CHAPTER 2
HOSTILITIES
Section I. COMMENCEMENT OF HOSTILITIES
20. Declaration of War Required
a. Treaty Provision.
The Contracting Powers recognize that hostilities
between themselves must not commence without previous and explicit warning,
in the form either of a reasoned declaration of war or of an ultimatum
with conditional declaration of war. (H. III, art. 1.)
b. Surprise Still Possible. Nothing in
the foregoing rule requires that any particular length of time shall elapse
between a declaration of war and the commencement of hostilities.
21. Notification to Neutrals
The existence of a state of war must be notified
to the neutral Powers without delay, and shall not take effect in regard
to them until after the receipt of a notification, which may, however,
be given by telegraph. Neutral Powers, nevertheless, cannot rely on the
absence of notification if it is clearly established that they were in
fact aware of the existence of a state of war. (H. III, art. 2.)
22. When Articles of Hague
Convention No. III Effective Between Parties Article I of the present Convention
shall take effect in case of war between two or more of the Contracting
Powers.
Article II is binding as between a belligerent
Power which is a party to the Convention and neutral Powers which are also
parties to the Convention. (H. III, art. 3.)
23. Present Effect of Foregoing
Rules
The Charter
of the United Nations makes illegal the threat or use of force contrary
to the purpose of the United Nations. It requires members of the organization
to bring about by peaceful means adjustment or settlement of international
disputes or situations which might lead to a breach of the peace. However,
a nonmember nation or a member nation which violates these provisions of
the Charter commits a further breach of international law by commencing
hostilities without a declaration of war or a conditional ultimatum as
required by the foregoing articles of Hague Convention No. III. Conversely,
a State which resorts to war in violation of the Charter will not render
its acts of aggression or breach of the peace any the less unlawful by
formally declaring war.
24. Constitutional Provision
Article 1, section 8, clause 11, of the United States
Constitution provides that "The Congress shall have power * * * to declare
War." The law of war may, however, be applicable to an international conflict,
notwithstanding the absence of a declaration by the Congress. (See pars.
8 and 9, concerning the situations to which
the law of war has application.)
25. Enemy Status of Civilians
Under the law of the United States, one of the consequences
of the existence of a condition of war between two States is that every
national of the one State becomes an enemy of every national of the other.
However, it is a generally recognized rule of international law that civilians
must not be made the object of attack directed exclusively against them.
26. Effect on Enemy Aliens
Enemy aliens located or resident in United States
territory are not necessarily made prisoners or interned en masse on the
breaking out of hostilities. Such persons may be allowed to leave the United
States if their departure is consistent with national interest (GC,
art. 35; par. 274 herein). If the security
of the United States makes it absolutely necessary, enemy aliens may be
placed in assigned residence or internment (GC, art. 42; par.
281 herein). Measures of control are normally taken with respect to
at least persons known to be active or reserve members of a hostile army,
persons who would be liable to service in the enemy forces, and persons
who it is expected would furnish information or other aid to a hostile
State. (See ch. V, sec. IV, concerning the treatment
of aliens in the territory of a party to the conflict.)
27. Expulsion
In modern practice at the outbreak of hostilities
the expulsion of the citizens or subjects of the enemy is generally decreed
from seaports, the area surrounding airbases, airports, and fortified places,
areas of possible attack, and the actual or contemplated theaters of operation.
When expulsion is decreed, the persons expelled should be given such reasonable
notice, consistent with public safety, as will enable them to arrange for
the collection, disposal, and removal of their goods and property and for
the settlement of their personal affairs. Such persons do not, however,
benefit from the provisions of Articles 41 through 45, GC (pars.
280-284).
Section II. FORBIDDEN CONDUCT WITH
RESPECT TO PERSONS
28. Refusal of Quarter
It is especially forbidden * * * to declare
that no quarter will be given. (HR, art. 23, par. (d).)
29. Injury Forbidden After Surrender
It is especially forbidden * * * to kill
or wound an enemy who, having laid down his arms, or having no longer means
of defense, has surrendered at discretion. (HR, art. 23, par. (c).)
30. Persons Descending by Parachute
The law of war does not prohibit firing upon paratroops
or other persons who are or appear to be bound upon hostile missions while
such persons are descending by parachute. Persons other than those mentioned
in the preceding sentence who are descending by parachute from disabled
aircraft may not be fired upon.
31. Assassination and Outlawry
HR provides:
It is especially forbidden * * * to
kill or wound treacherously individuals belonging to the hostile nation
or army. (HR, art. 23, par. (b).)
This article is construed as prohibiting assassination,
proscription, or outlawry of an enemy, or putting a price upon an enemy's
head, as well as offering a reward for an enemy "dead or alive". It does
not, however, preclude attacks on individual soldiers or officers of the
enemy whether in the zone of hostilities, occupied territory, or elsewhere.
32. Nationals Not To Be Compelled
to Take Part in Operations Against Their Own Country
A belligerent is likewise forbidden to compel
the nationals of the hostile party to take part in the operations of war
directed against their own country, even if they were in the belligerent's
service before the commencement of the war.
(HR, art. 23, 2d par.)
Section III. FORBIDDEN MEANS OF
WAGING WARFARE
33. Means of Injuring the Enemy
Limited
a. Treaty Provision.
The right of belligerents to adopt means of
injuring the enemy is not unlimited. (HR, art. 22.)
b. The means employed are definitely restricted
by international declarations and conventions and by the laws and usages
of war.
34. Employment of Arms Causing
Unnecessary Injury
a. Treaty Provision.
It is especially forbidden * * * to
employ arms, projectiles, or material calculated to cause unnecessary suffering.
(HR, art. 23, par. (e).)
b. Interpretation. What weapons cause "unnecessary
injury" can only be determined in light of the practice of States in refraining
from the use of a given weapon because it is believed to have that effect.
The prohibition certainly does not extend to the use of explosives contained
in artillery projectiles, mines, rockets, or hand grenades. Usage has,
however, established the illegality of the use of lances with barbed heads,
irregular-shaped bullets, and projectiles filled with glass, the use of
any substance on bullets that would tend unnecessarily to inflame a wound
inflicted by them, and the scoring of the surface or the filing off of
the ends of the hard cases of bullets.
35. Atomic Weapons
The use of explosive "atomic weapons," whether by
air, sea, or land forces, cannot as such be regarded as violative of international
law in the absence of any customary rule of international law or international
convention restricting their employment.
36. Weapons Employing Fire
The use of weapons which employ fire, such as tracer
ammunition, flamethrowers, napalm and other incendiary agents, against
targets requiring their use is not violative of international law. They
should not, however, be employed in such a way as to cause unnecessary
suffering to individuals.
37. Poison
a. Treaty Provision.
It is especially forbidden * * * to
employ poison or poisoned weapons. (HR, art. 23, par. (a).)
*b. Discussion
of Rule. The foregoing rule prohibits the use in war of poison or poisoned
weapons against human beings. Restrictions on the use of herbicides as
well as treaty provisions concerning chemical and bacteriological warfare
are discussed in paragraph 38.
*38.
Chemical and Bacteriological Warfare
a. Treaty Provision. Whereas the use in war
of asphyxiating, poisonous or other gases, and of all analogous liquids,
materials or devices, has been justly condemned by the general opinion
of the civilized world; and
Whereas the prohibition of such use has been declared
in Treaties to which the majority of Powers of the world are Parties; and
To the end that this prohibition shall be universally
accepted as a part of International Law, binding alike the conscience and
the practice of nations:
***the High Contracting Parties, so far as they
are not already Parties to Treaties prohibiting such use, accept this prohibition,
agree to extend this prohibition to the use of bacteriological methods
of warfare and agree to be bound as between themselves according to the
terms of this declaration. (Geneva Protocol of 1925.)
b. United States Reservation to the Geneva
Protocol of 1925. [T]he said Protocol shall cease to be binding on
the government of the United States with respect to the use in war of asphyxiating,
poisonous or other gases, and of all analogous liquids, materials, or devices,
in regard to an enemy State or any of its allies fails to respect the prohibitions
laid down in the Protocol.
c. Renunciation of Certain Uses in War of Chemical
Herbicides and Riot Control Agents. The United States renounces, as
a matter of national policy, first use of herbicides in war except use,
under regulations applicable to their domestic use, for control of vegetation
within US bases and installations or around their immediate defensive perimeters,
and first use of riot control agents in war except in defensive military
modes to save lives such as:
(1) Use of riot control agents in riot control
situations in areas under direct and distinct US military control, to include
controlling rioting prisoners of war.
(2) Use of riot control agents in situations in
which civilians are used to mask or screen attacks and civilian casualties
can be reduced or avoided.
(3) Use of riot control agents in rescue missions
in remotely isolated areas, of downed aircrews and passengers, and escaping
prisoners.
(4) Use of riot control agents in rear echelon
areas outside the zone of immediate combat to protect convoys from civil
disturbances, terrorists and paramilitary organizations.
NOW, THEREFORE, by virtue of the authority vested
me as President of the United States of America by the Constitution and
laws of the United States and as Commander-in-Chief of the Armed Forces
of the United States, it is hereby ordered as follows:
SECTION 1. The Secretary of Defense shall take
all necessary measures to ensure that the use by the Armed Forces of the
United States of any riot control agents and chemical herbicides in war
is prohibited unless such use has Presidential approval, in advance.
SECTION 2. The Secretary of Defense shall prescribe
the rules and regulations be deems necessary to ensure that the national
policy herein announced shall be observed by the Armed Forces of the United
States. (Exec. Order No. 11850, 40 Fed. Reg. 16187 (1975).)
d. Discussion. Although the language of
the 1925 Geneva Protocol appears to ban unqualifiedly the use in war of
the chemical weapons within the scope of its prohibition, reservations
submitted by most of the Parties to the Protocol, including the United
States, have, in effect, rendered the Protocol a prohibition only of the
first use in war of materials within its scope. Therefore, the United States,
like many other Parties, has reserved the right to use chemical weapons
against a state if that state or any of its allies fails to respect the
prohibitions of the Protocol.
The reservation of the United States does not,
however, reserve the right to retaliate with bacteriological methods of
warfare against a state if that state or any of its allies fails to respect
the prohibitions of the Protocol. The prohibition concerning bacteriological
methods of warfare which the United States has accepted under the Protocol,
therefore, proscribes not only the initial but also any retaliatory use
of bacteriological methods of warfare. In this connection, the United States
considers bacteriological methods of warfare to include not only biological
weapons but also toxins, which, although not living organisms and therefore
susceptible of being characterized as chemical agents, are generally produced
from biological agents. All toxins, however, regardless of the manner of
production, are regarded by the United States as bacteriological methods
of warfare within the meaning of the proscription of the Geneva Protocol
of 1925.
Concerning chemical weapons, the United States
considers the Geneva Protocol of 1925 as applying to both lethal and incapacitating
chemical agents. Incapacitating agents are those producing symptoms that
persist for hours or even days after exposure to the agent has terminated.
It is the position of the United States that the Geneva Protocol of 1925
does not prohibit the use in war of either chemical herbicides or riot
control agents, which are those agents of a type widely used by governments
for law enforcement purposes because they produce, in all but the most
unusual circumstances, merely transient effects that disappear within minutes
after exposure to the agent has terminated. In this connection, however,
the United States has unilaterally renounced, as a matter of national policy,
certain uses in war of chemical herbicides and riot control agents (see
Exec. Order No. 11850 above). The policy and provisions of Executive
Order No. 11850 do not, however, prohibit or restrict the use of chemical
herbicides or riot control agents by US armed forces either (1) as retaliation
in kind during armed conflict or (2) in situations when the United States
is not engaged in armed conflict. Any use in armed conflict of herbicides
or riot control agents, however, requires Presidential approval in advance.
The use in war of smoke and incendiary materials
is not prohibited or restricted by the Geneva Protocol of 1925.
Section IV. BOMBARDMENTS, ASSAULTS,
AND SIEGES
*39.
Bombardment of Undefended Places Forbidden
a. Treaty Provision. The attack or bombardment,
by whatever means, of town, villages, dwellings, or buildings which are
undefended is prohibited. (HR, art. 25.)
b. Interpretation. An undefended place,
within the meaning of Article 25, HR, is any inhabited place near or in
a zone where opposing armed forces are in contact which is open for occupation
by an adverse party without resistance. In order to be considered as undefended,
the following conditions should be fulfilled:
(1) Armed forces and all other combatants, as
well as mobile weapons and mobile military equipment, must have been evacuated,
or otherwise neutralized;
(2) no hostile use shall be made of fixed military
installations or establishments;
(3) no acts of warfare shall be committed by the
authorities or by the population; and,
(4) no activities in support of military operations
shall be be undertaken.
The presence, in the place, of medical units, wounded
and sick, and police forces retained for the sole purpose of maintaining
law and order does not change the character of such an undefended place.
*40.
Permissible Objects of Attack of Bombardment
a. Attacks Against the Civilian Population as
Such Prohibited. Customary international law prohibits the launching
of attacks (including bombardment) against either the civilian population
as such or individual civilians as such.
b. Defended Places. Defended places, which
are outside the scope of the proscription of Article 25,
HR, are permissible objects of attack (including bombardment). In this
context, defended places include--
(1) A fort or fortified place.
(2) A place that is occupied by a combatant military
force or through which such a force is passing. The occupation of a place
by medical units alone, however, is not sufficient to render it a permissible
object of attack.
(3) A city or town surrounded by detached defense
positions, if under the circumstances the city or town can be considered
jointly with such defense positions as an indivisible whole.
c. Military Objectives. Military objectives--i.e.,
combatants, and those objects 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--are permissible
objects of attack (including bombardment). Military objectives include,
for example, factories producing munitions and military supplies, military
camps, warehouses storing munitions and military supplies, ports and railroads
being used for the transportation of military supplies, and other places
that are for the accommodation of troops or the support of military operations.
Pursuant to the provisions of Article 25, HR, however,
cities, towns, villages, dwellings, or buildings which may be classified
as military objectives, but which are undefended (para 39b),
are not permissible objects of attack.
*41.
Unnecessary Killing and Devastation
Particularly in the circumstances referred to in
the preceding paragraph, loss of life and damage to property incidental
to attacks must not be excessive in relation to the concrete and direct
military advantage expected to be gained. Those who plan or decide upon
an attack, therefore, must take all reasonable steps to ensure not only
that the objectives are identified as military objectives or defended places
within the meaning of the preceding paragraph but also that these objectives
may be attacked without probable losses in lives and damage to property
disproportionate to the military advantage anticipated. Moreover, once
a fort or defended locality has surrendered, only such further damage is
permitted as is demanded by the exigencies of war, such as the removal
of fortifications, demolition of military buildings, and destruction of
military stores (HR, art. 23, par. (g); GC, art 53).
42. Aerial Bombardment
There is no prohibition of general application against
bombardment from the air of combatant troops, defended places, or other
legitimate military objectives.
43. Notice of Bombardment
a. Treaty Provision.
The officer in command of an attacking force
must, before commencing a bombardment, except in cases of assault, do all
in his power to warn the authorities. (HR, art. 26.)
b. Application of Rule. This rule is understood
to refer only to bombardments of places where parts of the civil population
remain.
c. When Warning is To Be Given. Even when
belligerents are not subject to the above treaty, the commanders of United
States ground forces will, when the situation permits, inform the enemy
of their intention to bombard a place, so that the noncombatants, especially
the women and children, may be removed before the bombardment commences.
44. Treatment of Inhabitants of
Invested Area
a. General Population. The commander of the
investing force has the right to forbid all communications and access between
the besieged place and the outside. However, Article 17, GC (par.
256), requires that belligerents 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. Provision is also made in Article 23 of the same
Convention (par. 262) for the passage of consignments
of medical and hospital stores and objects necessary for the religious
worship of civilians and of essential foodstuffs, clothing, and tonics
intended for children under 15, expectant mothers, and maternity cases.
Subject to the foregoing exceptions, there is
no rule of law which compels the commander of an investing force to permit
noncombatants to leave a besieged locality. It is within the discretion
of the besieging commander whether he will permit noncombatants to leave
and under what conditions. Thus, if a commander of a besieged place expels
the noncombatants in order to lessen the logistical burden he has to bear,
it is lawful, though an extreme measure, to drive them back, so as to hasten
the surrender. Persons who attempt to leave or enter a besieged place without
obtaining the necessary permission are liable to be fired upon, sent back,
or detained.
b. Diplomatic and Consular Personnel. Diplomatic
and consular personnel of a neutral State should not be prevented from
leaving a besieged place before hostilities commence, but this privilege
cannot be claimed while hostilities are in progress. Should they voluntarily
decide to remain, they must undergo the same risks as other inhabitants.
45. Buildings and Areas To Be Protected
a. Buildings To Be Spared.
In sieges and bombardments all necessary measures
must be taken to spare, as far as possible, buildings dedicated to religion,
art, science, or charitable purposes, historic monuments, hospitals, and
places where the sick and wounded are collected, provided they are not
being used at the time for military purposes.
It is the duty of the besieged to indicate
the presence of such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand. (HR, art. 27.)
(See also GC, arts. 18 and 19; pars. 257
and 258 herein, dealing with the identification
and protection of civilian hospitals.)
b. Areas To Be Protected. In order to protect
buildings used for medical purposes from being accidentally hit, it is
desirable that the wounded and sick should, if possible, be concentrated
in an area remote from military objectives or in an area neutralized by
arrangement with the enemy. See GC, arts. 14, 18, and 19; pars.
253, 257, and 258
herein, concerning the establishment of hospital and safety zones and localities.)
46. Such Buildings to Display Sign
Specified in Naval Treaty
a. Treaty Provision.
It is the duty of the inhabitants to indicate
such monuments, edifices, or places by visible signs, which shall consist
of large stiff rectangular panels divided diagonally into two coloured
triangular portions, the upper portion black, the lower portion white.
(H. IX, art 5, 2d par.)
b. Application of Rule. The foregoing rule
adopted in this convention for naval warfare may be adopted for protecting
buildings under bombardment in land warfare.
c. Use of Foregoing for Military Purposes.
The besieging forces are not required to observe the signs indicating inviolability
of buildings that are known to be used for military purposes, such as quarters,
warehouses, observation posts, or signal installations.
47. Pillage Forbidden
The pillage of a town or place, even when taken
by assault, is prohibited. (HR, art. 28.)
Section V. STRATAGEMS
48. Stratagems Permissible
Ruses of war and the employment of measures necessary
for obtaining information about the enemy and the country are considered
permissible. (HR, art. 24.)
49. Good Faith
Absolute good faith with the enemy must be observed
as a rule of conduct; but this does not prevent measures such as using
spies and secret agents, encouraging defection or insurrection among the
enemy civilian population, corrupting enemy civilians or soldiers by bribes,
or inducing the enemy's soldiers to desert, surrender, or rebel. In general,
a belligerent may resort to those measures for mystifying or misleading
the enemy against which the enemy ought to take measures to protect himself.
50. Treachery or Perfidy
Ruses of war are legitimate so long as they do not
involve treachery or perfidy on the part of the belligerent resorting to
them. They are, however, forbidden if they contravene any generally accepted
rule.
The line of demarcation between legitimate ruses
and forbidden acts of perfidy is sometimes indistinct, but the following
examples indicate the correct principles. It would be an improper practice
to secure an advantage of the enemy by deliberate lying or misleading conduct
which involves a breach of faith, or when there is a moral obligation to
speak the truth. For example, it is improper to feign surrender so as to
secure an advantage over the opposing belligerent thereby. So similarly,
to broadcast to the enemy that an armistice had been agreed upon when such
is not the case would be treacherous. On the other hand, it is a perfectly
proper ruse to summon a force to surrender on the ground that it is surrounded
and thereby induce such surrender with a small force.
Treacherous or perfidious conduct in war is forbidden
because it destroys the basis for a restoration of peace short of the complete
annihilation of one belligerent by the other.
51. Legitimate Ruses
Among legitimate ruses may be counted surprises,
ambushes, feigning attacks, retreats, or flights, simulating quiet and
inactivity, use of small forces to simulate large units, transmitting false
or misleading radio or telephone messages, deception of the enemy by bogus
orders purporting to have been issued by the enemy commander, making use
of the enemy's signals and passwords, pretending to communicate with troops
or reinforcements which have no existence, deceptive supply movements,
deliberate planting of false information use of spies and secret agents,
moving landmarks, putting up dummy guns and vehicles or laying dummy mines,
erection of dummy installations and airfields, removing unit identifications
from uniforms, use of signal deceptive measures, and psychological warfare
activities.
52. Improper Use of Identifying
Devices
It is especially forbidden * * * to make
improper use of a flag of truce, of the national flag, or of the military
insignia and uniform of the enemy, as well as the distinctive badges of
the Geneva Convention. (HR, art. 23, par. (f).)
53. Flags of Truce
Flags of truce must not be used surreptitiously to
obtain military information or merely to obtain time to effect a retreat
or secure reinforcements or to feign a surrender in order to surprise an
enemy. An officer receiving them is not on this account absolved from the
duty of exercising proper precautions with regard to them.
54. National Flags, Insignia, and
Uniforms as a Ruse
In practice, it has been authorized to make use of
national flags, insignia, and uniforms as a ruse. The foregoing rule (HR,
art. 23, par. (f)) does not prohibit such employment, but does prohibit
their improper use. It is certainly forbidden to employ them during
combat, but their use at other times is not forbidden.
55. Improper Use of Distinctive
Emblem of Geneva Convention
The use of the emblem of the Red
Cross and other equivalent insignia must be limited to the indication
or protection of medical units and establishments, the personnel and material
protected by GWS and other similar conventions. The following are
examples of the improper use of the emblem: Using a hospital or other building
accorded such protection as an observation post or military office or depot;
firing from a building or tent displaying the emblem of the Red Cross;
using a hospital train or airplane to facilitate the escape of combatants;
displaying the emblem on vehicles containing ammunition or other nonmedical
stores; and in general using it for cloaking acts of hostility.
Section VI. TREATMENT OF PROPERTY
DURING COMBAT
56. Devastation
The measure of permissible devastation is found in
the strict necessities of war. Devastation as an end in itself or as a
separate measure of war is not sanctioned by the law of war. There must
be some reasonably close connection between the destruction of property
and the overcoming of the enemy's army. Thus the rule requiring respect
for private property is not violated through damage resulting from operations,
movements, or combat activity of the army; that is, real estate may be
used for marches, camp sites, construction of field fortifications, etc.
Buildings may be destroyed for sanitary purposes or used for shelter for
troops, the wounded and sick and vehicles and for reconnaissance, cover,
and defense. Fences, woods, crops, buildings, etc., may be demolished,
cut down, and removed to clear a field of fire, to clear the ground for
landing fields, or to furnish building materials or fuel if imperatively
needed for the army. (See GC, art. 53; par. 339b; herein, concerning
the permissible extent of destruction in occupied areas.)
57. Protection of Artistic and
Scientific Institutions and Historic Monuments
The United States and certain of the American Republics
are parties to the so-called Roetich Pact, which accords a neutralized
and protected status to historic monuments, museums, scientific, artistic,
educational, and cultural institutions in the event of war between such
States. (For its text, see 49 Stat. 3267; Treaty Series No. 899.)
58. Destruction and Seizure of
Property
It is especially forbidden * * * to destroy
or seize the enemy's property, unless such destruction or seizure be imperatively
demanded by the necessities of war (HR, art. 23, par. (g).)
59. Booty of War
a. Public Property. All enemy public movable
property captured or found on a battlefield becomes the property of the
capturing State.
b. Private Property. Enemy private movable
property, other than arms, military papers, horses, and the like captured
or found on a battlefield, may be appropriated only to the extent that
such taking is permissible in occupied areas (see pars.
405-411).
c.. Prisoners of War. The property which
prisoners of war are to be allowed to retain is specified in Article 18,
GPW (par. 94).