace as in time of armed conflict, to
disseminate this Convention and those of its annexed Protocols by which they are bound as widely as possible in
their respective countries and, in particular, to include the study thereof in their programmes of military instruction,
so that those instruments may become known to their armed forces.).
51

AP III art. 7 (The High Contracting Parties undertake, in time of peace as in time of armed conflict, to
disseminate this Protocol as widely as possible in their respective countries and, in particular, to include the study
thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so
that this instrument may become known to the armed forces and to the civilian population.).
52

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 25 (The High Contracting Parties undertake, in time of
peace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for its
execution as widely as possible in their respective countries. They undertake, in particular, to include the study
thereof in their programmes of military and, if possible, civilian training, so that its principles are made known to the
whole population, especially the armed forces and personnel engaged in the protection of cultural property.).
53
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
art. 6(2), May 25, 2000, 2173 UNTS 222, 238 (States Parties undertake to make the principles and provisions of the
present Protocol widely known and promoted by appropriate means, to adults and children alike.).

1064

policy has required, as a general matter, that personnel are trained in the law of war
commensurate with their duties. 54
Training may involve not only classroom instruction or individualized study, but also, for
example, unit training exercises. 55
In many cases, training on law of war requirements may not be classified as law of war
training, or may be conducted without acknowledgment that the requirements are law of war
requirements. 56 Rather, it may be the case that military forces would be trained according to
military doctrines or regulations, which have incorporated law of war requirements and have
been reviewed for consistency with the law of war. 57

54

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 5.8 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(The Secretaries of the Military Departments shall develop internal policies and procedures consistent with this
Directive in support of the DoD Law of War Program to: 5.8.1. Provide directives, publications, instructions, and
training so the principles and rules of the law of war will be known to members of their respective Departments.
Such knowledge will be commensurate with each individual's duties and responsibilities.).

55

For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIAL
RESEARCH 981, 995-96 (2002) (The Army also maintains four permanent Combat Training Centers (CTCs). The
CTCs-at Ft. Irwin, California; Ft. Polk, Louisiana; Ft. Leavenworth, Kansas; and Hohenfels, Germany-offer a
variety of combat and peace operations training for Army units. Three of the CTCs are staffed with a full-time
opposing force (the OPFOR), which engages the training unit, as well as an observer-controller (OC) contingent.
The OCs observe the mission, mentor the training unit's commanders and soldiers, and direct some of the activity
that occurs during the training exercise. The Army Judge Advocate General's Corps has assigned Army judge
advocates to serve as OCs at each of the CTCs. As part of their duties, these judge advocate OCs script events
involving civilians, who, in turn, interact with the personnel of the unit being trained. These civilians, or roleplayers, serve critical training functions. For example, they may play the part of ICRC personnel who visit a
training unit for the purpose of inspecting the unit's EPW holding facilities. They may also live in full-scale
villages on the battlefield, playing the role of civilians who find themselves caught up in the context of an ongoing
conflict. The judge advocate observer-controllers monitor the training unit's interaction with these civilians,
ensuring that commanders, staff, and individual soldiers understand and meet their law of war obligations. These
villages also include such structures as churches and historic sites. Thus, the unit also is tested on law of war
compliance as it relates to targeting and weaponeering considerations. Experience has shown this type of hands-on,
realistic law of war training to be exceptionally effective.).
56

For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIAL
RESEARCH 981, 982-83 (2002) (Other training may cover law of war topics, or address law of war obligations,
without necessarily referring to the law of war. An example is teaching a soldier how to handle an enemy prisoner
of war (EPW). Once the prisoner of war has reached an EPW collection point, or a theater EPW camp, military
police personnel working in each will go about their assigned duties to process and care for the prisoner of war. In
all likelihood each soldier handling an EPW will have received training relative to his or her assigned duties. But
the training of each will not necessarily be listed or categorized as law of war training, since it is based on doctrine
or regulations. Similarly, military medical personnel are trained to treat battlefield wounded and sick solely on the
basis of medical priority. This training may be done without acknowledgment that it is a treaty requirement. The
same may be said for training provided to combat engineers in laying minefields. The doctrine will have been
reviewed for compliance with treaty requirements, and the mines employed will have been reviewed in compliance
with the countrys treaty obligations. The combat engineer will employ lawful mines in a manner consistent with
his or her doctrine. It is unlikely this will be classified as law of war training.).
57

Refer to 18.7.2 (Reasons for Implementation Through Instructions, Regulations, and Procedures).

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The 1949 Geneva Conventions, the CCW Amended Mines Protocol, and the CCW
Protocol V on Explosive Remnants of War each have specific provisions relating to special
instruction or training.
18.6.2.1 Special Instructions or Training - 1949 Geneva Conventions. The GPW
and GC further provide that the military or other authorities who assume responsibilities for
POWs or protected persons must possess the text of the GPW or the GC and be specially
instructed as to its provisions. 58
18.6.2.2 Special Instructions or Training - CCW Amended Mines Protocol. Each
Party to the CCW Amended Mines Protocol shall require that armed forces personnel receive
training commensurate with their duties and responsibilities to comply with the provisions of the
CCW Amended Mines Protocol. 59
18.6.2.3 Special Instructions or Training - CCW Protocol V On Explosive
Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War shall
require that its personnel receive training consistent with the relevant provisions of this
Protocol. 60
18.7 INSTRUCTIONS, REGULATIONS, AND PROCEDURES TO IMPLEMENT AND ENFORCE THE LAW OF
WAR
The law of war has traditionally been implemented through military instructions,
regulations, and procedures. For example, the Lieber Code, one of the first codifications of the
law of war, was called Instructions for the Government of Armies of the United States in the
Field, and was issued as a General Order. 61 Similarly, directives and regulations have been
issued to implement law of war obligations relating to detainees and to establish higher standards
as a matter of policy. 62
58

GPW art. 127 (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.); GC art.
144 (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.).
59

CCW AMENDED MINES PROTOCOL art. 14(3) (Each High Contracting Party shall also require that its armed
forces issue relevant military instructions and operating procedures and that armed forces personnel receive training
commensurate with their duties and responsibilities to comply with the provisions of this Protocol.).
60

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (Each High Contracting Party shall require that
its armed forces and relevant agencies or departments issue appropriate instructions and operating procedures and
that its personnel receive training consistent with the relevant provisions of this Protocol.).
61

Refer to 19.3 (Lieber Code).

62

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program (Aug. 19, 2014); DOD DIRECTIVE 2310.01E,
The Department of Defense Detainee Program (Sept. 5, 2006); 1997 MULTI-SERVICE DETENTION REGULATION 11.b (This regulation implements international law, both customary and codified, relating to EPW, RP, CI, and ODs
which includes those persons held during military operations other than war. The principal treaties relevant to this
regulation are: (1) The 1949 Geneva Convention Relative to the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (GWS). (2) The 1949 Geneva Convention Relative to the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GWS Sea). (3) The 1949
Geneva Convention Relative to the Treatment of Prisoners of War (GPW). (4) The 1949 Geneva Convention

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18.7.1 Treaty Provisions Specifically Contemplating or Requiring Military Instructions,


Regulations, and Procedures. Law of war treaties contemplate or in some cases require that such
instructions will be issued. In some cases, the implementation of a treaty through military
instructions or regulations may be understood as a part of the general requirements for States to
take appropriate actions to implement and enforce their obligations under that treaty. 63
18.7.1.1 Instructions, Regulations, and Procedures Hague Conventions on Land
Warfare. Parties to Hague IV shall issue instructions to their armed land forces, which shall be
in conformity with the Regulations respecting the Laws and Customs of War on Land annexed
to Hague IV. 64
18.7.1.2 Instructions, Regulations, and Procedures 1949 Geneva Conventions.
The 1949 Geneva Conventions contemplate that Parties will adopt laws and regulations to ensure
the proper application of the Conventions. 65 The requirement to issue implementing instructions
may be understood as part of the general obligation of Parties to undertake to respect and to
ensure respect for the Conventions. 66
18.7.1.3 Instructions, Regulations, and Procedures CCW Amended Mines
Protocol. Each Party to the CCW Amended Mines Protocol shall require that its armed forces
issue relevant military instructions and operating procedures. 67
18.7.1.4 Instructions, Regulations, and Procedures 1954 Hague Cultural
Property Convention. Parties to the 1954 Hague Cultural Property Convention undertake to
introduce in time of peace into their military regulations or instructions such provisions as may

Relative to the Protection of Civilian Persons in Time of War (GC), and In the event of conflicts or discrepancies
between this regulation and the Geneva Conventions, the provisions of the Geneva Conventions take precedence.).
Refer to 8.1.2 (DoD Policies and Regulations Regarding the Treatment of Detainees); 9.1.3 (DoD Policies and
Regulations for the Treatment of POWs); 10.1.2 (DoD Policies and Regulations for the Treatment of Internees).
63

Refer to 18.1.2 (National Obligations to Implement and Enforce the Law of War).

64

HAGUE IV art. 1 (The Contracting Powers shall issue instructions to their armed land forces which shall be in
conformity with the Regulations respecting the laws and customs of war on land, annexed to the present
Convention.). Cf. 1899 HAGUE II art. 1 (The High Contracting Parties shall issue instructions to their armed land
forces, which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land
annexed to the present Convention.).

65

GWS art. 48 (The High Contracting Parties shall communicate to one another through the Swiss Federal Council
and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as
the laws and regulations which they may adopt to ensure the application thereof.); GWS-SEA art. 49 (same); GPW
art. 128 (same); GC art. 145 (same).
66

Refer to 18.1.2.1 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty
1949 Geneva Conventions).
67
CCW AMENDED MINES PROTOCOL art. 14(3) (Each High Contracting Party shall also require that its armed
forces issue relevant military instructions and operating procedures and that armed forces personnel receive training
commensurate with their duties and responsibilities to comply with the provisions of this Protocol.).

1067

ensure observance of that Convention, and to foster in the members of their armed forces a spirit
of respect for the culture and cultural property of all peoples. 68
18.7.1.5 Instructions, Regulations, and Procedures CCW Protocol V on
Explosive Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War
shall require that its armed forces and relevant agencies or departments issue appropriate
instructions and operating procedures. 69
18.7.2 Reasons for Implementation Through Instructions, Regulations, and Procedures.
In addition to cases in which instructions or regulations are required by a treaty, there are a
number of reasons for implementing law of war obligations through instructions, regulations, and
other procedures.
18.7.2.1 Re-characterizing National Obligations Into Rules for Individuals. First,
under the traditional view of international law, obligations are owed between States, and not as
between States and individuals. 70 Thus, treaty provisions may need to be re-characterized from
obligations that Parties to the treaty promise to one another into rules for individual conduct.
18.7.2.2 Implementing the Rules in Non-Self-Executing Treaties. The adoption of
instructions, regulations, or procedures may assist in the implementation of non-self-executing
treaties. When treaties or provisions of treaties are regarded as non-self-executing, such
provisions do not constitute enforceable domestic law even though the State has ratified them,
but require further implementing action by the ratifying State. 71
However, a State may adopt instructions, regulations, or procedures that are enforceable
under its domestic law and that implement the rules reflected in a treaty. Thus, because such
instructions, regulations, or procedures are enforceable domestically, the State can enforce the
rules in the treaty, even though the treaty remains non-self-executing.
18.7.2.3 Setting Higher Standards as a Matter of Policy. In addition, States may
choose to implement law of war obligations through instructions, regulations, and procedures
because they wish to set a higher standard for their armed forces as a matter of policy. For
example, rules of engagement are often more restrictive than relevant law of war requirements. 72
18.7.2.4 Clarifying Ambiguities in the Law. States may choose to implement law
of war obligations through instructions, regulations, and procedures because they wish to clarify
68

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7 (The High Contracting Parties undertake to introduce in
time of peace into their military regulations or instructions such provisions as may ensure observance of the present
Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural
property of all peoples.).
69

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (Each High Contracting Party shall require that
its armed forces and relevant agencies or departments issue appropriate instructions and operating procedures and
that its personnel receive training consistent with the relevant provisions of this Protocol.).
70

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

71

Refer to 1.10.2.1 (Force of Self-Executing and Non-Self-Executing Treaties Under U.S. Domestic Law).

72

Refer to 1.6.5 (Rules of Engagement (ROE)).

1068

their interpretation of the obligations, which otherwise may not be clear because a treaty
provision is ambiguous or because the obligation is reflected in customary international law.
18.7.2.5 Ensuring Detailed Requirements Are Not Neglected, and Assistance in
Training. In cases in which treaty requirements are detailed and extensive, the promulgation of
military instructions may also help ensure that treaty requirements are not omitted or neglected.
Similarly, the promulgation of military instructions also assists in conducting training or special
instruction. 73
18.7.3 Enforcement of Law of War Obligations Through Military Instructions,
Regulations, and Procedures. The implementation of law of war treaties and obligations through
military instructions, regulations, and procedures has the effect of making such rules enforceable
because military personnel are required to comply with duly issued instructions, regulations, and
procedures. Military personnel may be punished for failure to comply with such orders and
instructions. 74 Conduct that violates the law of war has often been punished through this
mechanism. 75
18.8 CONSIDERING LAW OF WAR OBLIGATIONS IN THE PLANNING OF MILITARY OPERATIONS
Military commanders and planners should consider law of war obligations in the planning
of military operations. DoD policy has required the review of plans by legal advisers to ensure
their consistency with the law of war. 76
It may be especially important to consider affirmative obligations imposed by the law of
war. For example, military commanders and planners should plan for their medical facilities to
consider needing to treat enemy wounded and sick. Similarly, the requirements to care for
detainees should also be considered. Potential responsibilities as an Occupying Power should
also be considered.

73

Refer to 18.6.2 (Special Instruction or Training).

74

Refer to 18.19.3.1 (Uniform Code of Military Justice Offenses).

75

For example, United States v. Harman, 68 M.J. 325, 326 (C.A.A.F. 2010) (Contrary to her pleas, Appellant was
convicted at a general court-martial, with officer and enlisted members, of conspiracy to maltreat subordinates;
dereliction of duty by failing to protect Iraqi detainees from abuse, cruelty, and maltreatment; and four specifications
of maltreatment under Articles 81, 92, and 93, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 881, 892,
893 (2006).); Rear Admiral Richard G. Voge, Too Much Accuracy, PROCEEDINGS OF THE U.S. NAVAL INSTITUTE
257-59 (1950) ([O]n April 9, 1945, to be exact, the Japanese government indignantly announced that the Awa
Maru, on her return trip to Japan after carrying Red Cross supplies to Singapore and the Dutch East Indies, and
travelling under a guarantee of safe conduct from the United States government, had been sunk by a U.S. submarine.
[T]he Navy announced that the Awa Maru had been sunk by the U.S.S. Queenfish, commanded by Commander
Charles Elliot Loughlin, U.S. Navy, of North Wales, Pennsylvania. Loughlin was brought to trial on three
charges: Charge I. Culpable inefficiency in the performance of duty. Charge II. Disobeying the lawful order of his
superior officer. Charge III. Negligence in obeying orders.).
76

Refer to 18.5.1.1 (Review of Plans, Policies, Directives, and Rules of Engagement by Legal Advisers).

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18.9 STATES OBLIGATIONS WITH RESPECT TO VIOLATIONS OF THE LAW OF WAR


States have certain obligations with respect to alleged violations of the law of war within
their jurisdiction. In some cases, these obligations to address alleged violations of particular
treaties may be understood as part of the general obligations to implement and enforce those
treaties. In other cases, law of war treaties impose specific requirements on States with respect
to alleged violations of obligations in those treaties.
18.9.1 State Responsibility for Violations of the Law of War by Its Armed Forces. A
State may be responsible for violations of the law of war committed by persons forming part of
its armed forces. 77 In particular, States are responsible for the treatment accorded protected
persons under the GC by their agents. 78 State responsibility for violations of the law of war
committed by its armed forces or other agents results from principles of State responsibility in
international law that are not specific to the law of war. 79
State responsibility for violations of the law of war results in obligations to compensate
other States for violations. 80
18.9.2 Breaches of the 1954 Hague Cultural Property Convention. Parties to the 1954
Hague Cultural Property Convention undertake to take, within the framework of their ordinary
criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions
upon those persons, of whatever nationality, who commit or order to be committed a breach of
the 1954 Hague Cultural Property Convention. 81
18.9.3 Grave Breaches of the 1949 Geneva Conventions. Parties to the 1949 Geneva
Conventions have certain obligations relating to grave breaches of the 1949 Geneva
Conventions. These obligations have been interpreted as declaratory of the obligations of
belligerents under customary international law to take measures for the punishment of war

77

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.); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 27 (A belligerent shall indemnify the damage
caused by its violation of the foregoing provisions. It shall likewise be responsible for the acts of persons who may
belong to its armed forces.). Consider AP I art. 91 (A Party to the conflict which violates the provisions of the
Conventions or of this Protocol 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.).
78

Refer to 10.3.5 (State Responsibility for Its Agents Treatment of Protected Persons).

79

See, e.g., I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 96 (207) (1987) (A
state is responsible for any violation of its obligations under international law resulting from action or inaction by (a)
the government of the state, (b) the government or authorities of any political subdivision of the state, or (c) any
organ, agency, official, employee, or other agent of a government or of any political subdivision, acting within the
scope of authority or under color of such authority.).
80

Refer to 18.16 (Compensation for Violations of the Law of War).

81

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 28 (The High Contracting Parties undertake to take, within
the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or
disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of
the present Convention.).

1070

crimes committed by all persons, including members of a belligerents armed forces. 82 These
obligations do not affect the right of a belligerent, under customary international law, to try
enemy personnel for war crimes other than grave breaches of the 1949 Geneva Conventions. 83
Parties to the 1949 Geneva Conventions undertake to enact any legislation necessary to
provide effective penal sanctions for persons committing, or ordering to be committed, any of the
grave breaches of the 1949 Geneva Conventions. 84
Each Party to the 1949 Geneva Conventions shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed, such grave breaches, and
shall bring such persons, regardless of their nationality, before its own courts. 85 It may also, if it
prefers, and in accordance with the provisions of its own legislation, hand such persons over for
trial to another High Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case. 86
No Party to the 1949 Geneva Conventions shall be allowed to absolve itself or any other
Party of any liability incurred by itself or by another Party in respect of grave breaches of the
1949 Geneva Conventions. 87

82

1956 FM 27-10 (Change No. 1 1976) 506 (b. Declaratory Character of Above Principles. The principles
quoted in a [provisions of GWS art. 49, GWS-Sea art. 50, GPW art. 129, and GC art. 146], above, are declaratory of
the obligations of belligerents under customary international law to take measures for the punishment of war crimes
committed by all persons, including members of a belligerent's own armed forces.). See also Joyce A.C.
Gutteridge, The Geneva Conventions of 1949, 26 BRITISH YEAR BOOK OF INTERNATIONAL LAW 294, 305 (1949)
(In accordance with the decision that there should be no attempt in the Geneva Conventions to embark, in however
rudimentary a fashion, on the settlement of a procedure for dealing with war crimes, the Conventions do not attempt
to provide for the trial of grave breaches thereof by any international tribunal, but contemplate only trial and
sentence by the regularly constituted courts of parties to the conflict.).
83

Richard R. Baxter, The Geneva Conventions of 1949, 62 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW
STUDIES 220, 223 (1980) (It may cheer some of you to hear that the Conventions make no reference to war
crimesby that name. There was much controversy about this point at the Conference in 1949, and the upshot of it
was that each of the four Conventions contains an article specifying certain atrocious acts, such as the torturing of
prisoners and civilians, as grave breaches of the Conventions. Judicial safeguards are provided for persons
charged with such acts. Of course, these specific provisions do not affect the right of a belligerent, under customary
international law, to try enemy personnel for war crimes other than grave breaches of the treaties.).
84

GWS art. 49 (The High Contracting Parties undertake to enact any legislation necessary to provide effective
penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present
Convention defined in the following Article.); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
85

GWS art. 49 (Each High Contracting Party shall be under the obligation to search for persons alleged to have
committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts.); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
86

GWS art. 49 (It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such
persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made
out a prima facie case.); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
87
GWS art. 51 (No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party
of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the
preceding Article.); GWS-SEA art. 52 (same); GPW art. 131 (same); GC art. 148 (same).

1071

18.9.3.1 Acts Constituting Grave Breaches. The acts constituting grave


breaches for the purpose of triggering these obligations are defined differently depending on the
particular Geneva Convention. However, all of the Conventions include as grave breaches the
following acts against persons protected by the respective Convention:

willful killing;

torture or inhuman treatment, including biological experiments; and

willfully causing great suffering or serious injury to body or health.

The term grave breaches was deliberately chosen so as not to indicate that violations of
those provisions of the 1949 Geneva Conventions were themselves crimes or that the 1949
Geneva Conventions created an international penal code. 88
Grave breaches of the GWS and GWS-Sea are those involving any of the following acts,
if committed against persons or property protected by the GWS or GWS-Sea:

willful killing; torture or inhuman treatment, including biological experiments;

willfully causing great suffering or serious injury to body or health; and

extensive destruction and appropriation of property, not justified by military necessity


and carried out unlawfully and wantonly. 89

Grave breaches of the GPW are those involving any of the following acts, if committed
against persons or property protected by the GPW:

willful killing;

88

See II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 356-57 (Mr. SINCLAIR (United
Kingdom): The Soviet proposal to substitute in these Articles the word crime for the words grave breaches has
been very fully thrashed out both in the Special Committee and in the Joint Committee, and you will all have read
the results in the Reports of those Committees and in particular in the Special Report on penal sanctions. It is not a
question as to whether or not these grave breaches are crimes, it is simply a question of finding appropriate words
for carrying out the intention behind these Articles which all the delegations who were responsible for framing those
Articles were attempting to secure. That intention was to ensure that any persons who committed breaches of these
Conventions would be suitably dealt with and punished according to the seriousness of the offences that they
committed, and therefore it would have been quite inappropriate to have gone into the question of establishing a new
penal code in these Articles. For that reason the proposal in the present Soviet amendment has been rejected
throughout this Conference. Mr. YINGLING (United States of America): I associate myself with the remarks
which have been made by the Delegate of the United Kingdom. I see no need for repeating the arguments. This
Convention is clearly not a penal statute, and the term crimes is clearly inappropriate to express violations of this
Convention, which will not be crimes until they are so made by domestic penal legislation.).

89

GWS art. 50 (Grave breaches to which the preceding Article relates shall be those involving any of the following
acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman
treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and
extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly.); GWS-SEA art. 51 (same).

1072

torture or inhuman treatment, including biological experiments;

willfully causing great suffering or serious injury to body or health;

compelling a POW to serve in the forces of the hostile Power; and

willfully depriving a POW of the rights of fair and regular trial prescribed in the GPW. 90

Grave breaches of the GC are those involving any of the following acts, if committed
against persons or property protected by the GC:

willful killing;

torture or inhuman treatment, including biological experiments;

willfully causing great suffering or serious injury to body or health;

unlawful deportation or transfer or unlawful confinement of a protected person;

compelling a protected person to serve in the forces of a hostile Power;

willfully depriving a protected person of the rights of fair and regular trial prescribed in
the GC;

taking of hostages; and

extensive destruction and appropriation of property, not justified by military necessity


and carried out unlawfully and wantonly. 91

18.9.3.2 Applicability of Grave Breaches Obligations to Non-International Armed


Conflict. The text of the 1949 Geneva Conventions provides that grave breaches relate to
violations against persons or property protected by the Convention. Since Common Article 3
of the 1949 Convention protects persons against some of the acts described as grave breaches,
the United States took the position that the obligations created by the grave breaches provisions

90

GPW art. 130 (Grave breaches to which the preceding Article relates shall be those involving any of the
following acts, if committed against persons or property protected by the Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or
health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of
war of the rights of fair and regular trial prescribed in this Convention.).
91

GC art. 147 (Grave breaches to which the preceding Article relates shall be those involving any of the following
acts, if committed against persons or property protected by the present Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or
health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected
person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly.).

1073

of the 1949 Geneva Conventions could apply also to violations of Common Article 3. 92 An
Appeals Chamber of the ICTY did not accept this view, and understood the grave breaches
provisions of the 1949 Geneva Conventions only to create obligations applicable in international
armed conflicts. 93 U.S. law makes punishable certain conduct that constitutes a grave breach of
common article 3. 94
Regardless of whether the obligations in the grave breaches provisions apply with respect
to violations of Common Article 3, serious violations of Common Article 3 may nonetheless be
punishable.
18.9.3.3 Suppression of All Acts Contrary to the Provisions of the 1949 Geneva
Conventions. Each High Contracting Party shall take measures necessary for the suppression of
all acts contrary to the provisions of the 1949 Geneva Conventions other than the grave
breaches. 95
Such measures could include punishment of offenders. For example, if a U.S. Soldier
steals the money that has been impounded from POWs and appropriates it for his or her own use,
the theft would not constitute a grave breach of the 1949 Geneva Conventions, but would be an
offense under the Uniform Code of Military Justice. 96

92

D. Stephen Mathias, Legal Counselor, Embassy of the United States, The Hague, The Netherlands, Submission of
the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in
the Case of The Prosecutor of the Tribunal v. Dusan Tadic, 35-36 (Jul. 17, 1995) (For example, Article 130 of the
1949 Geneva Convention Relative to the Treatment of Prisoners of War defines grave breaches as any of a series
of specified acts if committed against persons or property protected by the Convention. (This definition is
included almost verbatim in Article 2 of the Tribunal Statute.) There is no special definition or usage in the Third
Geneva Convention of the phrase persons protected by the Convention. Insofar as Common Article 3 prohibits
certain acts with respect to [p]ersons taking no active part in hostilities in cases of armed conflict not of an
international character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons as
persons protected by the Conventions.).
93

See, e.g., Prosecutor v. Tadi, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 71 (Oct. 2, 1995) (Article 2 refers to grave breaches of the Geneva
Conventions of 1949, which are widely understood to be committed only in international armed conflicts, so the
reference in Article 2 would seem to suggest that the Article is limited to international armed conflicts.).
94

18 U.S.C. 2441 ((c) Definition. As used in this section the term war crime means any conduct (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;).
95

GWS art. 49 (Each High Contracting Party shall take measures necessary for the suppression of all acts contrary
to the provisions of the present Convention other than the grave breaches defined in the following Article.); GWSSEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).

96

See, e.g., 10 U.S.C. 903 ((a) All persons subject to this chapter shall secure all public property taken from the
enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay
all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter
who(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or
disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to
himself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall be
punished as a court-martial may direct.).

1074

Such measures may also be understood to include a wide range of measures, such as the
promulgation or revision of policies and regulations, administrative or corrective measures, or
retraining of personnel. 97
18.9.4 CCW Amended Mines Protocol. Each Party to the CCW Amended Mines
Protocol shall take all appropriate steps, including legislative and other measures, to prevent and
suppress violations of the CCW Amended Mines Protocol by persons or on territory under its
jurisdiction or control. 98 Such measures include appropriate measures to ensure the imposition
of penal sanctions against persons who, in relation to an armed conflict and contrary to the
provisions of the CCW Amended Mines Protocol, willfully kill or cause serious injury to
civilians and to bring such persons to justice. 99
Penal sanctions under Article 14 of the CCW Amended Mines Protocol only apply in a
situation in which an individual: (1) knew, or should have known, that his or her action was
prohibited under the CCW Amended Mines Protocol; (2) intended to kill or cause serious injury
to a civilian; and (3) knew, or should have known, that the person he or she intended to kill or
cause serious injury was a civilian. 100
U.S. Federal law authorizes prosecutions for such conduct. 101
18.9.5 War Crimes Notes on Terminology. The term war crime has been used in
different ways in different contexts. In contemporary parlance, the term war crime is most
often used to mean serious violations of the law of war.

97

Refer to 18.4.4 (Issuance of Guidance, Training of Subordinates, and Other Preventive or Corrective Measures);
18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions); 18.7 (Instructions,
Regulations, and Procedures to Implement and Enforce the Law of War).
98

Refer to 18.1.2.3 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty
CCW Amended Mines Protocol).
99

CCW AMENDED MINES PROTOCOL art. 14 (1. Each High Contracting Party shall take all appropriate steps,
including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on
territory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article include
appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed
conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring
such persons to justice.).
100

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (The United States understands that - (B) Article 14 of the Amended Mines Protocol (insofar as
it relates to penal sanctions) shall apply only in a situation in which an individual (i) knew, or should have known,
that his action was prohibited under the Amended Mines Protocol; (ii) intended to kill or cause serious injury to a
civilian; and (iii) knew or should have known, that the person he intended to kill or cause serious injury was a
civilian.).
101

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. (c) Definition.
As used in this section the term war crime means any conduct (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, BoobyTraps 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.).

1075

18.9.5.1 War Crimes Any Violation of the Law of War. In some cases, the term
war crime has been used as a technical expression for a violation of the law of war by any
person; i.e., under this usage, any violation of the law of war is a war crime. 102 This has been
longstanding U.S. military doctrine. 103
Any violation of the law of war by members of the armed forces of a State could be made
punishable by that State through its domestic law, including military law applicable to its armed
forces. For example, under military law, violations of the law of war may be made punishable
through military orders to comply with law of war requirements. 104 Commanders may also
impose non-judicial punishment or take adverse administrative action to address minor
violations. 105
18.9.5.2 War Crimes Serious Violations of the Law of War. Sometimes the term
war crime is used to refer to particularly serious violations of the law of war. For example,
this is generally the usage when the term war crime is defined for the purposes of a particular
criminal statute. 106
This usage of war crime is understood to exclude minor violations of the law of war.
For example, if during an international armed conflict, military medical personnel perform their
duties while wearing an armlet displaying the distinctive emblem affixed to their right arm
rather than to their left arm, as specified by Article 40 of the GWS, these personnel may be said
to be violating the law of war. However, under this usage of war crime, such violations
generally would not be regarded as a war crime.

102

See, e.g., 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 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: (b) War crimes: namely, violations of the laws or customs of war. Such
violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other
purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on
the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or
devastation not justified by military necessity;).
103

See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 20-4, Inspections and Investigations:
War Crimes 3.a (May 18, 1968) (Every violation of the law of war is a war crime); 1956 FM 27-10 (Change No.
1 1976) 499 (The term war crime is the technical expression for a violation of the law of war by any person or
persons, military or civilian. Every violation of the law of war is a war crime.). Cf. 1958 UK MANUAL 624
(The term war crime is the technical expression for violations of the laws of warfare, whether committed by
members of the armed forces or by civilians.).
104

Refer to 18.7.3 (Enforcement of Law of War Obligations Through Military Instructions, Regulations, and
Procedures).
105

Refer to 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions).

106

See, e.g., 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. (c)
Definition. As used in this section the term war crime means any conduct .).

1076

18.9.5.3 War Crimes Serious Violations of Domestic Law Applicable During


Armed Conflict. The term war crime has also been used to describe offenses, such as
espionage and unprivileged belligerency, that although not prohibited by international law, are
properly liable to punishment by the belligerent against which they are directed. 107 Generally,
this usage does not prevail today, although practitioners may find this usage in older sources.
18.10 METHODS FOR RESPONDING TO VIOLATIONS OF THE LAW OF WAR BY THE ENEMY
In the event of violation of the law of war, it may be possible for the injured State to
resort to remedial action of the following types:

publication of the facts, with a view to influencing public opinion against the offending
belligerent;

protests and demands to the offending party, 108 including demands for compensation or
the punishment of enemy persons who have violated the law; 109

solicitation of the good offices, mediation, or intervention of neutral States for the
purpose of making the enemy observe the law of war; 110

petition to the U.N. Security Council; 111

punishment of captured offenders as war criminals, either through national or


international tribunals; 112

retorsion; 113 and

reprisals. 114

107

1958 UK MANUAL 624 (The term war crime is the technical expression for violations of the laws of warfare,
whether committed by members of the armed forces or by civilians. It has also been customary to describe as war
crimes such acts as espionage and so-called war treason which, although not prohibited by international law, are
properly liable to punishment by the belligerent against which they are directed. However, the accuracy of the
description of such acts as war crimes is doubtful.). Refer to 4.19.4.1 (Unprivileged Belligerency and the Law of
War Notes on Terminology).
108

Refer to 18.11 (Protests and Demands to the Offending Party).

109

Refer to 18.11.2 (Demands for Redress).

110

Refer to 18.15 (Protecting Power and Other Neutral Intermediaries).

111

Refer to 18.12 (U.N. Security Council and Enforcement of the Law of War).

112

Refer to 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War); 18.20
(Prosecution in International and Hybrid Courts).
113

Refer to 18.17 (Retorsion).

114

Refer to 18.18 (Reprisals).

1077

18.11 PROTESTS AND DEMANDS TO THE OFFENDING PARTY


An initial step in responding to law of war violations by the enemy is to issue a formal or
informal complaint to the offending party.
18.11.1 Method of Transmitting Protests and Demands. In view of the lack of diplomatic
relations between States involved in an armed conflict, complaints cannot normally be made
through the usual diplomatic channels. However, other methods are available, depending on the
degree of publicity required. The traditional method of complaining by parlementaire directly to
the commander of the offending forces remains, although modern communications have meant
that the message is more likely now to be transmitted through electronic means. 115
Complaints also may be made through the Protecting Power, an impartial humanitarian
organization performing the duties of a Protecting Power, or a Neutral State. 116
18.11.2 Demands for Redress. In addition to demands to cease committing violations,
protests may also include demands for redress by the offending party. For example, a State may
demand that a national investigation or international investigation be conducted. 117 A State may
demand financial compensation or other reparations. 118 Similarly, a State may demand that
offending individuals be held accountable for their offenses through judicial or other
processes. 119
18.12 U.N. SECURITY COUNCIL AND ENFORCEMENT OF THE LAW OF WAR
In some cases, the U.N. Security Council has determined that situations involving
violations of the law of war constitute a threat to international peace and security. 120 The U.N.
Security Council may take a variety actions to respond to such threats.
115

2004 UK MANUAL 16.6 (In view of the lack of diplomatic relations between states involved in an armed
conflict, complaints cannot normally be made through the usual diplomatic channels. However, other methods are
available, depending on the degree of publicity required. The traditional method of complaining under the
protection of a flag of truce remains, although modern communications have meant that the message is more likely
now to be transmitted by radio or television. Complaints may be made also through neutral states, whether or not
the complainant also seeks their good offices to mediate with a view to making the adverse party observe the law of
armed conflict.); 1956 FM 27-10 (Change No. 1 1976) 495b (In the event of violation of the law of war, the
injured party may legally resort to remedial action of the following types: b. Protest and demand for
compensation and/or punishment of the individual offenders. Such communications may be sent through the
protecting power, a humanitarian organization performing the duties of a protecting power, or a neutral state, or by
parlementaire direct to the commander of the offending forces.).

116

Refer to 18.15 (Protecting Power and Other Neutral Intermediaries).

117

Refer to 18.13 (National Investigations of Alleged Violations of the Law of War); 18.14 (International
Mechanisms to Investigate Alleged Law of War Violations).
118

Refer to 18.16 (Compensation for Violations of the Law of War).

119

Refer to 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

120

U.N. SECURITY COUNCIL RESOLUTION 808, U.N. Doc S/RES/808 (Feb. 22, 1993) (Expressing once again its
grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the
territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of ethnic
cleansing, Determining that this situation constitutes a threat to international peace and security.); U.N. SECURITY

1078

18.12.1 Investigation by the U.N. Security Council Under the Charter of the United
Nations. Under the Charter of the United Nations, the U.N. Security Council may investigate
any dispute, or any situation that might lead to international friction or give rise to a dispute, in
order to determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security. 121 This authority of the U.N. Security Council
to investigate situations includes any such situations that involve violations of the law of war.
The U.N. Security Council has provided for the establishment of commissions of inquiry
or commissions of experts to report on violations of the law of war. 122
18.12.2 Determining Liability and Determining That Compensation Should Be Paid. The
U.N. Security Council may, in appropriate cases, affirm that States are liable for violations of
international law and establish mechanisms to facilitate the payment of compensation for such
violations. 123
COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (Expressing once again its grave concern at the
reports indicating that genocide and other systematic, widespread and flagrant violations of international
humanitarian law have been committed in Rwanda, Determining that this situation continues to constitute a threat to
international peace and security,).
121

U.N. CHARTER art. 34 (The Security Council may investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or
situation is likely to endanger the maintenance of international peace and security.).

122

For example, U.N. SECURITY COUNCIL RESOLUTION 780, U.N. Doc S/RES/780 (Oct. 6, 1992) (Requests the
Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyse
the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further
information as the Commission of Experts may obtain through its own investigations or efforts, of other persons or
bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the
evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law
committed in the territory of the former Yugoslavia.); U.N. SECURITY COUNCIL RESOLUTION 935, U.N. Doc
S/RES/935 (Jul. 1, 1994) (Requests the Secretary-General to establish, as a matter of urgency, an impartial
Commission of Experts to examine and analyse information submitted pursuant to the present resolution, together
with such further information as the Commission of Experts may obtain through its own investigations or the efforts
of other persons or bodies, including the information made available by the Special Rapporteur for Rwanda, with a
view to providing the Secretary-General with its conclusions on the evidence of grave violations of international
humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide.); U.N.
SECURITY COUNCIL RESOLUTION 1564, U.N. Doc S/RES/1564 (Sept. 18, 2004) (Requests that the SecretaryGeneral rapidly establish an international commission of inquiry in order immediately to investigate reports of
violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether
or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that
those responsible are held accountable, calls on all parties to cooperate fully with such a commission, and further
requests the Secretary-General, in conjunction with the Office of the High Commissioner for Human Rights, to take
appropriate steps to increase the number of human rights monitors deployed to Darfur.).
123

See, e.g., U.N. COMPENSATIONS COMMISSION GOVERNING COUNCIL, Report and Recommendations Made by the
Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the WBC Claim), U.N. Doc.
S/AC.26/1996/R.27/Annex, 22 68 (Dec. 18, 1996) (The Security Council having determined, under Chapter VII
of the Charter, that compensation in accordance with international law should be provided to foreign Governments,
nationals and corporations for any direct loss, damage or injury sustained by them as a result of Iraqs unlawful
invasion and occupation of Kuwait, in order to restore international peace and security, the issue of Iraqs liability
has been resolved by the Security Council and constitutes part of the law applicable before the Commission.); id. at
67 (According to paragraph 16 of Security Council resolution 687 (1991), which under article 31 of the Rules
forms part of the law applicable before the Commission, Iraq . . . is liable under international law for any direct

1079

18.12.3 Authorizing the Use of Force. The U.N. Security Council has authorized the use
of force in order to protect civilians who are being attacked in violation of the law of war. 124
18.12.4 Authorizing International Criminal Tribunals. The U.N. Security Council has
established international criminal tribunals for the purpose of prosecuting serious violations of
international humanitarian law. The U.N. Security Council has exercised this authority to create
the International Criminal Tribunal for the Former Yugoslavia and the International Criminal
Tribunal for Rwanda. 125
The Rome Statute of the International Criminal Court provides that the International
Criminal Court may exercise its jurisdiction with respect to crimes when a situation is referred to
the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations. 126 The U.N. Security Council has referred situations in Darfur and Libya to the
Prosecutor of the International Criminal Court. 127 The United States has objected to certain

loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign
Governments, nationals and corporations, as a result of Iraqs unlawful invasion and occupation of Kuwait. The
Panel notes that, when making resolution 687 (1991), the Security Council acted under Chapter VII of the United
Nations Charter, i.e., it exercised its powers under that Chapter to maintain and restore international peace and
security.).
124

U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc S/RES/1973 4 (Mar. 17, 2011) (Authorizes Member
States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements,
and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of
resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab
Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan
territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures
they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the
Security Council.); U.N. SECURITY COUNCIL RESOLUTION 1270, U.N. Doc S/RES/1270 14 (Oct. 22, 1999)
(Acting under Chapter VII of the Charter of the United Nations, decides that in the discharge of its mandate
UNAMSIL may take the necessary action to ensure the security and freedom of movement of its personnel and,
within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical
violence, taking into account the responsibilities of the Government of Sierra Leone and ECOMOG;).
125

U.N. SECURITY COUNCIL RESOLUTION 827, U.N. Doc S/RES/827 (May 25, 1993) (Acting under Chapter VII of
the Charter of the United Nations, ... 2. Decides hereby to establish an international tribunal for the sole purpose of
prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of
the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the
restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the abovementioned report;); U.N. SECURITY COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (Acting
under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of the
Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting
persons responsible for genocide and other serious violations of international humanitarian law committed in the
territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the
territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute
of the International Criminal Tribunal for Rwanda annexed hereto;).
126

ROME STATUTE art. 13(b) (The Court may exercise its jurisdiction with respect to a crime referred to in article 5
in accordance with the provisions of this Statute if: A situation in which one or more of such crimes appears to have
been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the
United Nations;).

127

U.N. SECURITY COUNCIL RESOLUTION 1593, U.N. Doc S/RES/1593 (Mar. 31, 2005) (Decides to refer the
situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.); U.N. SECURITY

1080

aspects of the jurisdiction of the International Criminal Court, and there are certain restrictions in
U.S. domestic law on support to the International Criminal Court. 128
18.12.5 U.N. Security Council Role in Certain Treaties.
18.12.5.1 U.N. Security Council Role in the Biological Weapons Convention and
ENMOD Convention. The Biological Weapons Convention and the ENMOD Convention
provide that Parties to the treaties may lodge a complaint with the Security Council, when a
Party believes that another Party is in breach of its obligations deriving from the provisions of
that treaty. 129 These treaties provide that each Party undertakes to cooperate with any
investigation that the Security Council may initiate. 130 In addition, these treaties impose an
additional obligation on Parties to provide or support assistance to Parties that request assistance
if the Security Council has made an appropriate decision. 131
18.12.5.2 U.N. Security Council and the Chemical Weapons Convention. The
Chemical Weapons Convention provides that the Conference of the States Parties shall, in cases
of particular gravity, bring the issue, including relevant information and conclusions, to the
attention of the U.N. General Assembly and the U.N. Security Council. 132

COUNCIL RESOLUTION 1970, U.N. Doc S/RES/1970 (Feb. 26, 2011) (Decides to refer the situation in the Libyan
Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;).
128

Refer to 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).

129

BIOLOGICAL WEAPONS CONVENTION art. 6(1) (Any State Party to this Convention which finds that any other
State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint
with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming
its validity, as well as a request for its consideration by the Security Council.); ENMOD Convention art. 5(3) (Any
State Party to this Convention which has reason to believe that any other State Party is acting in breach of
obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the
United Nations. Such a complaint should include all relevant information as well as all possible evidence
supporting its validity.).

130

BIOLOGICAL WEAPONS CONVENTION art. 6(2) (Each State Party to this Convention undertakes to co-operate in
carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the
Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall
inform the States Parties to the Convention of the results of the investigation.); ENMOD CONVENTION art. 5(4)
(Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security
Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the
complaint received by the Council. The Security Council shall inform the States Parties of the results of the
investigation.).

131

BIOLOGICAL WEAPONS CONVENTION art. 7 (Each State Party to this Convention undertakes to provide or
support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests,
if the Security Council decides that such Party has been exposed to danger as a result of violation of the
Convention.); ENMOD CONVENTION art. 5(5) (Each State Party to this Convention undertakes to provide or
support assistance, in accordance with the provisions of the Charter of the United Nations, to any State Party which
so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of
violation of the Convention.).

132
CHEMICAL WEAPONS CONVENTION art. 12(4) (The Conference shall, in cases of particular gravity, bring the
issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and
the United Nations Security Council.).

1081

18.12.5.3 U.N. Security Council Role in the Statute of the International Court of
Justice. Under the Statute of the International Court of Justice, a party to a case may have
recourse to the Security Council if an opposing party fails to perform the obligations incumbent
upon it under a judgment rendered by the Court. 133
18.13 NATIONAL INVESTIGATIONS OF ALLEGED VIOLATIONS OF THE LAW OF WAR
The duties to implement and enforce the law of war also imply duties to investigate
reports of alleged violations of the law of war. 134 In addition to taking measures to meet the
requirements of DoD policy, commanders may also take other measures they deem appropriate
to ensure appropriate investigation and reporting of alleged violations of the law of war within
their command. 135
18.13.1 DoD Policy on Reporting Law of War Violations. DoD policy has required the
reporting of possible, suspected, or alleged violations of the law of war for which there is
credible information, or conduct during military operations other than war that would constitute a
violation of the law of war if it occurred during armed conflict (reportable incidents). 136 Such
133

ICJ STATUTE art. 94(2) (If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.).
134

See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1271 (A
commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime,
and protecting lives and property within the area of his command. His responsibility is coextensive with his area of
command. He is charged with notice of occurrences taking place within that territory. He may require adequate
reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise
inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails to
require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his
own dereliction as a defense. Want of knowledge of the contents of reports made to him is not a defense. Reports
to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of
such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a
dereliction of duty which he cannot use in his own behalf.).
135

For example, Defense Legal Policy Board, Report of the Subcommittee on Military Justice in Combat Zones, 54
(May 30, 2013) (In 2009, USCENTCOM issued two fragmentary orders (FRAGOs) related to LOAC incident
reports and legal reporting. USCENTCOM issued the FRAGOs because of perceived lack of timely notifications
and spotty recurring reports. The FRAGOs established timeline requirements for reports and described the
information expected to be included in LOAC reports. For example, the FRAGOs required reporting units with
knowledge of a suspected LOAC violation to transmit information to USCENTCOM within two hours through the
Service component and operational chains of command, irrespective of accuracy or detail. Follow-up was also
required within 24-48 hours with expanded information. The FRAGOs also required formal and informal
investigations to be forwarded to the USCENTCOM Staff Judge Advocate as soon as available and before
submission to organizations outside the USCENTCOM area of responsibility (AOR). The FRAGOs mandated that
initial and subsequent reports contain the 5 Ws of the incident and additional, operationally relevant data.
Further, the FRAGOs clarified the USCENTCOM requirement for weekly Judge Advocate activity reports, and
mandated that ARCENT (Army Central) maintain a generic email address to receive LOAC reports.).
136

DOD DIRECTIVE 2311.01E, DoD Law of War Program, 3.2 (May 9, 2006, Certified Current as of Feb. 22, 2011)
(Reportable Incident. A possible, suspected, or alleged violation of the law of war, for which there is credible
information, or conduct during military operations other than war that would constitute a violation of the law of war
if it occurred during an armed conflict.); DOD DIRECTIVE 5100.77, DoD Law of War Program, 3.2 (Dec. 9, 1998)
(Reportable Incident. A possible, suspected, or alleged violation of the law of war.).

1082

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.).

1083

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).

1084

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.).

1085

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 States 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.).

1086

The State appointed to be a Protecting Power must be able to fulfill the Protecting
Powers 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 Powers 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 rgime 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 Majestys 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 Majestys 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 Iraqs 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 zoneespecially not unless it was equipped and prepared to respond to our
Navys 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).

1092

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. OBrien & 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 enemys 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).

1093

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 Adversarys 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 opponentin this case the
State with which it is at warhad 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 treatys 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.).

1095

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 adversarys 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 adversarys 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).

1096

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 Majestys 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 Majestys 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.).

1097

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 Is provisions on reprisal are counterproductive 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 Is 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 5155 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

1098

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 adversarys 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

1099

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).

1100

members of a States 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, Israels 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 lackingfor 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.

1103

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 Greens 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).

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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-inchief 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
579-80 (Military commissions are also appropriate in
proper circumstances, and we can use them as well to convict terrorists and disrupt their plots. Its 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.).

OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577,

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, BoobyTraps 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 members 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

1108

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 NATOs Operation JOINT ENDEAVOR, Operation JOINT
GUARD and Operation JOINT FORGE, and as part of NATOs support to the European Unions 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.).

1109

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;
or

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 ICCs 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 cobelligerents, 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 counsels argument that Russias 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. Gring, 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 dont 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 States domestic law or the statute
302

United States, et al. v. Gring, 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 latters
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 Nrnberg
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
Belligerents Home Territory).
311

Refer to 4.4.3 (Combatants - Legal Immunity From a Foreign States 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 States 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 States 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
Nrnberg 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. Gring, 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 Nrnberg
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 States Domestic Law).

316

U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nrnberg
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
Nrnberg 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
superiors 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
superiors 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
Airmens 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 Nrnberg
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.).

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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
commanders 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 Presidents 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 andto 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 Generals 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 Conventionsthe 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 Prparatoires 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

1127

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. Gring, 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. Gring, 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. Tadi, 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 accuseds 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. Tadi, 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. Tadi, ICTY Appeals Chamber, IT-94-1-A, Judgment, 220 (Jul. 15, 1999) (Secondly, in the socalled 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 accuseds 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 accuseds
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 Prosecutions 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. Tadi, 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

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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.).

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