28 This is recognized in GPW, Art 4A(2)(a) making command an indispensible characteristic of groups to be accorded combatant status. "It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates." US Supreme Court in In Re Yamashita, 327 US 1 (1946), quoted from 2 Friedman, Law of War 1605 (1973). On command responsibility see Parks, "Command Responsibility for War Crimes," 62 Mil. L. Rev. 1 (1973) and authorities, paragraph 15-2, this publication. 29 These stated purposes are recognized in Hague Convention IV (Preamble), the 1949 Geneva Conventions For the Protection of War Victims, as well as customary international law. FM 27-10, at 1 (1956); 10 Whiteman 298; US Navy, NWIP 10-2, Law of Naval Warfare at 2–3 (1959) and Ikle, Every War Must End (1971).

30 The law of armed conflict contains both affirmative obligations and prohibitions. Yet this body of law neither authorizes nor prohibits the basic decision to use force. That issue is related back to the concept of self defense-aggression discussed supra footnote 21. The law of armed conflict represents "standards of civilization" which have been shaped by the concepts of military necessity, humanity and chivalry. On state practice and legal materials relating to permissible and impermissible uses of force, see 12 Whiteman 1 (1971). For these reasons, the law of armed conflict cannot be argued to authorize the use of force since the legal regulation of that issue is by a separate and distinct legal regime. The law of armed conflict represents standards applicable whether or not the use of force was prohibited, permissible or unascertainable. See authorities supra note 24.

31 The close relationship of these legal principles to military doctrines such as economy of force should be recalled. AFM 1-1, United States Air Force Basic Doctrine, 15 January 1975, fully recognizes these elements in discussing command and control, that military objectives (and resultant force application) be appropriate to the political objectives established by national authorities, and that force be regulated. On discussion of military necessity, see Carnegie Endowment Pamphlet, supra note 24 at 14; Stone, supra note 1, at 352; McDougal, supra note 1, at 72, 528; Greenspan, Modern Law of Land Warfare 279 (1959); US Navy, NWIP 10-2, Law of

1-15

Naval Warfare at 2-4 (1959); FM 27-10, at 3; US Naval War College Studies, supra note 24, at 33; Note "Military Necessity in War Crimes Trials," 29 Brit. Y. B. Int'l. L. 442 (1953); 3 Hyde, International Law Chiefly as Interpreted and Applied by the United States 1801 (1945); "The Lieber Code." (Article 15) reprinted 1 Friedman, supra note 28, at 161.

32 See authorities, supra note 31, and those in chapter 5 and chapter 6.

33 Authorities supra note 31. Chivalry is implicit in other restrictions as seen from Articles 15 and 16 of the Lieber Code, being Instructions for the Government of Armies of the United States in the Field by Order of the Secretary of War, found 1 Friedman, supra note 28, at 161.

Article 15. 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.

Article 16. Military necessity does not admit of cruelty-that is, the infliction of suffering for the sake of suffering, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

34 Article 38, Statute of International Court of Justice, quoted supra note 8. For discussion, see FM 27-10, at 6; (noting Hague IV as customary law); NWIP 10-2, supra note 31, at 2-3; Brittin and Watson, International Law for Seagoing Officers 127 (1960); Mc Dougal, supra note 1, at 363; Taylor, Nuremberg and Vietnam 28 (1971); Wright, "Killing of Hostages as a War Crime," 25 Brit. Y. B. Int'l. L. 299, 303 (1948). On custom in international law, see 1 Whiteman 75; 1 O'Connell, supra note 5, at 6; Brownlie, supra note 5, at 4. An excellent compilation of sources including those which predate modern times back to the second millennium, B.C. (at the time of Egyptian-Sumerian wars) is Friedman, The Law of War, A Documentary History, 2 Volumes (1972).

35 1 Trial of the Major War Criminals Before the International Military Tribunal 221 (1947). Absent common agreement, the practice of states, while a useful guide to treaty interpretation, does not modify the legal obligation to comply therewith which is contractual in nature. Articles 26, 27, 31; Vienna Convention on the Law of Treaties, 23 May 1969, reprinted AFP 110-20, at 11-2. 1 O'Connell, supra note 5, at 261-262 notes "... the probative value of subsequent conduct is not high in the case of multilateral conventions, especially where the number of parties has considerably changed.'

36 6 Hackworth, supra note 5, at 271; FM 27-10, at 19; Rovine, "Contemporary Practice of the United States Relating to International Law," 68 Am. J. Int'l. L. 504, 528 (1974).

37 Hague Convention No. IV, Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277; TS 539; 1 Bevans 631 (1910), reprinted AFP 110-20, at 2-4.

38 Hague III, 36 Stat 2259; TS 538; 1 Bevans 619 (1910), reprinted AFP 110-20, at 2-2.

Hague IV, 36 Stat 2277; TS 539; 1 Bevans 631 (1910), reprinted AFP 110-20, at 2-4.

Hague V, 36 Stat 2310; TS 540; 1 Bevans 654 (1910), reprinted AFP 110-20, at 2-11.

Hague VIII, 36 Stat 2332; TS 541; 1 Bevans 669 (1910), discussed chapter 6, this publication.

Hague IX, 36 Stat 2351; TS 542; 1 Bevans 681 (1910), reprinted AFP 110-20, at 2-14.

Hague XI, 36 Stat 2396; TS 544; 1 Bevans 711 (1910), discussed chapter 4, this publication.

Hague XIII, 36 Stat 2415; TS 545; 1 Bevans 723 (1910), discussed chapter 4, this publication. See also Convention on Maritime Neutrality, signed at Havana 20 Feb 1928; 47 Stat 1989; TS 845; 2 Bevans 721; 135 LNTS 187 (1932). (limited number of parties).

1925 Geneva Gas Protocol TIAS 8061; 94 LNTS 65, entered into force for the United States, 10 April 1975 (discussed chapter 6, this publication), reprinted AFP 110-20, at 8-25.

Roerich Pact (A Treaty on Protection of Artistic and Scientific Institutions and Historical Monuments) 49 Stat 3267; TS 899; 3 Bevans 254 (1935) (limited to US and Inter-American Republics).

GWS, 6 UST 3114; TIAS 3362; 75 UNTS 31 (1956), reprinted AFP 110-20, at 1-3.

GWS-SEA, 6 UST 3217; TIAS 3363; 75 UNTS 85 (1956), reprinted AFP 110-20, at 1-16.

GPW, 6 UST 3316; TIAS 3364; 75 UNTS 135 (1956), reprinted AFP 110-20, at 1-27.

GC, 6 UST 3516; TIAS 3365; 75 UNTS 287 (1956), reprinted AFP 110-20, at 1-66.

Convention on High Seas, 29 April 1958, 13 UST 2312; TIAS 5200; 450 UNTS 92 (1962), reprinted AFP 110-20, at 7-10. Also see other Law of the Sea Treaties including Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 15 UST 1606; TIAS 5639; 516 UNTS 205 (1964), reprinted AFP 110-20, at 7-2; and Convention on the Continental Shelf 29 April 1958, 15 UST 471; TIAS 5578; 499 UNTS 311 (1964), reprinted AFP 110-20, at 7-7. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27 January 1967, 18 UST 2410; TIAS 6347; 610 UNTS 205 (1967), reprinted AFP 110-20, at 6-2.

The law of air, space, law of the sea and neutrality are discussed generally in chapter 2.

39 The importance of the law has not been seriously questioned by states in their public utterances although frequent disputes have arisen over what the law requires, particularly in maritime warfare (chapter 4). The term "codify" refers to incorporation of a preexisting law into specific treaty obligations. Both the 1907 Hague Peace Conferences and the 1949 Geneva Conferences were in part codification conferences.

40 The US has stressed the need for better observance and improvement of mechanisms for enforcement. See Report of US Delegations to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1st Sess. (1974) and 2nd Sess. (1975). For background, see ICRC Report to 22nd International Conference of the Red Cross, "Implementation and Dissemination of the Conventions" (Tehran Nov 1973); ICRC Report, Replies sent by Governments, "Questionnaire concerning measures intended to reinforce the implementation of the Geneva Conventions of August 12, 1949" (1972).

During both the Korean and Vietnam conflicts, a basic lack of international consensus on whether the conflict was an internal struggle (civil war: communist view) or an international conflict (US view) frustrated observance. Contrast this with the MidEast conflicts where there is consensus. Wright, "Legal Aspects of the Viet-nam Situation," 60 Am. J. Int'l. L. 750 (1966).

41 On criminal responsibility, see chapter 15. The law of armed conflict represents the fundamental legal basis behind rules of engagement-the method used in addition to the Uniform Code of Military Justice to enforce the obligations on individual members of the Armed Forces. The recognition that conflict occurs in a political context and that foreign policy objectives can be jeopardized or destroyed by violations represents an important reason to observe the law. Recall Clausewitz's dictum that war is a continuation of political intercourse. Hague IV, Article 1, for example, notes "The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations. . . .

42 DOD News Release No. 479-74 (10 Oct 1974). Address by General George S. Brown, Chairman of the Joint Chiefs of Staff.

43 Hague III; 2 Oppenheim's International Law 202 (Lauterpacht ed. 1952); Renault, "War and the Law of Nations in the Twentieth Century," 9 Am. J. Int'l. L. 1 (1915).

44 The shift began initially in 1928. See Kellogg Briand Peace Pact, supra note 21 ". . . solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with

Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. . . .

On cartels, parliamentaries, capitulations, surrender, armistice, cease fire and related topics, see FM 27-10; 2 Oppenheim, supra note 1, at 534, et seq; Levie, "The Nature and Scope of the Armistice Agreement," 50 Am. J. Int'l. L. 880 (1956). 10 U.S.C. § 899(2); Article 99, UCMJ, states, inter alia, "Any member of the armed forces who before or in the presence of the enemy . . . (2) shamefully abandons, surrenders, or delivers up any command

which it is his duty to defend; shall be punished by death or such other punishment as a court-martial may direct.

45 Authorities supra note 21. Also, Mc Dougal, supra note 1, at 540; FM 27-10, at 7-8; 10 Whiteman 27-66 (1968). DOD Policy (DOD Direc

tive 5100.77) requires compliance by US Armed Forces regardless of how the conflict is characterized. "US Defense Department Statement," 5 International Legal Materials 791 (1966) (quoted in footnote 2, chapter 13, this publication).

46 2 Oppenheim, supra note 1, at 248-253; also see authorities, supra note 23, and discussion of Common Article 3, 1949 Geneva Conventions, chapter 11, this publication.

47 If the United Nations picked and chose among the laws of war this would seem to be an invitation for the opposing belligerents to do the same. During the Korean War, as a matter of fact, the United Nations carefully observed the laws of war. This seems a more practical way of manifesting 'a superior legal and moral position'." US Naval War College, 1966 International Law Studies 24 (1966); McDougal, supra note 1, at 54. That violations are highly publicized is a function of the "propaganda value" found by parties to a conflict in violations by an adversary discoverable in any review of the popular press during any armed conflict.

48 The violation of Belgian and US Neutrality, and the British campaign relating to German atrocities in the first World War; as well as the massive violations by Germany during the 1941 invasion of the USSR (turning the population actively hostile) are illustrations. For discussion, see Lutz, "World War Propaganda," in Public Opinion and World Politics 151 (Wright ed. 1933); Ikle, Every War Must End (1971); Reed, "Address to the Air War College," 27 Aug 1974, contained in AUIPD, Supplemental Readings, The Laws of War Including the Law Applicable to Air Operations (1975).

49 FM 27-10, at 3-4; Spaight, Air Power and War Rights 270 (1947); Dunbar, "Military Necessity in War Crimes Trials," 29 Brit. Y.B. Int'l. L. 442 (1953); US Naval War College Studies, supra note 24, at 34; McDougal, supra note 1, at 528, 671. On military principles see Possony, Strategic Air Power (1943) and authorities chapter 5, paragraph 5-3, this publication.