*FM 6-27/MCTP 11-10C
Field Manual
No. 6-27
Headquarters
Department of the Army
Washington, DC
Marine Corps Tactical Publication
No. 11-10C
Headquarters
United States Marine Corps Training and Education Command
Quantico, VA, 07 August 2019

The Commander's Handbook on the Law of Land Warfare

DOD policy requires “[m]embers 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” (Department of Defense Directive [DODDDODDDepartment of Defense directive] 2311.01E). This publication addresses topics that are also addressed in the DOD Law of War Manual. In the event of a conflict or discrepancy regarding the legal standards addressed in this publication and the DOD Law of War Manual, the latter takes precedence. In many cases, any apparent conflict or discrepancy may be due to this publication’s efforts to provide guidance to Commanders by describing legal concepts more generally rather than exhaustively as found the DOD Law of War Manual. In certain instances, this publication will set out a current policy or practice for Army and Marine forces rather than a legal requirement. The terms “law of war” and “law of armed conflict” are used interchangeably in practice, but this publication uses the term LOAC. Although the term international humanitarian law (IHL) is favored by academics and some others in the international community, it is the Army and Marine Corps’ practice not to use this term as it could confuse practitioners as to the body of law to apply. LOAC is that part of international law that regulates the conduct of hostilities and the protection of war victims. This publication summarizes the law and practice under LOAC for legal and operational practitioners of the Army and Marine Corps. It draws from treaties to which the United States is a party, customary international law, the DOD Law of War Manual, and other references describing long-standing U.S. military practice. It has precedent in the first comprehensive publication of the U.S. military regulation of LOAC, prepared by Professor Francis Lieber, and approved by President Lincoln in April 1863 in General Orders Number 100. The basic LOAC rules and principles applicable to Soldiers and Marines can be summarized by the following basic Soldier’s Rules (see AR 350-1)/Marine Corps Basic Principles (see MCO 3300.4A), developed by Army and Marine judge advocates to train Soldiers and Marines to conform to LOAC standards applicable in all military operations:  Fight only enemy combatants.  Do not harm enemies who surrender. Disarm the enemy and turn them over to your superiors.  Do not kill or torture enemy prisoners of war or other detainees.  Collect and care for the wounded, whether friend or foe.  Do not attack medical personnel, facilities, or equipment.  Destroy no more than the mission requires.  Treat all civilians humanely.  Do not steal. Respect private property and possessions.  Do your best to prevent violations of the law of war.  Report all violations of the law of war to your superiors. Just as the Soldier’s Rules/Basic Principles provide general and sometimes more narrow guidelines than might be allowed for as a matter of law in specific situations, this publication summarizes the law and practice under LOAC for legal and operational practitioners of the Army and Marine Corps. It provides more detailed guidance than what is provided for in the Soldier’s Rules/Basic Principles, but it does not go into the extensive detail of the DOD Law of War Manual. This publication is not a definitive explanation of all LOAC issues, but it should assist in developing other doctrine, tactical practices and training that will be understood by individual Soldiers and Marines and units and lead to increased compliance with LOAC. As a statement of Army and Marine Corps doctrine, this publication should not be interpreted as a source of United States’ government views on customary international law, and, unless explicitly noted, the practices described in the publication should not be understood to have been undertaken out of a sense of legal obligation for the purposes of assessing customary international law. This publication also discusses the relevant and applicable policies, regulations, and other issuances that the Army and Marine Corps have followed in military operations. In discussing such issuances, this publication does not create any policy for Army and Marine Corps forces as the cited document remains the source of any such policy. Such policies, regulations, or other issuance should be reviewed for currency and applicability because they are frequently updated. Whenever possible, this publication should be used in conjunction with the appropriate treaties, as provided, for example, in documents published by the Army’s Judge Advocate General’s Legal Center and School, which contain the text of those various treaties. The Appendix references major LOAC treaties, separately referencing those treaties to which the United States is not a party (for example, Additional Protocol I to the Geneva Conventions). This publication cites applicable authorities within parenthetical references to facilitate quick reference. In certain cases, this publication summarizes or paraphrases treaty provisions. In the event of a conflict or discrepancy between this publication and a binding treaty provision, the treaty provision takes precedence. This publication includes references to Additional Protocol I (AP I), which has not been ratified by the United States and contains some provisions that the United States categorically rejects. These references to API are intended to provide additional content to consider where its provisions are consistent with long-standing practice or principles the United States has generally accepted or where the provision is based on a principle that the United States supports, but is not necessarily militarily acceptable in all respects (API references are noted with consider cites; see DOD Law of War Manual 19.20.1). Unless explicitly stated otherwise, reference in this publication to any provision of a treaty to which the United States is not a party is not intended to affirm the status of those provisions as customary international law or as otherwise binding on the United States. The intent is to compare U.S. practice to provisions of those treaties, and to facilitate understanding of likely positions of potential multinational partners who are parties to those treaties. Based on recent doctrinal changes, certain terms are added for which the DOD Law of War Manual or FM 6-27/MCTP 11-10C is a proponent. The glossary contains acronyms and defined terms. See introductory table-1 for specific changes. Introductory table-1. New Army terms Term Remarks distinction New definition. environmental modification technique New definition. general license New definition. honor New definition. humanity New definition. international armed conflict New definition. jus ad bellum New definition. jus in bello New definition. levée en masse New definition. military necessity New definition. military objective New definition. military passport New definition non-international armed conflict New definition. opinio juris New definition. parlementaire New definition. proportionality New definition. protecting power New definition. reprisal New definition. Introductory table-1. New Army terms (continued) Term Remarks safe-conduct pass New definition. special license New definition. suspension of arms New definition. unprivileged belligerent New definition. This page intentionally left blank.

Armed Conflict Certain basic principles are foundational to a full understanding of LOAC, rules of engagement, and Army and Marine Corps doctrine. This chapter examines the law governing the resort to the use of armed force (jus ad bellum), the purpose and applicability of LOAC in armed conflict and its relationship with other law. After examining the basic LOAC principles, this chapter discusses the classes of persons distinguished within LOAC along with their basic rights, responsibilities, and liabilities. This chapter concludes with a discussion of the tools for implementation of LOAC, such as the role of protecting powers and humanitarian organizations within LOAC, when LOAC no longer applies, and the relationship with human rights law. INTERNATIONAL LAW AND USE OF FORCE IN INTERNATIONAL RELATIONS 1-1. International law principally governs the relations between States both in peacetime and during armed conflict. Jus ad bellum is that part of international law that regulates the circumstances in which States may resort to the use of force in international relations. J us in bello is that part of international law relating to the conduct of hostilities and the protection of war victims, from combatants who are wounded and out of combat, to prisoners of war and civilians. 1-2. Article 2(4) of the United Nations (UN) Charter provides that States are required to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. There are circumstances in which the resort to force will not violate this prohibition, which include when the use of force is authorized by the UN Security Council, when it is undertaken with the consent of the territorial State, and when it is undertaken in the lawful exercise of the inherent right of self-defense (See DOD Law of War Manual, 1.11.4). For example, the United States has used armed force pursuant to an authorization in a UN Security Council Resolution and pursuant to its inherent right of individual or collective self-defense against an armed attack. 1-3. The decision to resort to the use of force in international relations is one that is decided at the national level. Because this publication is intended for Soldiers and Marines operating at lower echelons, it will focus on the jus in bello principle, that is, the international law relating to the conduct of hostilities and the protection of war victims, which as discussed in paragraph 1-4 below, is known as LOAC. LEX SPECIALIS –THE LAW OF ARMED CONFLICT 1-4. LOAC, also referred to as the law of war, is that part of international law that regulates the conduct of hostilities and the protection of war victims both in international and non-international armed conflict; belligerent occupation; and the relationship between belligerent, neutral, and non-belligerent States (see DOD Law of War Manual, 1.3; JP 3-84). The legal maxim lex specialis derogat legi generali, also known as the principle of specialty, provides that as a rule, the special law overrides the general law. This means if an action is regulated by both a general provision and a specific one, the latter applies, as it is more specifically directed toward the action. LOAC is the lex specialis of armed conflict; it is the controlling body of law and provides the legal standards that apply to the conduct of hostilities and the protection of war victims. 1-5. Although LOAC is part of international law, it is important to understand that different States may have different LOAC obligations. Understanding where these differences may arise is often important in dealing with an enemy; it becomes critical when working with allies and other foreign partners. Partner States are often bound by treaties to which the United States is not a party (for example, Additional Protocol I). Partner States may also have different interpretations of LOAC obligations even where the same treaty provision is at issue. Consequently, those partners often adopt conditions or “caveats” during multinational operations that express those States’ interpretations or their differences on issues of national policy. 1-6. DOD policy is that “[m]embers 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.” (DODDDODDDepartment of Defense directive 2311.01E, para. 4.1). Soldiers and Marines must comply with LOAC in all military operations (as well as with any further restrictions imposed by the rules of engagement). Although reciprocity may play an important role in encouraging LOAC compliance, DOD policy is to comply with LOAC even when enemy forces are engaged in violations of their LOAC obligations (see DOD Law of War Manual, 3.6). PURPOSES OF THE LAW OF ARMED CONFLICT Purposes of the Law of Armed Conflict There are two reasons... for the preservation and enforcement, as even-handedly as possible, of the laws of war. The first is strictly pragmatic: They work. Violated or ignored as they often are, enough of the rules are observed enough of the time so that mankind is very much better off with them than without them.... Another and, to my mind, even more important basis of the laws of war is that they are necessary to diminish the corrosive effect of mortal combat on the participants. War does not confer a license to kill for personal reasons – to gratify perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the Soldier is indifferent. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge. Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense of that distinction for the rest of their lives.... As Francis Lieber put the matter in his 1863 Army regulations: “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.” [Lieber Code, art. 15] Telford Taylor Nuremberg Prosecutor 1-7. The main purposes of LOAC are:  Protecting combatants, noncombatants, and civilians from unnecessary suffering;  Providing certain fundamental protections for persons who fall into the hands of the enemy, particularly prisoners of war, military wounded and sick, and civilians;  Facilitating the restoration of peace;  Assisting the commander in ensuring the disciplined, ethical, and effective use of military force;  Preserving the professionalism and humanity of combatants; and  Preventing the degeneration of warfare into savagery or brutality. WHEN THE LAW OF ARMED CONFLICT APPLIES 1-8. Commanders must be prepared to comply with LOAC whenever there is the possibility of military operations or hostile actions. Different LOAC rules can apply to an armed conflict against another State versus an armed conflict against a non-State armed group, such as a terrorist or insurgent group. Guidance will come from higher authority regarding which rule set may apply; but, if no such guidance is forthcoming, commanders must adhere to the LOAC rules for State-on-State conflict described in paragraph 1-14 below. 1-9. War may be described as the existence of armed hostility between States, between States and non-State armed groups, or between non-State armed groups, although the specific legal definition of “war” may depend on the legal purpose at issue (see DOD Law of War Manual, 1.5). For example, under the U.S. Constitution, Congress has the power to declare war, which it last did formally in World War II. Of course, the United States has often engaged in armed conflict or “war,” under international law, since that time, often with congressional support or authorization. Even if parties involved in hostilities do not refer to such actions as “war” or “armed conflict,” LOAC applies to the hostilities at issue. For this reason, and because the terms “war” and “armed conflict” often are used interchangeably, this manual uses them as synonyms. 1-10. Whether a LOAC rule applies may depend on whether a war exists. Jus in bello treaties often provide that they apply to cases of “declared war or of any other armed conflict,” even if a state of war is not recognized by the parties (see Common Article 2, the Geneva Conventions of 1949). This standard has also been understood to result in the application of the customary law of war. A case of “declared war or any other armed conflict” for the purpose of determining whether parties must comply with jus in bello rules may be understood as arising in two ways: (1) when a party intends to conduct hostilities; or (2) when parties are actually conducting hostilities. What specific parts of LOAC apply as a matter of law to a given war may depend on whether the war is characterized as an international armed conflict (IAC) or a non-international armed conflict (NIAC). E XISTENCE OF A W AR FOR P URPOSES OF A PPLYING THE L AW OF A RMED C ONFLICT 1-11. Whether an armed conflict exists for the purpose of applying LOAC may be an intent-based analysis. If States or non-State armed groups seek to engage in armed conflict, they are bound by LOAC with respect to the conduct of hostilities and the protection of war victims (see DOD Law of War Manual, 3.4.1). As such, LOAC obligations must be taken into account even before the fighting actually begins, such as in the planning of military operations. 1-12. Whether an armed conflict exists may also be a conduct-based analysis. Armed conflict may exist absent a declaration of war or without the participating States acknowledging they are engaged in armed conflict. The factual existence of an armed conflict is sufficient to trigger LOAC obligations for the conduct of hostilities and the protection of war victims. 1-13. A helpful rule of thumb may be that where parties are, in fact, engaged in activities that LOAC contemplates (including detention of enemy military personnel without criminal charge, or bombardment of military objectives), those activities are subject to LOAC. I NTERNATIONAL A RMED C ONFLICT 1-14. An international armed conflict (IAC) refers to any declared war between States, or to any other armed conflict between States, even if the state of war is not recognized by one of them. The Geneva Conventions apply to all cases of international armed conflict and all cases of partial or total occupation of a territory, even if the occupation meets no armed resistance (Common Article 2 to Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field [GWS], Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea [GWS Sea], Geneva Convention Relative to the Treatment of Prisoners of War [GPW], and Geneva Convention Relative to the Protection of Civilian Persons in Time of War [GC]). Other law of war treaties also generally apply to international armed conflict and occupation (such as Hague Convention (IV) Respecting the Laws and Customs of War on Land [Hague IV], and its Annex: Regulation Concerning the Laws and Customs of War on Land (The Hague, October 18, 1907) [HR]). The United States has interpreted “armed conflict” in Common Article 2 of the 1949 Geneva Conventions to include any situation in which there is hostile action between the armed forces of two parties, regardless of the duration, intensity, or scope of the fighting (see DOD Law of War Manual, 3.4.2). N ON -I NTERNATIONAL A RMED C ONFLICT 1-15. A non-international armed conflict (NIAC) is an armed conflict not between States, such as a conflict between a State and a non-State armed group or a conflict between two non-State armed groups (Common Article 3 to GWS, GWS Sea, GPW, and GC). In assessing whether a NIAC exists, thus triggering the applicable LOAC rules, situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature do not amount to armed conflict (see DOD Law of War Manual, 3.4.2.2). 1-16. “Armed conflict not of an international character” for the purpose of applying the obligations in Common Article 3 of the 1949 Geneva Conventions was not specifically defined in those conventions. There is a range of views on what constitutes an “armed conflict not of an international character” for this purpose. The intensity of the conflict and the organization of the parties are criteria that have been assessed to distinguish between a NIAC and “internal disturbances and tensions.” A variety of factors have been considered in assessing these criteria and in seeking to distinguish between armed conflict and internal disturbances and tensions. 1-17. The minimum (baseline) legal standard for humane treatment in armed conflict, regardless of the characterization of the conflict, is reflected in Common Article 3, as set forth in Figure 1-1 on page 1-5. As such, the Department of Defense applies the standards articulated in Common Article 3 in the treatment of all detainees (see, Department of Defense Directive [DODDDODDDepartment of Defense directive] 2310.01E, Department of Defense Detainee Program). Additional humane treatment protections and fundamental guarantees may also apply to persons in the hands of opposing forces depending on the context, particularly in international armed conflicts—for example, the United States applies out of a sense of legal obligation the principles set forth in Article 75 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (“Additional Protocol I”)(June 8, 1977) [AP I], to any individual it detains in an international armed conflict. Article 3 In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

This chapter addresses application of the basic LOAC principles of military necessity, humanity, distinction, proportionality, and honor on the battlefield. Among other things, it sets forth LOAC rules on the means and methods of warfare, targeting, deception, perfidy, general rules related to the conduct of hostilities, and the process to ensure the legality of U.S. weapons, weapon systems, and munitions. PRACTICAL GUIDANCE FOR ADHERING TO LOAC Soldiers and Marines must comply with LOAC, but they are not expected to be legal experts. They should refer LOAC questions to judge advocates. Questions that arise during military operations that cannot be resolved at lower levels should be referred through the operational chain of command for resolution (see DOD Law of War Manual, 18.3.1.2). In an armed conflict the Parties’ right to adopt means of injuring the enemy is not unlimited (HR art. 22; consider AP I art. 35(1)). LOAC regulates the conduct of hostilities through principles and rules concerning the means and methods of warfare. The terms means of warfare and methods of warfare are not synonymous. In general, means of warfare refers to weapons or devices used to conduct warfare, while methods of warfare refer to how warfare is conducted. Soldiers and Marines should rely on training and doctrine as LOAC is fundamentally consistent with military doctrine that is the basis for effective military operations. For example, the legal principle of proportionality is consistent with the military concept of economy of force. In U.S. military operations, Rules of Engagement (ROE) are generally reviewed by judge advocates for consistency with LOAC, and ROE often impose greater restrictions than LOAC. Conforming to ROE will therefore assist Soldiers and Marines in LOAC compliance. Under the Standing Rules of Engagement, “[u]nit commanders always retain the inherent right and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent” (CJCSICJCSIChairman of the Joint Chiefs of Staff Instruction 3121.01B). LOAC does not waive this inherent right of unit self-defense. DISTINCTION BETWEEN MEANS AND METHODS OF WARFARE In an armed conflict the right of parties to a conflict to choose means of injuring the enemy is not unlimited (HR art. 22; consider AP I art. 35(1)). LOAC regulates the conduct of hostilities through principles and rules concerning the means and methods of warfare. The terms “means of warfare” and “methods of warfare” are not synonymous. In general, “means of warfare” refer to weapons or devices used to conduct warfare, while “methods of warfare” refer to how warfare is conducted. For example, an analysis of a means of warfare might consider the legality of an artillery projectile; that is, the way in which the projectile is designed to kill or injure enemy combatants. Conversely, a method of warfare analysis might consider the way in which the artillery projectile may be employed, particularly where employment may have an adverse effect on the civilian population. PROTECTION OF CIVILIANS A fundamental objective of LOAC is to protect civilians—including individuals (if not taking a direct part in hostilities) and the general population—from the harmful effects of hostilities. In general, civilians may not be the object of direct (intentional) attack (DOD Law of War Manual, 5.5; consider AP I art. 51(2)). LOAC attempts to protect civilians by requiring combatants to apply the principles of distinction and proportionality, including by taking feasible precautions to avoid incidental harm to civilians when making decisions during armed conflicts. Commanders and their staffs utilize the risk management process to make informed decisions. Commanders should consider risk to mission, resources, and civilians. PROTECTION OF CIVILIANS: A SHARED RESPONSIBILITY The protection of civilians is a responsibility shared among all belligerents. Parties conducting attacks have two duties in particular: First, they must take feasible precautions to reduce the risk of harm to protected persons and objects. Second, they must refrain from attacks in which the expected harm to civilians and civilian objects would be excessive in relation to the concrete and direct military advantage expected to be gained (DOD Law of War Manual, 5.11, 5.12, and 5.14; consider AP I, art. 57(2)). Military commanders and other officials responsible for the safety of the civilian population have responsibilities as well. They must take feasible precautions to reduce the risk of harm to protected persons and objects for which they are responsible. Feasible precautions are those precautions that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations (CCW Protocol III art. 1, para. 5). Military commanders attacking enemy military objectives must make reasonable efforts to reduce the risk of harm to the civilian population when conducting an attack. Military commanders do this by taking feasible precautions to reduce risk to protected persons and object. Military commanders must refrain from attacks that are disproportionate (where the expected harm to civilians and civilian objects would be excessive in relation to the concrete and direct military advantage expected to be gained). Military commanders may consider all relevant facts and circumstances, including the risk to forces under their command, the integrity of their command, and their mission in weighing the decision to use military force in any situation when military forces and civilians are intermingled. Military commanders and other officials responsible for the safety of the civilian population must, to the extent feasible, separate the civilian population from military objectives to protect the civilian population from the effects of combat. Examples of how to do this may include evacuating civilians from known danger areas and constructing and using air raid shelters (DOD Law of War manual, 5.14; consider AP I art. 58). The civilian population and individual civilians must not be used to shield military objectives or operations from attack (DOD Law of War Manual, 5.16; consider AP I art. 51(7)). The party controlling civilians and civilian objects has the primary responsibility for the protection of civilians and civilian objects, as it has the greater opportunity to minimize risk of harm to civilians. Civilians may also share in the responsibility to take precautions for their own protection. Nonetheless, the military commander engaged in the attack of that military objective remains obligated to take feasible precautions to reduce the risk of harm to protected persons and objects. CIVILIANS TAKING A DIRECT PART IN HOSTILITIES LOAC does not expressly prohibit civilians from taking a direct part in hostilities, but it does provide that civilians who do take a direct part in hostilities forfeit protection from being directly attacked (DOD Law of War Manual, 5.8; consider AP I art. 51(3); AP II, art. 13(3)). Civilians who have ceased to take a direct part in hostilities may not be made the object of attack, but could still be subject to detention for their previous hostile acts. Such civilians generally do not enjoy the combatant’s privilege—that is, they do not have combatant immunity, and, if captured, they may be prosecuted for their belligerent acts under the domestic law of the capturing State. Civilians engaging in belligerent acts not only forfeit their immunity from direct attack, they also make it more difficult for military personnel to apply the principle of distinction and thereby can put other civilians at greater risk. In the context of when civilians may be directly targeted, neither treaty law nor customary international law provides a definition of the phrase “direct part in hostilities.” At a minimum, it includes actions that are, by their very nature and purpose, intended to cause actual harm to the enemy. Taking a direct part in hostilities extends beyond merely engaging in combat and also includes certain acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations. Taking a direct part in hostilities, however, does not encompass the general support that members of the civilian population provide to their State’s war effort, such as working in a munitions factory far from the battlefield or buying war bonds. Whether an act constitutes taking a direct part in hostilities is likely to depend on the context. The following considerations may be relevant (see DOD Law of War Manual, 5.8.3):  The degree to which the act causes harm to the opposing party’s persons or objects, such as:  Whether the act is the proximate or “but for” cause of death, injury, or damage to persons or objects belonging to the opposing party; or  The degree to which the act is likely to adversely affect the military operations or military capacity of the opposing party.  The degree to which the act is connected to the hostilities, such as:  The degree to which the act is temporally or geographically near the fighting; or  The degree to which the act is connected to military operations.  The specific purpose underlying the act, such as:  Whether the activity is intended to advance the interests of one party to the conflict to the detriment of the opposing party.  The military significance of the activity to the party’s war effort, such as:  The degree to which the act contributes to a party’s military action against the opposing party;  Whether the act is of comparable or greater value to a party’s war effort than acts that are commonly regarded as taking a direct part in hostilities; or  Whether the act poses a significant threat to the opposing party.  The degree to which the activity is viewed inherently or traditionally as a military one, such as:  Whether the activity involves making decisions on the conduct of hostilities, such as determining the use or application of combat power; or  Whether the act is traditionally performed by military forces in conducting military operations against the enemy (including combat, combat support, and combat service support functions of military forces). E XAMPLES OF T AKING A D IRECT P ART IN H OSTILITIES The following acts are generally considered taking a direct part in hostilities, which deprives civilians who perform them of the protection against direct attack. These examples are illustrative and not exhaustive (See DOD Law of War Manual, 5.8.3.1).  Taking up or bearing arms against the opposing party, or otherwise personally trying to kill, injure, or capture personnel or damage materiel belonging to the opposing party, such as:  Defending military objectives against enemy attack (for example, manning an antiaircraft gun or acting as a bodyguard for an enemy combatant);  Acting as a member of a weapons crew;  Engaging in an act of sabotage; or  Emplacing mines or improvised explosive devices.  Preparing for, moving to, and exfiltrating from combat operations.  Planning, authorizing, or implementing a combat operation against the opposing party, even if that person does not personally use weapons or otherwise employ destructive force in connection with the operation.  Providing or relaying information of immediate use in combat operations, such as:  Acting as an artillery spotter or member of a ground observer corps or otherwise relaying information to be used to direct an airstrike or mortar attack; and  Acting as a guide or lookout for combatants conducting military operations.  Supplying weapons and ammunition, whether to conventional armed forces or armed non-state groups, or assembling weapons (such as improvised explosive devices) in close geographic or temporal proximity to their use, such as:  Delivering ammunition to the front lines; or  Outfitting and preparing a suicide bomber to conduct an attack. E XAMPLES OF A CTS N OT C ONSIDERED T AKING A D IRECT P ART IN H OSTILITIES The following acts are generally not considered taking a direct part in hostilities that would deprive civilians who perform them of protection against direct attack. These examples are illustrative and not exhaustive.  Expressing mere sympathy or moral support for a party’s cause;  Making general contributions to a State’s war effort (for example, buying war bonds or paying taxes to the government that will ultimately be used to fund the armed forces);  Providing police services (for example, police officers maintaining public order against common criminals during armed conflict);  Engaging in independent journalism or public advocacy (for example, opinion journalists writing columns supporting or criticizing a State’s war effort);  Working in a munitions factory or other factory supplying weapons, materiel, or other goods useful to the armed forces of a State but not in geographic or temporal proximity to military operations; or  Providing medical care or other impartial humanitarian assistance. Although performing these activities does not make a person liable to direct attack, performing these activities does not immunize a person from attack if that person through other activity takes a direct part in hostilities or is otherwise lawfully made the object of attack (see DOD Law of War Manual, 5.8.3.2). D URATION OF L IABILITY TO A TTACK Civilians who have taken a direct part in hostilities must not be directly attacked after they have permanently ceased their participation because the military necessity for attacking them has passed. The assessment of whether a person has permanently ceased direct participation in hostilities must be based on a good faith assessment of the available information. For example, a civilian might engage in an isolated instance of taking a direct part in hostilities. This isolated instance is likely to involve multiple acts because taking a direct part in hostilities includes deploying or moving to a position of attack and exfiltrating from an attack. If this participation, however, was an isolated instance that will not be repeated, then no military necessity for attacking that person exists after that individual has ceased taking a direct part in hostilities. Accordingly, the civilian must not be made the object of attack after he or she has ceased taking a direct part in hostilities. Other legal consequences from this participation may continue, however. For example, civilians often may be detained, interned, or prosecuted because of these actions. LOAC, as applied by the United States, gives no “revolving door” protection; that is the off-and-on protection in a case where a civilian repeatedly forfeits and regains his or her protection from being made the object of attack in the time period between instances of taking a direct part in hostilities (DOD Law of War Manual, 5.8.4.2). Thus, civilians who are assessed to be engaged in a pattern of taking a direct part in hostilities may be made the object of attack without waiting for them to begin their next instance of taking a direct part in hostilities. A “revolving door” of protection would place these civilians who take a direct part in hostilities on a better footing than lawful combatants, who may be made the object of attack even when not taking a direct part in hostilities. The United States has strongly objected to efforts to give the so-called “farmer by day, guerilla by night” greater protections than those afforded to lawful combatants. Adoption of such a rule would risk diminishing the protection of the civilian population. C IVILIANS W HO T AKE A D IRECT P ART IN H OSTILITIES AND THE L AW OF A RMED C ONFLICT Although the concept of direct participation in hostilities may be discussed in contexts besides targeting, such as in the context of criminal liability or detention, “taking a direct part in hostilities” for targeting purposes often differs significantly from the standards used for assessing whether a civilian may be detained or prosecuted. For example, domestic criminal statutes prohibiting support to enemy armed groups generally criminalize a much broader range of acts than those acts constituting “direct participation in hostilities” for targeting purposes. H UMAN S HIELDS An adversary’s use of human shields can present complex moral, ethical, legal, and policy considerations. The use of civilians as human shields violates the rule that protected persons may not be used to shield, favor, or impede military operations (see DOD Law of War Manual, 5.16; consider AP I art. 51(7)). The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury, although the attacker may share this responsibility if they fail to take feasible precautions in conducting its attack. If civilians are used as human shields, provided they are not taking a direct part in hostilities, they must be considered as civilians in determining whether a planned attack would be excessive, and feasible precautions must be taken to reduce the risk of harm to them. However, the enemy use of voluntary human shields may be considered as a factor in assessing the legality of an attack. Based on the facts and circumstances of a particular case, the commander may determine that person characterized as voluntary human shields are taking a direct part in hostilities (see DOD Law of War Manual, 5.12.3.4). The use of human shields to intentionally shield military objectives should not be understood to prohibit an attack under LOAC. LOAC should not be interpreted in a way that would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations of the attacking force. Policy, practice, or mission-specific rules of engagement may provide additional guidance in this area. TARGETING AND MILITARY OBJECTIVES In armed conflict, one of the most difficult tasks for Soldiers and Marines under LOAC is conducting an attack and making targeting decisions. Parties to a conflict must conduct attacks in accordance with the principles of distinction and proportionality. Accordingly, LOAC authorizes combatants to make military objectives the object of an attack, but prohibits directing an attack against civilians not taking a direct part in hostilities, the civilian population as such, civilian objects, or other protected persons or objects (see DOD Law of War Manual, 5.4.2; consider API arts. 51(2) and 52(1)). T ARGETING The LOAC principle of distinction obligates each party to a conflict, in its use of force and conduct of military operations, to distinguish between military objectives on the one hand and the civilian population and other protected persons and civilian objects on the other. The principle of distinction applies to each party to a conflict, whether its armed forces are engaged in offensive or defensive operations. The principle of distinction does not guarantee the safety of the civilian population or civilian objects. The risk of injury to civilians or damage to civilian objects increases if either are intermingled with military objectives, whether unintentionally or intentionally. Military operations may range from operations occurring in regions nearly devoid of civilians or civilian objects (such as deserts) to operations in urban areas, where members of the civilian population are likely to be found and the presence of civilian objects is certain. Similarly, an area normally free of civilians suddenly may become heavily populated due to an influx of displaced persons who are fleeing the effects of military operations elsewhere. Military commanders must be prepared for the possibility of an intermingling of civilians with military objectives or that some military objectives (in particular, roads and bridges) are objects commonly used by both the civilian population and military forces. Neither the mere presence of civilians nor intermingling or common use renders a military objective immune from attack. An object used concurrently for civilian and military purposes is liable to attack if it is a military objective (see paragraph 2-36 on “Dual-Use Objects” and paragraphs 2-29 through 2-57 on “Military Objectives” generally). Nor does intermingling or concurrent use preclude otherwise lawful military options under consideration by military planners. Intermingling or concurrent use are factors, however, that military commanders and their staffs must consider in planning and executing military operations through the LOAC principle of proportionality. Military commanders based or operating in urban terrain, or in the vicinity of the civilian population, should take reasonable steps to separate military units from the civilian population and civilian objects (see DOD Law of War Manual, 5.14; consider AP I art. 58). This duty does not preclude positioning, locating, or billeting military forces in urban terrain or other areas where civilians are present when the command has legitimate military reasons for doing so. For example, troops may be housed in populated areas for health and sanitation purposes, and to take advantage of pre-existing communications facilities. In addition, an urban area may become a military objective if it has become a manmade obstacle to impede or prevent enemy forces’ maneuver or advance. Civilian objects that combatants occupy or utilize can become military objectives, and belligerent forces may target them lawfully while they are military objectives. LOAC, however, prohibits positioning military forces among the civilian population when military necessity does not warrant the increased risk to the civilian population or this positioning is undertaken solely for the purpose of utilizing the civilian population to shield military forces from attack. M ILITARY O BJECTIVES An attack may be directed only against a military objective (see DOD Law of War Manual, 5.5). A military objective refers to certain persons and objects during hostilities which, by their nature, location, purpose, or use, make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Military objectives may be attacked wherever they are located outside of neutral territory, subject to other LOAC considerations, such as proportionality. Certain classes of persons and objects are categorically recognized as military objectives, provided the persons are not hors de combat. Apart from these classes that are categorically military objectives, other objects are assessed as to whether they meet the definition of “military objective” (DOD Law of War Manual, 5.6). Certain classes of persons are military objectives and may be made the object of attack. These classes of persons include: combatants, such as personnel in military ground, air, and naval units, or unprivileged belligerents, provided they are not hors de combat; and civilians taking a direct part in hostilities. The following classes of persons are not military objectives: military medical and religious personnel, unless they commit acts harmful to the enemy; military medical units, unless they have forfeited their protected status; combatants placed hors de combat; and parlementaires (see paragraphs 7-17 to 7-40 on parlementaires). “Military objective” is a treaty term synonymous with an object that constitutes a “lawful target.” A military objective, in so far as objects are concerned, is defined in certain treaties as “any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” (CCW Amended Protocol II art. 2.6; CCW Protocol III art. 1.3; consider AP I, art. 52(2)). The components of this definition are examined more closely in paragraphs 2-39 through 2-57. This definition may be viewed as a way of evaluating whether military necessity exists to attack an object. It may also be applied outside the context of conducting attacks to assess whether the seizure or destruction of an object is justified by military necessity. Military objectives may be attacked in any manner consistent with LOAC. The definition sets forth objective, simple criteria to consider whether an object is a lawful target that may be seized or attacked when military necessity exists. By its language, the treaty definition of military objective is concerned only with objects, not individuals. This definition of military objective is relevant and applicable to objects other than military bases and equipment, which are per se military objectives. Military bases and equipment (other than military medical and religious facilities) may be attacked at any time, wherever located, as lawful targets, without analyzing whether they are military objectives (subject to targeting precautions to protect civilians not taking a direct part in hostilities and civilian objects). Likewise, a combatant (such as a member of a military ground, air, or naval unit, or an unprivileged belligerent) is a military objective who may be attacked at any time (subject to targeting precautions to protect civilians not taking a direct part in hostilities and civilian objects), wherever located, regardless of the activity in which he or she is engaged at the time, provided he or she is not hors de combat. Civilians taking a direct part in hostilities are also military objectives and similarly may be made the object of attack. As seen in the list of traditional military objectives in paragraph 2-56, military objectives are not limited to military bases, units, equipment, or forces, but can include other objects that make an effective contribution to an opposing party’s ability to wage war. The term “military target” is a more limited term, as well as redundant, and should not be used. Moreover, the term “civilian target” is an oxymoron and should not be used inasmuch as a civilian object is not a military objective and therefore is immune from intentional attack. If sufficient military necessity exists to justify attacking an object because that objects meets the definition of military objective, then imperative military necessity would also exist to justify seizing or destroying that object by measures short of attack (see paragraphs 2-189 through 2-194). Dual-Use Object Sometimes, “dual-use” is used to describe objects that are used by both the armed forces and the civilian population, such as power stations or communications facilities. From the legal perspective, however, such objects are either military objectives or they are not; there is no intermediate legal category of “dual use.” If an object is a military objective, it is not a civilian object and may be made the object of attack. When the attack on a military objective will impact the civilian population or civilian objects, commanders must conduct a proportionality analysis (see DOD Law of War Manual, 5.6.1.2). Objectives That Are Not Enemy Military Bases or Equipment Insofar as objects are concerned, if the objective is not an enemy military base, military equipment, other type of object that is categorically recognized as a military object, such as military facilities or objects containing military objectives, applying the definition of military objective requires a two-part test. Both parts must apply before an object that is normally a civilian object may be considered a military objective:

This chapter addresses the protection of POWs, retained personnel, and other detainees under LOAC, and as described below. The Hague Conventions of 1907 was one of the international community’s first attempts to codify treatment of captured persons. The 1929 Geneva Convention relative to Prisoners of War provided more substantive treatment than previous treaties and has been refined in the 1949 GPW and in AP I. Since the United States is a party to the GPW, it is binding treaty law and the basis for much of this chapter. This publication uses “POWs” to refer to both friendly and enemy POWs. The treatment and protection of civilian internees are discussed in Chapter 5 of this manual. PRACTICAL GUIDANCE ON POWS AND DETAINEE OPERATIONS 3-1. Soldiers and Marines must comply with LOAC with respect to the treatment of all detainees. Until a detainee’s release, repatriation, or transfer from DOD custody or control, Soldiers and Marines will, without regard to a detainee’s legal status, at a minimum apply: (1) common article 3 of the 1949 Geneva Conventions during all military operations; (2) the principles in Article 75 of AP I during international armed conflict and occupation; and (3) the principles in Articles 4-6 of AP II during non-international armed conflict (DODDDODDDepartment of Defense directive 2310.01E). 3-2. Certain categories of detainees held during international armed conflict or cases of occupation, such as prisoners of war (POWs), and certain civilian internees (see Chapter 5), enjoy protections and privileges under LOAC beyond the minimum standards of treatment discussed in paragraph 3-5. Such detainees will be afforded all applicable protections and privileges under LOAC until their release, repatriation, or transfer. 3-3. Commanders who expect to conduct detention operations should familiarize themselves with guidance from higher headquarters that implements applicable law, DOD policies, and other regulations applicable to the treatment of POWs and retained personnel, such as DODDDODDDepartment of Defense directive 2310.01E, DOD Detainee Program ; DODDDODDDepartment of Defense directive 3115.09, DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning ; AR 190-8/Marine Corps Order (MCO) 3461.1, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees. During detention operations, commanders should anticipate, and where appropriate request, guidance on detainee issues from higher headquarters, especially on issues implicating U.S. legal obligations or national policy. Commanders should seek the advice of their servicing judge advocate if they have any questions about the law applicable to the treatment of POWs, retained personnel, and other detainees. BASIC PROTECTIONS AND HUMANE TREATMENT FOR ALL DETAINEES 3-4. Detainees in all circumstances must be treated humanely and protected against cruel, inhuman, or degrading treatment or punishment (see DOD Law of War Manual, 8.2). Providing humane treatment to an individual or group of individuals does not affect the legal status of that individual, group, or any parties to a conflict (GPW art. 3). 3-5. Detainees must be provided humane care and treatment and with respect for their dignity from the moment they fall into the hands of DOD personnel until their release, transfer out of DOD control, or repatriation. Further, inhumane treatment of detainees is expressly prohibited and is not justified by the stress of combat or deep provocation. Humane treatment and basic protections include, in part:  Adequate food, drinking water, shelter, and clothing;  Reasonable access to the open air, reasonable educational and intellectual activities, and appropriate contacts with the outside world (including, where practicable, exchange of letters, phone calls, and video teleconferences with immediate family or next of kind, as well as family visits);  Safeguards to protect health and hygiene, and protections against the rigors of the climate and dangers of military activities;  Appropriate medical care and attention required by the detainee’s condition, to the extent practicable;  Free exercise of religion, consistent with the requirements of detention;  Reasonable access to qualified interpreters and translators, where applicable and practicable;  Respect for each as a human being without any adverse distinction founded on race, color, religion or faith, political or other opinion, national or social origin, sex, birth, or wealth, or other similar criteria;  Protection against threats or acts of violence, including rape, forced prostitution, assault, theft, public curiosity, bodily injury, reprisals, torture, and cruel, inhuman, or degrading treatment or punishment; and  Prohibition on being subject to medical or scientific experiments or to sensory deprivation intended to inflict suffering or serve as punishment (DODDDODDDepartment of Defense directive 2310.01E). 3-6. Detainees must not be subject to criminal punishment without a fair trial and other important criminal procedural protections (see DOD Law of War Manual, 8.16). 3-7. Detainees must be removed as soon as practicable from the point of capture and transported to a detainee collection point, temporary holding area, or DOD detention facility. Detainees not released or transferred from DOD custody or control from the detainee collection point or holding area will be transported to a DOD detention facility in a secure location within 14 days of capture, barring exceptional circumstances. Detainees will be promptly informed of the reasons for their detention in a language that they understand. Detainees will remain at a DOD detention facility until their release or transfer from DOD custody or control (DODDDODDDepartment of Defense directive 2310.01E). 3-8. Under DOD policy, detainees will receive certain procedural protections. 3-9. Detainees will be registered, and property in their possession will be inventoried. Records of their detention and such property will be maintained according to applicable law, regulation, policy, and other issuances. All detainee records will be maintained and safeguarded. Detainees will be assigned an Internment Serial Number (ISN) normally within 14 days after their capture by, or transfer to, the custody or control of DOD personnel, barring exceptional circumstances. 3-10. The ICRC will be promptly notified of all ISN assignments. The ICRC will be given access to all DOD detention facilities and the detainees housed therein, subject to reasons of imperative military necessity (DODDDODDDepartment of Defense directive 2310.01E). 3-11. Alleged detainee abuse must be reported in accordance with DOD policies (see DODDDODDDepartment of Defense directive 2310.01E; DODDDODDDepartment of Defense directive 2311.01E; DODDDODDDepartment of Defense directive 3115.09). 3-12. DOD personnel will review periodically the detention of all individuals in DOD custody or control who do not receive the protections afforded POWs. Such reviews may include: (1) preliminary assessments of the detainee’s status and threat; (2) formal determinations of the lawfulness and continued necessity of detention; and (3) determination of the status of unprivileged belligerents held in long-term detention, presided over by a military judge (DODDDODDDepartment of Defense directive 2310.01E, para. 3i). 3-13. DOD personnel, including DOD contractors, must not accept the transfer of a detainee from another U.S. Government department or agency, coalition forces, multinational partner personnel, or other personnel not affiliated with the DOD or the U.S. Government, except in accordance with applicable law, regulation, policy, and other issuances. (DODDDODDDepartment of Defense directive 2310E, para. 3e). No detainee may be released or transferred from the care, custody, or control of a DOD component except in accordance with applicable law, regulation, policy, and other issuances (DODDDODDDepartment of Defense directive 2310.01E, para. 3m). GPW AND POW PROTECTIONS 3-14. When the GPW and POW protections apply to detainees, they are afforded not only humane treatment protections discussed paragraphs 3-5 through 3-7, but also additional protections under international law and DOD policy. For example, the United States has, in some instances, afforded detainees certain POW protections, even when those protections might not apply as a matter of law (see DOD Law of War Manual, 9.3.1). The applicability of POW protections during a particular armed conflict or operation and the entitlement of armed groups to POW status are generally resolved at the national level. This is a national level decision because providing POW protections to an armed group can affect the group’s legal status, and because it is important to have a consistent national approach to how U.S. obligations under international law are to be interpreted with regard to the status of armed groups. Generally, POW protections only apply during international armed conflict, i.e., State versus State armed conflict, and when there are armed forces or groups that qualify for POW protections under article 4 of the GPW (e.g., State military forces). 3-15. If those broader conditions are met, then there might be questions as to whether particular individuals are entitled to POW protections. During international armed conflict, should any doubt arise as to whether a detainee is entitled to the protections and privileges afforded POWs, such detainees shall enjoy treatment as POWs until a tribunal convened in accordance with Article 5 of the GPW determines whether the detainee is entitled to such status or treatment. In practice, an Article 5 tribunal may be used to assess whether an individual detainee is, in fact, a member of a group entitled to POW status. PERSONS ENTITLED TO PRISONER OF WAR STATUS 3-16. Article 4A of the GPW describes those persons during an international armed conflict and occupation who are entitled to POW status as discussed, infra, in paragraphs 3-17 through 3-30. Captured military medical personnel and chaplains are not POWs but are retained personnel, provided that they meet the criteria in the GPW, including that the organization to which they belong meets the criteria in Article 4A(1), (2), or

This chapter addresses the protection of the wounded and sick, medical units, facilities, and transports. The 1864 Geneva Convention was one of the international community’s earliest attempts to codify protections for the wounded and sick on the battlefield and provide for the use of the Red Cross as a distinctive emblem. The later versions of the Geneva Conventions relative to wounded and sick of the armed forces on land in 1906 and 1929, and the 1907 Hague Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention expanded the standards for the protection of military personnel who are hors de combat, due to illness or wounds on the battlefield or at sea. This standard of treatment was further refined in the GWS, and the GWS Sea, both of August 12, 1949. Since the United States is a party to the two 1949 Geneva Conventions, their provisions are binding on the United States and form the basis for this chapter. Additional Protocol I of 1977 (AP I), though not binding on the United States, also contains provisions for the care of wounded and sick that in certain cases its provisions may reflect customary international law and be consistent with U.S. practice. This chapter also addresses the principles related to the protection of medical care provided by impartial humanitarian organizations during armed conflict. BASIC PRINCIPLES 4-1. LOAC imposes certain obligations on parties to an international armed conflict regarding the wounded, sick, and shipwrecked, some of which are summarized below. Also, United States Army and Marine Corps’ practice is to respect and protect military and civilian sick, wounded, and shipwrecked, as well as those identified as exclusively engaged in collecting, caring for, or transporting them. Soldiers and Marines must:  Respect and protect wounded, sick, and shipwrecked military and other personnel to whom the Geneva Conventions apply during an armed conflict (GWS art. 12, 15; GWS Sea art. 12, 18; consider AP I art. 10(1)).  “Respect and protect” means that these persons generally may not be knowingly attacked, fired upon, or unnecessarily interfered with (see DOD Law of War Manual, 7.3.3). Soldiers and Marines have a positive duty to collect and care for the wounded, sick, and shipwrecked, even if they are enemy personnel.  Provide for the respectful recovery, accounting for, and disposal of enemy dead in a manner that facilitates the identification and proper disposition of remains (GWS art. 16-18; GWS Sea art. 19, 20; consider AP I art. 32-34).  Respect and protect enemy military medical personnel, facilities, units, and ground transports in the performance of their duties. It is prohibited to make them the object of an attack or unduly interfere with their medical function, provided that those persons do not engage in, and those objects are not used to engage in, acts outside their humanitarian duties that are harmful to the enemy (GWS art. 19-21, 24-27, 35; GWS Sea art. 22-27; consider AP I art. 10, 12, 21). 4-2. The fact that an enemy force has violated its obligations by firing upon U.S. medical personnel endeavoring to care for wounded U.S. military personnel does not provide a basis for U.S. military personnel to respond by violating U.S. obligations by, for example, intentionally firing at enemy medical personnel, or denying medical care to captured enemy military personnel. [For a discussion of reprisals, see para. 4-10 and DOD Law of War Manual, 18.18.3.2.] P RACTICAL G UIDANCE ON B ASIC R ULES 4-3. All Soldiers and Marines must adhere to the following LOAC rules relating to the wounded, sick, and dead, and enemy military medical and religious personnel, facilities, units, transports, and equipment:  Do not knowingly attack, fire upon, or unnecessarily interfere with: (i) the wounded and sick; or (ii) enemy military medical or religious personnel, facilities, units, transports, and equipment.  Do not steal.  Do not disrespect the dead.  Collect and care for the wounded and sick, whether friend or foe. 4-4. Soldiers and Marines who are members of the medical service should understand their special duties and noncombatant status under the law of war. They must, for example:  Provide medical care to the wounded or sick, whether friend or foe.  Refrain from engaging in acts harmful to the enemy.  Continue to care for other members of the U.S. armed forces, if captured by the enemy (see Chapter 3 for discussion of retained personnel). 4-5. Commanders must lead their units’ implementation of LOAC obligations related to the wounded, sick and dead. If warranted by their assigned duties and operational context, they should:  Determine practical steps after combat to search for, collect, and protect the wounded, sick, and dead, such as negotiating local truces to collect them.  Follow accountability procedures for enemy wounded, sick and dead, such as recording identifying information and safekeeping of property.  Ensure medical units are not misused to commit acts harmful to the enemy, such as stationing combat forces in a hospital.  Arrange for humanitarian organizations or other civilian volunteers to help collect and care for the wounded and sick.  Ensure the appropriate display of the Red Cross. C LASSES OF P ERSONS P ROTECTED BY THE GWS AND GWS S EA 4-6. The GWS and GWS Sea protect those persons listed in Article 13 of the GWS and the GWS Sea (including members of the armed forces of a party to a conflict and persons authorized to accompany the armed forces) who are wounded, sick, or shipwrecked—that is, those who are incapacitated by wounds, sickness, or shipwreck such that they are no longer capable of fighting, provided they abstain from any hostile act and do not attempt to escape (see paragraph 2-105 regarding wounded and sick as hors de combat). The GWS also applies to the wounded and sick who are POWs (see paragraphs 4-11 through 4-16). The GWS and GWS Sea also protect military chaplains exclusively engaged in religious ministration and military medical personnel exclusively engaged in the provision of medical care or the administration of medical units and establishments (GWS art. 24; GWS Sea art. 37). Wounded and sick civilians benefit from provisions of the GC pertaining to the treatment and protection of the wounded and sick (GC art. 16). D URATION OF A PPLICATION OF THE GWS 4-7. The GWS applies to persons protected by the GWS who have fallen into the hands of the enemy until their final repatriation (GWS, art. 5). The GSW Sea does not specify when it ceases to apply, but only states that GWS Sea only applies “to forces on board ship.” (GWS Sea art. 4). Once persons who are covered by its provisions reach land, the GWS, or possibly, the GPW or GC will be applicable to them. S PECIAL A GREEMENTS 4-8. The GWS and GWS Sea provide for special agreements to be negotiated between the parties for protection of the wounded and sick (see GWS arts. 6 and 15; GWS Sea arts. 6 and 18). Special agreements may not adversely affect the situation of the wounded and sick or military medical personnel or chaplains, nor can such agreements restrict the rights GWS and GWS Sea confer on them (GWS, art. 6; GWS Sea, art. 6). Wounded and sick and military medical personnel and chaplains will enjoy the benefits of any special agreements so long as GWS or GWS Sea applies to them, except when express provisions in such agreements or in subsequent agreements provide otherwise or when more favorable measures have been taken with regard to them by one of the parties to the conflict (see GWS, art. 6; GWS Sea, art. 6). N ON -R ENUNCIATION OF R IGHTS 4-9. Wounded and sick, as well as military medical personnel and chaplains, may not renounce, in whole or in part, their rights secured to them by the GWS or GWS Sea or by special agreements (GWS, art. 7; GWS Sea, art. 7). P ROHIBITION OF R EPRISALS 4-10. During international armed conflict, reprisals against the wounded, sick, personnel, buildings, or equipment protected by the GWS are prohibited (GWS, art. 46; compare with GWS Sea, art. 47). PROTECTION AND CARE OF THE WOUNDED AND SICK 4-11. All wounded and sick, including members of the armed forces, other persons who are entitled to POW status, and civilians, must be respected and protected in all circumstances, whether or not they have taken part in the armed conflict (see GWS, arts. 12-13; DOD Law of War Manual, 17.14.1; consider AP I, art. 10). They shall be treated humanely and cared for by the party to the conflict in whose hands they have fallen, without any adverse distinction based on sex, race, nationality, religion, political opinions, or any other similar criteria. They shall not be willfully left without medical assistance and care, nor exposed to contagion or infection. They shall not be treated violently, murdered, or exterminated. Only urgent medical reasons will authorize priority in the order of treatment, a process called triage. Women shall be treated with all consideration due to their sex. A party to the conflict that is compelled to abandon wounded or sick to the enemy shall, as far as military considerations permit, leave with them part of its medical personnel and materials to assist with their care (GWS, art. 12). S EARCH FOR C ASUALTIES 4-12. At all times, and particularly after a military engagement, parties to the conflict must, without delay, take all possible measures to search for and collect the wounded and sick to protect them from pillage and ill-treatment and to ensure their adequate care. Further, the parties to the conflict shall search for the dead to prevent them from being despoiled. Whenever circumstances permit, armistices or cease-fires must be arranged or local arrangements made to permit such collection and removal as well as transport or exchange wounded and sick from the battlefield. Local arrangements may be made between parties to remove or exchange wounded and sick from besieged areas or allow medical or religious personnel and equipment safe passage to those areas (GWS, art. 15). The obligation to search for, collect, and take affirmative steps to protect the wounded, sick, and dead are subject to practical limitations. Military commanders are to judge what is possible and to what extent they can commit their personnel to these duties (see DOD Law of War Manual, 7.4.4). R ECORD OF W OUNDED F ALLING INTO E NEMY H ANDS 4-13. Parties to the conflict must record, as soon as possible, any wounded, sick, or dead person under the GWS of the adverse Party who falls into their hands to assist in their identification. If possible, these records should include (GWS, art. 16):  Designation of the power on which he or she depends;  Service, unit, personal, or serial number;  Surname;  First name or names;  Date of birth;  Any other particulars shown on an identity card or disc;  Date and place of capture or death; and  Particulars concerning wounds, illness, or cause of death. 4-14. Each party must forward this information as soon as possible to its POW information bureau (see paragraph 3-100 through 3-103), which must transmit the information to the power upon which the person depends through the intermediary of the Protecting Power and of the Central POW agency. Parties to the conflict must also prepare and forward certificates of death and/or authenticated lists of the dead and must ensure items such as identification discs (frequently referred to as dog tags) of the deceased, last wills, other documents of importance to the next of kin, money, or any other item of an intrinsic or sentimental value, which are found on the dead are collected and forwarded through these channels in accordance with the GWS (see GWS, art. 16). 4-15. Burials or cremation of deceased personnel under the GWS must be preceded by a careful examination, if possible by a medical examination, of the bodies with a view to confirm the death, establish identity of the deceased, and enable a report of death to be made. One half of the double-identity disc (or the disc, itself, if it is a single disc) should be left with the body of the deceased interred on land. Cremation may only occur for imperative reasons of hygiene or for motives based on the religion of the deceased. The dead must be honorably interred, if possible, according to the rites of the religion to which they belonged. At the commencement of hostilities, a graves registration service must be established to allow for subsequent exhumations and to ensure the identification of bodies and possible transportation to the home country. The graves registration service will also keep ashes until they may be properly disposed of in accordance with the wishes of the home country. Lists showing the exact location and markings of the graves must be exchanged between parties to the conflict; this will facilitate post-conflict return of remains to the next-of-kin, a practice encouraged by the United States (GWS art. 17; consider AP I art. 32-34). V OLUNTARY C ARE 4-16. The military authorities may appeal for volunteers from the local inhabitants to assist with the collection and care for, under the respective military authority’s direction, the wounded and sick under the GWS. Once volunteers are identified, they are to receive necessary protection and facilities. Should the adverse Party take or retake control of the area, that Party must likewise grant these persons the same protection and the same facilities. No one must ever be molested or convicted for having given aid or care to the wounded and sick (GWS art. 18; consider AP I art. 17). On the other hand, local inhabitants’ voluntarily giving treatment to the wounded and sick do not relieve military authorities of their obligations to care for the wounded and sick. MEDICAL UNITS, FACILITIES, PERSONNEL, AND GROUND TRANSPORTS 4-17. Military medical units and facilities, military medical personnel and chaplains, and medical ground transports must not be made the object of attack and are entitled to respect and protection at all times (see GWS arts. 19, 24, 35, 36; GWS Sea art. 23). For example, medical units and establishments are entitled to respect and protection even when they have not yet received any wounded or when no more wounded are with them for the moment. The respect and protection accorded by the GWS to military units and facilities mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper functions. L OSS OF P ROTECTION 4-18. If military medical units or facilities are used to commit, outside their humanitarian duties, acts harmful to the enemy, they may forfeit their special LOAC protections, but only after due warning (with, in all appropriate cases, a reasonable time limit), and only after such warning has remained unheeded (GWS art. 21; DOD Law of War Manual, 7.10.3). Consistent with DOD policy, misuse of the protected status of any military medical unit or facility, or medical ground transport, whether by U.S. forces, coalition forces, or enemy forces, should be reported immediately through the chain of command to the appropriate combatant commander (see DODDDODDDepartment of Defense directive 2311.01E). 4-19. Acts harmful to the enemy by a person of a military medical unit or facility, or a medical ground transport resulting in its loss of protected status do not necessarily warrant denial of respect and protection to that person’s unit or facility, or medical ground transport or to other military medical units or facilities, or medical ground transport. 4-20. The obligation to refrain from the use of force against a medical unit acting in violation of its mission and protected status without due warning does not prohibit individuals or units from exercising their right of self-defense (see DOD Law of War Manual, 7.10.3.2). E XAMPLES OF A CTIONS OR C ONDITIONS T HAT D O N OT D EPRIVE M EDICAL U NITS AND F ACILITIES OR M EDICAL G ROUND T RANSPORTS OF P ROTECTION 4-21. The following are examples of actions or conditions that do not constitute “acts harmful to the enemy outside of their humanitarian functions” that would cause a medical unit or facility, hospital ship, or medical transport to lose its entitlement to protection (GWS arts. 21, 22, 35; see DOD Law of War Manual, 7.10.3.3):  Arming military medical personnel for protection against unlawful attacks. Military medical personnel and units may be armed for defense of themselves and the wounded and sick in their charge against unlawful attacks (GWS, art. 22).  Defensive devices of hospital ships and military medical aircraft. Equipping hospital ships and military medical aircraft with defensive devices—such as chaff for protection against over-the-horizon weapons or similar threats—is not prohibited, provided that such devices are not used to commit acts harmful to enemy military forces acting in conformity with the law of war.  Use of non-medical military personnel for security. The use of non-medical personnel, in the absence of armed orderlies, as a picket, sentries, or as an escort for security against unlawful attacks does not cause the medical units, facilities, or ground transports to forfeit their protection (GWS, art 22).  Temporary presence of small arms and ammunition recovered from the wounded and sick. The temporary presence of small arms and ammunition recovered from the wounded and sick, within the military medical unit, installation, hospital ship, or sick-bay before they are handed over to competent authorities does not cause the forfeiture of their protection..  Presence of military veterinarians and equipment. The presence of military veterinarians and their equipment within a medical unit or facility or transport to which they are not assigned does not cause the forfeiture of protection.  Temporary presence of combatants. The temporary presence of combatants within a military medical unit or facility (for example, to visit or leave wounded or to escort a prisoner to facilitate the prisoner’s care) does not automatically constitute an act harmful to the enemy that result in loss of protected status. As a feasible precaution, combatants should avoid unnecessary presence within a medical unit or facility.  Temporary presence of military objectives. The temporary presence of objects that are military objectives, such as a tactical vehicle or aircraft within a military medical unit or facility (for example, a military vehicle that is not protected as medical aircraft or transport used to deliver the wounded and sick to a medical facility) does not automatically constitute an act harmful to the enemy that forfeits its protection from being made the object of attack (see DOD Law of War Manual, 7.10.3.6). However, commanders of military medical units and facilities should establish procedures during international armed conflict to ensure that the non-medical transports do not remain unnecessarily within or near military medical units or facilities.  Care for civilian wounded or sick. Care for civilian wounded or sick does not cause medical units, facilities, or ground transports to forfeit their protection.  Transport of medical equipment and personnel. Equipment intended exclusively for medical purposes or military medical personnel over and above normal mission requirements, either stockpiled in military medical units and facilities or transported in medical ground transports, does not cause medical units, facilities, or ground transports to forfeit their protection. L OCATION OF M ILITARY M EDICAL U NITS AND F ACILITIES 4-22. Responsible authorities must ensure that military medical units and facilities are, as far as possible, placed so as an attack against military objectives cannot imperil their safety (GWS art. 19; consider AP I art. 12(4)). Commanders of tactical units should avoid placing their units in proximity to military medical units and facilities to the extent feasible. In no case may a military medical unit or facility be used to shield military objectives from attack. The obligation to situate medical units and facilities so that attacks against military objectives cannot imperil their safety is limited by practical considerations. For example, in order to perform their medical duties effectively, medical units and facilities may, to some degree, need to be intermingled with military objectives (see DOD Law of War Manual, 7.10.2.1). C APTURE OF M ILITARY M EDICAL U NITS AND F ACILITIES 4-23. Military medical units and facilities may be captured. In the event of capture, its personnel are entitled to continue to perform their medical duties so long as the capturing force has not itself ensured the necessary care for the wounded and sick found in the unit or facility (GWS art. 19). The material of mobile medical units that fall into the hands of the enemy must be reserved for the care of the wounded and sick. The material and stores of mobile medical units and fixed medical establishments that fall into the hands of the enemy must not be intentionally destroyed. 4-24. In the event of urgent military necessity, commanders of forces in the field may make use of the buildings, material, and stores of a fixed military medical establishments, provided they make previous arrangements for the welfare of the wounded and sick who are being cared for in the establishment (see GWS art. 33). M EDICAL A IRCRAFT 4-25. Medical aircraft, that is to say, aircraft exclusively employed for the removal of the wounded, sick, and shipwrecked, and for the transport of medical personnel and equipment, must not be attacked, but must be respected by the belligerents, while flying at heights and times, and on routes, specifically agreed upon by the belligerents concerned (GWS art. 36). Such aircraft, while designated or operating as medical aircraft, may not be used also for military purposes, such as to transport able-bodied combatants or to carry ammunition to combat forces (see DOD Law of War Manual, 7.14.2). Medical aircraft must obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flights after examination, if any (GWS art. 36). 4-26. Military medical aircraft (i.e., aircraft exclusively employed for the removal of the wounded, sick, and shipwrecked, and for the transport of medical personnel and equipment) must not be attacked, but are to be respected by the belligerents, while flying at heights and times, and on routes, specifically agreed upon by the belligerents concerned. The use of protected medical aircraft generally depends on an agreement between belligerents. However, known medical aircraft, when performing humanitarian functions, must be respected and protected. Such aircraft do not constitute a military objective that is liable to being made the object of attack. Thus, even if not flying pursuant to an agreement, such aircraft shall not be deliberately attacked or fired upon, if identified as protected medical aircraft. For example, if there is no agreement and a military force happens upon a medical aircraft belonging to an enemy State, the aircraft must not be made the object of attack until all other means of control (such as directing the aircraft to land and submit to search) have been exhausted. A medical aircraft that is not flying pursuant to a special agreement that seeks to claim protection as medical aircraft must make every effort to identify itself and to inform the enemy State of its status and operation, such as its flight times and routes. For example, an unknown aircraft within a theater of military operations would often be reasonably presumed to be a military objective, and the aircraft must take affirmative steps to rebut this presumption. In order to maintain its entitlement to protection, such aircraft must obey the directions of the enemy State, such as directions to land and to submit to search (GWS art. 36; see DOD Law of War Manual, 17.14.1). H OSPITAL S HIPS AND C OASTAL AND R ESCUE C RAFT 4-27. Military hospital ships (such as ships built or equipped by States specially and solely with a view to assisting, treating, and transporting the wounded, sick, and shipwrecked) may in no circumstances be attacked or captured, but must be respected and protected, provided their names and descriptions have been notified to the parties to the conflict ten days before the ships are employed (GWS Sea, art. 22). Military hospital ships are to have all exterior surfaces painted white with at least one large, dark red cross (or other protected medical symbol as in paragraph 4-30) on each side of the hull and on the horizontal surfaces and distinctively marked further as specified in Article 43 of GWS Sea. Military hospital ships, commissioned civilian hospital ships, and authorized neutral civilian hospital ships that meet the applicable requirements must be respected and protected and are exempt from capture (GWS Sea art. 24; DOD Law of War Manual, 7.12.4). Hospital ships are exempt from capture and any hospital ship in a port that falls into the hands of the enemy is authorized to leave the port and the religious, medical, and hospital personnel of the ship and its crew may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on board (GWS Sea, arts. 29 and 36). 4-28. As long as they have been provided with an official commission by a Party to the conflict and the proper certification from responsible authorities (see GWS Sea, art. 24), and their names and descriptions have been provided to parties to the conflict ten days before they are employed (GWS Sea, art. 22), small craft employed by a State or by the officially recognized lifeboat institutions for coastal rescue operations must be respected and protected, so far as operational requirements permit (GWS Sea, art. 27). 4-29. The phrase “so far as operational requirements permit” acknowledges the risk to which small craft, because of their small size, are exposed when working in a combat environment. Their small size may increase the likelihood of misidentification by enemy or friendly forces, or it may not be feasible to avoid incidental harm to them. They act at their own risk during or after any engagement (GWS Sea, art. 30). Although small craft may be exposed to certain risks, if a party to a conflict has recognized the craft, it is prohibited from making a deliberate attack on them (GWS Sea, art. 27). 4-30. Religious, medical, and hospital personnel under the GWS Sea who are retained to care for the wounded and sick at sea and are later retained to care for the wounded and sick on land are subject to GWS on landing (see GWS Sea, art. 37). Similarly, wounded and sick personnel put ashore who previously may have been engaged in the land-sea battle are subject to GWS once put ashore (see GWS Sea, art. 4). THE DISTINCTIVE EMBLEMS 4-31. To serve as the visual expression of the protections accorded under the 1949 Geneva Conventions and Additional Protocol III, to medical and religious personnel, and medical units, facilities, transports, and equipment, four distinctive emblems have been established and recognized. As displayed in figure 4-1, they are 1) a Red Cross; 2) a Red Crescent; 3) a Red Crystal, and 4) a Red Lion and Sun (not currently in use) (GWS arts. 38-42; GWS Sea arts. 41-43; consider AP I, art. 18; AP I, Amended Annex I, arts. 3-4; AP II art. 12; and, AP III art. 2). A party may only use one emblem at a time. The chosen emblem will be displayed in red on a white background. 4-32. The display of the distinctive emblem is under the direction of the competent military or civilian authority (GWS art. 39; GWS Sea art. 41; consider AP I art. 18 and AP II art. 12). The distinctive emblem may be removed by competent authority for camouflage integrity or other tactical reasons. The fact that medical personnel, land facilities, units, or transports are not displaying the distinctive emblem does not entitle an opposing force to attack them if their status is apparent or otherwise has been established. They retain their protections as long as their mission and use is consistent with their protected status. However, the absence of the distinctive emblem may increase the risk that enemy forces will not recognize the protected status of military medical and religious personnel and other protected persons and objects, and attack them in error (see DOD Law of War Manual, 7.15.3.1). D ISPLAY BY P ERSONNEL 4-33. Personnel entitled to wear the distinctive emblem, when authorized by competent authority, include:  Military medical personnel and chaplains (GWS art. 39, 40; GWS Sea art. 41, 42; consider AP I, Amended Annex I, art. 5(4));  Auxiliary medical personnel, while carrying out their medical duties (GWS art. 41);  Members and medical staff of the Red Cross Movement; that is, official representatives of the ICRC, the International Federation of Red Cross and Red Crescent Societies, and national Red Cross societies in accordance with the GWS (see GWS art. 44);  Staff of recognized aid societies of neutral countries (see GWS art. 27); and  Staff of national societies or other voluntary aid societies, auxiliary to, or assisting, the military medical services in accordance with the GWS (see GWS art. 26). 4-34. Wearing of the Red Cross armlet by U.S. military medical personnel is subject to service authorization and may be limited by tactical conditions. The emblem does not in itself confer protected status, but it facilitates the identification of protected objects and persons (DOD Law of War Manual, 7.15.3.2). When authorized, such military medical personnel, staff of national Red Cross societies, and staff of recognized aid societies of neutral countries, may wear on the left arm an armlet displaying the appropriate distinctive emblem and issued and stamped by competent military authority (see GWS art. 40). Such personnel are required to bear an identity card that states in what capacity its possessor is entitled to protection under the GWS and that is embossed with the stamp of the military authority (see GC art. 40). Auxiliary medical personnel require similar authorization to wear an armlet in a similar manner and carry similar identification, but such armlets are to bear a smaller distinctive emblem (see GWS art. 41). D ISPLAY BY M EDICAL U NITS AND E STABLISHMENTS 4-35. The GWS provides for military medical units, both fixed and mobile, and military medical establishments of parties to a conflict to display the distinctive emblem when they are entitled to protection under the GWS, subject to authorization by competent military authority (see GWS art. 42). The GWS also provides for such display by medical units belonging to neutral countries, when authorized to lend their services to a belligerent (see GWS arts. 27, 43). D ISPLAY BY M ILITARY M EDICAL A IRCRAFT 4-36. The GWS and GWS Sea require that military medical aircraft (those aircraft exclusively employed for the removal of the wounded, sick, and shipwrecked, and for the transport of medical personnel and equipment), shall bear the distinctive emblem, together with their national insignia, on their lower, upper and lateral surfaces (see GWS art. 36; GWS Sea art. 39). M ANDATORY R EMOVAL OF D ISTINCTIVE E MBLEM F ROM V EHICLES AND A IRCRAFT 4-37. Ground transport or aircraft no longer exclusively employed for medical work related to its former protected status should no longer bear the distinctive emblem. 4-38. If ground transport or aircraft is used temporarily for medical transport work, such ground transport or aircraft should bear the distinctive emblem only while on the medical mission and will be entitled to protection of the Conventions only for its duration. If the vehicle or aircraft is to be used for tactical purposes, military authorities must take the greatest care to remove all distinctive emblems as soon as the ground transport or aircraft are no longer employed as medical transport (see GWS, arts. 35, 36). MEDICAL CARE PROVIDED BY IMPARTIAL HUMANITARIAN ORGANIZATIONS 4-39. Impartial humanitarian organizations serve an important function in armed conflict, in particular with respect to the provision of medical care. As noted above in this Chapter, the United States is a party to a number of treaties that address the protection of medical care during armed conflict. In addition, the United States has long supported the fundamental guarantees in Additional Protocol II for the protection of and appropriate care for the wounded and sick during non-international armed conflicts (Secretary of Defense Memorandum, “Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict,” October 3, 2016). 4-40. As with military medical units, the following principles related to the protection of medical care provided by impartial humanitarian organizations during international or non-international armed conflict apply and must be respected by all parties to the an armed conflict:  Medical care during armed conflict is an activity that is fundamentally of a neutral, humanitarian, and non-combat character. Ensuring that medical care during armed conflict is protected requires parties refrain from acts that undermine its protection, and take affirmative steps to distinguish medical care from activities of a combatant character.  All wounded and sick, whether or not they have taken part in the armed conflict, must be respected and protected. The wounded and sick are persons placed hors de combat by sickness and wound. They must not be made the object of attack. Combatants must not use the presences or movement of the wounded and sick to attempt to make certain points or areas immune from seizure; to shield military objectives from attack; or otherwise shield or favor one’s own military operations or to impede the adversary’s military operations.  Whenever circumstances permit, and particularly after an engagement, all possible measure shall be taken, without delay, to search for and collect the wounded and sick, to protect them from pillage and ill-treatment, and to ensure their adequate care.  In all circumstances, the wounded and sick shall be treated humanely without adverse distinction founded on race, color, religion or belief, se, birth wealth, political opinion, and any other similar criteria.  The wounded and sick shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones. 4-41. Impartial humanitarian organizations may offer their services to any of the parties to the conflict. States should not arbitrarily withhold their consent to the activities of humanitarian organizations. Where a State has accepted the services of an impartial humanitarian organization, it must not regard such services, including the provision of medical care, as unlawful and subject to punishment. If a State does withhold its consent to the activities of the humanitarian organization and that organization enters the theater of conflict anyway, it does so at its own peril. 4-42. Personnel, units, transports, and facilities belonging to impartial humanitarian organizations providing medical care shall be respected and protected. Such personnel, units, transports, and facilities of impartial humanitarian organizations are those that are exclusively engaged in humanitarian functions. Such personnel, units, transports, and facilities must not be made the object of attack or unnecessarily prevented from discharging their proper functions. The protection to which such units (including units composed of personnel and facilities) and transports are entitled shall not cease unless they are used to commit hostile acts outside their humanitarian function. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded. Any attack must comply with all applicable rules and principles of LOAC, such as the prohibition on attacks that are expected to cause excessive incidental harm and the requirement to take feasible precautions in conducting the attack. Combatants must not use the presence or movement of such personnel, units, transports, and facilities to attempt to make certain points or areas immune from seizure or attack; to shield military objectives from attack; or otherwise to shield or favor one's own military operations or to impede the adversary's military operations. 4-43. Personnel belonging to impartial humanitarian organizations providing medical care must be granted all available help in the performance of their duties, including by establishing appropriate channels of communication with such organizations. They must not be subject to harassment or attacks for having performed their humanitarian duties for the wounded and sick. They must not be compelled to carry out tasks that are not compatible with their humanitarian mission. In the performance of their duties, they may not be required to give priority to any person except on medical grounds. 4-44. Impartial humanitarian organizations may take appropriate measures to distinguish their personnel, units, transports, and facilities from military objectives, including by marking such personnel, units, transports, and facilities and, where feasible, by situating healthcare facilities away from military objectives. Under the direction of the competent authority concerned, the distinctive emblem of the Red Cross or other distinct emblem must be displayed by medical and religious personnel and medical units of impartial humanitarian organizations, and on their medical transports. The distinctive emblem must be respected in all circumstances and shall not be used improperly. If personnel, units, transports, and facilities that are entitled to protection are recognized as such, they remain entitled to such protection even if the distinctive emblem or other appropriate markings are not displayed.

This chapter addresses the protection of civilians in the hands of a party to the conflict under the law of armed conflict. The protection of civilians is governed by the Geneva and Hague traditions, customary international law, and recent practice consistent with Additional Protocols I and II to the Geneva Conventions. Certain provisions are applicable only in the territory of a party to the conflict, others to belligerently occupied territory, and a number to both or to civilian populations generally. Those relating exclusively to occupied areas appear in Chapter 6, while the requirements of GC having to do with the territory of a belligerent, with both such territory and occupied territory, or with the general protection of civilians are set forth in this chapter. This chapter will focus on detention and treatment standards from the Geneva tradition, with some reference to civilian protections in the conduct of hostilities as outlined in Chapter 2. PRACTICAL GUIDANCE ON THE PROTECTION OF CIVILIANS 5-1. As discussed in Chapter 2, Soldiers and Marines must comply with LOAC during military operations. With respect to the protection of civilians and civilian objects, all Soldiers and Marines must adhere to the following guidance:  Do not intentionally target civilians and civilian objects, for example, hospitals, schools, religious buildings, historic monuments. However, as discussed further below, civilians directly participating in hostilities may be targeted.  When conducting an attack, combatants must exercise due regard to reduce the risk of incidental harm to the civilian population and other persons and objects that may not be made the object of attack.  Do not abuse, degrade, or seek revenge against civilians, or take other unnecessary actions that could harm civilians.  When necessary to detain, search, question, or exercise other measures of control over civilians, perform such measures humanely, respectfully, and professionally in accordance with Army and Marine Corps values.  Do not steal.  Follow accountability and reporting procedures related to civilians and civilian property. For example:  Follow command guidance on reporting the presence of civilians or civilian casualties during military operations.  When feasible, give receipts when seizing private enemy property, such as holding for safekeeping or family documents or valuable from civilian internees.  Report alleged violations of the law of war against civilians in accordance with applicable DOD policies, including DODDDODDDepartment of Defense directive 2311.01E. 5-2. In addition to adhering to the practical guidance on detainee operations and the basic protections provided at the beginning of Chapter 3, Soldiers and Marines who are conducting internment of protected persons under the GC must comply with the GC’s requirements and with applicable U.S. law and U.S. and DOD policies. 5-3. Commanders, at all levels, have a great responsibility to exercise the leadership necessary to reduce the risk of harm to civilians and civilian objects. Accordingly, they should, for example:  Make the necessary judgments and decisions required by the principle of proportionality to ensure that harm to civilians and civilian objects is not excessive compared to the expected military advantage.  Determine the feasible precautions to take for the protection of civilians in planning and conducting an attack, including canceling or suspending an attack based on new information raising concerns of expected civilian casualties or determining whether it is feasible to provide warnings or to use different types of weapon systems in order to reduce the risk of civilian casualties) (see DOD Law of War Manual, 5.11).  Administer civilian internment camps in accordance with the GC.  Arrange for passage of humanitarian relief. GENERAL PROVISIONS 5-4. As described in Chapter 1 (see paragraph 1-54), a civilian is a member of the civilian population. That is, a civilian is an individual who is neither part of nor associated with an armed force of a State or a non-State armed group that is engaging in hostilities. For example, an ordinary inhabitant of the enemy State would be a civilian, but a member of the enemy armed forces or a member of a terrorist group or a non-State armed group would not be a civilian. 5-5. Like combatants, members of the civilian population have certain rights, duties and liabilities under LOAC. Civilians may not be made the object of an attack, and feasible precautions must be taken to reduce the risk of harm to them. Civilians are generally treated consistent with the GC, and most qualify for protections established for protected persons under the convention (GC art. 4). In general, civilians may be temporarily detained when militarily necessary and may be interned for imperative reasons of security. In all circumstances, they are entitled to humane treatment. Civilians do not enjoy combatant immunity (immunity from prosecution for engaging in hostilities) and may be punished by an enemy State for engaging in hostilities against it. Further, civilians who take a direct part in hostilities forfeit their protection from being made the object of attack (consider AP I art. 50, 51). P ROTECTED P ERSONS 5-6. In general, the GC uses the term “protected person” to refer to those individuals who are entitled to receive its protections. Principally, protected persons include persons of enemy nationality living in the territory of a belligerent State and the inhabitants of occupied territory. Even if a person is not a protected person under the GC, other rules may be applicable to them. For example, persons protected by the GPW, the GWS, or the GWS Sea, are not considered protected persons under the GC (GC art. 4). Further, certain baseline rules apply to the treatment of all detainees, including those who are not protected persons or POWs (DOD Law of War Manual, 10.3). 5-7. The GC underlies most of the treaty rules applicable to the United States for the treatment of civilians in the hands of a party to the conflict during international armed conflict and occupation. Although the GC’s provisions should be interpreted in light of the principles that underlie the treatment of civilians, protected persons do not simply refer to persons who are civilians. Protected persons may include certain unprivileged belligerents, although certain rights and privileges that unprivileged belligerents receive are subject to derogation for security reasons (see DOD Law of War Manual, 10.3.2.4). Subject to certain exceptions, persons protected by the GC are those who, at a given moment and in any manner whatsoever, find themselves, in the case of occupation or conflict, in the hands of a party to the conflict or occupying State of which they are not nationals (DOD Law of War Manual, 10.3.2). The GC term “protected person” does not, under the framework of the GC, apply to non-international armed conflicts (conflicts against or between non-State armed groups). 5-8. The phrase “in the hands of” is used in an extremely general sense. It is not limited to physical custody or control, such as a prisoner. The mere fact of being in the territory of a party to the conflict or in occupied territory implies the person is in the power or “in the hands of” the Occupying Power. 5-9. Certain individuals do not receive protected person status. Nationals of a State not bound by the GC are explicitly excluded from protected person status. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State (for example, an ally) are not regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State whose hands they are. Nationals of a neutral State in occupied territory, however, are considered as protected persons under the GC (see DOD Law of War Manual, 15.6.4.1). P OLICY AND P RACTICE 5-10. Subject to the derogation provisions discussed in paragraphs 5-11 through 5-13, those persons who have engaged in hostile or belligerent conduct, but are not entitled to treatment as POWs, are not per se precluded from receiving protected person status under the GC. D EROGATIONS 5-11. The GC permits States to derogate from the GC’s requirements to provide certain rights and privileges otherwise afforded to protected persons for security reasons. Such derogation may differ based on location of the protected person, such as in occupied territory or in the belligerent’s home territory, and the conduct of the civilian (GC art 5; DOD Law of War Manual, 10.4). In a Belligerent’s Home Territory and in Occupied Territory 5-12. In the home territory of a party to the conflict, protected persons who are definitely suspected of or engaged in activities hostile to the security of the State may be deprived of certain rights and privileges under the GC when those rights and privileges, if exercised, would prejudice the security of the State. In occupied territory, a protected person detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, may be deprived of communication rights when military security so requires (GC art. 5; DOD Law of War Manual, 10.4.2). In each case, such persons must nevertheless be treated humanely and in the case of trial must not be deprived of the rights of a fair and regular trial. They must also receive the full rights and privileges of a protected person under the GC at the earliest date consistent with the security of the State (GC art. 5). Other Areas 5-13. To the extent that the rights and privileges of protected persons afforded by the GC are applied outside the home territory of a party to the conflict or outside occupied territory, it would be reasonable for such rights and privileges similarly to be subject to derogation. Thus, if U.S. forces are satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the United States in other contexts, such person could be deemed not entitled to claim such rights and privileges under the GC as would, if exercised in favor of such individual person, be prejudicial to the security of the United States (see DOD Law of War Manual, 10.4.3). In no case, however, may deviations be taken from the minimum humane treatment standards outlined in paragraphs 5-16 through 5-18. Authority to Punish 5-14. The derogation provisions of the GC implicitly recognize the power of a party to the conflict to impose the death penalty and lesser punishments (after judgment by a properly constituted court) on protected persons who are spies, saboteurs, and other persons not entitled to be treated as POWs, such as unprivileged belligerents,, except to the extent that that power has been limited or taken away by the GC (see GC art. 68, which limits application of the death penalty and other punishments in the case of protected persons, subject to the U.S. reservation with respect to imposing the death penalty). Minimum Standards of Treatment 5-15. Even when derogations of other provisions may be appropriate for security reasons, Soldiers and Marines must comply with LOAC with respect to the treatment of all detainees. Until a detainee’s release, repatriation, or transfer from DOD custody or control, Soldiers and Marines will, without regard to a detainee’s legal status, at a minimum apply: (1) common article 3 of the 1949 Geneva Conventions during all military operations; (2) the principles in Article 75 of AP I during international armed conflict and occupation; and (3) the principles in Articles 4-6 of AP II during non-international armed conflict (DODDDODDDepartment of Defense directive 2310.01E). As a matter of U.S. law and policy, there are no situations in an armed conflict, however characterized, in which individuals are not entitled to at least this humane care and treatment. Further, as a matter of U.S. policy, such care and treatment will be accorded, at a minimum, to detainees in any military operations not involving armed conflict. Humane Treatment and Other Basic Protections of Detained Civilians 5-16. Detainees must be provided humane care and treatment and with respect for their dignity from the moment they fall into the hands of DOD personnel until their release, transfer out of DOD control, or repatriation. Further, inhumane treatment of detainees is expressly prohibited and is not justified by the stress of combat or deep provocation. Humane treatment includes, in part:  Adequate food, drinking water, shelter, and clothing; (consider AP II art. 5);  Regular access to the open air, reasonable educational and intellectual activities, and appropriate contacts with the outside world (including, when practicable, exchange of letters, phone calls, and video teleconferences with family, as well as family visits) (consider AP II art. 4, 5);  Free exercise of religion, consistent with the requirements of detention (consider AP II art. 5);  Safeguards to protect health and hygiene, and protections against the rigors of the climate and dangers of military activities (consider AP II art. 5);  Appropriate medical care and attention required by the detainee’s condition, to the extent practicable (consider AP II art. 5);  Respect for each as a human being without any adverse distinction founded on race, color, religion or faith, political or other opinion, national and social origin, sex, birth, or wealth, or other similar criteria;  Protection against threats or acts of violence, including rape, forced prostitution, assault, bodily injury, and reprisals, torture, and cruel, inhuman, or degrading treatment or punishment; and  Prohibition on being subjected to medical or scientific experiments, or to sensory deprivation intended to inflict suffering or serve as punishment (consider AP I art. 75; consider AP II art. 4). 5-17. Detainees must not be subject to criminal punishment without a fair trial and other important criminal procedural protections (DOD Law of War Manual, 8.16). 5-18. Detainees must be removed as soon as practicable from the point of capture and transported to a detainee collection point, temporary holding area, or DOD detention facility. Detainees not released or transferred from DOD custody or control from the detainee collection point or holding area will be transported to a DOD detention facility in a secure location within 14 days of capture, barring exceptional circumstances. Detainees will be promptly informed of the reasons for their detention in a language that they understand. Detainees will remain at a DOD detention facility until their release or transfer from DOD custody or control (DODDDODDDepartment of Defense directive 2310.01E). Procedural Protections 5-19. Under DOD policy, detainees will receive certain procedural protections. 5-20. Detainees will be registered, and property in their possession will be inventoried. Records of their detention and such property will be maintained according to applicable law, regulation, policy, and other issuances. All detainee records will be maintained, safeguarded. Detainees will be assigned an Internment Serial Number (ISN) normally within 14 days after their capture by, or transfer to, the custody or control of DOD personnel, barring exceptional circumstances. 5-21. The ICRC will be promptly notified of all ISN assignments. The ICRC will be given access to all DOD detention facilities and the detainees housed therein, subject to reasons of imperative military necessity. (DODDDODDDepartment of Defense directive 2310.01E). 5-22. Alleged detainee abuse must be reported in accordance with DOD policies (see DODDDODDDepartment of Defense directive 2310.01E; DODDDODDDepartment of Defense directive 2311.01E; DODDDODDDepartment of Defense directive 3115.09). 5-23. DOD personnel will review periodically the detention of all individuals in DOD custody or control who do not receive the protections afforded POWs. Such reviews may include: (1) preliminary assessments of the detainee’s status and threat; (2) formal determinations of the lawfulness and continued necessity of detention; and (3) determination of the status of unprivileged belligerents held in long-term detention, presided over by a military judge (DODDDODDDepartment of Defense directive 2310.01E, para. 3i). 5-24. DOD personnel, including DOD contractors, must not accept the transfer of a detainee from another U.S. Government department or agency, coalition force, multinational partner personnel, or other personnel not affiliated with the DOD or the U.S. Government, except in accordance with applicable law, regulation, policy, and other issuances (DODDDODDDepartment of Defense directive 2310.01E, para. 3e). No detainee may be released or transferred from the care, custody, or control of a DOD component except in accordance with applicable law, regulation, policy, and other issuances (DODDDODDDepartment of Defense directive 2310.01E, para. 3m). Greater Protections 5-25. As a matter of law, persons who are entitled to treatment as either POWs or retained personnel under the GPW, or as internees under the GC, are entitled to even greater protections than the minimum humane care and treatment described above. S PECIAL A GREEMENTS 5-26. Parties to a conflict may conclude special agreements for all matters concerning which they deem it suitable to make separate provision, in addition to those specified by the GC (GC art. 7). No special agreement may adversely affect the situation of protected persons nor restrict the rights the GC confers on them. 5-27. In no circumstances may protected persons renounce the rights secured to them by the GC and by any special agreements negotiated under the GC (GC art. 8). G ENERAL P ROTECTION OF P OPULATIONS A GAINST C ERTAIN C ONSEQUENCES OF W AR 5-28. The general protections afforded to civilians are intended to alleviate the sufferings caused by war. As a matter of Army/USMC practice, the general protections of GC Part II (art. 13 – 26) apply to all civilians encountered in military operations (see GC art. 13). These general protections provided by the Army and Marine Corps are also consistent with certain portions of Additional Protocol I outlined in paragraphs 5-29 through 5-65. P ROTECTION OF C IVILIANS A ND C IVILIAN P ROPERTY IN THE C ONDUCT OF M ILITARY O PERATIONS 5-29. LOAC provides protections for civilians and civilian property while combatants engage in the conduct of military operations (see generally paragraphs 2-6 through 2-21 and 2-68 through 2-144, prohibiting indiscriminate attacks and the principles of military necessity, humanity, distinction, and proportionality found in Chapter 1). Many of the rules for the protection of civilians are derived from the principles of distinction and proportionality. 5-30. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians, and civilian objects (consider AP I art. 57(1)). In general, military operations must not be directed against enemy civilians. For example, the civilian population as a whole may not be the object of attack. Measures of intimidation or terrorism against the civilian population are prohibited, including acts or threats of violence, the primary purpose of which is to spread terror among the civilian population (consider AP I art. 51(2); AP II art. 13(2)). Civilians must not be made the object of attack, unless they take a direct part in hostilities (see paragraphs 2-11 through 2-21). 5-31. When prosecuting an attack against a military objective, combatants must exercise due regard to reduce the risk of incidental harm to the civilian population and other persons and objects that may not be made the object of attack. In particular, combatants must take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack. Also, combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained (see DOD Law of War Manual, 5.10). Such feasible precautions can reduce the risk that civilians may become casualties as a result of their proximity to attacks on military objectives. 5-32. Feasible precautions to reduce the risk of harm to civilians must also be taken by the party subject to attack. For example, military commanders and other officials responsible for the safety of the civilian population must take reasonable steps to separate the civilian population, individual civilians, and civilian objects under their control from military objectives and protect the civilian population from the effects of combat. Other feasible precautions may include avoiding locating military objectives within or near densely populated areas, removing civilians and civilian objects from the vicinity of military objectives, and other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control from the dangers resulting from military operations (consider AP I art. 58; see DOD Law of War Manual, 5.14). 5-33. LOAC protects civilian property as well. Outside the context of attacks, certain rules apply to the seizure and destruction of enemy civilian property. For instance, pillage is strictly prohibited (HR art. 28). Enemy property, including enemy civilian property, may not be seized or destroyed unless imperatively demanded by the necessities of war (DOD Law of War Manual, 5.17.2). In general, enemy private movable property on the battlefield may be seized if the property is susceptible to direct military use, i.e., it is necessary and indispensable for the conduct of war. This includes arms, ammunition, military papers, or property that can be used as military equipment (e.g., as a means of transportation or communication) (see DOD Law of War Manual, 5.17.3). 5-34. Enemy private movable property that is not susceptible to direct military use may be appropriated only to the extent that such taking is permissible in occupied areas. In particular, receipts should be given and compensation paid, when feasible (see DOD Law of War Manual, 5.17.3.1). During occupation, other rules relating to the treatment of enemy property apply (HR art. 43; see Chapter 6). 5-35. Cultural property is subject to special protection under LOAC. For example, in general, no use should be made of cultural property, its immediate surroundings, or appliances in use for its protection, for purposes that are likely to expose it to destruction or damage in the event of armed conflict. However, such use is permissible when military necessity imperatively requires such use. Uses that would be likely to expose cultural property to destruction or damage in the event of armed conflict would include: (1) using cultural property for military purposes; (2) placing military objectives near cultural property; or (3) using the cultural property in such a way that an adversary would likely regard it as a military objective (HR art. 27; 1954 Hague art. 4; see DOD Law of War Manual, 5.18.3; consider AP I art. 53). Other feasible precautions should be taken to reduce the risk of harm to cultural property, such as physically shielding cultural property from harm and establishing refuges and evacuating movable cultural property to them (see DOD Law of War Manual, 5.18.4). 5-36. In general, acts of hostility also may not be directed against cultural property, its immediate surroundings, or appliances in use for its protection. Acts of hostility may, however, be directed against cultural property, its immediate surroundings, or appliances in use for its protection, when military necessity imperatively requires such acts (1954 Hague art. 4; see DOD Law of War Manual, 5.18.5). 5-37. Any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural property are prohibited. These obligations are not subject to waiver for purposes of “imperative military necessity.” Military commanders also have an obligation to take reasonable measures to prevent or stop any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural property (see DOD Law of War Manual, 5.18.6.1). 5-38. For the purpose of the 1954 Hague Cultural Property Convention and this publication, cultural property includes, irrespective of ownership or origin: (1) movable and immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art, or history, whether religious or secular; (2) buildings intended to shelter cultural property, such as museums and depositories of archives; and (3) centers containing monuments M ARKINGS 5-39. It may be appropriate to identify protected persons and objects, as such, through the use of distinctive and visible signs. For example, for cultural property, this may include use of the distinctive blue and white shield described by 1954 Hague (1954 Hague arts. 6, 16) and displayed in figure 5-1 below. This may also include identifying civilian hospitals (see paragraphs 5-41 through 5-43 concerning markings for civilian hospitals and places where the sick and wounded are collected). The parties to the conflict must, in so far as military considerations permit, take the necessary steps to make the distinctive emblems clearly visible to the enemy land, air, and naval forces in order to prevent intentional hostile action on the protected sites. Even if not so marked, however, an attacking force may not knowingly target a building or other facility known to enjoy special protection under LOAC. Similarly, attacking forces are not required to observe signs indicating inviolability of buildings if such buildings are known to be used for military purposes, such as quarters for military personnel, warehouses for military equipment and supplies, observation posts, or military communications installations. P ROTECTION OF C IVILIAN S ICK AND W OUNDED, H OSPITALS, AND M EDICAL P ERSONNEL 5-40. LOAC requires particular protection and respect for the wounded and sick, as well as the infirm and expectant mothers (GC art. 16). The infirm and expectant mothers are given special consideration along with the sick and wounded because they are vulnerable so long as they do not take part in hostilities. As far as military considerations allow, each party to the conflict must facilitate the steps taken to search for the killed or wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment (GC art. 16). Even though civilian authorities would often be responsible for collecting and bringing in civilian casualties, the armed forces may be asked to lead such efforts or to carry out a joint relief operation with civilian authorities (DOD Law of War Manual, 7.16.1). Parties to the conflict may appeal to the civilian population and local aid societies to assist in collecting the sick and wounded and locating the dead (consider AP I art. 17). Civilian Hospitals 5-41. Civilian hospitals organized to give care to the wounded and sick, the infirm, and maternity cases, may in no circumstances be the object of attack but must at all times be respected and protected by the parties to the conflict (GC art. 18; consider AP I art. 12). The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Civilian hospitals must avoid any interference, direct or indirect, in military operations, such as the use of a hospital as a shelter for able-bodied combatants, as an arms or ammunition store, as a military observation post, or as a center for liaison with combat forces (see DOD Law of War Manual, 7.17.1.1). However, the fact that sick or wounded members of the armed forces are being cared for in these hospitals, or the presence in these hospitals of small arms and ammunition taken from such combatants and not yet handed to the proper service, are not to be considered acts harmful to the enemy (GC art. 19). 5-42. Protection for civilian hospitals may, however, cease only after due warning has been given, naming in all appropriate cases a reasonable time, and after such warning has remained unheeded (GC art. 19; consider AP I art. 13). The obligation to refrain from the use of force against a civilian hospital acting in violation of its mission and protected status without due warning does not prohibit the exercise of the right of self-defense (see DOD Law of War Manual, 7.17.1.2). 5-43. States that are parties to a conflict must provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings they occupy are not used for any purpose that would deprive these hospitals of protection in accordance with Article 19 of the GC. They must also be marked with the appropriate distinctive emblem provided for in Article 38 of the GWS (as described in paragraph 4-30), but only if authorized by the State. The parties to the conflict must, in so far as military considerations permit, take the necessary steps to make the distinctive emblems indicating civilian hospitals in a manner clearly visible to the enemy land, air, and naval opposing forces in order to obviate the possibility of any hostile action (see also figure 4-1, page 4-8). In view of the dangers to which civilian hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be located as far as possible from military objectives (GC art. 18). Civilian Medical Personnel 5-44. Persons regularly and solely engaged in the operation and administration of civilian hospitals— including the persons engaged in the search for, removal, transport of, and care for wounded and sick civilians, the infirm, and maternity cases—must be respected and protected by State parties to the conflict (GC art. 20). In occupied territory and in zones of military operations, such persons must be recognizable by means of an identity card certifying their status, bearing the photograph of the holder, and embossed with the stamp of the responsible authority, and also by means of a stamped, water-resistant armlet that they must wear on the left arm while carrying out their duties. This armlet must be issued by the State with control over such persons and shall bear the Red Cross, Red Crescent, or Red Crystal, as applicable (GC art. 20). Medical Transport 5-45. Means of transport, including vehicles, convoys, and hospital trains, must be respected and protected in the same manner as hospitals as long as they are exclusively engaged in the transport of wounded and sick civilians; they must be appropriately marked (GC art. 21, 22; consider AP I art. 21). Civilian medical aircraft are subject to the same restrictions as military medical aircraft, and should be respected and protected when recognized as such (GC art. 22; consider AP I art. 24-28). Consignments of Medical Supplies, Food, and Clothing 5-46. Parties to the conflict must allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship for civilians of another State, even if that State is an opposing party. Parties to the conflict must also permit the free passage of consignments of essential food, clothing, and medicine intended for children under 15 years of age, expectant mothers, and maternity cases. A State Party’s obligation to allow free passage is subject to the condition that State Party is satisfied that there are no serious reasons to fear: (1) that the consignments may be diverted from their destination; (2) that the control may not be effective; or (3) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services, or facilities as would otherwise be required for production of such goods. Technical arrangements may be negotiated with the opposing side to facilitate such passage (GC art. 23). Special Zones 5-47. States may establish hospital and safety zones and localities to protect certain persons from the effects of war, namely, wounded, sick, and aged persons, children under the age of 15, expectant mothers, and mothers of children under the age of 7. Parties to a conflict may conclude agreements on the mutual recognition of the hospital zones and localities they have created, drawing upon model agreements that are annexed to the 1949 Geneva Conventions (GC art. 14). The establishment of a zone only binds an adverse party when it agrees to recognize the zone (see DOD Law of War Manual, 5.14.3.1). 5-48. Parties to a conflict may conclude similar agreements to establish neutralized zones to shelter: (1) wounded and sick combatants and non-combatants; and (2) civilians who take no part in hostilities and who, while they reside in the zones, perform no work of a military character (GC art. 15). C HILDREN AND O THER S PECIAL C ATEGORIES OF C IVILIANS 5-49. In an international armed conflict, the parties to the conflict must take the necessary measures to ensure that children under the age of 15 who are orphaned or who are separated from their families as a result of war, are not left to their own resources, and that their maintenance, the exercise of their religion, and their education are facilitated in all circumstances (GC art. 24). The maintenance of the children concerned means their feeding, clothing, and accommodation, care for their health, and, where necessary, medical and hospital treatment (see DOD Law of War Manual, 4.20.1.1). 5-50. Their education must, as far as possible, be entrusted to persons of a similar cultural tradition. 5-51. The parties to the conflict must facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the protecting power, if any, and under due safeguards for the observance of the above principles. The parties to the conflict must, furthermore, endeavor to arrange for all children under the age of 12 to be identified by the wearing of identity discs, or by some other means (GC art. 24). 5-52. Finally, parties to the conflict should enable personal communications between persons in their home territory or in the territory occupied by them and other members of such protected persons’ families, including possibly with the cooperation of national Red Cross societies (GC art. 25, 26). Children and Their Mothers under Additional Protocol I 5-53. Although the United States is not bound by Additional Protocol I, it contains several provisions that grant enhanced protection to children and their mothers; these provisions should guide Army/Marine Corps practice. For example, pregnant women and mothers having “dependent infants” who are arrested, detained, or interned for reasons related to the armed conflict are to have their cases considered with the “utmost priority” (consider AP I art. 76). 5-54. Additionally, Additional Protocol I provides children shall be the object of “special respect” and must be protected against any form of indecent assault (consider AP I art. 77). Furthermore, the States Party to the conflict are to provide such children with the care and aid they require (consider AP I arts. 70, 77). No party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation when compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety so require. When the parents or legal guardians can be found, their written consent to such an evacuation is required. If they cannot be found, the written consent to the evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation must be supervised by the protecting power in agreement with the parties concerned, namely, the party arranging for the evacuation, the party receiving the children, and any parties whose nationals are being evacuated. In each case, all parties to the conflict must take all feasible precautions to avoid endangering the evacuation. If children are evacuated, their education, including their religious and moral education as their parents’ desire, must be provided while they are away with the greatest possible continuity. Furthermore, if children are evacuated, the party arranging for the evacuation and, as appropriate, the authorities of the receiving State must establish for each child a card with photographs, which they must send to the Central Tracing Agency of the ICRC (consider AP I art. 78). Women 5-55. In the territory of a party to the conflict and in occupied territory, all protected persons, including women, are entitled, in all circumstances, to respect for their person, their honor, their family rights, their religious convictions and practices, and their manners and customs. They are to be humanely treated at all times, and are to be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women must be especially protected against any attack on their honor, in particular against rape, forced prostitution, or any form of indecent assault (GC art. 27). Journalists 5-56. In general, journalists are civilians and are protected as such under LOAC. Journalists do not form a distinct class of persons under LOAC, but instead receive protection through the general protections afforded civilians. Although journalism is regarded as a civilian activity, the fact that a person performs such work does not preclude that person from otherwise acquiring a different status under LOAC, such as the status of persons authorized to accompany the armed forces or of combatants (DOD Law of War Manual, 4.24). For example, journalists authorized to accompany an armed force during an international armed conflict is a POW upon capture. See paragraph 3-26 regarding the treatment standards of detained war correspondents as “persons authorized to accompany the armed forces.” Civil Defense Personnel 5-57. The GC does not expressly address how civil defense organizations, such as fire and rescue services, should be treated except for those ambulance and similar rescue services that are attached to hospitals and their personnel that would enjoy the protections afforded medical personnel as discussed in paragraphs 5-40 through 5-46. The GC says little else specifically about civil defense organizations or first responders, although as civilians they would be entitled to the protections accorded to civilians generally. Civil Defense Personnel Under Additional Protocol I 5-58. Articles 61-67 of Additional Protocol I address the performance of certain humanitarian tasks intended to benefit the civilian population. The United States supports the principle that civilian civil defense organizations and their personnel be respected and protected as civilians and be permitted to perform their civil defense tasks except in cases of imperative military necessity. However, a number of operational problems have been identified with respect to the system of protection for civil defense personnel established by Additional Protocol I, and these provisions of Additional Protocol I may be understood not to preclude an attack on an otherwise lawful military objective (see DOD Law of War Manual, 4.22). Articles 61-67 of Additional Protocol I should guide Army/Marine Corps practice in this area. 5-59. Under Additional Protocol I, “civil defense” is broadly defined as the performance of certain humanitarian tasks intended to protect the civilian population against the dangers of armed conflict, to help them recover from the immediate effects of hostilities or disasters, and to provide the conditions necessary for their survival. These tasks include warning, evacuation, management of shelters and blackout measures, rescue and medical services, fire-fighting, detection and marking of danger areas, decontamination and similar services, emergency accommodation and supplies, emergency assistance to restore and maintain order, emergency repair of vital public utilities, emergency disposal of the dead, assistance in preserving objects necessary for survival, and activities that complement the foregoing (consider AP I art. 61). 5-60. Civil defense organizations and their personnel must be respected and protected and are entitled to perform their civil defense tasks except in case of imperative military necessity. This obligation to respect and protect also applies to civilians who, although not members of civilian civil defense organizations, respond to an appeal from the competent authorities and perform civil defense tasks under their control. Buildings and materiel used for civilian civil defense purposes and shelters provided for the civilian population are civilian objects; as such they cannot be the subject of attack or reprisal unless they become military objectives (consider AP I, art 62). 5-61. Additional rules that apply to civil defense organizations and personnel in occupied territories are discussed in paragraphs 6-125 through 6-127. The rules from Additional Protocol I concerning civil defense organizations and personnel also apply to the personnel and materiel of civilian civil defense organizations of neutral States or other States not parties to the conflict that perform civil defense activities in the territory of a party to the conflict, with the consent and under the control of that party. Civil Defense Organizations and Acts Harmful to the Enemy 5-62. The protection to which civilian civil defense organizations are entitled ceases if they commit or are used to commit acts harmful to the enemy outside their humanitarian activities. Protection may cease only after a warning has been given that sets, whenever appropriate, a reasonable time-limit for ceasing these activities and such warning has remained unheeded. Merely carrying out civil defense tasks under military direction or control and cooperating with the military in performing civil defense tasks are not considered to be acts harmful to the enemy. Nor is it harmful to the enemy if some military personnel are attached to civilian civil defense organizations or if the performance of civil defense tasks incidentally benefits military victims. Military personnel permanently and exclusively assigned to civil defense organizations (and properly distinguished with civil defense symbols) do not lose their status as POWs if captured, but they could lose their immunity from attack should they directly participate in hostilities, and they may be prosecuted for their hostile acts while acting under the color of civil defense authority. 5-63. Civilian civil defense personnel may bear light individual weapons for the purpose of maintaining order or for self-defense without losing their protections, although in areas where land fighting is taking place or is likely to take place, the parties to the conflict must take measures to limit these weapons to handguns in order to assist in distinguishing between civil defense personnel and combatants. If civil defense personnel bear other light individual weapons in such areas, however, they must nevertheless be respected and protected as soon as they have been recognized as such. The mere formation of civilian civil defense organizations along military lines, and compulsory service in them, does not deprive them of these protections (consider AP I art. 65). If civil defense organizations are participating in military activities, however, like providing warning to military organizations (as well as civilians), they may become military objectives. Marking of Civil Defense Organizations and Structures 5-64. Under Additional Protocol I, the international distinctive sign of civil defense, displayed in figure 5-2 below, is an equilateral blue triangle on an orange ground when used for the protection of civil defense organizations, their personnel, buildings, and materiel, and for civilian shelters. The parties to the conflict must take measures necessary to supervise the display of the international distinctive sign of civil defense and to prevent and repress its misuse (consider AP I art. 66). Cultural Property Personnel 5-65. As far as is consistent with the interests of security, personnel engaged in the protection of cultural property must, in the interests of such property, be respected and, if they fall into the hands of the opposing party, must be allowed to continue to carry out duties whenever the cultural property for which they are responsible has also fallen into the hands of the opposing party (1954 Hague art, 15). Such personnel are analogous to medical and religious personnel who also are to continue to carry out their medical and spiritual duties when they have fallen into the hands of the enemy. Certain Civil Affairs Soldiers and Marines may have training in and assigned duties to help protect cultural property. PROVISIONS COMMON TO THE TERRITORIES OF THE PARTIES TO THE CONFLICT AND TO OCCUPIED TERRITORIES 5-66. All protected persons are entitled, in all circumstances, to respect for their person, their honor, their family rights, their religious convictions and practices, and their manners and customs. They are to be humanely treated at all times and are to be protected especially against all acts of violence or threats thereof and against insults and public curiosity. 5-67. Women must be especially protected against any attack on their honor, in particular against rape, forced prostitution, or any form of indecent assault (GC art. 27). Although the GC provides special protection for women against these offenses, all individuals, including children and men, should also be protected against these offenses. Indecent assault is generally referred to today as sexual assault (see DOD Law of War Manual, 10.5.1.2). 5-68. Without prejudice to the provisions relating to their state of health, age, and sex, all protected persons are to be treated with the same consideration by the party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion, or political opinion (GC art. 82). Distinctions are permitted, and in some cases required, for humanitarian reasons. For example, the GC provides for special treatment for children during internment. Distinction based on religion, political opinion, or other similar criteria may also be made so long as it is not adverse and it is made to advance legitimate interests, such as maintaining order in a place of internment (see DOD Law of War Manual, 10.5.5). 5-69. The taking of hostages is prohibited (GC art. 34). The presence of protected persons may not be used to render certain points or areas immune from military operations, such as the practice of using “human shields” is prohibited (GC art. 28; consider AP I art. 51(7)). 5-70. Internees must at all times be protected against insults and public curiosity. For example, displaying internees in a humiliating fashion on television or on the internet would be prohibited. For this reason and others, DOD policy has prohibited the taking of photographs of detainees except for authorized purposes (see DOD Law of War Manual, 10.5.2). 5-71. No physical or moral coercion may be exercised against protected persons, in particular to obtain information from them or third parties (GC art. 31). For example, protected persons in occupied territory may not be compelled to provide information about their State’s military defenses. Other requirements, including the requirements of U.S. law and policy, would apply to the interrogation of protected persons. The GC’s prohibition against the use of coercion does not apply to those measures implicitly or explicitly authorized by the GC, such as the use of force to prevent one internee from harming another, or other lawful measures that are otherwise consistent with the GC, such as the use of force to prevent internees from escaping internment (see DOD Law of War Manual, 10.5.3.1). 5-72. Protected persons must at all times be protected, particularly against acts or threats of violence. For example, murder of protected persons is prohibited. Protected persons should be protected not only against unlawful acts by the agents of the detaining power, but also against violence from other protected persons, such as during internment or, in the case of protected persons in a belligerent’s home territory, violence from members of the civilian population (see DOD Law of War Manual, 10.5.1). 5-73. Parties to the GC specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation, and any medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents (GC art. 32). 5-74. No protected person may be punished for an offense that he or she has not personally committed. Collective penalties and, likewise, all measures of intimidation or of terrorism are prohibited. In addition to this specific prohibition in the GC, collective penalties are prohibited as a general matter under LOAC (see DOD Law of War Manual, 10.5.3.2). 5-75. Pillage is prohibited (GC art. 33). In addition to this specific prohibition in the GC, pillage is prohibited as a general matter under LOAC. 5-76. Reprisal against protected persons and their property are prohibited (GC art. 33). 5-77. Protected persons must have every facility for applying to the protecting powers (if designated), to the ICRC, to the national Red Cross or Red Crescent Society of the country where they may be, as well as to any organization that might assist them. These several organizations must be granted full facilities for that purpose by the authorities, within the bounds set by military or security considerations (GC art. 30). For example, relief organizations generally may only access military operations areas or military facilities in coordination with military authorities, and they can be barred from areas under military control if their activities exceed the scope of their humanitarian missions or pose other security concerns. 5-78. Apart from the visits of the delegates of the protecting powers and of the ICRC, provided for by Article 143 of the GC, the detaining power must facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons (GC art. 30). ALIENS IN THE TERRITORY OF A PARTY TO THE CONFLICT 5-79. Military forces have often been assigned the mission of providing security in their home territory, including by providing for the internment of enemy aliens who find themselves in the territory of the opposing party when hostilities break out between two States. Army and Marine forces assigned to such missions in the United States or its territories during an international armed conflict can expect to receive additional guidance from national authorities. G ENERAL T REATMENT OF P ROTECTED P ERSONS IN THE T ERRITORY OF A P ARTY D URING T IME OF W AR 5-80. With the exception of special measures of control authorized by the GC, such as internment, the situation of protected persons in the home territory of a State party to the conflict continue to be regulated, in principle, by the provisions concerning aliens in time of peace (GC art. 38). In any case, the following rights must be granted to them:  They must be enabled to receive the individual or collective relief that may be sent to them;  They must, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State in whose hands they are;  They must be allowed to practice their religion and to receive spiritual assistance from ministers of their faith;  If they reside in an area particularly exposed to the dangers of war, they must be authorized to move from that area to the same extent as the nationals of the State where they are residing; and  Children under 15 years of age, pregnant women, and mothers of children under 7 years of age, are to benefit from any preferential treatment to the same extent as the nationals of the State in whose hands they are (GC art. 38). 5-81. Protected persons who, as a result of the war, have lost their gainful employment, must be granted the opportunity to find paid employment. That opportunity must, subject to security considerations to the provisions of Article 40 of the GC, be equal to that enjoyed by the nationals of that State in whose territory they are. When a party to the conflict applies to a protected person methods of control (see paragraphs 5-83 through 5-88) that result in the protected person being unable to support himself or herself, and especially if such person is prevented for reasons of security from finding paid employment on reasonable conditions, the said party must ensure provisions of his or her support and that of his or her dependents. Protected persons may in any case receive allowances from their home country, the protecting power, or relief societies referred to in Article 30 of the GC (the national Red Cross or Red Crescent society of the country where they may be) (GC art. 39). 5-82. Protected persons may be compelled to work only to the same extent as nationals of the party to the conflict in whose territory they are. If protected persons are of enemy nationality, they may only be compelled to do work that is normally necessary to ensure the feeding, sheltering, clothing, transport, and health of human beings and that is not directly related to the conduct of military operations. In the cases mentioned in the first two paragraphs of Article 40 of the GC (that are described in the preceding two sentences), protected persons compelled to work must have the benefit of the same working conditions and of the same safeguards as national workers, in particular as regards wages, hours of labor, clothing and equipment, previous training, and compensation for occupational accidents and diseases (GC art. 40). M EASURES OF C ONTROL 5-83. Enemy aliens and other protected persons in the home territory of a party to the conflict when hostilities break out between two States are not necessarily made prisoners or interned en masse. For example, all protected persons who may desire to leave the territory at the outset of or during a conflict may be entitled to do so, unless their departure is contrary to the national interest of the State (GC art. 35). 5-84. Although the GC provides that the parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war, it does not list every measure that may be implemented (see GC art. 27). Such measures can include many different types of measures. For example, in the home territory of a party to a conflict, measures of control are normally taken with respect to, at the very least, persons known to be active or reserve members of a hostile army (they would be the first POWs), persons who would be liable to service in the enemy forces, and persons who would be expected to furnish information or other aid to a hostile State.. 5-85. Other measures may include, for example, requiring protected persons: (1) to register with and report periodically to the police authorities; (2) to carry identity cards or special papers; (3) to refrain from carrying weapons; (4) to refrain from changing their place of residence without permission; (5) to refrain from accessing certain areas; (6) to have an assigned residence; and (7) to be interned. 5-86. Should the State, in whose hands protected persons may be, consider the measures of control mentioned in the GC to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43 of the GC. The internment or placing in assigned residence of protected persons may be ordered only if the security of the detaining power makes it “absolutely necessary.” If any person, acting through the representatives of the protecting power, voluntarily demands internment, and if his or her situation renders this step necessary, he or she must be interned by the State in whose hands he or she may be (GC art. 42). All protected persons subject to measures of control are to be provided treatment consistent with the minimum humane treatment standards discussed in paragraphs 5-16 through 5-18. 5-87. Any protected person who has been interned or placed in assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative tribunal designated by the detaining power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, consider his or her case with a view to favorably amending the initial decision, if circumstances permit (GC art. 43). 5-88. Unless the protected persons concerned object, the detaining power must, as rapidly as possible, give the protecting power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of Article 43 of the GC must also, subject to the same conditions, be notified as rapidly as possible to the protecting power (GC art. 43). TREATMENT OF INTERNEES I NTERNMENT G ENERALLY 5-89. During an international armed conflict, parties to a conflict may not intern protected persons in a belligerent’s home territory, except in accordance with the provisions of Articles 41-43, 68, and 78 of the GC. Humane treatment standards of the GC for protected persons described in paragraphs 5-16 through 5-18) also apply to interned protected persons. Maintenance of Internees and Their Dependents 5-90. Parties to the conflict who intern protected persons are bound to provide free of charge for their maintenance and to grant them also the medical attention required by their state of health. No deduction from the allowances, salaries, or credits due to the internees may be made for the repayment of these costs. The detaining power must provide for the support of those dependent on the internees if such dependents are without adequate means of support or are unable to earn a living (GC art. 81). Grouping of Internees 5-91. The detaining power must, as far as possible, accommodate the internees according to their nationality, language, and customs. Internees who are nationals of the same country are not to be separated merely because they speak different languages (GC art. 82). Internees must be accommodated and administered separately from POWs and from persons deprived of liberty for any other reason (GC art. 84). Much like internment of POWs, the internment of protected persons is a precautionary measure and should not be confused with the penalty of imprisonment. P ROTECTION FOR W OMEN, F AMILIES, AND C HILDREN 5-92. Throughout the duration of their internment, members of the same family, and in particular parents and children, must be lodged together in the same place of internment except when separation of a temporary nature is required for reasons of employment or health, or for penal and disciplinary purposes. Internees may request that their children who are left at liberty without parental care be interned with them, but one of the parents would not be able to request the internment of a child being cared for by a parent who was not being interned (GC art. 82). Whenever possible, interned members of the same family must be housed in the same premises and given separate accommodations from other internees, together with facilities for leading a proper family life (GC art. 82). Moreover, the parties to the conflict must endeavor during the course of hostilities to conclude agreements for the release, the repatriation, the return to places of residence, or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and internees who have been detained for a long time (GC art. 132). Additional Protections 5-93. If interned, expectant and nursing mothers, and children under 15 years of age must be given additional food in proportion to their physiological needs (GC art. 89). The detaining power must encourage intellectual, educational, and recreational pursuits among the internees, including child internees. The education of children and young people must be ensured; they must be allowed to attend schools either within the place of internment or outside. Like all internees, child internees must be given opportunities for physical exercise, sports, and outdoor games. For this purpose, sufficient open spaces must be set aside in all places of internment. Special playgrounds must be reserved for children and young people (GC art. 94). Women Internees 5-94. Whenever it is necessary, as an exceptional and temporary measure, to accommodate women internees who are not members of a family unit in the same place of internment as men, women internees must be provided separate sleeping quarters and sanitary conveniences for their use (GC art. 85). Women internees accused or convicted of offenses must be confined in separate quarters from men and must be under the immediate supervision of women (GC arts. 85 and 126). Women internees undergoing disciplinary punishment must be confined in separate quarters from male internees and under the immediate supervision of women (GC art. 124). A woman internee must not be searched except by a woman (GC art. 97). Sick, wounded, and infirm internees and maternity cases may not be transferred if the journey would be seriously detrimental to them unless their safety imperatively so demands (GC art. 127). P LACES OF I NTERNMENT 5-95. The detaining power may not set up places of internment in areas particularly exposed to the dangers of war. The detaining power must give enemy powers, through the intermediary of the protecting powers, all useful information regarding the geographical location of places of internment. Whenever military considerations permit, internment camps must be indicated by the letters “IC,” placed so as to be clearly visible in the daytime from the air. The powers concerned may, however, agree upon any other system of marking. No place, other than an internment camp, may be marked as such (GC art. 83). A detaining power may refrain from marking a camp when it believes that such identification may enable an enemy power to pose a security risk to the camp; for example, if such identification would enable an enemy power to instigate a revolt, provide weapons to internees, or enable escape attempts. Accommodation; Hygiene Regarding Internees 5-96. The detaining power must take all necessary and possible measures to ensure that protected persons, from the outset of their internment, are accommodated in buildings or quarters that afford every possible safeguard in regard to hygiene and health, and provide efficient protection against the rigors of the climate and the effects of the war. In no case may permanent places of internment be situated in unhealthy areas, or in districts the climate of which is injurious to the internees. In all cases where the district in which a protected person is temporarily interned is in an unhealthy area or has a climate that is harmful to his or her health, he or she must be removed to a more suitable place of internment as rapidly as circumstances permit. 5-97. The premises must be fully protected from dampness and adequately heated and lighted, in particular between dusk and lights-out. The sleeping quarters must be sufficiently spacious and well-ventilated, and the internees must have suitable bedding and sufficient blankets, with account being taken of the climate and of the age, sex, and state of health of the internees. 5-98. Internees must have for their use, day and night, sanitary conveniences (e.g. latrines, bathrooms) that conform to the rules of hygiene and are constantly maintained in a state of cleanliness. They must be provided with sufficient water and soap for their daily personal toilet and for washing their personal laundry; installations and facilities necessary for this purpose must be granted to them. Showers or baths must also be available. Necessary time must be set aside for washing and for cleaning (GC art. 85). Canteens 5-99. Canteens must be installed in every place of internment, except where other suitable facilities are available (for comparison, see paragraph 3-74 for discussion of POW canteens). The purpose of the canteens is to enable internees to make purchases, at prices no higher than local market prices, of food and articles of everyday use, including soap and tobacco, in order to increase their personal well-being and comfort. 5-100. Profits made by canteens must be credited to a welfare fund to be set up for each place of internment, and administered for the benefit of the internees attached to such place of internment. The internee committee (described in paragraphs 5-134 through 5-137) has the right to check the management of the canteen and of its welfare fund. When a place of internment is closed down, the balance of the welfare fund must be transferred to the welfare fund of a place of internment for internees of the same nationality or, if such a place does not exist, to a central welfare fund to be administered for the benefit of all internees remaining in the custody of the detaining power. In case of a general release, the detaining power may keep the profits subject to any agreement to the contrary between the powers concerned (GC art. 87). Internees are not entitled to more favorable treatment than the population at large with respect to canteen facilities and are equally subject to regulations, such as those pertaining to rationing, which are applied to the population generally. Air-Raid Shelters and Protective Measures for Internees 5-101. In all places of internment exposed to air raids and other hazards of war, shelters adequate in number and structure to ensure the necessary protection of the internees must be installed. In case of alarms, the internees must be free to enter such shelters as quickly as possible, except those who remain for the protection of their quarters against hazards. Any protective measures taken in favor of the population also apply to the internees. All due precautions must be taken in places of internment against the danger of fire (GC art. 88). F OOD AND C LOTHING 5-102. Daily food rations for internees must be sufficient in quantity, quality, and variety to keep internees in a good state of health and prevent the development of nutritional deficiencies. Account must also be taken of the customary diet of the internees. Internees must be given the means to prepare for themselves any additional food in their possession. Sufficient drinking water must be supplied to internees. Internees who work must receive additional rations in proportion to the kind of labor that they perform (GC art. 89). 5-103. When taken into custody, internees must be given all facilities to provide themselves with the necessary clothing, footwear, and change of underwear, and later on, to procure further supplies if required. In general, internees are expected to provide for their own clothing. Should any internees not have sufficient clothing for the climate and be unable to procure any, the detaining power must provide it free of charge. The clothing the detaining power supplies to internees and the outward markings placed on their own clothes may neither be ignominious nor expose them to ridicule. For example, any uniforms that are provided must not resemble convicts’ uniforms. 5-104. Workers must receive suitable working outfits, including protective clothing, whenever the nature of their work so requires (GC art. 90). M EDICAL C ARE 5-105. Parties to the conflict who intern protected persons must grant them the medical attention required by their state of health (GC art. 81). 5-106. Every place of internment must have an adequate infirmary under the direction of a qualified doctor where internees may have the attention they require, as well as an appropriate diet. Isolation wards must be set aside for cases of contagious or mental diseases. Maternity cases and internees suffering from serious diseases, or whose condition requires special treatment, a surgical operation, or hospital care, must be admitted to any institution where adequate treatment can be given. They must receive care not inferior to that provided for the general population. 5-107. Internees must, for preference, have the attention of medical personnel of their own nationality. Internees may not be prevented from presenting themselves to the medical authorities for examination. Upon request, the medical authorities of the detaining power must issue to every internee who has undergone treatment an official certificate showing the nature of his or her illness or injury, and the duration and nature of the treatment given. A duplicate of this certificate must be forwarded to the central information agency for protected persons as described in paragraph 5-139. Treatment, including the provision of any apparatus necessary for the maintenance of internees in good health, particularly dentures and other artificial appliances and spectacles, must be free of charge to the internee (GC art. 91). Internees may receive individual parcels and collective shipments containing medical supplies (GC art. 108). However, medical supplies should be sent in collective shipments so they may be properly administered by the camp medical personnel (see DOD Law of War Manual, 10.23.3.2). Medical Inspection of Internees 5-108. Medical inspections of internees must be made at least once a month. Their purpose is, in particular, to supervise the general state of health, nutrition, and cleanliness of internees, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases. Such inspections must include the checking of weight of each internee and, at least once a year, radioscopic examination (GC art. 92). Death of Internees 5-109. The death of internees must be certified by a doctor and a death certificate prepared showing the cause of death and the conditions under which it occurred. An official record of the death, duly registered, must be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated, and a duly certified copy of such record is to be transmitted without delay to the protecting power and the central information agency for protected persons (GC, art. 129). Internees who die while interned must be honorably buried, if possible, in accordance with the cultural and religious practices of the religion to which they belong. Their graves must be respected, properly maintained, and marked in a manner that ensures recognition (GC, art. 130). R ELIGIOUS, I NTELLECTUAL, AND P HYSICAL A CTIVITIES, AND W ORK 5-110. Internees must enjoy complete latitude in the exercise of their religious duties, including attendance at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining authorities. The detaining power must place at the disposal of interned persons, of whatever denomination, premises suitable for the holding of their religious services (GC art. 86). The premises where services are held should have enough space, be clean, and provide effective shelter to those attending services. The premises do not need to be set aside exclusively for religious services (see DOD Law of War Manual, 10.15.1). 5-111. Ministers of religion who are interned must be allowed to minister freely to the members of their community. For this purpose, the detaining power must ensure their equitable allocation among the various places of internment that have internees speaking the same language and belonging to the same religion. Should there be too few ministers, the detaining power must provide them with the necessary facilities, including means of transport, for moving from one place to another, and they must be authorized to visit any internees who are hospitalized. Ministers of religion must be at liberty to correspond on matters concerning their ministry with the religious authorities in the country of detention and as far as possible with the international religious organizations of their faith. Such correspondence must not count against the quota mentioned in Article 107 of the GC as described in paragraph 3-93. It may, however, be subject to censorship, but such censorship must be done as quickly as possible. When internees do not have at their disposal the assistance of ministers of their faith, or should these ministers be too few in number, the local religious authorities of the same faith may appoint, in agreement with the detaining power, a minister of the internees’ faith or, if such a course is feasible from a denominational point of view, a minister of similar religion or a qualified layman. The latter must enjoy the facilities granted to the ministry he or she has assumed. Persons so appointed must comply with all regulations laid down by the detaining power in the interests of discipline and security (GC art. 93). Recreational Study, Sports, and Games for Internees 5-112. The detaining power must encourage intellectual, educational, and recreational pursuits and sports and games among internees, while leaving them free to take part in them or not. It must take all practicable measures to ensure the exercise thereof, in particular by providing suitable premises. All possible facilities must be granted to internees to continue their studies or to take up new subjects. Internees must be given opportunities for physical exercise, sports, and outdoor games. For this purpose, sufficient open spaces must be set aside in all places of internment GC art. 94). 5-113. Apart from the detaining power, internees may receive assistance from a variety of sources that allow them to engage in intellectual, physical, and recreational activities. For example, relief organizations, including the ICRC, may contribute to the ensuring that internees have opportunities for intellectual, physical, and recreational activities. In addition, internees may receive shipments that are intended to allow them to engage in these activities. Lastly, the profits from the canteen may be used in this area (DOD Law of War Manual, 10.16.4). Working Conditions of Internees 5-114. The detaining power may not employ internees as workers unless the internees desire to work. Employment that if undertaken under compulsion by a protected person not in internment would involve a breach of the GC provisions concerning employment of aliens in the home country (discussed in paragraph 5-81) or employment of civilians in occupied territory (discussed in paragraphs 6-129 through 6-145), or would involve work of a degrading or humiliating character, is prohibited. After a working period of six weeks, internees are free to give up work at any moment, subject to eight days’ notice. 5-115. These two paragraphs of Article 95 of the GC (as described above) do not affect the right of the detaining power to employ interned doctors, dentists, and other medical personnel in their professional capacity on behalf of their fellow internees, or to employ internees for administrative and maintenance work in places of internment, or to detail such persons for work in the kitchens or for other domestic tasks, or to require such persons to undertake duties connected with the protection of internees against aerial bombardment or other war risks. This although internees generally may not be compelled to work, there is an exception for tasks that benefit the internee community as a whole (see DOD Law of War Manual, 10.17.2). No internee may, however, be required to perform tasks for which he or she is, in the opinion of a medical officer, physically unsuited (GC art. 95). 5-116. The detaining power must take entire responsibility for all working conditions, for medical attention, for the payment of wages, and for ensuring that all employed internees receive compensation for occupational accidents and diseases. The standards prescribed for said working conditions and for compensation must be in accordance with national laws and regulations and with existing practice; they must in no case be inferior to those obtaining for work of the same nature in the same district (GC art. 95). Wages 5-117. Wages for work done must be determined on an equitable basis by special agreements between the internees, the detaining power, and if the case arises, employers other than the detaining power, with due regard being paid to the obligation of the occupying State to provide for free maintenance of internees and for the medical attention that their state of health may require. Whether work is done for the occupying State or for an outside employer, the wages are to be decided by agreement with the internees, bearing in mind the latter have no living expenses to defray. 5-118. Internees permanently detailed for categories of work mentioned in paragraph 5-115, such as doctors, dentists, and other medical personnel in the professional capacity on behalf of their fellow internees; administrative and maintenance work in places of internment, must be paid fair wages by the detaining power. The working conditions and the scale of compensation for occupational accidents and diseases to internees thus detailed may not be inferior to those applicable to work of the same nature in the same district (GC art. 95). Labor Detachments 5-119. All labor detachments must remain part of, and dependent upon, a place of internment. The competent authorities of the detaining authority and the commandant of a place of internment are responsible for observing the provisions of the GC in a labor detachment. The commandant must keep an up-to-date list of the labor detachments subordinate to him or her, and must communicate the list to the delegates of the protecting power, the ICRC, and other humanitarian organizations who may visit the places of internment (GC art. 96). P ERSONAL P ROPERTY AND F INANCIAL R ESOURCES 5-120. Internees may retain articles of personal use (CG art. 97). Internees, however, are not entitled to retain items that could be put to a use prejudicial to the legitimate interests of the detaining power, such as items that may pose a risk to security, such as knives or devices that may be used as weapons, or items that may facilitate escape, such as flares, compasses, or maps (DOD Law of War Manual, 10.18.1). 5-121. Items that have “above all” a personal or sentimental value may not be taken away (GC art. 97). If an item of personal or sentimental value presents a security risk (for example, it may be useful as a bribe in an escape attempt), then the detaining power may impound it. Family or identity documents in the possession of internees may not be taken away without a receipt being given (GC art. 97). At no time may internees be left without identity documents. If they have none, they must be issued special documents drawn up by the detaining authorities, which will serve as their identity papers until the end of their internment. Internees may keep on their persons a certain amount of money, in cash or in the form of purchase coupons, to enable them to make purchases, such as at a canteen (GC art. 97). 5-122. Monies, checks, bonds, and other valuables in the possession of internees may not be taken from them except in accordance with established procedures that include providing detailed receipts (GC art. 96). Amounts taken from an internee are to be paid into the internee’s account, as discussed in paragraph 5-125. Such amounts may not be converted into any other currency unless legislation in the territory in which the owner is interned so requires, or the internee consents. 5-123. On release or repatriation, internees must be given all articles, monies, or other valuables taken from them during internment and must receive in currency the balance of any credit to their internee accounts, with the exception of any articles or amounts the detaining power withheld by virtue of its legislation in force. If the property of the internee is withheld, the owner is to receive a detailed receipt (GC art. 97). 5-124. All internees must receive regular allowances sufficient to enable them to purchase goods and articles such as tobacco or toiletries. Allowances may take the form of credits or purchase coupons. Furthermore, internees may receive allowances from the power to which they owe allegiance, the protecting powers, and any organizations that may assist them, or their families, as well as the income on their property in accordance with the law of the detaining power. The amount of allowances granted by the power to which an internee owes allegiance must be the same for each category of internees (such as infirm, sick, or pregnant), but may not be allocated by that power or distributed by the detaining power on the basis of discrimination between internees that is prohibited by Article 27 of the GC, such as race, religion, or political opinion. 5-125. The detaining power must open a regular account for every internee, to which must be credited the allowances discussed in the preceding paragraph, wages earned, remittances received, and with such sums taken from the internee as may be available under the legislation in force in the territory in which he or she is interned. Internees may draw from their accounts the amounts necessary for their personal expenses, within the limits fixed by the detaining power. Internees must be granted all facilities consistent with the legislation in force in such territory to make remittances to their families and to other dependents. Internees must at all times be afforded reasonable facilities for consulting and obtaining account statements. A statement of accounts must be furnished to the protecting power on request, and an account statement must accompany the internee in case of transfer (GC art. 98). I NTERNMENT C AMP A DMINISTRATION 5-126. Every place of internment must be put under the authority of a responsible officer from the regular military forces or the regular civil administration of the detaining power. The officer in charge of a place of internment must have in his or her possession a copy of the GC in an official language of the officer’s country and is to be responsible for its application. The staff in control of internees must be instructed in the provisions of the GC and of the administrative measures adopted to ensure its application. The texts of the GC and any special agreements concluded under the GC must be posted inside the place of internment in a language that the internees understand or must be in the possession of the internee committee. Regulations, orders, notices, and publications of every kind must be communicated to the internees and posted inside the places of internment in a language they understand. Every order and command addressed to internees individually must likewise be given in a language they understand (GC art. 99). Discipline of Internees 5-127. The disciplinary regime in places of internment must be consistent with humanitarian principles, and may not include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. Identification by tattooing or otherwise imprinting signs or markings on the body is prohibited. Prolonged standing and roll-calls, punishment drill, military drill and maneuvers, or the reduction of food rations are prohibited (GC, art, 100). Without prejudice to the competence of courts and higher authorities, disciplinary punishment may be ordered by the commandant of the place of internment, or by a responsible officer or official who replaces him or her, or to whom he or she has delegated his or her disciplinary powers. Before any disciplinary punishment is awarded, the accused internee must be given precise information regarding the offense of which he or she is accused, and given an opportunity to explain his or her conduct and to defend himself or herself against the allegation (GC art. 123). Disciplinary procedures are similar to those employed in POW camps (see, generally, paragraphs 3-126 through 3-128). Criminal proceedings against internees must comply with the procedures discussed in paragraphs 6-171 through 6-201. Complaints and Petitions by Internees 5-128. Internees have the right to present to the detaining authorities any petition with regard to the conditions of internment to which they are subjected (GC art. 101). The commander of an internment facility should establish a procedure to facilitate the exercise of an internee’s right to petition. This procedure should include a designated point of contact for such petitions. 5-129. Internees also have the right to apply without restriction through the internee committee or, if they consider it necessary, directly to the representatives of the protecting power in order to indicate to them any points on which they may have complaints to make with regard to the conditions of internment. Such complaints may also be made to the delegates of the ICRC, who enjoy the same prerogatives of access to internees as the representatives of the protecting power. 5-130. Such petitions and complaints must be transmitted without delay or alteration. Even if petitions or complaints are unfounded, they may not occasion any punishment. 5-131. The detaining power may examine and censor complaints and petitions for security reasons. Communications for transmittal may be examined to determine whether they legitimately contain complaints or petitions. Security review and censorship must be conducted in accordance with the general rule on censoring internee correspondence. The detaining power may also examine such complaints and reports to the protecting power representatives to verify that they are what they purport to be, and to delete matters not constituting either a complaint or a report within the meaning of the foregoing provision. 5-132. Internee committees may send periodic reports on internee needs and the internment situation to the protecting power representatives (GC art. 101). The detaining power may subject these reports to security review and censorship to ensure these reports are not misused. Report Allegations 5-133. Any credible allegation of a LOAC violation regarding internees must be reported to the chain of command and the proper investigative authority, such as the service major criminal investigative organization (such as the U.S. Army Criminal Investigation Division [CIDCIDCriminal investigation division]) (see DODDDODDDepartment of Defense directive 2310.01E). Internee Committees 5-134. In every place of internment, the internees are to freely elect, by secret ballot every six months, the members of an internee committee empowered to represent them before the detaining power and the protecting powers, the ICRC, and any other organization that may assist them. Members of the committee are eligible for re-election. Internees so elected enter upon their duties after the detaining authorities approve their election. The reasons for any refusals or dismissals must be communicated to the protecting powers concerned (GC art. 102). Internee committee members who are transferred must be allowed a reasonable time to acquaint their successors with current affairs (GC art. 104). 5-135. The duties of internee committees include, furthering the physical, spiritual, and intellectual well-being of the internees, much like the duties of prisoners’ representatives for POWs (see paragraphs 3-81 through 3-84). These general duties imply that internee committees are to undertake a variety of activities to ensure that internees receive proper treatment by the detaining power and to advance their welfare, even activities that are not specified in the GC as constituting their duties. In case the internees decide, in particular, to organize a system of mutual assistance among themselves, this organization would be within the competence of the internee committees, in addition to the specific duties entrusted to them under other provisions of the GC (GC art. 103). 5-136. Members of internee committees may not be required to perform any other work if the work will hinder accomplishment of their duties. Members of internee committees may appoint from among the internees such assistants as they require. All material facilities are to be granted to members of the internee committees, particularly a certain freedom of movement necessary for the accomplishment of their duties (such as visits to labor detachments or receipt of supplies). This freedom of movement does not require complete freedom, however; for example, a camp commander may restrict movement for security reasons. 5-137. All facilities must likewise be accorded to internee committee members for communication by post and telegraph with the detaining authorities, the protecting powers, the ICRC, and organizations that give assistance to internees. Internee committee members in labor detachments are to enjoy similar facilities to communicate with their internee committee in the principal place of internment. Such communications may not be limited, nor considered as forming a part of the quota for letters and cards mentioned in article 107 of the GC. Censorship of such communications with the protecting powers, the ICRC, or other organizations dedicated to the welfare of the internees is not prohibited, but the detaining power should ensure that delays do not occur to the disadvantage of the internees. Notification of Measures Taken Regarding Internees 5-138. Immediately upon interning protected persons, the detaining power must inform them, the power to which they owe allegiance, and their protecting power (or the ICRC if it assumed the duties of the protecting power) of the measures taken. The detaining power must likewise inform the parties concerned of any subsequent modifications of such measures (GC art. 105). Internment Card 5-139. As soon as a person is interned, or at the latest no more than one week after his or her arrival in a place of internment (normally the theater internment facility), and likewise in cases of sickness or transfer to another place of internment or to a hospital, an internee must be enabled to send direct to his or her family and to the central information agency for protected persons described in paragraph 1-111 an internment card that is similar, if possible, to the model in Annex III to the GC, informing their relatives of his or her detention, address, and state of health. The cards must be forwarded as rapidly as possible and may not be delayed in any way (GC art. 106). In US practice, the National Detainee Reporting Center, described in paragraphs 3-86 through 3-89, has served as the National Protected Person Information Bureau responsible under the GC for various functions, including for receiving and transmitting information required by the GC to the Powers concerned, through the intermediary of the protecting powers and the Central Information Agency for protected persons (see DOD Law of War Manual, 10.31.2 and 10.31.4). The role of the Central Information Agency for protected persons has been performed in many conflicts by the ICRC Central Tracing Agency (GC art. 136, 137, 138, 139, 140; see DOD Law of War Manual, 10.31.3).

This chapter concerns the law of military occupation. It discusses when military occupation applies, the duties of the Occupying Power, the administration of the occupied territory, and the protection of the population within occupied territory. It further discusses the rules applicable to relief organizations in occupied territory, the rights and duties of the Occupying Power in regard to enemy property, the rules that concern obtaining services of the inhabitants, public finance in the occupied territory, and penal provisions in the occupied territory. OVERVIEW AND PRACTICAL GUIDANCE 6-1. Military occupation of enemy territory establishes a special relationship between the government of the Occupying Power, the occupied government, and the civilian population of the territory occupied. The body of international law governing occupations recognizes that the Occupying Power is responsible for the general administration of the occupied territory and its civilian inhabitants, including the maintenance of public order and safety (HR art. 43). 6-2. Military occupation is a temporary measure for administering territory under the control of an invading army, both for purposes of military necessity and of safeguarding the welfare of the population of the occupied territory. To administer occupied territory effectively, the Occupying Power has authority, within certain limits, to enact laws and to suspend certain local laws. (See HR art. 27; GC art. 64.) The Occupying Power generally may not suspend or alter laws that pertain to private matters such as family life, inheritance, and property, except as required to enable the Occupying Power to fulfill its obligations under LOAC, to maintain an orderly government, and to ensure the security of the Occupying Power. 6-3. Commanders should be prepared to apply occupation law, including by planning for the requirements of occupation even before the entry into foreign territory. Successful stability operations may be critical to achieving the political objectives of combat operations. Many of the rules of occupation law reflect sound principles for stability operations that technically occur outside the context of occupation. 6-4. Commanders should be prepared to work and coordinate with a range of organizations and entities on occupation issues to utilize relevant expertise and to ensure consistency with national policy and U.S. legal obligation, such as the Department of State and other national level authorities. 6-5. Commanders should be prepared to take the necessary actions to fulfill the additional responsibilities of an Occupying Power, in particular, the duty to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Although the primary objective in conducting military occupation is to further the purpose of the war and to ensure the maintenance and security of occupying forces, there are important duties to provide for the interests and welfare of the civilian population of the occupied territory (see DOD Law of War Manual, 11.1). For example:  Commanders should plan and prepare to take actions to ensure there is sufficient food and clean water and other basic services for the inhabitants of the occupied territory;  Commanders should plan and prepare to take actions to stop looting after the government of the opposing State has been ousted; and  Commanders must not make arbitrary changes to the governance of the occupied territory. 6-6. Commanders should be prepared to take the necessary actions to exercise the additional authorities that occupation law confers with respect to the administration of the occupied territory. For example, there are authorities to:  Enforce obedience from the inhabitants of the occupied territory as may be necessary for the security of occupation forces, the maintenance of law of and order, and for the proper administration of the country;  Restrict freedom of movement and control means of transportation within the occupied territory;  Suspend, repeal, or change municipal law applicable to occupied territory; and  Control property in occupied territory or control private businesses in order to address the needs of the occupied territory. M ILITARY O CCUPATION AND I NTERNATIONAL L AW 6-7. In general, the LOAC rules that are not specific to military occupation continue to apply to situations that are addressed by those rules that may arise during occupation. For example, the rules regarding the humane treatment of detainees apply to detention operations during occupation. The fact of occupation triggers the application of additional LOAC rules specific to occupation (see DOD Law of War Manual, 11.1.2.1). There are three primary treaty sources to which the United States is a party that address military occupation. 6-8. Articles 42 through 56 of the HR address military occupation. Although in some cases the HR would not be applicable as a matter of treaty law because belligerent States might not be parties, many of the provisions of Articles 42 through 56 reflect customary international law. 6-9. The 1949 Geneva Conventions apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Articles 47 through 78 of the GC specifically addresses occupied territories. Other provisions of the GC also apply to occupied territory, such as articles 27 through 34 of the GC contain provisions common to the home territories of parties to an armed conflict and occupied territories. 6-10. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague) applies to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets no armed resistance. The 1954 Hague and the Regulations for the Execution of the 1954 Hague have provisions that expressly address occupation. When the 1954 Hague and the GC are both applicable, the 1954 Hague provisions supplement the GC provisions (1954 Hague art. 36). The applicable provisions of the GC and 1954 Hague supplement the HR provisions regarding occupation (see GC art. 154; 1954 Hague art. 36). W HEN M ILITARY O CCUPATION L AW A PPLIES 6-11. The law of military occupation applies in international armed conflict and also in all cases of partial or total occupation of a country’s territory, even if the occupation meets with no armed resistance (HR art. 2; GC art. 2). Whether military occupation law applies is a question of fact. Even if the requirements of the law of military occupation doe no apply as a matter of law, general LOAC principles and rules will continue to apply (see DOD Law of War Manual, 11.2). P REREQUISITES AND S COPE OF M ILITARY O CCUPATION 6-12. Whether a situation qualifies as an occupation is a question of fact under LOAC. Under Article 42 of the 1907 Hague Regulations, “Territory is considered occupied when it is actually placed under the authority of a hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Military occupation:  Must be actual and effective; that is, the organized resistance must have been overcome, and the Occupying Power must have taken measures to establish its authority;  Requires the suspension of the territorial State’s authority and the substitution of the Occupying Power’s authority; and  Occurs when there is a hostile relationship between the State of the invading force and the State of the occupied territory. W HEN M ILITARY O CCUPATION L AW D OES N OT A PPLY 6-13. Paragraphs 6-14 through 6-17 describe examples of situations to which military occupation law does not apply. Nonetheless, it may be appropriate to apply rules from the law of military occupation in such situations (see DOD Law of War Manual, 11.1.3). Invasion or Intervention 6-14. Mere physical presence of a belligerent’s military in the territory of its enemy does not constitute military occupation (see HR art. 42) and does not activate military occupation law. Air superiority alone does not constitute an effective occupation. For example, a brief physical holding of enemy territory by a small unit does not constitute military occupation. Capturing a military objective, such as a town or city in the process of defeating enemy forces, and even holding it for an indeterminate period of time, by itself may not constitute a military occupation, as the government of the invaded State may remain capable of exercising its authority. Liberation of Friendly Territory 6-15. The law of military occupation does not apply to the liberation of friendly territory. Indeed, a military occupation presupposes that the Occupying Power is hostile in relation to the State whose territory is being occupied. The administration of liberated territory may be conducted in accordance with a civil affairs agreement. In the absence of such an agreement, a military government may be established in the area as a provisional and interim measure (DOD Law of War Manual, 11.1.3.2). Peace Operations or Non-International Armed Conflict 6-16. Generally, the law of military occupation would not apply in a non-international armed conflict because a military occupation presupposes that the Occupying Power is hostile in relation to the State whose territory is being occupied. A State’s military forces controlling its own territory would not be regarded as conducting an occupation; similarly, foreign forces conducting operations with the consent of the territorial State would also not be regarded as conducting an occupation. However, the law of military occupation may be applicable to a non-international armed conflict when a non-State party to the conflict has been recognized as a belligerent and the criteria identified in Paragraph 6-12 are met (see DOD Law of War Manual, 11.1.3.3). Law by Analogy 6-17. Although the law of military occupation does not apply as a matter of law to the foregoing situations, it may be appropriate to apply rules from the law of military occupation in such situations (see DOD Law of War Manual, 11.1.3). For example, the law of military occupation may provide appropriate rules to apply by analogy after the liberation of friendly territory, pending a civil affairs agreement with the territorial State. E FFECTIVENESS OF O CCUPATION 6-18. Military occupation must be actual and effective. The organized resistance must have been overcome, and the Occupying Power must have taken measures to establish its authority. 6-19. It is sufficient that the occupying force can, within a reasonable time, send detachments of forces to enforce its authority within the occupied district. Military occupation does not require the presence of military forces in all populated areas, although those forces must control the most important places. The type of forces used to maintain the authority of the Occupying Power is not material. For example, the occupation might be maintained by permanently based units or mobile forces, either of which would be able to send detachments of forces to enforce the authority of the Occupying Power within the occupied district. 6-20. Additionally, an occupation may be effective despite the existence of areas in the enemy State that are temporarily controlled by enemy forces or pockets of resistance. 6-21. The fact that a defended location (such as a city or town) still controlled by enemy forces exists within an area declared occupied by the Occupying Power does not render the occupation of the remainder invalid, provided that continued resistance in such a place does not render the occupier unable to exercise control over the remainder of the occupied territory. C OMMENCEMENT OF O CCUPATION 6-22. There is no specific legal requirement that the Occupying Power issue a proclamation of military occupation. Due to the special relations established between the civilian population of the occupied territory and the Occupying Power, the fact of military occupation and the territory over which it extends should be made known to the citizens of the occupied territory and to other States. The general historical practice of the United States has been to make the fact of occupation known by proclamation or similar notice. 6-23. However, the absence of a proclamation or similar notice, the exact time an occupation commences may be difficult to fix. L IMITATIONS OF O CCUPATION 6-24. Military occupation of enemy territory involves a complex, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory. Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily. 6-25. The fact of a military occupation does not authorize the Occupying Power to take certain actions. For example, the Occupying Power is not authorized by the fact of a military occupation to annex occupied territory or create a new State. Nor may the Occupying Power compel the inhabitants of occupied territory to become its nationals or otherwise swear allegiance to it (HR art. 45). 6-26. The U.N. Security Council may call upon Occupying Powers to comply with existing international law. Acting under the Charter of the United Nations, the Security Council may also establish authorities or limitations that might interact with those otherwise applicable under occupation law. For example, a U.N. Security Council Resolution may provide additional authority for an Occupying Power to take action in governing occupied territory that would otherwise not be permissible under the law of belligerent occupation, including such actions related to modifying existing laws of the territorial State, and encouraging political reforms. T ERMINATION OF O CCUPATION 6-27. Military occupation will cease when the conditions for its application are no longer met (see paragraphs 6-11 through 6-12). In particular, the military occupation would cease when the invader no longer factually governs the occupied territory or when a hostile relationship no longer exists between the State of the occupied territory and the Occupying Power. For example, an uprising of the local population may prevent the Occupying Power from actually enforcing its authority. Similarly, the Occupying Power’s expulsion or complete withdrawal from the occupied territory would also be sufficient to terminate the military occupation. 6-28. Military occupation also may end when a hostile relationship no longer exists between the Occupying Power and the State of the occupied territory. For example, if a new, independent government of the previously occupied territory assumes control of the territory and consents to the presence of the previously occupying forces, it would no longer be considered a military occupation. Similarly, if a peace treaty legitimately transfers sovereignty of the territory to the Occupying Power, it would no longer be characterized as a military occupation (DOD Law of War Manual, 11.3.1). 6-29. In the territory of the parties to the conflict, the application of the GC will cease on the general close of military operations. In the case of occupied territory, the application of the GC will cease to apply to occupied territory one year after the general close of military operations (GC art. 6). However, the Occupying Power is bound for the duration of the military occupation, to the extent the Occupying Power continues to exercise governmental functions in the occupied territory, by the following Articles of the GC: 1 through 12, 27, 29 through 34, 47, 49, 51 through 53, 59, 61 through 77, and 143 (see GC art. 6). 6-30. Additional Protocol I provides that the 1949 Geneva Conventions and AP I will cease to apply upon the termination of occupation (AP I art. 3(b)). Occupying Powers who are party to AP I would be bound by this rule. The United States is a not a party to AP I. In any case, individuals entitled to GC protection who remain in the custody of the Occupying Power following the end of occupation retain that protection until their release, repatriation, or re-establishment (GC art. 6). P ROTECTED P ERSONS 6-31. The GC is concerned in large part with the welfare of “protected persons” located either in occupied territory or the home territory of a party to the conflict. Subject to certain exceptions, persons protected by the GC are those who, at a given moment and in any manner whatsoever, find themselves, in the case of conflict or occupation, “in the hands of” a party to the conflict or occupying State of which they are not nationals (GC art. 4). The following persons are specifically excluded from being considered protected persons under the GC, even though they may nonetheless receive the protection of the population against certain consequences of armed conflict:  Nationals of any State that is not a party to GC;  A State’s own nationals;  Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State (for example, nationals of a State that is a multinational partner of the Occupying Power in the armed conflict), while the State of which they are nationals has normal diplomatic representation with the Occupying Power; and  Persons protected by the GWS, GWS Sea, or GPW (for example, those persons entitled to be treated as POWs or retained personnel if captured by the Occupying Power). HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR PROTECTED PERSONS IN OOCCUPIED TERRITORY 6-32. The requirements of humane treatment and other basic protections for protected persons discussed in Chapter 5 (see paragraphs 5-16 through 5-34) apply to protected persons in occupied territory. 6-33. The Occupying Power has certain obligations to respect the rights of protected persons secured by the GC. For example, protected persons who are in occupied territory must not be deprived, in any case or in any manner whatsoever, of the benefits of the GC by any change introduced, as a result of the occupation of a territory, into the institutions or governments of the occupied territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory (GC art. 47). 6-34. The Occupying Power may not enter into any special agreements that would adversely affect the situation of protected persons, as defined by the GC, nor restrict the rights that the GC confers upon them (GC art. 7). The Occupying Power may also not evade its responsibilities through the purported renunciation by protected persons of the rights secured to them by the GC and by any special agreements referred to in Article 7 of the GC (GC art. 8). ADMINISTRATION OF THE OCCUPIED TERRITORY 6-35. Under LOAC, once the authority of the legitimate power has in fact passed into the hands of the Occupying Power, the latter must take all the measures in its power to restore and ensure, as far as possible, public order and safety while respecting, unless absolutely prevented, the laws in force of the country (HR art. 43). D UTIES OF THE O CCUPYING P OWER IN G ENERAL 6-36. The Occupying Power has a general duty to restore and maintain public order and safety, and to provide for the preservation of the rights of the inhabitants, including rights to their private property. 6-37. The Occupying Power may take measures of control and security necessary to maintain orderly government of the occupied territory, to ensure its own security, and to further the purposes of the war (HR art. 43; GC art. 27, 47, 64). The Occupying Power may suspend laws that constitute a threat to the Occupying Power’s security or the security of the general population, or laws constituting an obstacle to application of the law of occupation, provided it ensures protected persons are humanely treated (GC art. 27). In meeting obligations regarding public order and safety, the Occupying Power will continue to enforce the ordinary civil and criminal laws of the occupied territory, except to the extent authorized by the law of occupation to alter, suspend, or repeal such laws (see HR art. 43; GC art. 64). The Occupying Power is prohibited from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory (see DOD Law of War Manual, 11.5.2). 6-38. The Occupying Power’s obligations and authorities under the law of occupation are extensive. The Occupying Power has, in particular, the positive obligation and authority to ensure the protection, security, and welfare of the population living under occupation. This includes the obligation and authorities to ensure that the civilian population has adequate food and access to essential medical services, and related to ensuring the working of institutions for the care and education of children (GC arts. 50, 55, 56). N ATURE OF THE O CCUPATION G OVERNMENT 6-39. It is immaterial whether the government over an enemy’s territory consists of a military or civil or mixed administration. Its character is the same, and the source of its authority is the same. It is a government imposed by force and the legality of its actions are determined by LOAC (see DOD Law of War Manual, 11.8.6). For example, in the initial stages of a military occupation, authority may be exercised exclusively by military authorities. In later stages, occupation authority is sometimes exercised through a civilian governing authority established by the Occupying Power. P OWER OF THE O CCUPYING P OWER O VER THE I NHABITANTS 6-40. The Occupying Power, as a belligerent State, may take such measures of control and security in regard to protected persons as may be necessary as a result of the armed conflict. In addition, the Occupying Power may take measures necessary to fulfill its duty to ensure public order and safety. 6-41. The inhabitants of occupied territory have a duty to carry on their ordinary peaceful pursuits, to behave in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrain from all injurious acts toward the forces or in respect to their operations, and to render strict obedience to the orders of the Occupying Power. Subject to the restrictions imposed by international law, the Occupying Power may demand and enforce from the inhabitants of occupied territory such obedience as may be necessary for the security of its forces, for the maintenance of law and order, and for the proper administration of the country. L OCAL G OVERNMENTS U NDER D URESS OR S URROGATE G OVERNMENTS AND A CTS BY A GENTS 6-42. Obligations of the Occupying Power may not be avoided through appointment of a surrogate or puppet government, central or local, to carry out acts that would be unlawful if performed directly by the Occupying Power. Such acts induced or compelled by the Occupying Power are nonetheless its acts (see GC art. 29). F UNCTIONS OF G OVERNMENT 6-43. The functions of the hostile government continue only to the extent they are sanctioned by the Occupying Power. The Occupying Power may permit the government of the country to perform some or all of its normal functions. 6-44. The compulsion of civil servants and other officials of local governments to continue to execute their duties must be justified by military necessity and be consistent with applicable provisions of the GC. G ENERAL C ONTINUATION OF M UNICIPAL L AW OF O CCUPIED T ERRITORY AS B ETWEEN I NHABITANTS 6-45. In general, the municipal law of the occupied territory (i.e., the ordinary domestic civil and criminal law) and the administration of such law remain in full force so far as the inhabitants of occupied territory are concerned, unless changed by the Occupying Power. As a foreign State and as the paramount authority in the occupied territory, the Occupying Power is not bound by the municipal law of the occupied territory. 6-46. The duty of the Occupying Power to respect, unless absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory. As with other authorities under the LOAC, the Occupying Power must use its power with respect to the municipal law of occupied territory in good faith and not for the purpose of oppressing the population. 6-47. The Occupying Power may subject the population of the occupied territory to provisions: (1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them (GC art. 64). A UTHORITY TO A LTER, R EPEAL, S USPEND, OR E NACT P ENAL L AWS 6-48. The penal laws of the occupied territory are to remain in force during the occupation, except an Occupying Power may repeal or suspend laws where they constitute:  A threat to its security; or  An obstacle to the application of the GC (GC art. 64). Laws that may constitute a threat to the security of occupation forces might include, for example, laws mandating resistance to any occupation or permitting civilian ownership of weapons, munitions, or components thereof. Laws that may be an obstacle to the application of the GC might include laws that are inconsistent with the duties of the Occupying Power, such as laws that permit the use of torture, that contravene the protections from brutality (see GC art. 32), or that permit discrimination based on race, religion, or political opinion (see GC art. 27). 6-49. The Occupying Power may subject the population of the occupied territory to penal provisions:  That are essential to enable the Occupying Power to fulfill its obligation under the GC;  To maintain the orderly government of the territory; and  To ensure the security of the Occupying Power, its forces and property, or the occupying administration, and likewise the establishment and lines of communication used by them (GC art. 64). P RE -O CCUPATION A CTS OF P ROTECTED P ERSONS 6-50. Protected persons may not be arrested, prosecuted, or convicted by the Occupying Power for acts committed or opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war (GC art. 70). 6-51. Nationals of the Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities, may not be arrested, prosecuted, convicted, or deported from the occupied territory, except for offenses committed after the outbreak of hostilities or for offenses under common law committed before the outbreak of hostilities that, according to the law of the occupied State, would have justified extradition in time of peace (GC art. 70). 6-52. Protected persons may not be forcibly transferred or deported to another country, nationals of the Occupying Power may be involuntarily removed under certain conditions (see DOD Law of War Manual, 11.11.7.2). O BLIGATION TO N OTIFY THE P OPULATION 6-53. The Occupying Power is not required to adhere to the local procedure for amending municipal law. However, the population of the occupied territory must be informed of any alteration, suspension, or repeal of existing laws and of the enactment of new laws. In particular, penal provisions enacted by an Occupying Power must not come into force before they have been published and brought to the knowledge of the inhabitants in their own language. The effects of these penal provisions may not be retroactive (GC art. 65). P ROHIBITION OF THE E XTINGUISHING OF R IGHTS 6-54. It is expressly forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of a hostile party (HR art. 23). This rule has been interpreted to apply solely to enemy areas occupied by a belligerent. It has been interpreted to prohibit a military commander from arbitrarily annulling the results of civil proceedings between private parties (see DOD Law of War Manual, 11.11.1.4). F UNCTIONING OF L OCAL C OURTS AND T RIBUNALS 6-55. In general, the courts and other tribunals of the occupied territory should continue to function. For example, ordinary crimes that do not affect the safety of the Occupying Power or its personnel are normally left to the jurisdiction of the courts in the occupied territory (GC art. 64). However, the administration of justice in occupied territory, like the performance of other governmental functions, is subject to the direction of the Occupying Power (see DOD Law of War Manual, 11.10). S USPENSION OF C OURTS AND T RIBUNALS 6-56. The ordinary courts in occupied territory should be suspended only if:  Judges and magistrates are unable or unwilling to perform their duties (GC art. 54);  The courts are corrupt or unfairly constituted, for example, failing to provide the impartial and regularly constituted courts respecting the generally recognized principles of regular judicial procedure, recognized by international law (consider AP I art. 75); or  Local judicial administration has collapsed due to the hostilities preceding the occupation (see DOD Law of War Manual, 11.10.1). In such cases, the Occupying Power may use its own properly constituted, non-political military courts to ensure that offenses against the local population are properly tried (see DOD Law of War Manual, 11.10.1). I MMUNITY OF O CCUPATION P ERSONNEL FROM L OCAL L AW 6-57. Military and civilian personnel of the occupying forces and occupation administration, and persons accompanying them, are not subject to local laws or to the jurisdiction of the local civil or criminal courts of the occupied territory, unless expressly agreed to by a competent officer of the Occupying Power. C ENSORSHIP 6-58. For the purposes of security, an Occupying Power may establish censorship or regulation of any or all forms of media (for example, press, radio, or television) and entertainment (for example, theater or movies), of correspondence, and of other means of communication. For example, an Occupying Power may prohibit entirely the publication of newspapers that pose a threat to security or it may prescribe regulations for the publication or circulation of newspapers or, of other media for the purpose of fulfilling its obligations to restore public order (see DOD Law of War Manual, 11.7.2). C ONTROL OF THE M EANS OF T RANSPORT 6-59. An Occupying Power is entitled to exercise authority over all public and private transportation, whether on land, water or air, within the occupied territory and may seize them and regulate their operation PROTECTION OF THE POPULATION OF THE OCCUPIED TERRITORY 6-60. Under the law of belligerent occupation, the Occupying Power has certain duties with respect to the population of an occupied territory, including protected persons under the GC. 6-61. The population of an occupied territory, like other protected persons under the GC, are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs (HR art. 46). They must at all times be humanely treated, and must be protected especially against all acts of violence or threats of violence, and against insults and public curiosity (see DOD Law of War Manual, 11.6.1). 6-62. Other provisions for the humane treatment of protected persons set forth in Articles 27 through 34 of the GC apply to the population of an occupied territory. For example, women must be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault. Reprisals against protected persons and their property are prohibited. The taking of hostages is prohibited. In addition, protected persons in occupied territory must have every facility for making application to the protecting powers (if designated), to the ICRC, to the national red cross or red crescent society of the country where they may be, as well as to any organization that might assist them. 6-63. There are a number of protections for the population of occupied territory that are specific to occupation. For example, specific provision exists for the protection of children in occupied territory. Specific constraints exist on the authority of the Occupying Power to punish protected persons, direct their movement, or compel them to perform labor. Provision also is made with respect to: (1) food and medical supplies of the population; (2) public health and hygiene; (3) spiritual assistance; and (4) relief efforts and consignments (see DOD Law of War Manual, 11.6.2). 6-64. Additionally, it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile State. No general penalty, pecuniary or otherwise, may be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible (HR art. 50). Such penalties are prohibited, even if authorized under the law of the occupied territory (see DOD Law of War Manual, 11.6.2.2). 6-65. Citizens of neutral States residing within occupied territory are generally treated the same as other residents of occupied territory. A PPLICABILITY OF H UMAN R IGHTS L AW TO O CCUPATION 6-66. Human rights law has some limited relevance and application to military occupation. It has been the U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does not create obligations for an Occupying Power with respect to the occupied territory because a contracting State’s obligations under the ICCPR only extend to persons within its territory and subject to its jurisdiction. Although persons within occupied territory are subject to the jurisdiction of the Occupying power for certain purposes, they are not within the Occupying Power’s national territory. 6-67. The law of belligerent occupation is specially crafted to address the situation of belligerent occupation. Thus, in cases of apparent conflict with other provisions of law that are not intended to address the situation of belligerent occupation, there might be a presumption that such provisions would not conflict with occupation law or that occupation law would control when addressing belligerent occupation. Other States, including many U.S. allies, interpret their human rights treaty obligations to create obligations for their military operations outside their home territory in the context of belligerent occupation (see DOD Law of War Manual, 11.1.2.5). Further, there are court cases, public pronouncements, and resolutions of international bodies that have sometimes addressed occupations by citing provisions contained in regional and general human rights treaties. 6-68. Although international human rights law is not specifically designed for situations of armed conflict and occupation, it may have relevance to certain situations arising in an occupation. Subject to the Occupying Power’s authority to change local law, an occupied State’s domestic law that has been enacted pursuant to its human rights treaty obligations or that meets the requirements of the occupied State’s human rights treaty obligations may continue to apply during an occupation. (see DOD Law of War Manual, 11.1.2). M OVEMENT OF P ROTECTED P ERSONS IN O CCUPIED T ERRITORY 6-69. As a general matter, the Occupying Power assumes the authority of the ousted government in controlling the movement of person within the occupied territory, as well as entering or exiting the occupied territory. For example, private individuals, members of private organizations, or representatives of foreign governments or public international organizations seeking to enter the occupied territory may not do so without express authorization from the Occupying Power. 6-70. For security and other valid reasons, including those relating to its duties and responsibilities as an Occupying Power, an Occupying Power may prohibit individuals from changing their residence, restrict freedom of movement within the occupied territory, prohibit visits to certain areas, declare certain areas off limits, prohibit emigration and immigration by protected persons who are nationals of the State whose territory is occupied, and require all individuals carry identification documents. Departure of Protected Persons Who Are Not Nationals of the State Whose Territory is Occupied 6-71. Protected persons who are not nationals of the power whose territory is occupied may avail themselves of the right to leave the territory, subject to Article 35 of the GC, and decisions thereon must be taken according to the procedure that the Occupying Power must establish (GC art. 48). Article 35 of the GC sets forth rules regarding the departure of protected persons from the home territory of a belligerent State and provides protected persons with a right to depart. But, Article 35 allows a belligerent to prevent such departure if such departure is contrary to the belligerent’s national interests, and Article 35 specifies certain procedural requirements (see DOD Law of War Manual, 11.12.2). For example, persons permitted to leave may provide themselves with the necessary funds for their journey and take with them a reasonable amount of their effects and articles of personal use. If a person is refused permission to leave the territory, he or she is entitled to have the refusal reconsidered as soon as possible by an appropriate court or administrative board designated by the Occupying Power for that purpose (GC arts. 35, 48). Prohibition Against Forcible Transfers and Deportations 6-72. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power, or of any other country, occupied or not, are prohibited, regardless of their motive. The unlawful deportation or transfer of protected persons in violation of this rule constitutes a grave breach of the GC. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if required for the security of the population or for imperative military reasons. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory, except when, for material reasons, it is impossible to avoid such displacement. The evacuees must be transferred back to their homes as soon as hostilities in the area in question have ceased (GC art. 49). This provision applies only to protected persons under the GC; for example, POWs may be transferred from occupied territory to POW camps in the home territory of a belligerent. Similarly, a person who is not a protected person (such as a national of a neutral or a co-belligerent, who travels to an occupied State to fight the Occupying Power) would not be covered by this prohibition. 6-73. The Occupying Power undertaking such transfers or evacuations must ensure, to the greatest extent practicable: (1) proper accommodation is provided to receive the protected persons; (2) that the evacuations or transfers are effected with satisfactory conditions of hygiene, health, safety and nutrition; and (3) that members of the same family are not separated. The Protecting Power must be informed of any transfers and evacuations as soon as they have taken place (GC art. 49). 6-74. The Occupying Power must not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. Additionally, the Occupying Power must not deport or transfer parts of its own civilian population into the territory it occupies (GC art. 49). C HILDREN 6-75. In response to the acute deprivations that children suffered during the two World Wars, the GC places particular emphasis on their safety and well-being. Although the GC does not set forth a specific age criteria for the term “children,” for the purposes of article 50 of the GC and its obligations with respect to the protection of children in occupied territory may be understood generally to refer to children under fifteen years of age (GC art. 50). 6-76. The Occupying Power must, with the cooperation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children (GC art. 50). This obligation goes beyond merely not interfering with such institutions, as it also includes the affirmative duty to support them when the responsible authorities of the country fail to do so. 6-77. The Occupying Power must take all necessary steps to facilitate the identification of children and the registration of their parentage (GC art. 50). The Occupying Power may not, in any case, change their personal status, nor enlist them in formations or subordinate organizations (GC art. 50). 6-78. Should the local institutions be inadequate for the purpose, the Occupying Power must make arrangements for the maintenance and education, if possible by person of their own nationality, language and religion, of children who are orphaned or separated from their parents as a result of the war and cannot be adequately cared for by a near relative or friend (GC art. 50). 6-79. A special section of the National Protected Person Information Bureau is to be responsible for taking all necessary steps to identify children whose identity is in doubt (see paragraph 5-33). Particulars of their parents or other near relatives should be recorded if available. The Occupying Power must not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war that may have been adopted prior to the occupation in favor of children under fifteen years of age, expectant mothers, and mothers of children under seven years of age (GC art. 50). F OOD AND M EDICAL S UPPLIES FOR THE C IVILIAN P OPULATION 6-80. The responsibility for providing and maintaining health services falls primarily on the national and local authorities, but where such authorities are unable to provide adequately for the health needs of the civilian population, the Occupying Power has the duty described below. To the fullest extent available to it, the Occupying Power has the duty of ensuring the adequacy of food and medical supplies of the population. In particular, it should bring in the necessary food, medical stores, and other articles if the resources of the occupied territory are insufficient (GC art. 55; consider AP I art. 69). 6-81. The Occupying Power must allow the protecting power to verify the state of the food and medical supplies in occupied territories, at any time, except where temporary restrictions are made necessary by imperative military requirements (GC art. 55). H YGIENE AND P UBLIC H EALTH 6-82. To the fullest extent available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, medical and hospital establishments, medical services, and public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. Medical personnel of all categories must be allowed to carry out their duties (GC art. 56; consider AP I art. 15). 6-83. If new hospitals are set up in occupied territory and if the competent organizations of the occupied State are not operating there, the occupying authorities must, if necessary, grant them the recognition provided for in Article 18 of the GC (GC art. 56). This recognition allows civilian hospitals to show that they are civilian hospitals and that the buildings they occupy are not used for any purpose that would deprive them of protection (see DOD Law of War Manual, 11.15.3). In similar circumstances, the occupying authorities must also grant recognition to hospital personnel and transport vehicles under the provisions of Articles 20 and 21 of the GC (GC art. 56). This recognition allows such personnel and vehicles to display their entitlement to protection. In adopting measures for purposes of health and hygiene, and in their implementation, the Occupying Power must take into consideration the moral and ethical sensitivities and susceptibilities of the population of the occupied territory (GC art. 56). R EQUISITION OF H OSPITALS AND OF F OOD AND M EDICAL S UPPLIES 6-84. The Occupying Power may requisition civilian hospitals only temporarily and in cases of urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are made in due time for the care and treatment of the hospital’s current patients and for the future needs of the civilian population for hospital accommodation. The material and stores of civilian hospitals may not be requisitioned so long as they are needed for the civilian population (GC art. 57; consider AP I art. 14). 6-85. The Occupying Power may not requisition food, articles, or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been considered. Subject to the provisions of other international agreements, the Occupying Power must make arrangements to ensure that fair value is paid for any requisitioned goods (GC art. 55). S PIRITUAL A SSISTANCE 6-86. The Occupying Power must permit ministers of religion to give spiritual assistance to the members of their religious communities. The Occupying Power must also accept consignments of books and articles required for religious needs and must facilitate their distribution in occupied territory (GC art. 58). C OLLECTIVE R ELIEF 6-87. If the population of an occupied territory is inadequately supplied, the Occupying Power must agree to relief schemes on behalf of the affected population and must facilitate them by all the means at its disposal. Such schemes may be undertaken either by States or by impartial humanitarian organizations, such as the ICRC, and consist, in particular, of food, medical supplies, and clothing (GC art. 59; consider AP I art. 69). 6-88. All parties to the GC must permit the free passage of the consignments and must guarantee their protection. A State granting free passage to consignments on their way to territory occupied by an adverse party to the conflict, must, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied (through the Protecting Power) that these consignments are to be used for the relief of the needy population and not to be used for the benefit of the Occupying Power (GC art. 59). R ESPONSIBILITIES OF THE O CCUPYING P OWER 6-89. Relief consignments do not relieve the Occupying Power of its responsibilities under Articles 55, 56, and 59 of the GC, which address the provision of food, medical supplies, and medical services to the population. The Occupying Power may not divert relief consignments from the purpose for which they are intended, except in cases of urgent necessity in the interests of the population of the occupied territory and with the consent of the protecting power (GC art. 60). D ISTRIBUTION 6-90. The distribution of relief consignments referred to in Articles 59 and 60 of the GC must be carried out with the cooperation, and under the supervision, of the protecting power. This duty may be delegated, by agreement between the Occupying Power and the protecting power, to a neutral State, to the ICRC, or any other impartial humanitarian body. Such consignments must be exempt in occupied territory from all charges, taxes, or customs duties unless such are necessary in the interests of the economy of the territory. The Occupying Power must facilitate the rapid distribution of these consignments. All parties to the GC must endeavor to permit the transit and transport of such relief consignments free of charge on their way to occupied territories (GC art. 61). Subject to imperative reasons of security, protected persons in occupied territories must be permitted to receive the individual relief consignments sent to them (GC art. 62; consider AP I art. 71). N ATIONAL R ED C ROSS OR R ED C RESCENT S OCIETIES AND O THER R ELIEF O RGANIZATIONS 6-91. Subject to temporary and exceptional measures imposed for urgent reasons of security by the Occupying Power, recognized national Red Cross and Red Crescent Societies must be able to pursue their activities in accordance with Red Cross principles, as defined by the International Red Cross Conferences. Other relief societies must be permitted to continue their humanitarian activities under similar conditions; the Occupying Power may not require any changes in the personnel or structure of these societies that would prejudice these activities. The same principles are to apply to the activities and personnel of special organizations of a non-military character that already exist or that may be established for the purpose of ensuring the adequate living conditions of the civilian population by maintaining essential public utility services, distributing relief, providing medical care, and organizing rescues (GC art. 63). RELIEF SOCIETIES AND PROTECTED PERSONS 6-92. Protected persons must have the ability to apply to the protecting powers, the ICRC, and the National Red Cross or Red Crescent Society of the country where they may be, as well as to any society or organization that might assist them. Within the bounds set by military or security considerations, the authorities must grant these several organizations all facilities for that purpose. Apart from the visits on behalf of protected persons by the delegates of the protecting powers and of the ICRC provided for by the GC (GC art. 143) as described in paragraph 1-113, the detaining or Occupying Power must facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons (GC art. 142; consider AP I art. 81). R ELIEF S OCIETIES AND O THER O RGANIZATIONS 6-93. Subject to measures that the detaining powers, including Occupying Powers may consider essential to security or other reasonable need, the representatives of religious organizations, relief societies, or other organizations assisting the protected persons must receive from these powers, for themselves or their duly accredited agents, all facilities for visiting protected persons, for distributing relief supplies and material from any source intended for educational, recreational, or religious purposes, or for assisting them in organizing their leisure time within the places of internment. Such societies or organizations may be constituted in the territory of the detaining power, or in any other country, or they may have an international character. The detaining power, including the Occupying Powers, may limit the number of societies and organizations whose delegates are allowed to carry out activities in its territory and under its supervision, on condition, however, that such limitation ay not hinder the supply of effective and adequate relief to all protected persons. The special position of the ICRC must be recognized and respected at all times (GC art. 142; consider AP I art. 81). In addition, such personnel should be respected, protected, and assisted in their mission to the fullest extent practicable. The activities of the relief personnel should only be limited or their movements temporarily restricted in the case of imperative military necessity (consider AP I art. 71). S UPERVISION BY P ROTECTING P OWERS 6-94. Representatives or delegates of the protecting powers must be permitted to go to all places where protected persons are located, particularly to places of internment, detention, and work. They must have access to all premises occupied by protected persons and must be able to interview them without witnesses. Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. The duration and frequency of such visits must not be restricted (GC art. 143). TREATMENT OF ENEMY PROPERTY 6-95. An Occupying Power has certain rights, and assumes certain obligations, with respect to the property of its enemy, including the property of the inhabitants of the occupied territory. D ESTRUCTION OF P ROPERTY 6-96. The general prohibitions against pillage and wanton destruction of enemy property that apply to military operations also apply to the occupation of enemy territory. Further, any destruction by the Occupying Power of real (immoveable) or personal (moveable) property belonging individually or collectively to private persons, to the Occupied State, to other public authorities, or to social or cooperative organizations is prohibited except where such destruction is rendered absolutely necessary by military operations (GC art. 53). The GC identifies “extensive destruction... of property, not justified by military necessity and carried out unlawfully and wantonly” as a grave breach (GC art. 147). 6-97. Although wanton destruction is prohibited, LOAC does not prohibit the destruction of property when absolutely necessary or imperatively demanded for military reasons. The evaluation of whether destruction of property is militarily necessary in occupation is undertaken by applying the standards that are applied in combat operations. For example, the evaluation of whether the destruction of property is militarily necessary is made by the responsible commander or other authority of the Occupying Power, based on good faith and the information available at the time the decision is made (see DOD Law of War Manual, 11.18.2.1). S EIZURES AND O THER T AKINGS OF P ROPERTY 6-98. An Occupying Power may always take temporary possession of enemy property (real or personal, and public or private) where required for direct military use in military operations. In the case of private property, an Occupying Power, where possible, should requisition the property and offer compensation to the owner (HR art. 52). Seizure or Capture and Vesting of Title in the Occupying Power 6-99. In the case of real (immovable) property that is captured or seized, the Occupying Power may use such property for the duration of the occupation but does not take title to the property. In contrast, public property captured or seized, as well as private property validly captured on the battlefield and abandoned property, is the property of the capturing State (see DOD Law of War Manual, 11.18.2.3). 6-100. Valid capture and seizure of property require both intent to seize or capture, and a physical act of seizure or capture. The mere presence within occupied territory of property that is subject to appropriation under international law does not operate to vest title thereto in the Occupying Power (DOD Law of War Manual, 11.18.2.3). Requisition of Private Enemy Property 6-101. Although private enemy property may not be confiscated (see paras. 6-112 through 6-117), it may be subject to requisition, which is the method of taking private enemy real and personal property for the needs of the army of occupation. Requisitions in kind and services are not to be demanded from municipalities or inhabitants except for the needs of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country. Requisitions must be made under the authority of the commander of the locality (HR art. 52). 6-102. Contributions in kind must, as far as possible, be paid for in cash; if not, a receipt must be given, and the payment of the amount due must be made as soon as possible (HR art. 52). The prices of articles and services requisitioned will be fixed by agreement if possible, otherwise by military authority (see DOD Law of War Manual, 11.18.7.3). 6-103. Goods and services that are necessary for the maintenance of the occupation army, such as fuel, food, clothing, building materials, machinery, tools, vehicles, or furnishings for quarters, may be requisitioned. Billeting of troops in occupied areas is also authorized. 6-104. However, the Occupying Power may not requisition foodstuffs, articles necessary to support life, or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been considered. Subject to the provisions of other international conventions, the Occupying Power must make arrangements to ensure that fair value is paid for any such requisitioned goods (GC art. 55). 6-105. Coercive measures may be used to enforce requisitions but will be limited to the amount and kind necessary to secure the articles requisitioned. Seizure/Destruction of Submarine Cables 6-106. Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made (HR art. 54). This rule applies only to activities on land and does not deal with seizure or destruction of cables in the open sea (see DOD Law of War Manual, 11.18.2.4). E NEMY P UBLIC P ROPERTY 6-107. In general, an Occupying Power may capture or seize the real (immovable) and personal (movable) property of the occupied State and use it for military operations or the administration of the occupied territory. No compensation needs to be paid to the occupied State or the use or taking of such property. Public Real (Immovable) Property of Direct Military Use 6-108. Real (immovable) property of the occupied State that is of direct military use, such as forts, arsenals, dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military facilities, may remain in the hands of the Occupying Power until the close of the hostilities. Such property may also be destroyed or damaged by the Occupying Power if it is deemed necessary to military operations. Other Public Real (Immovable) Property That is Essentially of a Non-Military Nature 6-109. The Occupying Power is regarded only as an administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State and situated in the occupied territory. It must safeguard the capital of these properties and administer them in accordance with the rules of usufruct (HR art. 55). Thus, the Occupying Power may use and enjoy the benefits of public real property belonging to an enemy State, but it does not have the right of sale or unqualified use of such property. Further, it should not exercise its rights in such a wasteful and negligent manner as to seriously impair the value of the property. It may, however, lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond the conclusion of hostilities (see DOD Law of War Manual, 11.18.5.2). 6-110. Real (immovable) property of the enemy State that is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless military operations render such destruction absolutely necessary. Public Personal (Movable) Property 6-111. An army of occupation may take possession of cash, funds, and realizable securities that are strictly the property of an enemy State, depots of arms, means of transport, stores, and supplies, and generally, all personal (movable) property belonging to the enemy State that may be used for military operations (HR art. 53). Thus, all personal (movable) property belonging to an enemy State susceptible of military use may be taken possession of and utilized for the benefit of the Occupying Power. Under modern conditions of warfare, a large proportion of State property may be regarded as capable of being used for military purposes. However, personal (movable) property that is not susceptible of military use must be respected and may not be appropriated (DOD Law of War Manual, 11.18.5.3). E NEMY P RIVATE P ROPERTY 6-112. Private property may not be confiscated, that is, it may not be taken without compensation (HR art. 46). This prohibition against confiscation of private property extends not only to outright taking in violation of LOAC, but also to any acts that, through the use of threats, intimidation, or pressure, or by actual exploitation of the power of the Occupying Power, permanently or temporarily, deprive the owner of the use of such property without his or her consent or without authority under international law. The prohibition against confiscation of private property does not extend to takings by way of contribution, requisition, or the valid imposition of penalties. Seizure of Private Property Susceptible to Direct Military Use 6-113. All appliances, whether on land, at sea, or in the air, adapted from the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made (HR art. 53). Private property susceptible of direct military use, such as cables, telephone and telegraph facilities, radio, television, telecommunications and computer networks and equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges and other watercraft, airfields, aircraft, depots of arms (whether military or sporting), documents connected with the conflict, all varieties of military equipment (including that in the hands of manufacturers), component parts of or material suitable only for use in the foregoing, and, in general, all kinds of war material. 6-114. If private property is seized on the grounds that it is susceptible to direct military use, a receipt should be given to the owner, or a record made of the nature and quantity of the property and the name of the owner or person in possession of it, in order that restoration and compensation may be made at the conclusion of the armed conflict. Private Real (Immovable) Property 6-115. Private real (immovable) property may not under any circumstances be seized. It may, however, be requisitioned (see DOD Law of War Manual, 11.18.6.3). Property Control 6-116. Public and private property within occupied territory may be controlled to the degree necessary to prevent its use by or for the benefit of hostile forces or in a manner harmful to the Occupying Power. Conservators may be appointed to manage the property of absent persons (including nationals of the United States and of friendly States) and of internees, property managed by such persons, and property of persons whose activities are deemed to be prejudicial to the Occupying Power. When the owners or managers of such property can resume control of their property and the risk of its hostile use no longer exists, it must be returned to them. 6-117. Measures of property control must not extend to confiscation of private property. However, the authority of the Occupying Power to impose such controls does not limit its power to seize or requisition property or take such other action with respect to it as may be authorized by other provisions of law. Municipal, Religious, Charitable, and Cultural Property 6-118. The property of municipalities and institutions dedicated to religion, charity and education, and the arts and sciences, even when State property, is treated in the same manner as private property. Just as private property may be subject to requisition and us for contribution and certain other purposes during a military occupation, so may such property be subject to such demands (HR art. 56). Determining Whether Property Is Public or Private 6-119. Under modern conditions, the distinction between public and private property is not always easy to draw. For the treatment of property under military occupation, one must often look beyond strict legal title and ascertain the character of the property based on its beneficial ownership. Thus, for example, trust funds, pension funds, and bank deposits generated by private persons are not to be regarded as public property simply by reason of their being held by a State-owned bank. 6-120. Property that is ostensibly private but is subjected to a large measure of governmental control and management, or property that is used to perform functions that are essentially public, would tend to be viewed in practice as public property. If the Occupying Power appropriates property that is beneficially owned in part by the enemy State and in part by private interests, the occupation authorities should compensate the private owners to the extent of their interest. Such compensation should bear the same relationship to the compensation that would be paid if the property were entirely privately owned. The Occupying Power may take those measures it deems necessary to ensure that no portion of the compensation paid on account of private interests accrues to the enemy State. Property of Unknown Ownership 6-121. If it is unknown whether certain property is public or private, it should be treated as public property until its ownership is ascertained. P ROTECTION OF C ULTURAL P ROPERTY 6-122. An Occupying Power is obliged, as far as possible, to support the competent national authorities in safeguarding and preserving the cultural property of the occupied State. Should it prove necessary to take measures to preserve cultural property situated in occupied territory and damaged by military operations, and should the competent national authorities be unable to take such measures, the Occupying Power must, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation (1954 Hague art. 5). 6-123. Parties to the 1954 Hague have an obligation to prohibit, prevent, and, if necessary, put a stop to any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against cultural property. The requisition of movable cultural property situated in the territory of another party to the 1954 Hague is prohibited (1954 Hague art. 4). 6-124. Civil Affairs arts and monuments teams have historically been constituted to assist indigenous populations and institutions and other civil authorities in the protection or restoration of cultural property (1954 Hague art. 7). P ROTECTION OF C IVIL D EFENSE F ACILITIES AND P ROPERTY 6-125. Additional Protocol I to the Geneva Conventions provides rules for the treatment of civil defense facilities and property in occupied territory (consider AP I art. 63). It states that the Occupying Power shall provide civilian civil defense organizations (such as police, fire, and rescue services), the facilities necessary for the performance of their tasks, provided these services act solely in the civil defense capacity and do not threaten the security of the Occupying Power. Although the United States is not bound by the provisions of Additional Protocol I, these provisions concerning civil defense facilities and property in occupied territories reflect practices that Army and Marine Corps forces generally follow, subject to imperative military necessity (consider AP I art. 61-67). 6-126. Additional Protocol I also provides that personnel of civil defense organizations may not be compelled to perform activities that would interfere with the proper performance of their tasks. The Occupying Power may not change the structure or personnel of such organizations in any way that might jeopardize the efficient performance of their mission. These organizations may not be required to give priority to the nationals or interests of the Occupying Power or to perform their tasks in any manner prejudicial to the interests of the civilian population. The Occupying Power may disarm civil defense personnel for reasons of security and their protection ceases if they commit acts harmful to the Occupying Power (consider AP I art. 65). 6-127. Finally, Additional Protocol I provides that the Occupying Power may not requisition or divert from their proper use buildings or materiel belonging to, or used by, civil defense organizations, if such diversion or requisition would be harmful to the civilian population. The Occupying Power may requisition or divert these resources if the buildings or materiel are necessary for other needs of the civilian population; however, such requisition or diversion may continue only while such necessity exists. The Occupying Power may not divert or requisition shelters provided for the use of the civilian population or that the civilian population needs. C APTURE OR S EIZURE AND V ESTING OF T ITLE IN THE O CCUPYING P OWER 6-128. Public property captured or seized from the enemy, as well as abandoned property and private property validly captured on the battlefield, is the property of the Occupying Power. Wrongful failure to turn over such property to the proper authorities is punishable, for example, as a violation of Article 103 of the UCMJUCMJUniformed Code of Military Justice. Further, under Article 103 of the UCMJUCMJUniformed Code of Military Justice, wrongfully buying, selling, trading, dealing in, or disposing of captured or abandoned property in order to receive any personal profit, benefit, or advantage to either themselves or to others connected with themselves is made punishable. SERVICES OF INHABITANTS AND OFFICIALS 6-129. The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work that is necessary for (1) the needs of the army of occupation; (2) the public utility services; or (3) the feeding, sheltering, clothing, transportation, or health of the population of the occupied country (GC art. 51). C ONDITIONS FOR R EQUISITIONED W ORK 6-130. Requisitioned work may only be carried out in the occupied territory where the persons whose services have been requisitioned are resident, and such persons, so far as possible, are to be kept in their usual place of employment. Workers must be paid a fair wage, and the work must be proportionate to their physical and intellectual capacities. The legislation in force in the occupied country concerning working conditions and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training, and compensation for occupational accidents and diseases are to apply to the protected persons assigned to the work (GC art. 51). S ERVICES T HAT M AY B E R EQUIRED 6-131. The services that may be obtained from inhabitants by requisition include those of professionals, such as engineers, physicians, and nurses, and of artisans and laborers, such as clerks, carpenters, butchers, bakers, and truck drivers. The officials and employees of (1) railways, trucking companies, airlines, canals, and river or coastal steamship companies; (2) cable, telegraph, telephone, radio, postal and similar services;

This chapter addresses non-hostile relations between belligerents, particularly at the tactical and operational levels. Although an arcane area of the law, this topic has been essential in assisting military commanders to define the terms and methods of communication with the enemy on the battlefield with respect to conflict termination or other negotiations, in conducting tactical pauses, and in controlling limited commerce between the parties. Many of these terms were first used in the Lieber Code and then in the 1907 Hague Regulations, with little change in the terminology since then. But these rules have been relevant in many armed conflicts since 1907, including recent conflicts in Afghanistan and Iraq. GENERAL BACKGROUND 7-1. War between nations may result in the termination of formal diplomatic relations and direct communications and exchanges between opposing governments or between the territories occupied by belligerent armies. This is not limited to communications and exchanges, but includes commerce, transportation, and postal services. Termination of communications and exchanges (non-intercourse) may occur with or without special proclamation. The traditional rule of non-intercourse reflects a belligerent’s authority under LOAC to limit and regulate intercourse between persons and territory controlled by or belonging to that belligerent and persons and territory controlled by or belonging to the enemy (see DOD Law of War Manual, 12.1.1). Even in the midst of armed conflict, however, opposing forces often find they need to communicate or exchange with each other. Communications and exchanges between opposing forces may occur at the operational or tactical level, often as a result of actions or decisions at higher levels. The mechanisms, legal principles, and rules for these are the subject of this chapter. 7-2. Exceptions to the general rule of non-intercourse during armed conflict have been granted on behalf of individuals only with the approval of national authorities or a designated commander. 7-3. The laws of neutrality and occupation may affect a belligerent’s authority to regulate intercourse between territory it controls and territory controlled by the enemy (see DOD Law of War Manual, 12.1.1.1). For example, under the GC, protected persons in a belligerent’s home territory, or in territory occupied by a belligerent, are entitled to leave unless such departure is contrary to the interest of the State (see DOD Law of War Manual, 10.8.2, 11.12.2). 7-4. The conduct of military operations and the restoration of peace often necessitate the establishment and maintenance of certain communications and non-hostile relations between belligerents. Traditionally, these relations have been conducted through parlementaires, military passports, safe-conducts, safeguards, cartels, armistices, and capitulations, all of which are discussed in this chapter. 7-5. Non-hostile relations may be conducted in other ways. For example, informal communication may take place between opposing State parties to a conflict. These may occur through intermediaries, such as a protecting power, neutral governments, an international organization such as the United Nations (for example, through the Office of the United Nations High Commissioner for Refugees), other envoys recognized by the parties to the conflict, or impartial humanitarian organizations, such as the ICRC. 7-6. Although each of the types of communication mentioned in paragraph 7-5 may affect the missions of tactical and operational commanders, their discussion is beyond the scope of this field manual. A commander’s authority to control communication during belligerent occupation is the subject of Chapter 6, Occupation. 7-7. This chapter summarizes several modes of communications and exchanges and the conditions for their implementation. They are not necessarily precise, rigid communications “packages.” A “package” may be tailored for the circumstances and mission at hand. Historic examples of communications packages described below generally occurred at the operational level or higher. Communication at the tactical level was less formal, ad hoc, and sometimes occurred without higher command knowledge or express authorization. For example, during the Allied liberation of Italy in World War II, stories abound of the mayor of a town greeting a single U.S. Soldier to declare the city “open.” Another example occurred during Operation IRAQI FREEDOM, when a large group of Iraqi soldiers surrendered to a Marine traffic control unit. Commanders’ flexibility, ingenuity and familiarity with the concepts in this chapter are invaluable at such times. 7-8. Good faith is essential in all non-hostile relations between belligerents. The most scrupulous good faith should be observed by both parties. Among other things, the principle of good faith in the context of non-hostile relations requires that compacts between belligerents be faithfully adhered to, neither party to a conflict take or attempt to gain an advantage not intended by the opposing party, and the means of conducting non-hostile relations must not be misused (see DOD Law of War Manual, 12.2). PRACTICAL GUIDANCE FOR COMMANDERS 7-9. Commanders must act in good faith in non-hostile relations with the enemy. In particular, they must strictly comply with agreements made with the enemy, such as armistices, truces, and safe conduct. In applying such agreements, commanders must not take advantages that the adversary did not intend to give. Commanders also must ensure that their forces do not misuse the means of conducting non-hostile relations, such as flags of truce (see DOD Law of War Manual, 12.2). 7-10. Although commanders must act in good faith, this does not prohibit commanders from continuing military operations while negotiations are ongoing. Consistent with the principle of good faith, commanders may decline to respond to offers to negotiate, refuse offers to negotiate, or refuse specific offers from the enemy for reasons of military expediency (see DOD Law of War Manual, 12.2). 7-11. Commanders should be prepared to negotiate agreements like local temporary cease-fires, to for example, allow for the collection of dead and wounded, or agreements for the surrender of enemy forces. Offers by the enemy to negotiate agreements that may have strategic or national-level implications should be reported up the chain of command. 7-12. Under the Code of Conduct for the U.S. armed forces, a commander must never surrender the members of his or her command while they still have the means to resist. Under the Uniform Code of Military Justice, shameful surrenders are punishable. In addition, compelling or attempting to compel a commander to surrender or striking colors or flag to an enemy without proper authority is punishable (see DOD Law of War Manual, 12.8.2.1). COMMUNICATION BETWEEN BELLIGERENTS 7-13. Belligerents may communicate with one another directly by telecommunications, through diplomatic channels (sometimes through intermediary governments), through a display of a flag of truce and sending of parlementaires, indirectly through a protecting power (Common art. 8 to GWS, GWS (Sea), and GPW; GC art. 9), international organizations, such as the United Nations, or, when a protecting power has not been appointed or agreed upon, through the ICRC or any other impartial humanitarian organization (see DOD Law of War Manual, 12.3). N ECESSITY FOR L OCAL C OMMUNICATION 7-14. In addition to communication between opposing State parties to a conflict at the diplomatic level, local communication may be necessary to facilitate the conclusion and implementation of special arrangements, including: an armistice, a temporary ceasefire or other arrangement to search for and collect wounded and sick military personnel (GWS art. 15; GWS (Sea) art. 18) or civilians (GC art. 16, 17); the establishment of agreed routes, heights, and times at which medical aircraft must fly to be entitled to protection from attack (GWS art. 36; GWS (Sea) art. 39; GC art. 22); where authorized, battlefield exchange of POWs and retained personnel during hostilities; or passage of humanitarian relief supplies (GC art. 23). As an armed conflict approaches an end, communication may also be necessary to arrange for temporary ceasefires leading to a conclusion of hostilities, separation of forces, a formal cessation of hostilities, and repatriation of POWs and retained personnel (see DoD Law of War Manual, 12.1.2.2). 7-15. Local communication between friendly and enemy forces is dependent on various factors, including the commander’s mission, an ability to communicate with opposing forces, and a willingness of opposing forces to communicate. A commander is not legally obligated to seek communication with opposing forces. Moreover, a commander is not obligated to respond to an opposing force’s attempts to communicate if such communication is inconsistent with the commander’s mission or military security (see HR art. 33). D OCUMENTATION 7-16. Communication between belligerents may be facilitated by the use of military passports, safe conducts, or safeguards (see paragraph 7-47 through 7-64; DOD Law of War Manual, 12.6). PARLEMENTAIRES 7-17. Parlementaires ordinarily are agents or envoys employed by commanders in the field to go in person within the enemy lines for the purpose of communicating or negotiating openly and directly with the enemy commander. Derived from the same word from which the word “parley,” the term parlementaire was adopted by governments at the First Hague Peace Conference (1899), and the 1907 Hague IV Regulations provide that “a person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag.” (HR art. 32). 7-18. Although the word parlementaire has been translated as a person bearing a flag of truce, a parlementaire does not need to carry or be the physical bearer of the white flag. The main point is a parlementaire is a representative of a government or its military forces authorized to engage in communication with an enemy government’s representatives or its military forces. 7-19. A parlementaire may be civilian or military, and may come alone, or he or she may request to have others, such as an interpreter, accompany him or her. A parlementaire may perform duties at the national (strategic), operational, or tactical level. The Hague Regulations mention a white flag and accompanying “trumpeter, bugler or drummer,” (HR art. 32) which emphasizes that the term historically referred primarily to battlefield negotiations, such as to arrange a surrender or temporary ceasefire to collect wounded and sick. R EFUSAL OR A CCEPTANCE OF P ARLEMENTAIRE 7-20. A commander to whom a flag of truce is sent is not in all circumstances obligated to receive it (HR art. 33). For instance, a commander may decline to receive a parlementaire for reasons of military necessity. A commander is under no obligation to allow unnecessary repetition of parlementaire visits. However, a belligerent may not declare beforehand, even for a specified period – except in case of reprisal for abuses of the flag of truce – that it will not receive parlementaires. Although commanders may refuse to receive a parlementaire and other envoys seeking to negotiate, commanders may not refuse the unconditional surrender of the adversary or declare that they will refuse unconditional surrender (see DOD Law of War Manual, 12.5.2). 7-21. A commander accepting an offer of a parlementaire is entitled to declare the circumstances and conditions under which the parlementaire will be received. Such commander may set the time, place, number of persons accompanying the parlementaire, authorized method of transport (for example, by foot or vehicle), and other meeting details, to include frequency of meetings if more than one will take place (see DoD Law of War Manual, 12.5.2). Moreover, the receiving commander may take all necessary measures to prevent a parlementaire from taking advantage of their mission to collect intelligence (HR art. 33). P ARLEMENTAIRE M UST B E A UTHORIZED 7-22. A parlementaire must be authorized by a belligerent to enter into communications with the opposing commander. In addition to presenting themselves under the protection of the white flag, a parlementaire must possess—and present—written and signed authorization from the enemy commander the parlementaire claims to represent. The authorization should clearly specify the commander’s name, unit, and the scope of the matters on which the parlementaire is authorized to speak. The receiving command is entitled to know that the representative has the authority to negotiate on the matters on which the representative purports to offer terms, The authorization could read, “I authorize these present [name and rank or title] to negotiate [specifying type and scope of negotiations authorized (for example, a local armistice to collect wounded)] [specifying authority]” and signed by the authorizing commander, identifying the commander’s name and unit and, if appropriate, the authority for whom the commander speaks. P ARLEMENTAIRE P ARTY M EMBERS 7-23. A parlementaire may come alone or may request to have others accompany him or her, such as an interpreter (see HR art. 32). Historic practice has included flag bearers or drummers to reduce the risk of attack; modern parlementaires may be accompanied by a driver or communications personnel. The receiving command, however, is entitled to limit the size of the parlementaire’s party. P ROCEDURES FOR P ARLEMENTAIRE P ARTY T RAVEL AND C ONDUCT 7-24. Parlementaires bear the burden of communicating their status to the enemy. Parlementaires should take appropriate measures to help clarify their status to the enemy. 7-25. Parlementaires have no right to approach or enter opposing lines at any place of their own choosing. They may only enter as and where permitted by the receiving command. Parlementaires should abide by agreed-upon approaches for the purpose of entering the opposing forces protective lines and move slowly and deliberately. While within the lines of the enemy, the parlementaire must obey all instructions given to him or her (see DoD Law of War Manual, 12.5.3). 7-26. If a parlementaire is ordered by the receiving force to suspend their mission and return to their own lines, the parlementaire must do so. If the parlementaire obeys this order, the parlementaire remains entitled to protection and may not be intentionally fired upon or interfered with in any other manner until reaching their own lines. 7-27. Parlementaires should transmit an agreed signal to the receiving force as they approach, or as otherwise directed by the receiving command. 7-28. Once recognized and when authorized, parlementaires and their party will proceed by the approach route designated. They may be provided an escort by the receiving command to accompany and direct them to the latter’s lines. 7-29. Parlementaires may be furnished an escort or guard if necessary out of respect for their safety or for the receiving command’s security. The parlementaires and their accompanying party may be blindfolded for security purposes. 7-30. If parlementaires are to be received by the commander, the commander may direct that they proceed alone with friendly force escort. Members of his party awaiting the parlementaire’s return may be restricted in their movement. 7-31. A parlementaire is not entitled to be received by the commander. The parlementaire’s message, if written, may be delivered to the commander outside the parlementaire’s presence. If the parlementaire’s message is oral, the parlementaire may be required to reduce it to writing or deliver it orally to such person as may be designated to receive it. 7-32. A parlementaire has no right to pass beyond authorized limits within the opposing forces’ positions. 7-33. When a decision from higher authority is required or expected, the parlementaire may be expected to wait. 7-34. Parlementaires will be permitted to return to their own lines with the same courtesy, formalities, and precautions as upon their arrival. I NVIOLABILITY OF P ARLEMENTAIRE 7-35. Parlementaires have a right of inviolability in the execution of their functions. All members of the parlementaire’s party have the same right to inviolability as the parlementaire (HR art. 32). L OSS OF I NVIOLABILITY OF P ARLEMENTAIRE 7-36. Parlementaires lose their right of inviolability if it is established in a clear and uncontestable manner that they took advantage of the privileges associated with the position to provoke or commit an act of treachery (HR art. 23(f), 34). That includes engaging in sabotage or the secret gathering of information about the adversary while under the adversary’s protection. Parlementaires or any member of their party abusing their privileged position may be detained temporarily (HR art. 33). 7-37. Parlementaires do not take advantage of their privileged position if they report what they observed in plain sight during their mission. As paragraph 7-29 demonstrates, the receiving command may take necessary steps to prevent the parlementaire and his or her party from taking advantage of their mission to obtain information, including by using blindfolds. O THER R EASONS FOR D ETENTION OF A P ARLEMENTAIRE 7-38. In addition to a right of detention for abuse of his privileged position, a parlementaire may be detained for other imperative security reasons, such as in case the parlementaire or his or her party saw anything, or otherwise obtained knowledge the receiving commander regards as detrimental to his force, or if their departure might reveal information as to the movement of friendly force units (see DOD Law of War Manual, 12.5.4.3). 7-39. A parlementaire should be detained only for as long as circumstances imperatively require. Information regarding the parlementaire’s detention, as well as any other action against the parlementaire, or any member of the parlementaire’s party, should be sent to his or her commander. N EUTRAL A REAS FOR N EGOTIATION 7-40. The parties to the conflict may agree to the establishment of a neutral zone or area as a site for negotiations if prolonged negotiations are anticipated. SIGNIFICANCE OF THE WHITE FLAG 7-41. A white flag, when used by military forces, indicates a desire to communicate with the enemy. The hoisting of a white flag has no other legal meaning in LOAC. 7-42. Forces displaying a flag of truce must show clearly that they intend to engage in non-hostile relations. The forces bear the burden of communicating their intent to the opposing forces. To indicate that the hoisting of the white flag is authorized by its commander, the force hoisting it should cease fire completely (see DOD Law of War Manual, 12.4.2). 7-43. A party is not required to cease fire or other military operations when a white flag is raised by the other side. Fire must not be directed intentionally on individuals carrying the white flag or on persons near them unless there is a clear manifestation of hostile intent by those persons. It is essential to determine with reasonable certainty that the flag is shown by actual authority of the enemy commander before basing important actions upon that assumption. For example, the force should not assume that all enemy forces in the locality intend to surrender and expose themselves to hostile fire based on the enemy’s display of the white flag. 7-44. Marines and Soldiers should be instructed to report promptly the display of the white flag through their chain of command so that the commander may determine if the opposing force seeks to engage in non-hostile relations. The burden is on the party displaying the white flag to establish such intention to its adversary and should consider sending a parlementaire to communicate the commander’s intent. If the force displaying the white flag ceases fire and other hostile acts, Marines and Soldiers should seek guidance from their commander about whether and under what conditions they may wish to engage in non-hostile relations with that force. 7-45. While it is not a legally recognized form of surrender, a white flag hoisted by an individual Soldier may also express a genuine desire or intent to surrender. Its display, however, does not mean that a unit, or the person waving it, is prepared to surrender—nor should this be assumed by opposing forces. Nor does it mean that other enemy soldiers in the immediate area have the same intent. Friendly forces seeing a white flag hoisted by an enemy soldier whom the friendly forces believe is genuinely attempting to surrender should consider whether it is feasible to accept such surrender. Soldiers or Marines must not intentionally direct fire against the person carrying the white flag or a person near him or her unless there is a clear manifestation of hostile intent by those persons. 7-46. Prohibited uses of a white flag include use of a flag of truce to feign an intent to surrender or to negotiate (HR art. 23(f)). To feign an intent to surrender or negotiate in order to kill or wound enemy personnel is perfidy (HR art. 23(b)) (see discussion on perfidy in paragraphs 2-151 through 2-153). Improper use of a flag of truce also includes its use while engaging in attacks or in order to shield, favor, or protect one’s own military operations, or otherwise to impede military operations (DOD Law of War Manual, 12.4.2.1). For example, forces may not use the bearer of a white flag as cover to advance or maneuver for hostile purposes. MILITARY PASSPORTS, SAFE-CONDUCTS, SAFEGUARDS, CARTELS, AND OTHER SPECIAL AGREEMENTS 7-47. A military passport is a document issued by order of a commander of belligerent forces that authorizes a person or persons named therein and residing or sojourning within territory occupied by such forces to travel unmolested within the territory, with or without permission to pass, or to pass and return, by designated routes, through the lines, subject to conditions or limitations imposed by the commander. A military passport differs from a passport issued by a government agency for peacetime travel, such as a passport issued by the U.S. Department of State for personal, official, or diplomatic travel. 7-48. A safe-conduct pass is similar to a military passport. It is a document issued by a commander of belligerent forces, but to persons residing or traveling outside territory occupied by such forces, to enter and remain within or pass through areas occupied by such forces. Safe-conduct passes may also refer to similar documents the same authority issues to persons that permit them, whether they reside within or outside areas occupied by the authority’s forces, to carry specified goods to or from designated points within those areas and to engage in trade otherwise forbidden by the general rule of non-intercourse (see paragraphs 7-1 through 7-8 for discussion of the general rule of non-intercourse). A safe-conduct pass to engage in a specified trade for goods to which the grantee is given a continuing right for a prescribed period, or until further ordered, may also be referred to as a license to trade. 7-49. Ambassadors and other diplomatic agents of neutral governments accredited to the opposing party to the conflict may receive a safe-conduct pass through territory under opposing force control. A request for a safe-conduct pass is typically granted to them absent military or other security reasons to the contrary, including the safety of the personnel in question, unless they may reach their destination conveniently by another route. There is no legal requirement, however, for issuing such a safe-conduct pass. A safe-conduct pass is usually granted by national level authorities. Refusal of a request is not to be regarded as an international or national affront. 7-50. A safeguard is a detachment, guard, or detail posted by a commander for the protection of persons, places, or property of the enemy, or of a neutral (see Manual for Courts-Martial (2016), part IV, para. 26 (art. 102)). A safeguard falls within LOAC only when granted and posted by arrangement with the enemy or a neutral. For example, guards posted by a belligerent for the protection of its own personnel or property would not be governed by LOAC. Military personnel on duty as safeguards, on the other hand, occupy a protected status under LOAC. They may not be attacked, and it is customary to send them back, together with their equipment and arms, to their own armed forces when the locality is occupied by the enemy and as soon as military exigencies permit. 7-51. The term “safeguard” also refers to a written order left by a commander with an enemy subject, or posted upon enemy property, for the protection of that person or property. Usually it is directed to the succeeding commander and requests a continued grant of protection. 7-52. The effect of a safeguard is to pledge the honor of the nation that the person or property will be respected by its armed forces. It does not commit the government to its protection or defense against attacks by enemy armed forces or other hostile elements. 7-53. “Forcing a safeguard” means to perform an act or acts in violation of the protection of the safeguard. Any trespass on the protection of the safeguard by persons subject to the UCMJUCMJUniformed Code of Military Justice will constitute an offense under Article 102 (Forcing a Safeguard), UCMJUCMJUniformed Code of Military Justice, whether the safeguard was imposed in time of war or in circumstances amounting to a state of belligerency short of a formal state of war. C HARACTER OF M ILITARY P ASSPORTS, S AFE -C ONDUCTS, AND R ELATED I NSTRUMENTS 7-54. Military passports and safe-conducts fall within the scope of international law only when granted by arrangement with opposing forces or with a neutral power. Military passports and safe-conducts issued to persons are both specific to the individual issued the instrument and nontransferable. A safe-conduct for goods, however, while restricted to the articles named in them, may be transferred from one person to another, provided it does not designate who is to carry (or trade) the goods. If the safe-conduct designates a specific licensee, the goods may only be transferred if the authorizing belligerent approves the transferee. 7-55. The terms “pass” or “permit” may be used in lieu of passport. “Pass” is used for a general permission to do certain things, while “permit” is used like “safe-conduct,” to signify permission to do a particular thing. 7-56. Documents should be interpreted according to their terms. For example, a document applies to the territories or during the time periods specified in the document. R EVOCATION 7-57. A military passport or safe-conduct may be revoked by the commander issuing them or by the commander’s superiors for good reasons of military expediency. Until revoked, they remain valid according to their specific terms. For example, if a time is specified in the document, it is valid only for that period. 7-58. Documents must not be revoked for the purpose of detaining the holder; such persons should be permitted to withdraw in safety unless suspected of unlawful activities. In a case of violation of the terms of the safe-conduct or military passport, the privilege may be revoked. L ICENSES TO T RADE 7-59. Licenses to trade must, as a general rule, emanate from the supreme authority of the State. In an international armed conflict, a State controlling enemy territory may grant licenses to trade that relax its prohibitions on trading with the enemy. 7-60. Licenses to trade issued by military authorities may be either general or special. A general license is a document that generally or partially relaxes the exercise of the rights of war in regard to trade in relation to any community or individuals liable to be affected by their operation. A special license is a document that allows individuals to take a particular voyage or journey to import or export particular goods. C ARTELS 7-61. In its narrower sense, a cartel is an agreement entered into by opposing belligerents for the exchange of POWs (see Lieber Code, art. 106). A cartel is a statement commanders agree to at the tactical or operational level (when authorized by higher authority), arranged either through parlementaires, negotiations conducted during a truce, or exchange of letters. 7-62. In its broader sense, a cartel is an agreement concluded between belligerents for the purpose of arranging or regulating certain kinds of non-hostile intercourse that would otherwise be prohibited by the existence of the armed conflict. These are not limited to matters regarding exchanges of POWs and can include, for example, postal communication or trade in certain goods or commodities. 7-63. Parties to a cartel are honor bound to observe its provisions with the most scrupulous care. A party may void a cartel upon definite proof that the other party has violated it intentionally in an important particular (see DOD Law of War Manual, 12.7). O THER S PECIAL A GREEMENTS 7-64. The 1949 Geneva Conventions contemplate the conclusion and implementation of special agreements between opposing parties to an armed conflict (see DOD Law of War Manual, 12.1.2.1). These include, but are not limited to, appointment of protecting powers (art. 10 common to GWS, GWS (Sea), and GPW; GC art. 11), repatriation of wounded or sick POWs or retained personnel (GPW art. 109), and agreements as to the location of hospital zones and localities (GWS art. 23). Other special agreements may be concluded on an ad hoc basis (art. 6 common to GWS, GWS (Sea), and GPW; GC art. 7). ARMISTICE 7-65. An armistice is an agreed upon cessation of active hostilities between opposing forces for a period agreed upon by the belligerent parties. 7-66. An armistice agreement must be concluded by authorities who are competent to agree to and enforce its terms. Armistices that include more substantive and expansive terms must be concluded by more senior authorities. If the armistice contains political terms, it must be made under authorization from the government concerned or subject to approval by them (see DOD Law of War Manual, 12.11.2). An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties to the conflict (HR art. 36). War, as a legal state of hostilities between the parties, may continue, despite the conclusion of an armistice agreement. In certain instances, for example the Korean War, armistice agreements may be in place for a long time. 7-67. An armistice agreement may arrange for a variety of humanitarian activities, such as the recovery of wounded or shipwrecked from the battlefield (land or sea) or the exchange of POWs. 7-68. Hostilities need not cease during the negotiation of an armistice. 7-69. The existence of an armistice agreement is not a reason to relax either the vigilance or readiness of forces, or to expose positions to the enemy (see DOD Law of War Manual, 12.11.4.4). T YPES OF A RMISTICE 7-70. An armistice may be general or local. A general armistice suspends military operations between the belligerents everywhere. A local armistice only suspends military operations between certain fractions of the belligerent armies and within a fixed area (HR art. 37). In practice, a local armistice can refer to a partial armistice or a suspension of arms with the primary distinction between the two being the size of the units involved as discussed in paragraphs 7-72 to 7-76. 7-71. Other terms have been and may be used for an armistice, to include truce, local truce, ceasefire, cessation of hostilities, and suspension of arms. Other terms may also be used in other languages. Although a tacit or implied suspension of fighting may precede an armistice, any form of armistice, whether a truce, local truce, suspension of arms, requires agreement between competent authorities. Armistice can be used in a general sense to encompass each of these terms. General 7-72. A general armistice suspends all (ground, naval, and air) operations between opposing forces throughout the theater of operations. It often is of a combined political and military character. It usually precedes negotiations for peace. Due to its political importance, a general armistice usually is agreed to at the national or diplomatic level, with implementation of the agreed terms by military commanders, such as by the relevant combatant commander. Local or Partial 7-73. A local or partial armistice suspends military operations between certain portions of opposing forces and within a specified area (HR art. 37). It may suspend combat operations indefinitely or for a specified period of time, ranging from hours to days. The primary distinction between a local or partial armistice and a suspension of arms, discussed in paragraph 7-77, is the size of the units or area affected, and the broader interests than the local military requirements that are addressed in a suspension of arms. 7-74. A partial armistice suspends operations between specified forces or within specified zones. It may apply only to operations of ground forces, for example, or naval operations in an area specified by longitude and latitude, or air operations above a specified parallel. 7-75. A unilateral suspension of operations is not a partial armistice. A unilateral but conditional suspension of operations may be a partial armistice if there is tacit agreement by the opposing force. A partial armistice requires express agreement between the opposing forces or governments. 7-76. A partial armistice may be a cessation of operations between two belligerents. A partial armistice always includes a large number of the forces involved in an armed conflict and a considerable portion of the conflict region. It is not an agreement merely to address some matter of local interest, as would be the case with a suspension of arms, but one of a more general character. Suspension of Arms 7-77. A suspension of arms, also referred to as a suspension of fire, is a form of local armistice concluded between commanders of military forces for some local military purpose, such as to recover and bury the dead, to collect and care for the wounded and sick, to arrange for exchange of prisoners, or to enable a commander to communicate with his or her government or superior officer. A suspension of arms is not intended to have, and does not have, any legal or other effect on the war generally, or its political bases. It is intended to serve military interests of local importance only. An opposing commander with the competence to do so can agree upon a suspension of arms. A UTHORITY TO C ONCLUDE AN A RMISTICE 7-78. The degree to which opposing forces seek to suspend hostilities will determine what authorities are needed to conclude the armistice agreement. An armistice agreement must be concluded by authorities who are competent to agree to it and to enforce its terms. An armistice that includes more substantive and expansive terms must be approved by more senior authorities. For example, a commander would not have the authority to conclude an armistice agreement that binds units or areas that are not under his or her command. Similarly, if an armistice contains political terms, it must be made under authorization from the governments concerned or subject to approval by them (see DOD Law of War Manual, 12.11.2). In U.S. practice, any proposed final armistice would be coordinated with higher civilian authority. 7-79. Commanders are presumed to have the authority to conclude a suspension of arms for forces or areas within their control. Regardless of the type of armistice entered into, commanders may not bind units or areas not under their command. Commanders negotiating an armistice agreement have the responsibility in the course of negotiations to inform the opposing force commander of any units or areas within the scope of the armistice over which they lack command authority. The opposing force commander has the right to accept or reject this as a condition for agreement. 7-80. An armistice agreement is not a proper mechanism for resolution of political issues, such as territorial claims or permanent rights to be conferred on the local population. Higher authority may renounce terms of agreement related to political issues that exceed the commander’s authority. Renunciation of a non-military provision, however, does not constitute authority to revoke the remaining terms of the armistice F ORM OF A RMISTICE 7-81. No special form for an armistice is prescribed. It should, if possible, be reduced to writing to avoid misunderstandings and for reference should differences of interpretation arise. It should be drafted with the greatest precision and clarity. W HAT S TIPULATIONS AN A RMISTICE S HOULD C ONTAIN 7-82. To avoid misunderstanding and to ensure it can accomplish its intended purposes, stipulations regarding the following matters should be incorporated into an armistice agreement: Date, Day, and Time of Commencement 7-83. The commencement time and duration of an armistice should be fixed as precisely as possible to avoid misunderstanding and an unintentional resumption of hostilities. The specific date, day, and hour for suspension of hostilities should be stipulated. Effective times may differ in different time zones. Time should be specified in Zulu time (Greenwich Mean Time) and each time zone in which the armistice will apply. Armistice commencement time should be specified as beginning immediately upon completion of the terms of the agreement or at a future specified time. In the absence of agreement to the contrary, an armistice commences at the moment it is signed. Agreement to commence at a later time may be necessary, however, in order to ensure all forces receive the order prior to its entry into effect. Unless the duration is specific, as “from 0001 27 August to 2400 29 August,” the following is historic practice:  An armistice “for twenty-four hours” beginning, for example, at 1800 on 1 January concludes at 1800 on 2 January.  An armistice for a number of days may begin at any time, but concludes at the same hour as the time it began after the elapse of the specified number of days (measured as twenty-four hour time periods). Thus, an armistice “for ten days, commencing at 0700 on 1 January” begins at the time specified and ends at 0700 on 11 January, unless otherwise specified (such as “for ten days, beginning at 0700 on 1 January, concluding at 2400 on 11 January”).  An armistice “from 1 January to 1 April,” without specified beginning and ending hours includes the first day but not the last—thus, it begins at 0001 on 1 January and concludes at 2400 on 31 March. Duration 7-84. The duration of an armistice may be for a definite or indefinite period of time, and with or without a period of notice prior to its expiration. Indefinite 7-85. When duration of an armistice is indefinite, parties to the armistice may resume combat operations at any time, subject to prior notice to opposing forces in accordance with the terms of the agreement (HR art. 36). An armistice of indefinite duration should include a provision specifying the agreed length of time between the delivery of this notice and the subsequent recommencement of combat operations. Recommencement of combat operations without prior notice (when notice is required by the armistice) in order to gain surprise is inconsistent with the intent of an armistice and is prohibited under LOAC. 7-86. The requirement for notice prior to recommencement of combat operations does not, however, preclude a party to the conflict from reacting to serious violations of the armistice by opposing forces, including recommencing hostilities immediately (HR art. 40). When an armistice violation is not serious, and perhaps the result of a mistake by one side or the other, commands affected by an enemy’s breach remain subject to higher authority orders. Nevertheless, they retain the inherent right of self-defense. Definite 7-87. A “definite” armistice is for an agreed specified, fixed period of time, such as “from 0900 GMT [Greenwich Mean Time][specify local time] on [date] to 0700 GMT [specify local time] on [date].” If the armistice is for a fixed period of time and no agreement has been made for prolonging it, hostilities may recommence without prior notice the moment the period of time has elapsed. Boundaries, Including Location of Forces 7-88. An exchange of maps or other imagery showing the lines of opposing forces at the time of armistice commencement may facilitate understanding while reducing risk of confrontation. If agreed by the parties, locations of forces may be displayed. Neutral Zone 7-89. Armistice elements may include a “neutral zone” situated between lines of demarcation sufficient in breadth to minimize risk of unintentional confrontation between opposing forces. A neutral zone does not exist absent express agreement between the relevant parties. One example of a neutral zone is the Demilitarized Zone between North Korea and South Korea. 7-90. In the event of a general ceasefire, it may be sufficient to agree to a line rather than a zone. The line may include a buffer zone of specified depth between forces. It may be necessary for one or both parties to institute a partial withdrawal in order to establish a neutral zone. Whether a line or a zone, specificity as to either (such as through use of maps or Global Position System) is essential in order to minimize the risk of accidental breach or confrontation. For this purpose maps with the lines of the neutral zone indicated may be attached to and made part of the armistice. The extent of the zone will vary according to the circumstances and agreement of the parties. Historical examples have ranged from 1,000 yards to two miles, and in other circumstances have made use of the respective sides of a natural boundary, such as a river. 7-91. A road or roads through the neutral zone should be identified by which communications between opposing forces must pass during the armistice. 7-92. It is usually agreed that military personnel of either side may not encroach upon a neutral zone except by parlementaires or other parties by special arrangement for specified purposes, such as to search for and recover sick, wounded, or dead within the zone. Signals 7-93. Signals may be agreed to for communication between opposing parties, whether for passage of parlementaire, a start or cessation of an armistice, or for other reasons. Language 7-94. Unless agreement is possible for an armistice to be drawn up in one language, an armistice should be drawn up in the language of each belligerent force, with each side retaining a copy in its language. Each belligerent should confirm the text in each version to ensure consistency in each language. A DDITIONAL E LEMENTS 7-95. Occasionally, an armistice contains additional elements that may be appropriate, such as addressing issues of a humanitarian nature. Relations of Forces with Local Population During Armistice 7-96. In the terms of an armistice agreement, the contracting parties may settle what communications may be held in the theater of war with the inhabitants and between the inhabitants of one belligerent State and those of another (HR art. 39). 7-97. “Communications” are not limited to electronic forms of communication and postal services, but refer to the movement of civilians and commerce as well. The rule applies with respect to citizens of a State divided by military operations between opposing forces. If changes in the relations between the opposing forces and the local population during the armistice are desired, this must be the subject of express agreement between relevant parties to the conflict. Otherwise, the relations remain unchanged. Each belligerent continues to exercise the same rights as before, including the right to deny or control all communications or movement of members of the civilian population between opposing lines. 7-98. An armistice does not alter commanders’ responsibilities and authorities to take all necessary measures for the security of their forces and mission. As a state of hostilities continues to exist during an armistice, commanders are entitled to weigh whether civilian movement may place the mission at risk through, for example, the facilitation of espionage by the opposing forces. If nothing is stipulated, communication remains suspended, as during actual hostilities. As a general rule, movement between the territories held by opposing forces remains suspended in the same way as during actual hostilities. Humanitarian Activities 7-99. Parties to the conflict affected by the armistice may agree to specific humanitarian activities, such as searching for and collecting the sick and wounded from the battlefield or account for the missing (GWS art. 15; GWS (Sea) art. 18; consider API art. 33); providing medical care or food supplies intended only for the civilian population (GC art. 23); seeking the assistance of local civilians to voluntarily collect and care for the wounded and sick under the direction of the military of a State party to the conflict, (GWS art. 18; GWS (Sea) art. 21); and exchanging or repatriating POWs or civilian internees (GPW art. 118; GC arts. 133 and 134). Operations of non-government organizations within an armistice area are subject to the express authorization of the commander affected by their operations and to limitations the commander deems necessary for reasons of military security (GWS art. 9). Civil Administration of Area Concerned 7-100. Regardless of whether the armistice agreement contains provision for relations between the opposing forces and the local population during the armistice, each commander maintains authority to address issues concerning the civilian population in territory within that commander’s control in accordance with other applicable principles of LOAC, such as the law governing belligerent occupation (see Chapter 6). The armistice agreement may stipulate responsibilities of each party for civil administration of areas under its respective control. Where control is shared, the armistice agreement should specify the specific responsibilities of each opposing force commander. Disposition of Prisoners of War 7-101. If POWs, retained persons, or civilian internees are to be released or exchanged during an armistice, specific provision in this regard must be made within the armistice agreement. Consultative Mechanism 7-102. The armistice agreement may provide for the establishment of a commission composed of representatives of the opposing forces to supervise implementation of the armistice agreement. If appropriate and agreed upon by all relevant belligerent parties, local authorities may be represented on the commission. Political and Military Stipulations 7-103. A general armistice may contain political and military stipulations, to include evacuation of territory; disposition of aircraft and shipping; cooperation in the investigation and prosecution of war crimes; recovery and restitution of captured or looted property; maintenance of public utilities, including communications facilities; restoration of civil administration, public safety, and public health needs; and provision of assistance to displaced persons. Political terms require authorization and approval at the national level. Evacuation or Re-Supply of Besieged Positions 7-104. Parties to the conflict shall endeavor to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel, and medical equipment on their way to such areas (GC art. 17). N OTIFICATION, C OMMENCEMENT OF, AND B INDING E FFECT OF A RMISTICE 7-105. An armistice must be notified officially and in good time to the competent authorities and to the forces. Hostilities are suspended immediately after the notification, or on the date fixed (HR 38). It is the obligation of the contracting authorities to disseminate the armistice officially and in good time to subordinate commands. Commanders are responsible only from the time of receipt of official notification of the armistice. There may be reasonable differences between the agreed time and date for commencement and time of notification at the local unit level.. 7-106. Significant differences between the agreed date and notification may be regarded as tantamount to breach of the agreement. Risk of this situation may be reduced by specifying a reasonable period of time for notification by each side prior to the time and date specified for an armistice to enter into effect. Parties may agree to, or unilaterally execute, a partial armistice pending commencement of an agreed armistice. P ROHIBITED A CTS 7-107. An armistice is a cessation of hostilities for the time period agreed upon by the parties. Belligerent forces affected by an armistice are prohibited from engaging in any act expressly prohibited by the armistice, any act contrary to the express terms of the agreement, and any other act inconsistent with the purpose for the armistice. These acts would include any offensive military operations, such as conducting attacks or seizing territory beyond its lines. For example, an overt penetration of opposing forces’ lines or territory or neutral territory, including tunneling to penetrate enemy lines or positions or to escape a besieged position, would constitute a violation of the armistice. Airborne penetration of enemy airspace is prohibited unless expressly agreed otherwise. Each party, however, retains the right to resort to use of force in self-defense if fired upon. 7-108. Absent express agreement, an armistice does not give authorities of a besieged place the right to receive food, water, or other provisions for military forces or the civilian population beyond what LOAC already requires concerning civilians. Obligations concerning the transport of medical supplies, religious supplies, and food to civilians are outlined in Chapter 5 (GC art. 23). P ERMISSIBLE A CTS 7-109. In the absence of written agreement to the contrary, each belligerent is entitled to take steps that are not offensive in character, but will tend to improve its situation. This includes, but is not limited to, troop movement within its own lines; troop reinforcements; construction of new fortifications, installations, and bases; construction and repair of transportation and communications facilities; intelligence collection; movement of supplies and equipment; and in general, taking advantage of the time and means at its disposal to prepare for possible resumption of hostilities. 7-110. Espionage or clandestine ground force reconnaissance behind opposing lines is not prohibited; but individuals captured while engaged in espionage are subject to the risks entailed under LOAC the same as at other times (HR art. 29; consider AP I art. 46). I NDIVIDUAL V IOLATIONS 7-111. An armistice violation by an individual Soldier, Marine, or a small group of Soldiers or Marines acting on their own initiative does not constitute a serious violation of an armistice, nor does it provide a basis for renunciation of the armistice. The injured party, however, is entitled to demand punishment of such Soldiers or Marines for their unauthorized acts, or, if necessary, compensation for the losses sustained (HR art. 41). 7-112. Deliberate violation of the terms of an armistice by individuals is punishable as a war crime. Such violations by individual members of the armed forces or subordinate officers do not justify denunciation of the armistice unless they are proved to have been committed with the knowledge and actual or tacit consent of their own government or commander. Consent may be inferred in the event of a persistent failure to punish such offenders (see DOD Law of War Manual, 12.13.2.2). 7-113. If Service Members acting in their individual capacity to violate the terms of an armistice are captured, they remain entitled to POW status, provided such entitlement exists during general hostilities (GPW art. 4). Deliberate violation of an armistice by an individual Service Member resulting in the killing or wounding of any member of the opposing force is an act of perfidy, punishable as a war crime (consider AP I, art. 37(1)). It does not, however, constitute a basis to deny the Service Member entitlement to POW status (GPW art. 85). A RMISTICE V IOLATIONS 7-114. The following are serious violations of an armistice:  A violation of the express terms of an armistice agreement.  An action taken by opposing forces to gain a military advantage it would not be able to gain but for the armistice.  An overt manifestation of bad faith. 7-115. Depending on factors discussed above such as notification and the isolated nature of violations, the following actions may constitute serious violations of an armistice:  movement beyond agreed lines.  encroachment or unauthorized entry into neutral areas.  physical seizure of objectives outside agreed lines.  direct attack of opposing forces. D ENUNCIATION 7-116. Any serious violation of the armistice by one of the parties gives an opposing belligerent the right of denouncing the armistice and even, in cases of urgency, of recommencing hostilities immediately (HR art. 40). 7-117. A belligerent denounces an armistice when it notifies the opposing party of its intent to terminate the armistice. Absent urgent necessity, a delay should occur between denunciation of the armistice and resumption of hostilities. If compelling evidence exists of a serious violation and delay incident to formal denunciation and warning seems likely to provide the violating party a substantial advantage of any kind, the aggrieved party may resume offensive military operations without warning, with or without formal denunciation. 7-118. A commander of a military unit faced with any suspected or apparent violation of an armistice agreement, regardless of its severity, retains the right an obligation to use force in the exercise of unit self-defense. D ENUNCIATION M AY N OT I NVOLVE P ERFIDY 7-119. An armistice, like other formal arrangements between belligerents, engages the honor of both parties for the exact and complete fulfillment of every obligation imposed. It would be perfidious for either party, without warning, to resume hostilities during the period of an armistice, with or without a formal denunciation thereof, except in case of urgency and upon convincing proof of intentional and serious violation of its terms by the other party. A RMISTICE E XTENSION 7-120. An armistice may be extended in the same manner as originally concluded or in any other manner satisfactory to each belligerent. CAPITULATIONS 7-121. A capitulation is an agreement, sometimes with certain conditions, entered into between the commanders of belligerent forces for the surrender of a body of forces, a defended position, other defended town or place, or a particular district of the theater of operations (See DOD Law of War Manual, 12.8.1). Surrenders of territory sometimes include provisions for the withdrawal defenders from it and allowing the victorious forces to enter into possession. A capitulation is a surrender by agreement; surrender can also occur without capitulation (see paragraphs 7-124 and 7-125). 7-122. Capitulation differs from an armistice in that the former surrenders the capitulating unit, while the latter suspends fighting between opposing forces. Further, a capitulation is permanent while an armistice is temporary (at least in theory—the Korean armistice from 1953 is still in effect awaiting “a final peaceful settlement”). 7-123. A capitulation may be of a small unit, such as a squad, platoon, company, or battalion, or of larger forces, such as a division or corps. Commanders have the authority to conclude capitulation agreements only with respect to areas under their control and forces or units under their command. C APITULATION A S C OMPARED TO S URRENDER 7-124. Capitulation involving personnel refers to unit surrender pursuant to an agreement. Individual Soldiers or groups of Soldiers who throw down their arms and surrender do not capitulate, but surrender. A surrender may occur without a capitulation agreement. For example, individuals or units may surrender themselves unconditionally to the opposite side without a specific capitulation agreement. On the other hand, an unconditional surrender may also be effected through a capitulation instrument. 7-125. Surrender also may be arranged between belligerents at national levels without the involvement of military commanders, possibly through third parties. A capitulation agreement may be negotiated between opposing military forces in local implementation of a surrender negotiated at national levels. M ILITARY H ONOR 7-126. Capitulations agreed upon between belligerents must take into account the rules of military honor. Once settled, they must be scrupulously observed by both parties (HR art. 35). 7-127. Executing a capitulation with honor and respect for the adversary is not only the professional way to treat a defeated enemy, but one in which the psychological stigma of capitulation is diminished. Along with humane treatment in accordance with LOAC, treatment with honor and respect provides incentive to an enemy to capitulate rather than fight on without any chance of prevailing. 7-128. Just as a surrendering individual Soldier is to be treated professionally and humanely—but firmly— by the captors, so, too, should acceptance of capitulation be executed. 7-129. Honorable treatment does not serve to diminish illegal acts, or criminal responsibility, by capitulating forces. Military and other personnel entitled to POW status (GPW art. 4) suspected of criminal acts, including violations of LOAC, remain POWs and, as such, remain entitled to protections afforded by their status (GPW art. 85). A UTHORITY OF C OMMANDERS R EGARDING C APITULATION 7-130. Commanders are generally presumed to have the authority to conclude a capitulation agreement with respect to forces under their command or areas under their control. This presumption is essential not only with respect to the authority of a commander offering to capitulate, but for an opposing force commander accepting the capitulation. 7-131. For example, if commanders of military forces conclude continued fighting has become impossible and is unable to communicate with their superiors, under LOAC, they may assume they have authority to surrender their position or forces, or both. 7-132. Unless their respective government has granted authority to do so, commanders do not possess the authority to bind their government to a permanent cession of places under their command, to surrender sovereignty over territory, or to agree to terms of a political nature that will take effect after the termination of hostilities. 7-133. The fact that a commander surrenders in violation of orders or domestic law does not itself invalidate the surrender. 7-134. Commanders who surrender in violation of orders or the law of their own State may be punished by their State. Under the Code of Conduct for U.S. armed forces, a commander must never surrender the members of his or her command while they still have the means to resist. Under the Uniform Code of Military Justice, shameful surrenders are punishable. In addition, compelling or attempting to compel a commander to surrender or striking colors or flag to an enemy without proper authority is punishable (for U.S. practice regarding this type of prosecution, see UCMJUCMJUniformed Code of Military Justice art. 99(2)) (for more information regarding a U.S. commander’s authority to capitulate, surrender, and capture with respect to the U.S. Code of Conduct, see para. 7-137). Violations of Capitulation Agreements by Individual Soldiers 7-135. Capitulations extend to all military personnel under a commander’s command. Deliberate violations by individual Soldiers or Marines of the terms of a capitulation agreement may be punished as a war crime Individual Soldiers are also subject to prosecution by their own government for disobeying the capitulation order (see UCMJUCMJUniformed Code of Military Justice art. 92 (10 U.S.C. 892)). Violation of a capitulation agreement, like other pre-capture law of war violations, is not a basis for denying a person POW status, if that person otherwise qualifies for POW status under the GPW (GPW arts. 4 and 85). Commander’s Authority with Respect to Detached Forces 7-136. Commanders’ competence to capitulate is limited to forces immediately under their command and does not necessarily extend to detached forces. To avoid misunderstandings, a capitulation agreement should state to what extent detached forces and personnel in outlying defenses are included in the surrender of the military forces. The Code of Conduct for U.S. Armed Forces 7-137. The Code of Conduct for U.S. Armed Forces is a moral code designed to provide U.S. military personnel with a standard of conduct (see DOD Law of War Manual, 9.3.9). Article II of the Code of Conduct states: “I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist” (DODIDODIDepartment of the Defense Instruction O-3002.05). Code of Conduct (CoC) Training provides that:  Military personnel must never willingly surrender and must do their best to avoid capture. If a military member is isolated and unable to execute his or her mission or otherwise advance U.S. military objectives, it is his or her duty to evade capture and delay contact with individuals that may lead to capture, rejoin the nearest friendly force, and return to U.S. control (Enclosure 4, para. 2.a).  Military personnel must understand the difference between surrender and other circumstances resulting in an adversary having control of the individual. Surrender is the voluntary relinquishment of a military member, or his or her subordinates, to an adversary’s control. When there is no chance for meaningful resistance, evasion is impossible, and further military engagement will squander life with no significant advancement of U.S. objectives or hindrance to the adversary’s objectives, members of Armed Forces should view themselves as “captured’ against their will,” versus “surrendering.” (Enclosure 4, para. 2.b.(1)).  The responsibility and authority of a commander never extends to the surrender of command, even if isolated, cut off, or surrounded, while the unit has a reasonable power to resist, break out, or evade to rejoin friendly forces (Enclosure 4, para. 2.b.(2)). To Accept Enemy Capitulation 7-138. A commander possesses the inherent authority to accept enemy surrender or general capitulation. The authority to accept enemy capitulation with conditions, however, is subject to approval by higher authority. A commander’s agreement to conditions without higher authority approval is subject to higher command repudiation. G ENERAL N ATURE OF C APITULATION A GREEMENTS 7-139. The general effect of concluding a capitulation agreement is that of an unconditional surrender. In other words, absent specific terms in the capitulation agreement to the contrary, the capitulation agreement should be understood to create the effect of an unconditional surrender by the capitulating party. The capitulating party must generally cease operations and maintain the military status quo at the time in which the capitulation becomes effective. For example, the capitulating forces must not engage in offensive operations against opposing forces. Similarly, although forces may destroy their own weapons and intelligence information to prevent them from falling into the hands of the enemy before they capitulate, after the capitulation is effective, the capitulating forces must abstain from all destruction and damage to their own facilities and equipment, unless expressly permitted by the capitulation agreement. The capturing side is free to confiscate as war booty or, at its discretion, destroy the weapons, ammunition, and military equipment of the capitulating side (see DOD Law of War Manual, 12.8.5). 7-140. Capitulations normally contain nothing but military stipulations, such as addressing issues related to movements and administration of the surrendered forces. Other relevant issues may be addressed, such as the administration of the local civilian population. F ORM 7-141. There is no specified form for a capitulation agreement. They may be oral or in writing. As in the case of armistices, however, a written agreement is preferred to avoid misunderstandings and disputes over the terms. The agreement should be as specific and precise as possible as to terms to be observed on either side, excepting such conditions as are clearly imposed by LOAC. Details of time and procedure should be prescribed in the most exact and unequivocal language. T ERMS AND C ONDITIONS U SUALLY A DDRESSED IN C APITULATION A GREEMENTS 7-142. A capitulation agreement may, and often should, include provisions addressing each of the following, insofar as they are relevant to the circumstances:  Time of surrender  Forces (including to what extent detached forces or personnel may be included) or territory to be surrendered  Disposition of surrendered forces  Disarmament of surrendered forces  Disposition of Prisoners of war, civilian internees, and other persons held in custody  Requirement to follow orders of the victorious commander  Consequences of not following orders of the victorious commander  Prohibition on acts of destruction by surrendered forces P ROHIBITED A CTS 7-143. Once a capitulation is settled, its terms must be scrupulously observed by all parties concerned (HR art. 35). Personnel of the capitulating side must be handed over to the captor in accordance with the terms of the capitulation. In other words, the capitulating party must maintain the status quo at the time of signature. In turn, surrendering military forces and others entitled to POW status become POWs (or retained personnel). Damage and Destruction 7-144. Once a capitulation agreement has been signed, the capitulating commanders and their forces are prohibited from causing destruction or damage to installations, arms, ammunition, war material, stores, and equipment under their control, or injury to opposing force personnel. The capitulating commanding officer must abstain and ensure that members of the command abstain from all such destruction, unless the commanding officer is expressly authorized or directed to do so by the terms of the capitulation agreement. Nothing prohibits commanders from destroying military equipment, arms, ammunition, and other military stores prior to their capitulation. Breaches 7-145. Once capitulation terms have been agreed upon, all parties must scrupulously comply with them (HR art. 35). Breach of the terms of a capitulation agreement subjects the offender to trial for violations of the laws and customs of war. In addition, if the violation is directed by the commander who capitulated or by higher authority, the other belligerent may denounce the capitulation and resume hostilities. Individual Service Member or groups of Service Members acting in violation of the capitulation agreement remain entitled to POW status, but may be prosecuted for their illegal acts (GPW art. 85). For example, following capitulation, a Service Member from the capitulated force no longer enjoys combatant immunity and may be prosecuted for carrying out attacks on enemy military equipment or personnel. If captured, he may be tried for misconduct as a POW in addition to any violation of LOAC (UCMJUCMJUniformed Code of Military Justice art. 105 (10 U.S.C. 905)). Command Responsibility 7-146. Capitulating units remain military units, subject to LOAC, and commanders remain responsible for the units under their command and for military personnel over whom they exercise authority. As such, commanders remain responsible for criminal misconduct of capitulating forces. Prevention of acts of looting and destruction by capitulating forces, whether of military equipment or civilian objects, remains a responsibility of commanders, for which they may be held criminally accountable. D ENUNCIATION 7-147. A capitulation agreement may be denounced if a party to it violates it based on directions by the commander who capitulated or by higher authority. The other belligerent may denounce the capitulation agreement and resume hostilities. Likewise, a denunciation action may also be taken if the capitulation was obtained through a breach of faith. It may not, however, be denounced because one of the parties has been induced to agree to it by a means consistent with LOAC, such as by a ruse, or by that party’s own incapacity, such as by mistake of fact. A NNULMENT 7-148. A capitulation is null and void if it takes place following the agreement of a general armistice of which the parties to the capitulation had no knowledge, unless the terms of the armistice stipulate that the cessation of hostilities occurs from the time when notification reaches the forces concerned, rather than from the date and time of signature.

This chapter addresses war crimes and enforcement of LOAC from a U.S. perspective, largely by specifying how U.S. law authorizes criminal prosecution of conduct that also constitutes LOAC violations. Thus, this chapter discusses violations of LOAC generally, what constitutes war crimes, criminal prosecution of war crimes, and remedies available in response to LOAC violations. PRACTICAL GUIDANCE FOR COMMANDERS AND SOLDIERS OR MARINES 8-1. Commanders must exercise leadership to ensure that the forces under their command comply with LOAC. In addition to being legally required, compliance with LOAC: reinforces military effectiveness; helps maintain public support and political legitimacy; and can encourage reciprocal adherence by the adversary or adherence by adversaries in future conflicts (see DOD Law of War Manual, 18.2). As a matter of policy, commanders should encourage allies and partners to comply with LOAC. 8-2. 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 LOAC (DOD Law of War Manual, 18.4). Appropriate measures may include: training subordinates, issuing command guidance or procedures; investigating allegations or incidents; instituting administrative or disciplinary action; and taking other appropriate corrective action. 8-3. Commanders must report “Reportable Incidents” (defined as possible, alleged or suspected violations of LOAC) (see DODDDODDDepartment of Defense directive 2311.01E), including Reportable Incidents committed by enemy personnel or by personnel belonging to allied or partner forces (see DODDDODDDepartment of Defense directive 2311.01E). 8-4. Commanders may need to direct the investigations of allegations or to refer matters to investigatory authorities in accordance with DOD procedures, such as procedures applicable to a command-directed investigation (for example, Army Regulation 15-6) or to an investigation by a military criminal investigative service (for example, Army Regulation 195-2). 8-5. Commanders should take appropriate action with regard to Reportable Incidents of LOAC in accordance with the UCMJUCMJUniformed Code of Military Justice and the Manual for Courts-Martial. Under international law, commanders must consider whether disciplinary action is warranted in the case of serious violations of LOAC, but there is no absolute or automatic requirement under international law to punish particular offenders within their armed forces in a specific way. Commanders have discretion about how to implement and enforce LOAC in accordance with U.S. domestic law and applicable DOD procedures. 8-6. All Soldiers and Marines must: (1) comply with LOAC in good faith; and (2) refuse to comply with clearly illegal orders to commit violations of LOAC (see DOD Law of War Manual, 18.3). 8-7. When appropriate, Soldiers and Marines should ask questions through appropriate channels and consult with the command legal adviser on issues relating to LOAC (see DOD Law of War Manual, 18.3.1.2). 8-8. Soldiers and Marines should adhere to regulations, procedures, and training, as these policies and doctrinal materials have been reviewed for consistency with LOAC (see DOD Law of War Manual, 18.3.1.2, 18.6.2). 8-9. Commands and orders should not be understood as implicitly authorizing violations of LOAC where other interpretations are reasonably available (see DOD Law of War Manual, 18.3.2.2). VIOLATIONS OF THE LAW OF ARMED CONFLICT 8-10. For purposes of this publication, a violation of LOAC is an act or omission that contravenes a rule of international law applicable to the conduct of hostilities or the protection of war victims. Depending on the context, violations of the law of neutrality, jus ad bellum, or occupation law may also be considered to be violations of LOAC. S TATE R ESPONSIBILITY 8-11. Each State Party to the 1949 Geneva Conventions is obligated “to respect and to ensure respect” for the Conventions “in all circumstances” (Common Article 1 of GWS, GWS Sea, GPW and GC). Although this provision does not reflect an obligation to ensure implementation of the conventions by other States or parties to a conflict, the United States, as a matter of policy, often seeks to promote adherence to LOAC by others (see DOD Law of War Manual, 18.1.2.1). Additionally, a State is responsible for ensuring that its armed forces and others acting on its behalf comply with LOAC (Hague IV art. 3; consider AP I art. 91). Compensation referred to in these references is a matter to be determined between States; compensation of individual victims is not an obligation of LOAC (see DOD Law of War Manual, 18.9, 18.16). Note that the ex gratia payments that commanders may be authorized to provide in accordance with DOD policy and domestic fiscal authorities are not payments that are required by LOAC. The obligation to ensure LOAC compliance applies even if the enemy fails to comply with LOAC. E NFORCEMENT 8-12. International law authorizes an injured State to seek redress for violations of LOAC against it (see Hague IV art. 3; DOD Law of War Manual, 18.10). States are not limited solely to judicial redress and may avail themselves of the full panoply of enforcement mechanisms, including reprisals, reparation payments, diplomatic negotiations, arbitration, and voluntarily constituted claims commissions. Individuals may, in certain circumstances, also be prosecuted for LOAC violations, as discussed in greater detail below. WAR CRIMES 8-13. For purposes of this publication, war crimes are serious violations of LOAC that are punishable by criminal sanctions. The definition of “war crimes” often depends on the legal purpose at issue, and different definitions of “war crimes” are used. Under the Geneva Conventions, States have a responsibility to search for and prosecute those alleged to have committed “grave breaches,” of the Conventions. In addition, the United States interprets the penal sanction provisions of the Geneva Conventions (see GC arts. 146, 147) in accordance with its longstanding practice. In order for commanders to exercise appropriate command supervision, prompt reporting and investigation of alleged war crimes and other LOAC violations are essential. These other LOAC violations may not necessarily merit characterization as “war crimes,” but the conduct may still be subject to criminal prosecution under U.S. law. In addition to obligations with respect to grave breaches, the United States is responsible for taking all measures necessary to suppress other violations of the Geneva Conventions (see, for example, GC art. 146). W AR C RIMES IN I NTERNATIONAL A RMED C ONFLICTS 8-14. Historically, war crimes generally included all crimes that were punishable during armed conflict (see DOD Law of War Manual, 18.9.5), regardless of whether the crimes were violations of LOAC. For example, espionage and other offenses committed by captured enemy personnel, that were not prohibited by LOAC but were punishable by a belligerent State were also characterized as “war crimes.” However, “war crimes” now generally refers to only serious violations of LOAC. For example, the War Crimes Act, 18 U.S.C. § 2441, defines “war crime” to include certain serious LOAC violations. Grave Breaches of the Geneva Conventions 8-15. To reflect the particular seriousness of some violations, the Geneva Conventions characterize certain breaches as “grave.” These include willful killing of protected persons; engaging in torture or inhuman treatment, such as biological experiments; willfully causing great suffering or serious injury to body or health; unlawfully deporting, transferring, or confining 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; taking of hostages; and causing extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (GWS art. 50; GWS Sea art. 51; GPW art. 130; GC art. 147; consider AP I art. 85). Under the Geneva Conventions, grave breaches involve violations against the person or property of persons specifically protected by the four conventions. Though not binding on the United States, under Additional Protocol I to the Geneva Conventions, the concept of a grave breach is expanded to include violations against civilian persons and property generally. As a matter of international law, the grave breach regime (with its obligation to search for and prosecute) only applies in an international armed conflict, as defined by Common Article 2 of the Geneva Conventions (see GWS art. 2, GWS Sea art. 2, GPW art. 2 and GC art. 2). Other Violations 8-16. Other LOAC violations that are punishable and may be serious enough to merit characterization as “war crimes” include, but are not limited to, using poisonous weapons or weapons calculated to cause unnecessary suffering; attack or bombardment of undefended cities, towns or villages; pillage of public or private property; maltreatment of dead bodies; poisoning of wells or streams; resorting to perfidy (for example, using a white flag to conduct an attack treacherously); abusing or intentionally firing on a flag of truce; intentionally targeting protected places, objects, or protected persons (HR art. 23a, 23g, 25, 28, 47; War Crimes Act, 18 U.S.C. § 2441; consider AP I art. 85). W AR C RIMES IN N ON -I NTERNATIONAL A RMED C ONFLICTS 8-17. Common Article 3 provides minimum standards that parties to a conflict are bound to apply in a non-international armed conflict, and its standards are widely considered to apply to all armed conflicts. It explicitly prohibits violence to life and person for those taking no active part in hostilities and protects them from murder; mutilation; cruel treatment; torture; being taken hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment; and sentences passed and executions carried out without a judgment pronounced by a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples (see GWS art. 3, GWS Sea art. 3, GPW art. 3 and GC art. 3). Conduct that violates Common Article 3 can be punished by a State competent to exercise jurisdiction with respect to that conduct. 8-18. While nothing in Common Article 3 specifically requires that States impose individual criminal liability for violation of its standards, other treaties and domestic statutes do make reference to Common Article 3 in defining what constitutes a war crime. For example, in the United States, the War Crimes Act and the Military Commissions Act of 2006 criminalize certain violations of Common Article 3 (see, for example, 18 U.S.C. § 2441(c)(3) (War Crimes Act, as amended by the Military Commissions Act of 2006)). O THER V IOLATIONS OF THE L AW OF A RMED C ONFLICT 8-19. The United States has an obligation to take all measures necessary to prevent acts contrary to the Geneva Conventions. Violations of LOAC that are not sufficiently serious are generally not characterized as “war crimes,” but typically may be prosecuted under a State’s domestic law or addressed via administrative measures. In the United States, this may include referring charges to a court-martial under the UCMJUCMJUniformed Code of Military Justice (see, for example, UCMJUCMJUniformed Code of Military Justice art. 93, Cruelty and Maltreatment) or taking other actions, such as changing doctrine or tactics, providing additional training, taking administrative or corrective measures, imposing non-judicial punishment, or initiating prosecution before a civilian court, as appropriate. U NITED S TATES ’ O BLIGATIONS 8-20. The United States has certain treaty obligations with respect to LOAC violations, including the following obligations:  To enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed and of the grave breaches of the Geneva Conventions;  To search for persons alleged to have committed, or have ordered to be committed, grave breaches of the Geneva Conventions, and bring such persons regardless of their nationality, before its own courts;  To take measures necessary for the suppression of all acts contrary to the provisions of the 1949 Geneva Conventions other than grave breaches;  To provide persons accused of violations of the Geneva Conventions the safeguards of a proper trial and defense (GWS art. 49; GWS Sea art. 50; GPW art. 129; GC art. 146); and  To pay compensation, when appropriate, for violations of LOAC for which the United States is responsible (see DOD Law of War Manual, 18.16). 8-21. The United States has enacted domestic laws to help meet these obligations (see generally paragraphs 8-22 to 8-56, “Reporting and Investigating LOAC Violations”). U.S. law provides general courts-martial with the requisite authority to try, convict, and punish individuals who commit conduct punishable under LOAC, including war crimes. In addition, the 1996 War Crimes Act establishes federal jurisdiction over certain war crimes when the alleged perpetrator or victim is a U.S. person or member of the U.S. Armed Forces. R EPORTING AND I NVESTIGATING LOAC V IOLATIONS 8-22. DOD Directive 2311.01E, DOD Law of War Program, requires all military and U.S. civilian employees, contractors, and subcontractors assigned to or accompanying the Armed Forces to report LOAC violations (“reportable incidents” as defined by the Directive; see also para. 8-3, above) through their chain of command (contractors must 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) (DODDDODDDepartment of Defense directive 2311.01E). Such reports also may be made through other channels, such as the military police, a judge advocate, or an inspector general. A report to these other entities, however, must be forwarded to the recipient’s chain of command. A commander who obtains information about a reportable incident must immediately report the incident through the applicable operational chain of command. Department of Defense policy requires higher authorities receiving an initial report of any reportable incident to submit the report through command channels to the applicable combatant commander by the most expeditious means available (DODDDODDDepartment of Defense directive 2311.01E). Reportable Incidents 8-23. A “reportable incident” is defined as “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” (DODDDODDDepartment of Defense directive 2311.01E para. 3.2; CJCSICJCSIChairman of the Joint Chiefs of Staff Instruction 5810.01D para. 5b). Supplemental Service guidance provides for reporting of war crimes, or serious LOAC violations, as well as other “serious” incidents that may generate adverse publicity or have serious international consequences (see, for example, AR 190-45 para. 8-1; MCO 3300.4A, Enclosure 6). A commander need not determine that a potential violation occurred, but only that credible information merits further review of the incident. Commanders should consult with their assigned judge advocate for advice as to whether an alleged violation is a reportable incident. Investigations 8-24. Department of Defense policy requires that reportable incidents be thoroughly investigated. Under DOD policy, commanders receiving an initial report of a reportable incident are also required to request a formal investigation by the appropriate military criminal investigative organization (“MCIO,” for example CIDCIDCriminal investigation division, Air Force Office of Special Investigations [OSI], or the Naval Criminal Investigative Service [NCIS]). If, in the course of the investigation, it is determined that U.S. persons are not involved in a reportable incident, any U.S. investigation continues only at the direction of the appropriate combatant commander. Even when U.S. personnel are not involved, reporting of the information through the chain of command may nevertheless be required by DODDDODDDepartment of Defense directive 2311.01E. Command Response 8-25. Commanders receiving information about an alleged LOAC violation involving a member of their command, either as a victim or a perpetrator, may conduct an informal or formal administrative investigation to collect evidence and assess the credibility of the allegations and the involvement of U.S. personnel (AR 15-6; Chapter II of the Manual of the Judge Advocate General of the Navy [JAGMAN]). A commander’s decision to direct such an investigation, however, should not delay further reporting up the chain of command or, when appropriate, referral to CIDCIDCriminal investigation division or the NCIS. Further, if a commander’s investigation determines there is credible evidence a crime has been committed, the commander should consult the command’s judge advocate for advice on determining the appropriate disposition of the charges (Rules for Courts-Martial [RCM] 303, 306). Department of Justice Involvement 8-26. It is DOD Policy to maintain effective working relationships with the Department of Justice (DOJ) in the investigation and prosecution of crimes involving DOD programs, operations and personnel, including the investigation of some alleged violations of LOAC. DOD and DOJ policy with regard to the investigation and prosecution of criminal matter is set forth in a Memorandum of Understanding (MOUMOUMemorandums of understanding) between the DOD and DOJ (implemented by DODIDODIDepartment of the Defense Instruction 5525.07). The MOUMOUMemorandums of understanding is a general policy and not specific to LOAC violations. Under the MOUMOUMemorandums of understanding, DOD generally will investigate most crimes committed on a military installation or during military operations. If the crime was committed by a person subject to the UCMJUCMJUniformed Code of Military Justice, the Military Department concerned generally will take the lead in prosecuting the offender. DOJ is responsible for prosecution when the perpetrator is not subject to the UCMJUCMJUniformed Code of Military Justice. Commanders should consult with a judge advocate and adhere to applicable DOD policies regarding DOJ involvement in a particular matter. W HO M AY B E H ELD A CCOUNTABLE 8-27. Those personnel who commit a war crime may be held individually responsible. In addition to the individual, others may be held responsible, such as the commander, those who aided and abetted an offense, and those who conspired with them to commit the crime—and even those who conspire to commit a war crime that does not occur. Other theories of criminal responsibility under international law include joint criminal enterprise responsibility, command responsibility and responsibility for planning, instigating, or ordering the crime. Under the UCMJUCMJUniformed Code of Military Justice, a person who aids, abets, counsels, commands, or procures the commission of an offense may be punishable (see UCMJUCMJUniformed Code of Military Justice, art. 77). Individual Responsibility 8-28. Any person who commits an act that constitutes a crime under international law, who aids, abets, or counsels such a crime, or orders the commission of, conspires to commit, or attempts to commit such a crime is responsible for the crime and is liable to punishment (see DOD Law of War Manual, 18.22.1). Even if the act is not punishable as a crime in the person’s own State, the individual is not relieved from criminal responsibility under international law (see DOD Law of War Manual, 18.22.2). Further, a person acting pursuant to an order of their government or of a superior is not relieved from responsibility under international law for acts that constitute a crime under international law, provided it was possible in fact for the person to make a moral choice (see DOD Law of War Manual, 18.22.4; but see para. 8-67(describing when superior orders might constitute a legitimate defense)). Command Responsibility 8-29. Commanders have a duty to maintain order and discipline within their command and to ensure compliance with applicable law by those under their command or control. Commanders, therefore, may be liable for the criminal acts of their subordinates or other persons subject to their control even if the commander did not directly participate in the underlying offenses (see DOD Law of War Manual, 18.23.3). In order for the commander to be liable, however, the commander’s personal dereliction must have contributed to or failed to prevent the offense; the commander is required to take necessary and reasonable measures to ensure that their subordinates do not commit violations of LOAC. 8-30. For instance, if soldiers commit massacres or atrocities against POWs or against the civilian population of occupied territory, the responsibility may rest not only with the actual perpetrators, but also with the commander if the commander’s dereliction contributed to the offense. If the commander concerned ordered such acts be carried out, then the commander would have direct criminal responsibility (UCMJUCMJUniformed Code of Military Justice, Art. 77: “Any person punishable under this chapter who – commits an offense punishable by this chapter, or… commands… its commission… is a principal.”). 8-31. Under international law, criminal responsibility may also fall on commanders or certain civilian superiors with similar authorities and responsibilities as military commanders if they had actual knowledge or constructive knowledge of their subordinates’ actions and failed to take “necessary and reasonable” measures to prevent or repress those violations. That is, commanders may be held responsible if they knew or should have known, through reports received by them or by other means, that troops or other persons subject to their control were about to commit or have committed a war crime and did nothing to prevent such crimes or punish the violators. Once established that a commander has knowledge (actual or constructive) of a subordinates’ actions, the commander may be liable under international law only where failure to supervise subordinates properly constitutes criminal negligence on the commander’s part. That is, the commander may be criminally liable where there is personal neglect amounting to a wanton, immoral disregard of the action of the commander’s subordinates that amounts to acquiescence in the crimes. Aiding and Abetting 8-32. An individual who aids and abets, as well as one who counsels, commands, assists, encourages, advises, or instigates another to commit an offense or one who procures the commission of an offense may be held responsible for an offense equally as one who actually commits the offense (see UCMJUCMJUniformed Code of Military Justice, Art. 77). Aiding and abetting liability for an offense can be usefully analyzed by evaluating: (1) knowledge of the illegal activity being aided, abetted, or counseled; (2) a desire to help the activity succeed; and (3) some act of helping (see DOD Law of War Manual, 18.23.4). Conspiracy 8-33. A conspiracy exists when two or more persons agree to commit a criminal offense and at least one of the persons does something to effect the agreed-upon offense while the agreement exists. Under U.S. law, conspiracy can take one of two forms. First, it can be based on a completed crime, such as the murder of civilians. Conspiracy entails intentional participation in a common plan to complete a war crime. The individual need not engage in the physical act of the war crime. He or she must intentionally participate in the common plan, although the role can be relatively minor. To be found guilty under U.S. law, an accused need not have prior knowledge of a particular crime, as long as the accused intended to aid acts of similar character, such as the murder of civilians. Second, conspiracy can be charged as a separate, stand-alone offense requiring only an agreement and some overt act furthering the agreement (also known as inchoate conspiracy). 8-34. The crime of conspiracy can be found in a number of statutes applicable to war crimes, including the War Crimes Act, other sections of Title 18 of the U.S. Code, the UCMJUCMJUniformed Code of Military Justice, and the Military Commissions Act (MCA). Defendants have argued in litigation that the Constitution does not allow for the offense of conspiracy to be tried by military commission because it is not an offense under the international law of war. The Government has responded to that argument by, among other things, noting that U.S. military commissions tried and convicted a number of defendants on conspiracy charges during the Civil War and World War II. Current appellate litigation in the Military Commissions may afford U.S. practitioners with clarity on this issue. (Compare UCMJUCMJUniformed Code of Military Justice art. 81, 10 U.S.C. § 881, with 10 U.S.C. § 950t (29)). Joint Criminal Enterprise 8-35. Although not specifically reflected in U.S. law, international criminal tribunals in recent years have held individuals acting together with others pursuant to a common design, guilty of offenses committed by other members of the group, even though the individual did not commit the punishable offense personally; this form of liability is very similar to the first form of conspiracy discussed above (paragraph 8-33) (see, for example, Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, 220 (International Criminal Tribunal for the former Yugoslavia [ICTY] App. Chamber, July 15, 1999)). This basis is sometimes referred to as joint criminal enterprise or “JCE.” In other words, under JCE, every person of the joint enterprise may be held equally liable as a conspirator, even if his or her actions are distant from the actual execution of the crimes. It is not a violation itself, but rather a theory upon which an individual can be liable for violations committed by others. Planning, Instigating, and Ordering 8-36. The ICTY provides that an accused can be liable under international law for planning, instigating, or ordering a violation of LOAC, even though the accused does not physically commit the violation (ICTY art. 7(1)). Under U.S. law, an individual who planned, instigated, or ordered conduct that would constitute a war crime may be liable for that crime as a principal or aider and abettor (see paragraph 8-32). PROSECUTION OF WAR CRIMES 8-37. Prosecution of war crimes requires individual States with competent authority, or international courts granted authority by competent States, to assert jurisdiction, provide a venue, and authorize punishment in order to try those who violate LOAC. This section examines jurisdiction and venue issues, penalties, and defenses from a U.S. perspective. J URISDICTION AND V ENUE 8-38. Acts that constitute war crimes are within the jurisdiction of general courts-martial (UCMJUCMJUniformed Code of Military Justice art. 18; 10 U.S.C. § 818), military commissions, provost courts, other U.S. military tribunals (UCMJUCMJUniformed Code of Military Justice art. 21; 10 U.S.C. § 821), and U.S. civilian courts. 8-39. An act that constitutes a war crime under LOAC likely also constitutes a crime under U.S. law. Persons subject to the UCMJUCMJUniformed Code of Military Justice are ordinarily charged with violations of a specific provision of the UCMJUCMJUniformed Code of Military Justice rather than a violation of LOAC because charging offenses as specific UCMJUCMJUniformed Code of Military Justice violations prevent adjudication of complex issues, such as proving a state of armed conflict existed. Charging an offense under the UCMJUCMJUniformed Code of Military Justice carries a maximum punishment that is comparable to violations of federal law, and is a method with which military prosecutors are familiar (see RCM 307 Discussion). Before considering to pursue charges against DOD personnel under LOAC, consideration should be given to the availability of prosecution under specific provisions of the UCMJUCMJUniformed Code of Military Justice. Universality of Jurisdiction 8-40. In respect to grave breaches, the State’s obligation under the 1949 Geneva Conventions is to prosecute or, under certain circumstances, to transfer to another State for prosecution, alleged perpetrators regardless of their nationality (see, for example, GPW art. 129). Historically neutral or non-belligerent States have generally not exercised jurisdiction in relation to alleged war crimes, and such efforts in recent years have sometimes met strong objections and generally have not been successful without the consent of belligerent States. The jurisdiction of U.S. military tribunals in connection with war crimes is not limited to offenses committed against U.S. citizens, but extends to offenses committed against nationals of allies, co-belligerents, and stateless persons. Persons subject to the UCMJUCMJUniformed Code of Military Justice who commit LOAC violations are usually prosecuted for offenses under the UCMJUCMJUniformed Code of Military Justice via courts-martial, and the UCMJUCMJUniformed Code of Military Justice explicitly “applies in all places” (10 U.S.C. § 805). Violations of LOAC committed in the United States or committed by other U.S. persons usually constitute violations of federal criminal law and would ordinarily be prosecuted under such laws. Commanders of U.S. service members and civilians must ensure that members of their command who commit war crimes are promptly investigated and, when there is sufficient evidence, adequately punished (see paragraphs 8-13 to 8-18). Uniform Code of Military Justice 8-41. Persons who are subject to the UCMJUCMJUniformed Code of Military Justice include members of the Active and Reserve Components of the U.S. Armed Forces, POWs in the custody of the United States, and in time of declared war or contingency operations, persons serving with or accompanying the Armed Forces in the field (UCMJUCMJUniformed Code of Military Justice art. 2; 10 U.S.C. § 802). The UCMJUCMJUniformed Code of Military Justice explicitly applies in all places and can be enforced against individuals subject to the UCMJUCMJUniformed Code of Military Justice even if they have committed crimes outside the United States. Accordingly, the UCMJUCMJUniformed Code of Military Justice provides great flexibility in prosecuting individuals for crimes committed on the battlefield and in occupied territories. Courts-martial can be (and often are) convened outside the territorial limits of the United States by employing military judges and other qualified military personnel who can handle cases in austere environments. 8-42. Long-standing U.S. practice is to charge war crimes as offenses under the UCMJUCMJUniformed Code of Military Justice rather than as separate “war crimes” offenses. Offenses under the UCMJUCMJUniformed Code of Military Justice that could be used to punish conduct that violated LOAC include, but are not limited to:  Article 81 (10 U.S.C. § 881), Conspiracy;  Article 93 (10 U.S.C. § 893), Cruelty and maltreatment;  Article 108 (10 U.S.C. § 908), Military Property of United States – loss, damage, destruction, or wrongful disposition;  Article 108a (10 U.S.C. § 908a), Captured or abandoned property;  Article 109 (10 U.S.C. § 909), Property other than military property of United States – waste, spoilage, or destruction;  Article 118 (10 U.S.C. § 918), Murder;  Article 119 (10 U.S.C. § 919), Manslaughter;  Article 119a (10 U.S.C. § 919a), Death or injury of an unborn child;  Article 120 (10 U.S.C. § 920), Rape and sexual assault generally (including Forcible Sodomy);  Article 120b (10 U.S.C. § 920b), Rape and sexual assault of a child;  Article 120c (10 U.S.C. § 920c), Other sexual misconduct;  Article 125 (10 U.S.C. § 925), Kidnapping;  Article 126 (10 U.S.C. § 926), Arson;  Article 128 (10 U.S.C. § 928), Assault;  Article 128a (10 U.S.C. § 928a), Maiming; and  Article 130 (10 U.S.C. § 920), Stalking. 8-43. Conduct that violates LOAC can also be charged using the UCMJUCMJUniformed Code of Military Justice’s provision against disobedience of lawful orders or general regulations (UCMJUCMJUniformed Code of Military Justice art. 92; 10 U.S.C. § 892), as well as under the UCMJUCMJUniformed Code of Military Justice’s general prohibition against conduct prejudicial to good order and discipline in the Armed Forces (UCMJUCMJUniformed Code of Military Justice art. 134; 10 U.S.C. § 934). Other Federal Crimes 8-44. Prosecutions can also occur under U.S. domestic law for certain violations of LOAC. For example, the War Crimes Act authorizes the prosecution of individuals for certain war crimes, whether such crimes are committed inside or outside the United States, if the victim or the perpetrator is either a U.S. national or a member of the U.S. Armed Forces (18 U.S.C. § 2441). Under this law, war crimes means any conduct:  Defined as a grave breach of any of the 1949 Geneva Conventions or any protocol to one of those conventions to which the United States is a party (currently only AP III);  Violations of certain listed articles of the Hague Regulations;  Which constitutes a grave breaches of Common Article 3 of the 1949 Geneva Conventions as more specifically defined in the War Crimes Act; and  In relation to an armed conflict and contrary to the provisions the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (CCW Amended Protocol II), when a person willfully kills or causes serious injury to civilians. 8-45. While an individual could be charged with a war crime in a court-martial under article 18, UCMJUCMJUniformed Code of Military Justice, it is difficult (especially in recent conflicts) to define the jurisdictional element of the type of conflict and the substantive crimes under international law. In addition, the wide range of offenses that can be charged under the UCMJUCMJUniformed Code of Military Justice make it unnecessary to use this provision for that purpose, and also charging under this provision may be precluded under the Preemption Doctrine as set forth in the Manual for Courts-Martial United States, Part IV, paragraph 91.c(5)(a). Finally, the War Crimes Act is available to prosecute individuals in U.S. Federal Court in the alternative (upon agreement between the DOD and the DOJ) and also addresses those who are not subject to the UCMJUCMJUniformed Code of Military Justice but otherwise fall within the jurisdiction of the War Crimes Act. 8-46. Other laws criminalize acts of torture, attempts to commit torture, and conspiracy to commit torture outside the United States when the offender is a U.S. national or is located within the United States (18 U.S.C. § 2340A). Other relevant provisions of the law allow for the prosecution of:  Genocide (18 U.S.C. § 1091);  Murder or manslaughter of foreign officials, official guests, or internationally protected persons (18 U.S.C. § 1116);  Piracy (18 U.S.C. §§ 1651-1661);  Terrorism and material support to terrorists (18 U.S.C. §§ 2331-2339D); and  Various acts involving biological weapons, chemical weapons, weapons of mass destruction, or nuclear weapons (18 U.S.C. §§ 175, 229, 832, 2332a). A number of these provisions limit their application to offenses committed within the United States, or by or against citizens of the United States; but others, such as piracy, apply regardless of the location of the offense or the nationality of the offender or victim(s). Prosecution of Civilians, Former Military Members, Prisoners of War, and Enemy Belligerents 8-47. While the discussion on jurisdiction and venue thus far applies to U.S. Service Members who commit war crimes, the next sections discuss U.S. jurisdiction over and venue for trying non-U.S. service members— civilians, former military members, enemy POWs, and enemy belligerents. Military Extraterritorial Jurisdiction Act of 2000 8-48. The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) is a venue statute that allows the U.S. government to prosecute individuals who commit certain offenses outside the United States either while employed by or accompanying the U.S. Armed Forces outside the United States or while a member of the U.S. Armed Forces subject to the UCMJUCMJUniformed Code of Military Justice. Under MEJA, the U.S. Government can assert jurisdiction for certain offenses that are not otherwise subject to jurisdiction under U.S. law, including certain offenses committed outside the United States by civilians accompanying the U.S. Armed Forces (such as contractors and civilian employees) or by persons who were military members at the time of the offense, but have been discharged from the U.S. Armed Forces or are no longer subject to the UCMJUCMJUniformed Code of Military Justice. Under MEJA, an individual falling within either of these two categories is subject to prosecution for an offense committed outside the United States if that offense would carry a punishment of more than one year if committed within the special maritime and territorial jurisdiction of the United States. MEJA prosecutions are handled by the Department of Justice. Although not limited to conduct that constitutes LOAC violations, MEJA allows for criminal prosecution of individuals’ conduct that constitutes LOAC violations committed outside the United States. Prosecution under MEJA is not limited to U.S. citizens. Foreign nationals employed by or accompanying U.S. forces are also subject to prosecution under MEJA with the exception of host nation nationals or a person ordinarily resident in the host nation. 8-49. A crime charged pursuant to MEJA does not need to be a crime under the law of the country where the crime was committed. When the conduct violates both the laws of the foreign State and is a qualifying offense for MEJA purposes, however, international agreements, such as status of forces agreements, may indicate which country has jurisdiction to prosecute the individual. 8-50. Department of Defense policy requires that all employees or persons accompanying the force outside the United States, particularly those who are not nationals of the United States, are informed of the potential scope of MEJA (see DODIDODIDepartment of the Defense Instruction 5525.11). Knowledge of MEJA and its potential criminal sanctions serves a deterrent purpose in helping preserve good order and discipline in military operations outside the United States. Uniform Code of Military Justice Applicable to Civilians During Military Operations 8-51. Commanders have disciplinary authority pursuant to the UCMJUCMJUniformed Code of Military Justice over civilians accompanying the Armed Forces overseas during military operations. “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field” are subject to the UCMJUCMJUniformed Code of Military Justice (UCMJUCMJUniformed Code of Military Justice art. 2(a)(10)). It is DOD policy that the requirement for good order and discipline of the Armed Forces outside the United States extends to civilians employed by or accompanying the Armed Forces, and that such persons who engage in conduct constituting criminal offenses shall be held accountable for their actions, as appropriate (DODIDODIDepartment of the Defense Instruction 5525.11). 8-52. When an offense alleged to have been committed by a civilian that violates U.S. federal criminal law occurs, DOD policies may provide for notification of responsible DOJ authorities to afford DOJ the opportunity to pursue prosecution of the case in federal district court (Secretary of Defense Memorandum, “UCMJUCMJUniformed Code of Military Justice 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,” March 10, 2008). While the notification and decision process is pending, commanders and military criminal investigators should continue to take appropriate action to address the alleged crime. Commanders should also ensure that any preliminary military justice procedures that would be required in support of the exercise of UCMJUCMJUniformed Code of Military Justice jurisdiction continue to be accomplished during the concurrent DOJ notification process. Commanders should be prepared to act, as appropriate, should possible U.S. federal criminal jurisdiction prove to be unavailable to address the alleged criminal behavior. U.S. Military Commissions 8-53. 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 functioning, such as when martial law applies, and for the trial of violations of occupation ordinances (DOD Law of War Manual, 18.19.3.7). 8-54. Generally, courts-martial may be used in lieu of military commissions to try POWs in U.S. military custody (GPW art. 102; UCMJUCMJUniformed Code of Military Justice art. 2(a)(9)). Military commissions are used to try others, including alien unprivileged belligerents, for LOAC violations and other offenses. Procedures for military commissions are similar to those for general courts-martial under the UCMJUCMJUniformed Code of Military Justice (see, for example, 10 U.S.C. § 948b(c); Manual for Military Commissions (MMC)). 8-55. Under the MCA, thirty-two substantive crimes are triable by military commission (10 U.S.C. § 950t). The jurisdiction of military commissions under the MCA is limited to individuals who are alien unprivileged enemy belligerents (10 U.S.C. §948c). The term “unprivileged enemy belligerent,” for purposes of the statute, means an individual (other than a privileged belligerent) who:  Has engaged in hostilities against the United States or its coalition partners;  Has purposefully and materially supported hostilities against the United States or its coalition partners; or  Was a part of al Qaeda at the time of the alleged offense under the MCA (10 U.S.C. § 948a(7)) (compare to paragraph 1-64). 8-56. Under the MCA, an individual subject to a military commission is entitled to fair trial guarantees, including defense counsel; notice of charges alleged; the exclusion of evidence obtained by torture or cruel, inhumane, or degrading treatment; protection against self-incrimination and the inappropriate admission of hearsay evidence; the right to be present at proceedings, offer evidence, and confront witnesses; and to protection against former jeopardy. Procedures for military commissions also address the treatment, admissibility, and discovery of classified information, limits on sentencing, the execution of confinement, and post-trial review procedures (10 U.S.C. §948q(b)- 950j). International Tribunals 8-57. On a number of occasions since the beginning of the 20th century, war crimes, crimes against humanity, genocide, and crimes against peace were prosecuted by special international tribunals. These tribunals were established to address crimes committed during specific periods or in connection with specific conflicts. In general, these tribunals have applied international law, including the Geneva Conventions and their Additional Protocols, as well as the HRICR. The statute governing each tribunal typically stipulates the specific types of crimes addressed by the tribunal and the standards for culpability. The decisions of these tribunals do not bind the United States and its courts. Their decisions, however, provide useful examples of the application of international law. An example of a special international tribunal, created by Great Britain, France, the United States, and the Union of Soviet Socialist Republics, was the International Military Tribunal. This tribunal conducted the landmark Trial of Major War Criminals, with 21 Axis defendants, in Nuremberg, Germany, from November 1945 to October 1946. Another post-war tribunal was established in Tokyo to try war criminals in the Pacific Theater of World War II. The jurisprudence of the ICTY, established by the UN Security Council in 1993, also provides numerous examples of war crimes prosecutions. International Criminal Court and the Rome Statute 8-58. In 1998, 120 Nations at a Diplomatic Conference in Rome voted to approve the final text of the Rome Statute, adopting a treaty that establishes an International Criminal Court (ICC). The Rome Statute entered into force on July 1, 2002. Although the United States did not vote in favor of the treaty and has indicated that it does not intend to become a party to the Rome Statute, the U.S. delegation contributed significantly to its development, including the drafting of the elements of crimes and the inclusion of fundamental due process protections. 8-59. Unlike tribunals that were established for specific conflicts, the ICC, which is located in The Hague, is intended to apply to situations after the establishment of the ICC. 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” (Rome Statute art. 1). The latter principle that the ICC’s jurisdiction is “complementary” means that the ICC should not investigate or prosecute allegations when a State is or has already genuinely done so. The Rome Statute provides that the ICC has jurisdiction with respect to:  The crime of genocide,  Crimes against humanity,  War crimes, and  The crime of aggression. 8-60. The Rome Statute generally only confers jurisdiction on the ICC when the accused is a national of a Rome Statute Party; when the conduct occurs on the territory of a Rome Statute Party; or when the conduct occurs in a situation that has been referred to the ICC by the UN Security Council. The ICC will not prosecute an individual when a State has exercised or is in the process of exercising jurisdiction over the matter, unless that State is unwilling or unable to genuinely investigate or prosecute the case (Rome Statute art. 17). While the ICC purports to exercise jurisdiction over non-State Parties to the Rome Statute, 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 (see DOD Law of War Manual, 18.20.3.1). Further, the U.S. Government has negotiated SOFAs and other agreements with many countries, which under a provision of the Rome Statute (art. 98) clarify that U.S. personnel may not be turned over to the ICC by those countries absent U.S. consent. Moreover, in multinational operations or peace operations U.S. personnel may be asked to cooperate with ICC prosecutors who are investigating allegations of genocide, crimes against humanity, or war crimes. Any requests for cooperation by the ICC should be forwarded to DOD because such requests implicate U.S. policy toward the ICC and U.S. law, including the American Service Members’ Protection Act, imposes certain restrictions on any support to the ICC. Forum Considerations Connected to the Status of the Accused 8-61. Ordinarily, U.S. service members should be tried by courts-martial under appropriate provisions of the UCMJUCMJUniformed Code of Military Justice or, if separated from the military, in Federal court pursuant to MEJA (see paragraphs 8-37 and 8-50). 8-62. Civilians who commit war crimes while serving with or accompanying U.S. forces outside the United States face prosecution in Federal court under the War Crimes Act or other Federal law. Additionally, civilians serving with or accompanying the Armed Forces in the field are subject to trial by court-martial for violations of the UCMJUCMJUniformed Code of Military Justice as long as the DOJ does not assert jurisdiction to prosecute in Federal court. The United States may prosecute enemy POWs or retained personnel captured in an international armed conflict who commit war crimes (either pre-capture or while detained) in courts-martial or other proceedings, provided the requirements of the GPW are met (see DOD Law of War Manual, 9.28; see paragraph 8-54). 8-63. An accused who is not a U.S. citizen and who meets the definition of an unprivileged enemy belligerent under the terms of the MCA is subject to trial before a military commission or in Federal court pursuant to U.S. law (see paragraph 8-55). Sanctions Against Misconduct in Other Military Operations 8-64. When war crimes are charged as “war crimes,” the applicable criminal statutes generally also provide a requirement that the conduct occur in the context of and in association with an “armed conflict” (see, 18 U.S.C. § 2441). While U.S. military personnel may engage in operations that do not involve armed conflict, it is DOD policy to comply with LOAC in all military operations regardless of how they are characterized (DODDDODDDepartment of Defense directive 2311.01E para. 4.1). The specific criminal sanctions available to enforce compliance with these standards may vary, however, depending on the relationship with other sovereign States in any given operation, especially the host nation. The United States always abides by the “law of the flag”—the legal standards and enforcement mechanisms it brings with the force. Sometimes U.S. service members engaged in peace operations or other military operations short of armed conflict are subject to the laws of the nation in which the activity is conducted, which laws may be more restrictive concerning the use of force than may be permitted under multinational force rules of engagement (JP 3-07.3 para. 3(h)). In general, the application of host-nation law to these other operations is governed by an international agreement, such as a status-of-forces agreement or, for United Nations operations, a status of mission agreement (JP 3-07.3 para. 7(b)). These agreements define the circumstances under which the host nation may exercise jurisdiction over peace operations personnel (both military and civilian) who commit crimes in the host nation. In all cases, however, the UCMJUCMJUniformed Code of Military Justice will apply to the activities of U.S. service members, regardless of the nature of the operation or where the potential crime occurs (RCM 203). P ENALTIES 8-65. Penalties vary depending on the war crime committed and the law pursuant to which the crime is being prosecuted. Authorized punishments can range from fines or letters of reprimand to death. For instance, for the offense of murder under the UCMJUCMJUniformed Code of Military Justice, the accused may be subject to death or life imprisonment (UCMJUCMJUniformed Code of Military Justice, art. 118). Crimes under the War Crimes Act, the MCA, or other U.S. law also carry significant penalties. Generally, violations of the War Crimes Act that result in the death of a victim may be punishable by death (18 U.S.C. § 2441(a)). Grave breaches that authorize the death penalty include willful killing, torture, inhumane treatment, or willfully causing great suffering or injury (GWS art. 50; GWS Sea art. 51; GPW art. 130; GC art. 147). D EFENSES 8-66. The availability of legal defenses to charges of war crimes may depend on the specific jurisdiction and forum in which charges are brought. The following general information regarding affirmative defenses that negate criminal responsibility under general principles of criminal law and war crimes may be helpful, but commanders should request legal advice if they have specific questions. General Legal Defenses 8-67. Individuals being tried by a U.S. court-martial for war crimes (either as violations of the UCMJUCMJUniformed Code of Military Justice, as violations of other Federal law, or as LOAC violations) may assert legal defenses available under the UCMJUCMJUniformed Code of Military Justice (RCM 916; MMC pt. II, Rule 916). Justification 8-68. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful. This includes a privileged belligerent’s killing of an enemy combatant in combat and other acts that would otherwise be offenses under local criminal law (RCM 916(c) Discussion; MMC, pt. II, Rule 916(c)). Self-Defense 8-69. Self-defense generally requires the accused to demonstrate an apprehension, on reasonable grounds, that death or bodily harm was about to be wrongfully inflicted and that the force used by the accused was necessary for protection against such death or bodily harm (RCM 916(e)). The plea of self-defense has been recognized in war crimes trials under much the same circumstances as in trials held under ordinary criminal law (see, for example, MMC pt. II, Rule 916(e)). Accident 8-70. Death, injury, or damage that occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner (for example, conduct of military operations in accordance with LOAC) is an accident and is excusable. The defense is not available when the act that caused the death, injury, or damage was a negligent act (RCM 916(f); MMC pt. II, Rule 916(f)). Ignorance or Mistake of Fact 8-71. It is generally a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense (RCM 916(j); MMC pt. II, Rule 916(j)). LOAC-Specific Discussion of Defenses 8-72. There may be specific LOAC issues with respect to arguments that military necessity, lawful reprisals, superior orders, government officials, or ignorance or mistake of law constitute a valid defense. Military Necessity is not a Defense to Justify LOAC Violations 8-73. Following World War II, war crimes tribunals specifically rejected defense arguments that military necessity (Kriegsraison) could be used to justify LOAC violations (see DOD Law of War Manual, 2.2.2.1, citing the Krupp case and others). One may not justify LOAC violations by invoking the need to win the war. Lawful Reprisals 8-74. Reprisals are acts taken against a party that are otherwise unlawful under LOAC in order to persuade that party to cease violating the law. A reprisal is considered lawful, provided that the stringent conditions for lawful reprisal have been met, including complying with any applicable prohibitions against reprisal. The fact that the conduct was part of a lawful reprisal action thus means that would not need to part of a valid defense (see paras. 8-80 to 8-86 for additional information). Superior Orders 8-75. 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 (see DOD Law of War Manual, 18.22.4). Under the RCM and MMC, it is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful (RCM 916(d); MMC pt. II, Rule 916(d)). An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime (for example, an order directing the murder of a civilian, a noncombatant, or a combatant who is hors de combat, or the abuse or torture of a prisoner) (see, for example, MCM pt. IV, para. 14c(2)(a)(i)). The fact that an offense was committed pursuant to superior orders may also be considered as mitigation to reduce the level of punishment (see, for example, United States v. Sawada, V U.N. Law Reports 7-8, 13-22; ICTY art. 7(4)). Government Officials 8-76. The fact that a person who committed an act that 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 (see DOD Law of War Manual, 18.22.3). Most war crimes tribunals have held that the fact a person acted as a Head of State or as a government official is not a defense to prosecution and punishment for war crimes, nor has acting as such been considered as a factor in mitigating punishment (see, for example, Charter of the International Military Tribunal art. 7). Although status as a government official is not a substantive defense to liability under international law, government officials may receive immunities or other procedural protections from a foreign State’s exercise of jurisdiction. For example, a Status of Forces Agreement could provide that it is for the sending State to exercise jurisdiction, rather than the host State, in respect of allegations that the sending State’s forces had committed war crimes. Ignorance or Mistake of the Law 8-77. Ignorance or mistake of law ordinarily is not a defense (RCM 916(l)(1); MMC pt. II, Rule 916(l)(1)). Individuals are expected to ascertain and conduct themselves within applicable law (see, for example, United States v. Flick (The Flick Case), VI Trials of War Criminals 1208). Ignorance or mistake of law may be a defense in certain circumstances, such as when the mistake relates to a separate non-penal law or potentially when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency (RCM 916(l)(1) Discussion). For example, ignorance of international law may serve as a defense when the accused acts pursuant to superior orders and cannot, under the conditions of military discipline and operations, be expected to weigh scrupulously the legal merits of the order received (Trial of Karl Buck and Ten Others, V U.N. Law Reports, 39, 44). Ignorance of international law may also be a mitigating factor in considering punishment (see, for example, United States v. Sawada, V U.N. Law Reports 7-8). REMEDIES FOR VIOLATION OF LOAC 8-78. In the event of a LOAC violation, it may be possible for an injured State to seek to resort to one or more of the following remedies:  A formal or informal complaint to the offending belligerent through the protecting power or neutral States;  Publication of the facts, with a view to shaping public opinion against the offending belligerent;  A formal inquiry among the parties into alleged violations (see paragraph 8-79);  A UN Security Council resolution to take appropriate action under the UN Charter (UN Charter art. 34);  Complaints to the offending belligerent, including protest and demand for compensation or punishment of individuals responsible for the violation (Hague IV art. 3; consider AP I art. 91);  Solicitation of the good offices (that is, the diplomatic assistance), mediation, or intervention of neutral States for purposes of making the offending belligerent observe its obligations under LOAC;  Punishment of captured individual offenders as war criminals, either by tribunals of the aggrieved belligerent or its co-belligerents, or by international tribunals, if such tribunals have jurisdiction; or  Reprisals against the offending belligerent in order to pressure it to desist from violations of LOAC (see paragraphs 8-80 to 8-86). I NQUIRIES U NDER THE G ENEVA C ONVENTIONS 8-79. The 1949 Geneva Conventions provide that, 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 Convention (DOD Law of War Manual, 18.14.1). 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. The Conventions further provide that if the inquiry establishes that a violation has occurred, the parties to the conflict are to put an end to the violation and to repress the violation with the least possible delay (GWS art. 52; GWS Sea art. 53; GPW art. 132; GC art. 149). Article 90 of AP I establishes an International Fact-Finding Commission, which operates on the basis of mutual consent (see DOD Law of War Manual, 18.14.1.1). Although many nations have accepted this provision, the commission has yet to conduct an inquiry. The United States, which is not a party to AP I has not recognized the competence of this Commission. R EPRISALS 8-80. Reprisals are acts that are otherwise not permitted by LOAC in order to persuade a party to the conflict to cease violating LOAC. They are taken in response to a prior act in violation of LOAC that was committed by or is attributable to that party. This could include, for example, the use of weapons forbidden by the Hague Regulations to counter the use of the same weapons by an enemy on combatants who have not yet fallen into the hands of the enemy. Reprisals are extreme measures that are only adopted as a last resort to induce the party to desist from violations of LOAC. Conditions for Reprisals 8-81. Customary international law permits reprisals, subject to certain conditions. Reprisals are highly restricted in treaty provisions (see paragraphs 8-87 and 8-88) and practical considerations may counsel against their use (see DOD Law of War Manual, 18.18.4). The conditions in paragraphs 8-82 to 8-86 are drawn from U.S. practice (see DOD Law of War Manual, Section 18.18). Careful Inquiry That Reprisals are Justified 8-82. Reprisals shall be resorted to only after a careful inquiry into the facts to determine that the enemy has, in fact, violated the law (see DOD Law of War Manual, 18.18.2.). In many cases, whether a law of war rule has been violated will not be apparent to the opposing side or outside observers. Proportionality in Reprisal 8-83. To be legal, reprisals must respond in a proportionate manner to the preceding illegal act by the party against which they are taken. Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are not involved. 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 enemy’s violation (for example, considering the death, injury, damage, or destruction that the enemy’s violation caused). Exhaustion of Other Means of Securing Compliance 8-84. Before resorting to reprisals, a party must consider other means of securing compliance with LOAC. Other means of securing compliance should be exhausted before resorting to reprisals. For example, the enemy should normally be warned in advance of the specific conduct that may be subject to reprisal and given an opportunity to cease it unlawful acts. Leaders should consider whether reprisals will lead to retaliation rather than compliance. In certain situations, the enemy may be more likely to be persuaded to comply by a steady adherence to LOAC by U.S. forces. Who May Authorize 8-85. Individual service members may not take reprisal action on their own initiative. That authority is retained at the national level (see DOD Law of War Manual, 18.18.2.3). Commanders who believe a reprisal is warranted should report the enemy’s violation promptly through command channels in accordance with DODDDODDDepartment of Defense directive 2311.01E, as well as any proposal for reprisal action. Public Announcement of Reprisals 8-86. In order to fulfill their purpose of dissuading further illegal conduct, reprisals must be made public and announced as such to the offending party. Treaty Limitations on Reprisal 8-87. Certain treaties limit the individuals and objects against which reprisals may be directed. The following categories are protected from reprisals:  Combatant personnel who are wounded, sick, or shipwrecked (GWS art. 46; GWS Sea art. 47);  Medical and religious personnel, medical units and facilities, and hospital ships (GWS art. 46; GWS Sea art. 47);  POWs (GPW art. 13);  Persons protected by the GC and their property (GC art. 33;); and  Cultural property (1954 Hague art. 4(4); consider AP I art. 53). 8-88. Additional Protocol I specified additional restrictions on reprisals that are applicable to AP I Parties that have not taken reservations to these restrictions, including protections against reprisal for:  Civilians and civilian objects (consider AP I art. 52(1));  The natural environment (consider AP I art. 55(2));  Objects “indispensable to the survival of the civilian population” (consider AP I art. 54(4));POWs (GPW art. 13); and  Public works and installations containing dangerous forces (such as dams, dykes, and nuclear power stations) (consider AP I art. 56(4)). Some States in ratifying AP I have taken reservations from the additional limitations on reprisal provided for in Additional Protocol I. The U.S. position is that Additional Protocol I’s reprisal provisions are counter-productive and remove a significant deterrent that protects civilians and war victims on all sides of a conflict. Reprisals are generally extraordinary measures, and, therefore, generally reserved for decision at the national level.

A-1. Law of Armed Conflict Treaties to Which the United States is a Party:  Washington Convention Regarding the Rights of Neutrals at Sea of October 31, 1854 (10 Stat. 1105, TS 300, 11 Bevans 1214).  Hague Convention for the Exemption of Hospital Ships, in Time of War, from the Payment of all Dues and Taxes Imposed for the Benefit of the State of December 21, 1904 (35 Stat. 1854, TS 459, 1 Bevans 430).  Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities (36 Stat. 2259, Treaty Series 538).  Hague Convention IV of October 18, 1907, Respecting the Laws and Customs of War on Land (36 Stat. 2277, TS 539) (Hague IV), and the Annex thereto, entitled Regulations Respecting the Laws and Customs of War on Land (36 Stat. 2295, TS 539) (HR).  Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (36 Stat. 2310, TS 540) (Hague V).  Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic Submarine Contact Mines (36 Stat. 2322, TS 541, 1 Bevans 669) (Hague VIII).  Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forces in Time of War (36 Stat. 2351, TS 542) (Hague IX).  Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War (36 Stat. 2396, TS 544, 1 Bevans 711) (Hague XI).  Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of Neutral Powers in Naval War (36 Stat. 2415, TS 545, 1 Bevans 723) (Hague XIII).  Procès-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of April 22, 1930 (3 Bevans 298) (London Protocol).  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (6 UST 3114, T.I.A.S. 3362, 75 UNTS 31) (GWS).  Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (6 UST 3217, T.I.A.S. 3363, 75 UNTS 85) (GWS Sea).  Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (6 UST 3216, T.I.A.S. 3364, 75 UNTS 135) (GPW).  Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (6 UST 3516, T.I.A.S. 3365, 75 UNTS 287) (GC).  Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954 (249 UNTS 240) (1954 Hague Cultural Property Convention).  Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects of October 10, 1980, its Protocols I, II, III, IV, and V, its Amended Protocol II, and its extended scope of application (1342 UNTS 137) (CCW).  Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict, May 25, 2000 (Optional Protocol on Children in Armed Conflict).  Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), December 8, 2005 (AP III). A-2. Arms Control Agreements to Which the United States Is a Party That Are of Direct Relevance to the Law of Armed Conflict:  Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of June 17, 1925 (26 UST 571, T.I.A.S. 8061, 94 LNTS 65) (1925 Geneva Gas Protocol).  Convention on the Prohibition of Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction of April 10, 1972 (26 UST 583, T.I.A.S. 8062, 1015 UNTS 163) (BWC).  Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of May 18, 1977 (31 UST 333, TIAS 9614) (ENMOD Convention).  Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of January 13, 1993 (CWC). A-3. Law of Armed Conflict Treaties Signed but Not Ratified by the United States:  Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts of June 8, 1977 (AP I).  Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (AP II). A-4. Law of Armed Conflict or Relevant Arms Control Treaties to Which the United States Is Neither a Signatory Nor a Party:  Hague Declaration (IV, 3) Concerning Expanding Bullets of July 29, 1899.  Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities of October 18, 1907.  Hague Convention VII Relating to the Conversion of Merchant Ships into Warships of October 18, 1907.  First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954.  Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction of September 18, 1997.  Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of March 26, 1999.  Convention on Cluster Munitions of May 30, 2008.  Rome Statute of the International Criminal Court of July 17, 1988 (Rome Statute) A-5. Law of Armed Conflict or Relevant Arms Control Treaties or Documents of Mainly Historical Value:  St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grams Weight of December 11, 1868 (1868 St. Petersburg Declaration).  Hague Declaration IV, 1 to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature of July 29, 1899.  Hague Declaration IV, 2 Concerning Asphyxiating Gases of July 29, 1899.  Hague Convention II with Respect to the Laws and Customs of War on Land, with Annex of Regulations of July 29, 1899 (32 Stat. 1803, TS 403, 1 Bevans 247) (1899 Hague II).  Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of October 18, 1907.  Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from Balloons of October 18, 1907.  Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of February 6, 1922 (1922 Washington Treaty).  Hague Rules of Air Warfare of February 17, 1923 (1923 Hague Air Rules).  Geneva Convention Amelioration of the Condition of the Wounded and Sick of Armies in the Field of July 27, 1929 (47 Stat. 2074; Treaty Series 847) (1929 GWS).  Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929 (47 Stat. 2021; Treaty Series 846) (1929 GPW).  Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments of April 15, 1935 (49 Stat. 3267, TS 899, 3 Bevans 254, 167 LNTS 279) (Roerich Pact).

The glossary lists acronyms and terms with Army or joint definitions. Terms for which FM 6-27 is the proponent are marked with an asterisk (*). The proponent manual for other terms is listed in parentheses after the definition.

Entries are by paragraph number.