Law of War

The U.S. always tries to resolve disputes through diplomacy. But sometimes war becomes the only option. To limit unnecessary casualties and damage, the U.S. and other nations have agreed to abide by a specific set of rules and guidelines when waging war.

No matter your job, you can find yourself in a combat situation. What will you do? This section covers the laws that explain how to treat enemy prisoners of war (POWs) and which areas cannot be attacked, like hospitals and chapels. Knowing the Law of War helps you stay accountable and make the right decisions in wartime.

Overview

Objective: Identify basic facts and general principles about culture fundamentals in the Air Force.

Learning Outcomes

• Recognize the importance of basic Law of War principles.
• Discuss the difference between legal and illegal weapons.

Foundational Competencies

• Accountability — Accepts full responsibility for self and team; displays honesty and truthfulness.
• Resilience — The process of negotiating, managing, and adapting to significant sources of stress or trauma.

Summary

• Historical Background
• Comparison to other Policies
• Basic Law of War Principles
• Military Targets
• Legal and Illegal Weapons
• Prisoners of War
• Retained Personnel
• Reporting Requirements
• Law of War Violations

Historical Background

The Law of War arises from a desire among civilized nations to prevent unnecessary suffering and destruction while waging war. It helps regulate action and conduct among civilized nations during armed hostilities. It aims to provide protections for:

• Civilians
• Prisoners of war (POW)
• The wounded, sick, and shipwrecked

Law of War is a body of broad-based rules defining how to fight a war or armed conflict, and it defines punishments for violations.

It might seem strange that there are rules telling us how to fight wars — but these principles developed for a variety of reasons. Many of the rules evolved from customary international law and treaties. Customary international law is based on practices that nations have come to accept as legally required. These actions established the traditional rules governing the conduct of military operations during armed conflicts. Several treaties govern Law of War: the Geneva, Hague, and Chemical Weapons Convention.

Article VI of the U.S. Constitution states that treaty obligations of the U.S. are the "supreme law of the land." The U.S. Supreme Court has held that international law is part of U.S. law. This means treaties and agreements the U.S. enters into are considered to be of equal status to laws passed by Congress and signed by the President. Therefore, all persons subject to U.S. law must observe Law of War obligations. In particular, all military personnel must abide by the Law of War. Those who violate it may be held criminally liable for war crimes and court-martialed under the UCMJ.

There are political and philosophical reasons for the Law of War too:

• Minimizing the damage caused during war.
• Avoiding unnecessary suffering.
• Protecting human rights.
• Easing the transition from war back to peace.
• Keeping conflicts from degenerating into savagery and brutality, helping to restore peace.

Following the Law of War also maximizes mission effectiveness. Bombing a church used only for worship is a Law of War violation — most people would agree a church isn't a military threat. Instead of wasting resources on a church, those resources can be applied to necessary and immediate threats. By following Law of War rules, lives can be saved and resources can be used more effectively.

Comparison to Other Policies

Law of War differs from:

• Rules of Engagement (ROEs) — describe the circumstances and limitations under which forces will begin or continue to engage in combat. Ensure use of force is in line with national policy goals, mission requirements, and the rule of law. ROEs offer a more detailed application of Law of War principles tailored to the political and military nature of a mission.
• Code of Conduct (CoC) — outlines basic responsibilities and obligations of U.S. Armed Forces members. Serves as a moral guide to assist personnel in combat and helps a POW survive captivity with honor.

Basic Law of War Principles

The rules of the Law of War come from four basic principles:

Military Necessity

Take only actions necessary to achieve a legitimate military objective. Example: U.S. military targeting facilities, equipment, and forces — which, if destroyed, would lead as quickly as possible to the enemy's partial or complete submission. Targeting a church used only for worship provides no military objective. Churches generally should not be targeted.

Distinction

A requirement to distinguish between military objectives and civilian objects. Civilian objects are places of worship, schools, hospitals, and dwellings. Civilian objects lose their protected status if they are used for any military purpose. Therefore, an attacker must not intentionally attack civilians or employ methods/means that would cause excessive collateral civilian casualties. A defender must separate civilian and military targets or face loss of protected status.

Proportionality

Those who plan operations must take into consideration the extent of civilian destruction and probable casualties. Civilian losses must be proportionate to the military advantages sought. This concept does not apply to military facilities and forces, which are legitimate targets anywhere and anytime.

Humanity

Also called the principle of unnecessary suffering — prohibits the employment of any kind or degree of force that is not necessary for the purposes of war. Simply put: don't hurt people or destroy property just for the sake of wreaking havoc. Humanity also prohibits the use of poison or poisoned weapons in combat.

Military Targets

Classifying and targeting personnel

Most Law of War rules come from the Geneva Convention of 1949 — four international treaties protecting combatants and noncombatants from unnecessary suffering and private property.

During war, you must understand who you can target legally. You need to know the difference between a lawful combatant, noncombatant, and unlawful combatant.

If doubt exists about whether an individual is a lawful combatant, noncombatant, or unlawful combatant, that person shall be extended the protections of the Geneva POW Convention until status is determined. The capturing nation must convene a competent tribunal to determine the detained person's status.

The Law of War also protects civilian populations. Military attacks against cities, towns, or villages not justified by military necessity are forbidden. Attacking noncombatants and civilians for the sole purpose of terrorizing them is also prohibited.

Although civilians may not be a direct target, the Law of War recognizes that a military target need not be spared just because its destruction may cause collateral damage — unintended death or injury to civilians or damage to their property. Commanders and planners take this into consideration when choosing targets and seek to minimize casualties whenever possible.

Three classifications for targeting personnel

Lawful Combatants

A legal target — may be the object of direct attack. Authorized by the government and the Law of War to engage in hostilities. May be a member of a regular armed force or an irregular force, but must:

• Be commanded by a person responsible for subordinates.
• Have fixed distinctive emblems such as uniforms.
• Carry arms openly.
• Conduct operations according to the Law of War.

Noncombatants

NOT legal targets — may not be the object of direct attack. Not authorized by governmental authority or Law of War to engage in hostilities, and they don't engage. They include:

• Civilians accompanying the Armed Forces
• Medical personnel
• Chaplains
• POWs
• The wounded, sick, and shipwrecked
• Parachutists escaping disabled aircraft
• Civilians

A noncombatant poses no military threat, so there's no military necessity in targeting them.

If a noncombatant threatens your life, they lose their noncombatant status and become a lawful combatant.

Noncombatants may suffer injury or death incident to a direct attack without violating the Law of War — if the attack was on a lawful target by lawful means.

Medical personnel and chaplains usually wear the same uniforms as the rest of their service — but are recognized as the only ones authorized to wear an armband with a red cross.

Unlawful Combatants

Legal targets. Individuals who participate in hostilities without being authorized by governmental authority or international law. Examples:

• Bandits who rob and plunder.
• Civilians who attack a downed Airman.

As unlawful combatants, they may be killed or wounded and, if captured, may be tried as war criminals for their Law of War violations.

Targeting objects

The Law of War governs the conduct of aerial warfare. The principle of military necessity limits aerial attacks to lawful military targets — those that contribute to an enemy's military capability. Total or partial destruction, capture, or neutralization in the circumstances at the time of an attack must enhance legitimate military objectives.

Legal Targets

Many legal targets exist. Include:

• Any base, forward-located military base, areas housing troops, command posts, military dormitories, dining facilities, and military buildings.
• Civilian factories — legal targets if used to support the war effort.
• Power plants — legal targets if they provide electricity for military operations.
• Any military vehicles, ships, tanks, aircraft, and weapons.

Illegal Targets

Law of War specifically describes objects that cannot be the target of direct attack. Must be dedicated to peaceful purposes to enjoy immunity. Specific protection applies to:

• Medical units or establishments.
• Transports of wounded and sick personnel.
• Military or civilian hospital ships.
• Religious, cultural, and charitable buildings.
• Monuments.
• POW camps.

If these objects are used for military purposes, they lose their immunity. If a force stores rifles in a chapel or in the basement of a hospital, the chapel/hospital loses protected status. If placed near lawful military objects, they may suffer collateral damage when the lawful targets are attacked.

To gain protected status:

• Medical units must be marked with a Red Cross, Red Crescent, or Red Crystal.
• POW camps must be marked with a PW or PG.

Legal and Illegal Weapons

All weapons used by the Air Force are evaluated to ensure they are legal. Weapons are illegal if they cause unnecessary suffering. If the Air Force issues you a weapon, it's legal to use — but you must use it in the form it was issued.

Altering a weapon can make a legal weapon illegal.

Legal weapons:

• Napalm
• Flamethrowers
• White phosphorous
• Jacketed projectiles
• Nuclear weapons

Illegal weapons:

• Poisons
• Asphyxiating (choking) agents
• Other gases
• Expanding or exploding projectiles without a jacket
• Biological weapons

Hollow point bullets are illegal for most people to use — but some special forces and security forces personnel are authorized to use them. The Air Force will issue you hollow point bullets if you're authorized to use them.

Riot control agents (e.g., tear gas) present a unique problem for the Armed Forces. Under the Chemical Weapons Convention (CWC), riot control agents have been outlawed as a means of warfare — only the National Command Authority can authorize their use. The CWC authorizes their use for civilian law enforcement.

Prisoners of War

POWs receive special protections under Law of War. Combatants are entitled to POW status, as are civilians who accompany the armed forces and crew members of merchant marine and civil aircraft. Since it's not always clear who is a combatant, U.S. policy is to treat all people as POWs until their status can be properly determined. POWs are not returned until the end of the conflict.

POWs are supposed to be:

• Kept separated from the battlefield, if possible.
• Not used to shield other people.
• Handcuffs and blindfolds may be used temporarily and only if necessary to restrict vision or movement. Removed once the POW reaches a holding area.
• Not used for propaganda purposes.
• Entitled to humane treatment and respect, with protection against violence, intimidation, insults, and public curiosity.

  If an enemy of the U.S. captures an Air Force member and displays them blindfolded, handcuffed, being beaten, and forced to read prepared statements on international news, that's a clear violation of the Law of War.

• Entitled to proper care and allowed to keep certain personal property — wedding rings, family photographs.
• Any information they have pertaining to the military or war may be confiscated. Any weapons or items that can be used as weapons (shoelaces, helmets) may be confiscated.
• Entitled to food, clothing, shelter, tobacco, and medical care equal to the care the U.S. provides friendly forces.
• Must be provided proper protective gear — chemical mask, for example.
• During interrogations, POWs are only required to give:
  • Name
  • Rank
  • Date of birth (DOB)
  • Service or social security number
• Captors are not authorized to torture or beat POWs to get additional information.

Law of War allows POWs to work based on their rank — but work cannot be dangerous or aid the war effort. POWs are required to follow camp disciplinary rules and may receive certain punishment for violating them. They may even be court-martialed, but they're entitled to a fair trial and due process and to an interpreter to understand the charges and keep track of legal proceedings.

Retained Personnel

Medical personnel and chaplains are considered retained personnel and do not gain POW status. The enemy is only supposed to keep them long enough to provide care for their fellow comrades. Retained personnel are NOT to be held until the end of the conflict or war.

Reporting Requirements

You have an affirmative duty to report any suspected Law of War violations — by enemy, U.S., or allied forces. Report to:

• Chain of command
• Commander
• Staff Judge Advocate
• Local AF Office of Special Investigations (OSI)
• Military police
• Inspector General

It does not matter if your suspicions turn out to be wrong — always err on the side of caution and report up the chain.

You must also safeguard information or evidence concerning Law of War violations. Each Airman has an individual duty to know and abide by Law of War rules — including reporting suspected violations. If you don't report them, you can be subject to trial by an international court or face prosecution by the military.

Law of War Violations

You must know how to distinguish between lawful and unlawful orders:

• A lawful order can be presumed to be an order to perform a legal military duty.
• An unlawful order is clearly illegal — such as following an order that an ordinary person would know to be illegal.

If you're given an order to commit a criminal act or an act that violates the Law of War, do not obey it. Following such an order is not excusable, and saying that "you didn't know" is not a valid defense. For instance, an order to shoot unarmed civilians or kill a POW is illegal — and a clear Law of War violation.

Those who violate Law of War rules may be held criminally liable for war crimes and/or court-martialed.

If you feel you've been given an illegal order

1. Ask for clarification. Maybe the order was unclear or you didn't understand it.
2. Try repeating the order in a different way to verify your understanding.
3. If you still think the order is illegal, try to get it withdrawn.
4. If that doesn't work, disobey the order and seek immediate assistance from your chain of command.
5. If others obey the illegal order, you have a duty to report the Law of War violation to proper authorities.

Individual Airmen are responsible for their actions and expected to comply with the Law of War. Airmen who violate are subject to criminal prosecution and punishment. Prosecutions may take place in a national or international forum. In theory, a member of the armed forces could be court-martialed under the UCMJ or tried through an international military tribunal — like those used in Yugoslavia and Rwanda.

The defense "I was only following orders" has generally not been accepted by national or international tribunals as a defense in war crime trials.

You may wonder how some nations seemingly keep committing Law of War violations without being punished. It's true that some countries pick and choose what (if any) Law of War rules they'll follow. But just because other countries use unacceptable behavior, this does not relieve the U.S. of its obligation to follow the rules. We've decided to take the moral high ground. These countries can — and often are — held accountable, even if it takes years to bring violators to justice. Fortunately, no statute of limitations exists for prosecuting war crimes.

Summary

Due to the current state of affairs in the world, you may have to deploy to an area where you're placed in a combat situation. Morally, you have an obligation to fight wars in a way that causes the least destruction, collateral damage, and casualties — while still achieving the mission. War is not a pretty thing, but a war without rules and regulations is chaos.

Throughout your career, you must be aware of your responsibilities both in peace and at war. Your Core Values will be your moral compass to help you make the right decisions when the time comes.