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XVII Non-International Armed Conflict (NIAC)

Chapter Contents
17.1 Introduction
17.2 Application of International Law to NIACs
17.3 Special Agreements Between Parties to the Conflict
17.4 A States Use of Its Domestic Law and NIAC
17.5 Principle of Distinction in NIAC
17.6 Respect and Humane Treatment of Persons Taking No Active Part in
Hostilities in NIAC
17.7 Rules on Conducting Attacks in NIAC
17.8 Impartial Humanitarian Organizations and Humanitarian Activities During
NIAC
17.9 Protection of the Civilian Population in NIAC
17.10 Protection of Children in NIAC
17.11 Protection of Cultural Property in NIAC
17.12 Use of Captured or Surrendered Enemy Personnel in NIAC
17.13 Weapons in NIAC
17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC
17.15 Protection of Medical and Religious Personnel and Medical Transports in
NIAC
17.16 Display of the Distinctive Emblem in NIAC
17.17 Detention in NIAC
17.18 Non-Intervention and Neutral Duties in NIAC
17.1 INTRODUCTION
This Chapter addresses the law of war rules applicable to armed conflict not of an
international character, or non-international armed conflict (NIAC). Non-international armed
conflicts are those armed conflicts that are not between States. 1 In particular, this Chapter
addresses the rules applicable to State armed forces conducting military operations against nonState armed groups.
The application of the law of war to non-international armed conflict may be complex. 2
In U.S. practice, in certain cases, the rules applicable in international armed conflict have been
applied as a matter of policy to military operations in non-international armed conflict.
17.1.1 Non-International Armed Conflict Notes on Terminology. Non-international
armed conflict is commonly referred to by the acronym NIAC. Although there has been a
range of views on what constitutes a non-international armed conflict, the intensity of the
conflict and the organization of the parties are criteria that have been assessed to distinguish
1

Refer to 3.3.1 (International Armed Conflict and Non-International Armed Conflict).

Refer to 17.2 (Application of International Law to NIACs).

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between non-international armed conflict and internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence, and other acts of a similar nature. 3
A variety of terms have been used to describe factual situations that often may be
characterized as non-international armed conflict.
17.1.1.1 NIAC and Civil War. Civil war is a classic example of a noninternational armed conflict. For example, a non-international armed conflict could involve the
open rebellion of segments of a nations armed forces (sometimes called dissident armed forces)
against the incumbent regime, each claiming to be the legitimate government. 4
In some cases of civil war, the insurgent party has been recognized as a belligerent, and,
at least in some respects, the law of international armed conflict would be applied by the States
choosing to recognize the insurgent party as a belligerent. 5
17.1.1.2 NIAC and Internal Armed Conflict. In some cases, the term internal
armed conflict is used as a synonym for non-international armed conflict. Such usage may
reflect a traditional definition of non-international armed conflict as only those armed conflicts
occurring within the borders of a single State. 6 Non-international armed conflicts, however, are
classified as such simply based on the status of the parties to the conflict, and sometimes occur in
more than one State. 7 The mere fact that an armed conflict occurs in more than one State and
thus may be characterized as international in scope does not render it international in
character. 8
17.1.1.3 Transnational or Internationalized NIACs. Sometimes the terms of
transnational or internationalized are used to describe certain non-international armed
conflicts.
Transnational has been used to indicate that the non-international armed conflict takes
place in more than one State.

Refer to 3.4.2.2 (Distinguishing Armed Conflict From Internal Disturbances and Tensions).

See, e.g., LIEBER CODE art. 150 (Civil war is war between two or more portions of a country or state, each
contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also
sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those
containing the seat of government.).
5

Refer to 3.3.3 (State Recognition of Armed Groups as Belligerents).

See, e.g., GC COMMENTARY 36 (Speaking generally, it must be recognized that the conflicts referred to in Article
3 [of the GC] are armed conflicts, with armed forces on either side engaged in hostilitiesconflicts, in short, which
are in many respects similar to an international war, but take place within the confines of a single country.).
7

Refer to 3.3.1 (International Armed Conflict and Non-International Armed Conflict).

Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (The Court of Appeals thought, and the Government asserts, that
Common Article 3 [of the 1949 Geneva Conventions] does not apply to Hamdan because the conflict with al Qaeda,
being international in scope, does not qualify as a conflict not of an international character. 415 F. 3d, at 41.
That reasoning is erroneous. The term conflict not of an international character is used here in contradistinction to
a conflict between nations.).

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Internationalized has been used to indicate that multiple States may be involved in a
non-international armed conflict.
17.1.1.4 NIAC and Guerilla or Unconventional Warfare. Guerrilla warfare may
be understood to be military and paramilitary operations conducted in enemy-held or hostile
territory by irregular, predominantly indigenous forces. 9 Guerrilla operations or unconventional
warfare are common during non-international armed conflict. Such operations, however, are a
method of warfare that has been employed in international armed conflicts and occupation as
well.
17.1.1.5 NIAC and Rebellion or Insurrection. Rebellion, insurrection, or
insurgency may also be types of non-international armed conflict. 10 Counter-insurgency
operations generally occur in the context of non-international armed conflict, but could occur in
the context of an international armed conflict and occupation as well.
17.1.1.6 NIAC and Terrorism. Issues surrounding terrorism and the activities of
terrorist groups can arise in the contexts of non-international armed conflict, international armed
conflict, and, of course, can arise outside the context of armed conflict altogether. Acts of
terrorism are prohibited during international armed conflict and during non-international armed
conflict. 11
17.1.1.7 NIAC and Small Wars or Low-Intensity Conflict. Non-international
armed conflict has sometimes been discussed using the term low-intensity conflict. 12 The term
9

JOINT PUBLICATION 3-05.1, Joint Special Operations Task Force Operations, GL-11 (Apr. 26, 2007) (guerrilla
warfare. Military and paramilitary operations conducted in enemy-held or hostile territory by irregular,
predominantly indigenous forces. Also called GW. (JP 3-05.1)). See also FRANCIS LIEBER, GUERRILLA PARTIES
CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 7-8 (1862) ([B]ut it may be stated here that
whatever may be our final definition, it is universally understood in this country at the present time that a guerrilla
party means an irregular band of armed men, carrying on an irregular war, not being able, according to their
character as a guerrilla party, to carry on what the law terms a regular war. The irregularity of the guerrilla party
consists in its origin, for it is either self-constituted or constituted by the call of a single individual, not according to
the general law of levy, conscription, or volunteering; it consists in its disconnection with the army, as to its pay,
provision, and movements, and it is irregular as to the permanency of the band, which may be dismissed and called
again together at any time.).
10
See, e.g., LIEBER CODE art. 151 (The term rebellion is applied to an insurrection of large extent, and is usually a
war between the legitimate government of a country and portions of provinces of the same who seek to throw off
their allegiance to it and set up a government of their own.).
11

Refer to 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism); 17.6.5 (Prohibition on
Acts of Terrorism).
12

John M. Collins, U.S. Low Intensity Conflicts, 1899-1990, 4 (Congressional Research Service, Sept. 10, 1990)
(This survey locates LIC [Low-Intensity Conflict] on the conflict spectrum just above normal peacetime
competition and just below any kind of armed combat that depletes U.S. forces slightly, if at all (Figures 1 and 2
graphically contrast LIC with mid- and high-intensity conflicts). Limitations on violence, rather than force levels
and arsenals, determine the indistinct upper boundary of LIC. Large military formations conceivably could conduct
low-intensity operations for limited objectives using the most lethal weapons (perhaps for signalling), provided few
U.S. casualties and little U.S. damage ensued. The lower boundary, where nonviolent LICs abut normal peacetime
competition, is equally inexact. Political, economic, technological, and psychological warfare, waged for deterrent,
offensive, or defensive purposes, occupy prominent places. So do nonviolent military operations, typified by shows
of force and peacekeeping. Insurgencies, counterinsurgencies, coups detat, transnational terrorism,

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small wars has also been used in military doctrine to describe situations that may be
characterized as non-international armed conflicts. 13 Low-intensity conflict and small wars
are not synonymous with non-international armed conflict, but there is a high degree of overlap
between those categories and non-international armed conflict.
17.1.2 Important Commonalities Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict.
17.1.2.1 Common Baseline Rules. Certain baseline rules, in particular relating to
the humane treatment of detainees, must be observed regardless of the character of the armed
conflict. 14 The fact that certain baseline rules are common to international armed conflict and
non-international armed conflict means that it may be unnecessary to determine the character of
the armed conflict in order to assess whether the law has been violated.
17.1.2.2 Foundational Principles of the Law of War. The foundational principles
of the law of war are common to both international armed conflict and non-international armed
conflict. 15 Thus, reference to first principles in the law of war may be most useful in assessing
the rules applicable during non-international armed conflict. 16
17.1.2.3 Rules for Conducting Operations Against Unprivileged Belligerents.
Rules for conducting operations against unprivileged belligerents are found in both the law
applicable to international armed conflict and the law applicable to non-international armed
anti/counterterrorism, minor conventional wars, and narco conflict lie between those poles. Variations within each
category, overlaps, and interlocks are virtually endless.).
13

MARINE CORPS, Small Wars Manual, 1-1-1-2 (1940), reprinted as FLEET MARINE FORCE REFERENCE
PUBLICATION 12-15 (1990) (The ordinary expedition of the Marine Corps which does not involve a major effort in
regular warfare against a first-rate power may be termed a small war. It is this type of routine active foreign duty of
the Marine Corps in which this manual is primarily interested. Small wars represent the normal and frequent
operations of the Marine Corps. During about 85 of the last 100 years, the Marine Corps has been engaged in small
wars in different parts of the world. The Marine Corps has landed troops 180 times in 37 countries from 1800 to
1934. Every year during the past 36 years since the Spanish-American War, the Marine Corps has been engaged in
active operations in the field. Most of the small wars of the United States have resulted from the obligation of the
Government under the spirit of the Monroe Doctrine and have been undertaken to suppress lawlessness or
insurrection. Punitive expeditions may be resorted to in some instances, but campaigns of conquest are contrary to
the policy of the Government of the United States.).
14

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment,
1986 I.C.J. 14, 114 (219) (Because the minimum rules applicable to international and to non-international
conflicts are identical, there is no need to address the question whether those actions must be looked at in the context
of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked
for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in
each Convention, expressly refers to conflicts not having an international character.).
15

See Prosecutor v. Tadi, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 119 (Oct. 2, 1995) (Indeed, elementary considerations of humanity and
common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between
themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is
inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil
strife.). Refer to 2.1 (Introduction).
16

Refer to 17.2.2.1 (Use of Law of War Principles to Discern Rules Applicable to NIAC).

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conflict. 17 The rules for States conducting military operations against unprivileged belligerents
in international armed conflict are not significantly different from the rules for States conducting
military operations against non-State armed groups during non-international armed conflict.
17.1.3 Important Differences Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict.
17.1.3.1 Nationality and Territoriality Exclusions in the Law of International
Armed Conflict. Certain rules applicable to international armed conflict reflect concepts (e.g.,
nationality and territory) that preclude the application of those rules to internal armed conflicts.
For example, nationals who are in the power of their State of nationality would not be provided
POW status under the GPW or protected person status under the GC. 18 Thus, even if the GPW
and GC could otherwise be deemed applicable to a civil war, these exclusions based on
nationality would limit the application of many of the provisions of the GPW and GC (as a
matter of treaty law) to internal armed conflicts. In any case, it remains true that fundamental
principles guaranteeing humane treatment (e.g., Common Article 3 of the 1949 Geneva
Conventions) would apply in any such circumstances.
Similarly, it is the essence of belligerent occupation that it should be exercised over
foreign, enemy territory; 19 thus, occupation law rules would not apply to internal armed
conflict. 20
Certain non-international armed conflicts, however, are not internal armed conflicts. 21
17.1.3.2 Prevalence of Customary Law Applicable to NIAC as Opposed to Treaty
Law. There are fewer treaty provisions that address non-international armed conflict than that
address international armed conflict. 22 Put another way, practitioners are generally more likely
to encounter situations regulated by customary law in non-international armed conflict than in

17

Refer to 4.3 (Lawful Combatants and Unprivileged Belligerents).

18

Refer to 4.4.4.2 (Nationals of a State Who Join Enemy Forces); 10.3.3.1 (A States Own Nationals).

19

Refer to 11.2.2.3 (Of the Hostile Army Belligerent Occupation Applies to Enemy Territory).

20

See Richard A. Baxter, Ius in Bello Interno: The Present and Future Law, in JOHN NORTON MOORE, LAW AND
CIVIL WAR IN THE MODERN WORLD 518, 531 (1974) (Other provisions of the [Fourth Geneva] Convention apply to
territory of a party to the conflict and to occupied territory. In internal conflict, the lawful government and the
insurgents will both maintain that there is only territory of a party to the conflict. Territory cannot be belligerently
occupied by the lawful government or the rebels. There is no starting point which divides territory into friendly and
enemy areas, so that, when the latter type of area is occupied, it will be belligerently occupied. It surely cannot be
maintained that the insurgents should be required to treat all territory over which they exercise control as being
belligerently occupied or that the lawful government should be forced to treat territory liberated from the control of
rebels as belligerently occupied. It is of the essence of belligerent occupation that it should be exercised over
foreign, enemy territory. Such requirements as that of Article 43 of the Hague Regulations that the occupant must
respect, unless absolutely prevented, the laws in force in the country are simply unworkable in domestic
conflict.).
21

Refer to 17.1.1.2 (NIAC and Internal Armed Conflict); 17.1.1.3 (Transnational or Internationalized NIACs).

22

Refer to 17.2.1 (Treaties That Apply to NIAC).

1014

international armed conflict. Certain guidelines may be helpful in assessing customary


international law applicable to non-international armed conflict. 23
17.1.3.3 Important Substantive Differences Between the Law Applicable to
International Armed Conflict and the Law Applicable to Non-International Armed Conflict.
There are important substantive differences between the law applicable to international armed
conflict and the law applicable to non-international armed conflict, including the following three
examples.
First, the different circumstances that typically arise in non-international armed conflicts
as compared to international armed conflicts may need to be considered in applying the principle
of distinction. 24
Second, States have greater latitude to compel enemy persons to switch allegiance or to
serve the State in hostilities during non-international armed conflict than States have to compel
enemy nationals during international armed conflict. 25
Third, States have greater latitude to use their domestic law against enemy armed groups
in non-international armed conflict than States have to use their domestic law against enemy
forces or enemy nationals in international armed conflict. 26
17.2 APPLICATION OF INTERNATIONAL LAW TO NIACS
In some cases, there may be important substantive differences between the rules
applicable in international armed conflict and the rules applicable in non-international armed
conflict. 27 In some cases, only the general essence of a rule that applies during international
armed conflict applies during non-international armed conflict, as opposed to the detailed
provisions in some treaties relating to many aspects of international armed conflict. 28
The extent to which the law of war rules that apply during international armed conflict
must or should apply during non-international armed conflict has not been clearly defined as the

23

Refer to 17.2.2 (Assessing Customary International Law Applicable to NIAC).

24

Refer to 17.5 (Principle of Distinction in NIAC).

25

Refer to 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).

26

Refer to 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

27

Refer to 17.1.3.3 (Important Substantive Differences Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict).
28

See, e.g., Prosecutor v. Tadi, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 126-127 (Oct. 2, 1995) (The emergence of the aforementioned general
rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its
aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international
armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken
place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of
those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.).

1015

law of war has developed. 29 The discretion afforded States in applying law of war rules to noninternational armed conflicts results, in part, because treaty provisions applicable to international
armed conflict have been presumed not to apply to non-international armed conflict unless
explicitly made applicable. For example, in the 1949 Geneva Conventions, only Common
Article 3 applies to non-international armed conflict. 30 The discretion afforded States in this
regard may also be understood to result from the wide range of circumstances that constitute
non-international armed conflict. The United States has objected to efforts to make the
applicability of the rules of international armed conflict turn on subjective and politicized criteria
that would eliminate the distinction between international and non-international conflicts. 31
In the sections that follow, which reflect the practice of the U.S. armed forces in applying
the law of war to non-international armed conflict, the rules articulated may exceed the
requirements of applicable customary international law and treaty law.
17.2.1 Treaties That Apply to NIAC. Relatively few treaties have provisions that
expressly apply to non-international armed conflicts. Some treaties, however, may apply
implicitly to non-international armed conflict.
17.2.1.1 Treaties That Have Provisions That Explicitly Apply to NIAC. Certain
treaties to which the United States is a Party have provisions that explicitly apply to noninternational armed conflict. These treaties include:

the 1949 Geneva Conventions (i.e., Common Article 3); 32

the 1954 Hague Cultural Property Convention; 33

the CCW Amended Mines Protocol; 34

29

See, e.g., FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF
WAR 21 (1862) (The application of the laws and usages of war to wars of insurrection or rebellion is always
undefined, and depends on relaxations of municipal law, suggested by humanity or necessitated by the numbers
engaged in the insurrection. The law of war, as acknowledged between independent belligerents, is, at times, not
allowed to interfere with the municipal law of rebellion, or is allowed to do so only very partially, as was the case in
Great Britain during the Stuart rebellion, in the middle of last century; at other times, again, measures are adopted in
rebellions, by the victorious party or the legitimate government, more lenient even than the international law of
war.).
30

GC COMMENTARY 34 (To borrow the phrase of one of the delegates, Article 3 is like a Convention in
miniature. It applies to non-international conflicts only, and will be the only Article applicable to them until such
time as a special agreement between the Parties has brought into force between them all or part of the other
provisions of the Convention.).
31

Refer to 3.3.4 (AP I Provision on National Liberation Movements).

32

GPW art. 3 (In the case of armed conflict not of an international character occurring in the territory of one of the
High Contracting Parties .); GWS (same); GWS Sea (same); GC (same).
33

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (In the event of an armed conflict not of an
international character occurring within the territory of one of the High Contracting Parties, each party to the
conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for
cultural property.).

1016

the Amended CCW, including Protocols I, III, and IV; 35

the CCW Protocol V on Explosive Remnants of War; 36 and

AP III. 37

Treaties to which the United States is not a Party that have provisions applicable to
armed conflict not of an international character include:

AP II; 38 and

the Rome Statute of the International Criminal Court. 39

17.2.1.2 Implicit Application of Treaty Provisions to Situations in NIAC. Some


treaties may apply implicitly to certain situations in non-international armed conflict. For
example, the Genocide Convention does not expressly refer to non-international armed conflict,
but recognizes that acts of genocide are criminal whether committed in time of peace or time of
war and whether they are committed by constitutionally responsible rulers, public officials or
34

CCW AMENDED MINES PROTOCOL art. 1 (2. This Protocol shall apply, in addition to situations referred to in
Article I of this Convention, to situations referred to in Article 3 common to the Geneva Conventions of 12 August
1949. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 3. In case of armed
conflicts 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 the prohibitions and restrictions of this Protocol.).
35

CCW AMENDED art. 1 (2. This Convention and its annexed Protocols shall also apply, in addition to situations
referred to in paragraph 1 of this Article, to situations referred to in Article 3 common to the Geneva Conventions of
12 August 1949. This Convention and its annexed Protocols shall not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being
armed conflicts. 3. In case of armed conflicts 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 the prohibitions and restrictions of this
Convention and its annexed Protocols.).

36

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(3) (This Protocol shall apply to situations resulting
from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001.).
37

AP III art. 1 (2. This Protocol reaffirms and supplements the provisions of the four Geneva Conventions of 12
August 1949 (the Geneva Conventions) and, where applicable, of their two Additional Protocols of 8 June 1977
(the 1977 Additional Protocols) relating to the distinctive emblems, namely the red cross, the red crescent and the
red lion and sun, and shall apply in the same situations as those referred to in these provisions.).
38

AP II art. 1(1) (This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of
12 August 1949 without modifying its existing conditions of applications, shall apply to all armed conflicts which
are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol.).
39

ROME STATUTE art. 8(2)(c) (In the case of an armed conflict not of an international character, serious violations
of article 3 common to the four Geneva Conventions , namely, any of the following acts committed against
persons taking no active part in the hostilities); ROME STATUTE art. 8(2)(f) (Paragraph 2(e) applies to armed
conflicts not of an international character .).

1017

private individuals. 40 Similarly, the Convention Against Torture recognizes that No


exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as a justification of torture; thus, the
state of non-international armed conflict could not be justification for torture. 41
The prohibitions in Article 1 of the Chemical Weapons Convention have been interpreted
to apply to non-international armed conflict. 42
In addition, the prohibitions and restrictions on acquisition and development of biological
weapons in the Biological Weapons Convention effectively prevent the use of biological
weapons by States in non-international armed conflict. 43
Further, the obligations in the Child Soldiers Protocol relate implicitly to noninternational armed conflict. 44
17.2.1.3 Human Rights Treaties and NIAC. During an internal non-international
armed conflict, a State would continue to be bound by applicable human rights treaty
obligations. 45
The applicability of human rights treaty obligations during non-international armed
conflict may depend on a variety of factors. Such applicability depends on the terms of the
particular treaty in question, and whether the State has exercised an authorized derogation from
its provisions due to an emergency situation. The applicability of a human rights treaty
obligation with respect to an individual, such as an obligation under the International Covenant
on Civil and Political Rights, for example, may depend on whether the person is located outside
the territory of the State Party. 46 In addition, law of war rules constitute the lex specialis during
situations of armed conflict, and as such, serve as the controlling body of law with regard to the
conduct of hostilities and the protection of war victims. 47
17.2.2 Assessing Customary International Law Applicable to NIAC. As a consequence
of the fewer treaty provisions applicable to non-international armed conflict, many of the rules
applicable to non-international armed conflict are found in customary international law. The
40

Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 UNTS 277, 280
(The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime
under international law which they undertake to prevent and to punish.); id. at art. 4 (Persons committing genocide
or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible
rulers, public officials or private individuals.).

41

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10,
1984, 1465 UNTS 85, 114. Refer to 1.6.3.4 (Convention Against Torture).
42

Refer to 6.8.3.2 (Prohibitions With Respect to Chemical Weapons).

43

Refer to 6.9.1 (Biological Weapons Prohibition on Use as a Method of Warfare).

44

Refer to 4.20.5.2 (Child Soldiers Protocol).

45

Refer to 1.6.3 (Human Rights Treaties).

46

Refer to 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).

47

Refer to 1.3.2 (The Law of Wars Relationship to Other Bodies of Law).

1018

following guidelines may be helpful in assessing the customary international law applicable to
non-international armed conflict.
17.2.2.1 Use of Law of War Principles to Discern Rules Applicable to NIAC. The
fundamental principles of the law of war also provide the foundation for the rules applicable
during non-international armed conflict. 48 As during international armed conflict, the principles
of the law of war form the general guide for conduct during non-international armed conflict,
when no specific rule applies. 49
However, the application of law of war principles may differ insofar as the circumstances
in international armed conflicts may often be quite different from the circumstances in noninternational armed conflicts. 50
17.2.2.2 Considered Absence of a Restriction in NIAC. Under general principles
of legal interpretation, when a rule mentions specific circumstances or conditions in which it
applies, it may give rise to a presumption that the rule was not intended to apply in other related
circumstances or conditions that are not specifically mentioned. 51
Thus, if a treaty addresses both international armed conflict and non-international armed
conflict, and provides for a restriction in international armed conflict but does not provide for
that restriction in non-international armed conflict, then this omission may, to some extent,
reflect States views that such restrictions were not applicable in non-international armed
48

Refer to 17.1.2.2 (Foundational Principles of the Law of War).

49

Refer to 2.1.2.2 (Law of War Principles as a General Guide).

50

Refer to 17.5 (Principle of Distinction in NIAC).

51

See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (But whatever view might be taken of the question of
delivering over foreign seamen in the absence of a treaty, we are of opinion that the treaty with Russia having
contained a convention upon this subject, that convention must alone be looked to in determining the rights of the
Russian authorities to the reclamation of the relator. Where the signatory powers have themselves fixed the terms
upon which deserting seamen shall be surrendered, we have no right to enlarge those powers upon the principles of
comity so as to embrace cases not contemplated by the treaty. Upon general principles applicable to the
construction of written instruments, the enumeration of certain powers with respect to a particular subject-matter is a
negation of all other analogous powers with respect to the same subject-matter. As observed by Lord Denham in
Aspdin v. Austin, where parties have entered into written engagements with express stipulations, it is manifestly not
desirable to extend them by any implications; the presumption is that, having expressed some, they have expressed
all the conditions by which they intend to be bound under that instrument. The rule is curtly stated in the familiar
legal maxim, Expressio unius est exclusio alterius.) (internal citations omitted); The S.S. Wimbledon, (United
Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1, at 23-24 (Although the Kiel
Canal, having been constructed by Germany in German territory, was, until 1919, an internal waterway of the state
holding both banks, the Treaty has taken care not to assimilate it to the other internal navigable waterways of the
German Empire. A special section has been created at the end of Part XII, dealing with ports, waterways and
railways, and in this special section rules exclusively designed for the Kiel Canal have been inserted; these rules
differ on more than one point from those to which other internal navigable waterways of the Empire are subjected by
Articles 321 to 327. The provisions relating to the Kiel Canal in the Treaty of Versailles are therefore selfcontained; if they had to be supplemented and interpreted by the aid of those referring to the inland navigable
waterways of Germany in the previous Sections of Part XII, they would lose their raison dtre, such repetitions as
are found in them would be superfluous and there would be every justification for surprise at the fact that, in certain
cases, when the provisions of Articles 321 to 327 might be applicable to the canal, the authors of the Treaty should
have taken the trouble to repeat their terms or re-produce their substance.).

1019

conflict. 52 Similarly, States negotiated and adopted AP I and AP II at the same diplomatic
conference, and the omission from AP II of restrictions present in AP I may, to some extent,
reflect States views that such restrictions were not applicable in non-international armed
conflict. 53
17.2.2.3 Application of IAC Rules by Analogy. If an action is not prohibited by
the law of war applicable to international armed conflict, it generally would not be prohibited by
the law of war applicable to non-international armed conflict.
For example, analogous provisions of the GPW and GC may be helpful for understanding
the baseline standards in international law for detention because the baseline standards applicable
to all detainees during armed conflict (e.g., Common Article 3 of the 1949 Geneva Conventions)
are not more favorable than the treatment and protections applicable to POWs and civilian

52

See, e.g., II OFFICIAL RECORDS OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON
THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 157-58 (A/CONF.183/C.1/SR.4, 33-34) (2002)
(33. Mr. van der Wind (Netherlands), acting as Coordinator of part 2 of the draft Statute, said that the definition
of war crimes was divided into four sections, of which sections A and B concerned norms applicable in international
armed conflict and sections C and D those applicable in internal armed conflict. 41. Under section D,
subparagraph (f), the options were very similar to those proposed in section B, subparagraph (t), the differences in
wording stemming from the fact that the norms applicable to international armed conflict and the sources used were
somewhat different, as could be seen, for example, in options 2 and 3 which referred to armed forces or groups, and
in the reference to allowing children to take part.).
53

See, e.g., XIV OFFICIAL RECORDS OF THE CDDH 67 (CDDH/III/SR.8, 67-72) (Mr. ALDRICH (United States
of America) said that article 46 was important for giving general guidance to military commanders in the conduct of
their operations. His delegation supported the amendments to article 26 of draft Protocol II in document
CDDH/III/36. It was inappropriate to include the same detailed provisions in a protocol on non-international armed
conflicts as in one on international armed conflicts.); XIV OFFICIAL RECORDS OF THE CDDH 179
(CDDH/III/SR.20, 53) (Mrs. DARIIMAA (Mongolia) said that the Working Group should consider the differences
between article 28 of draft Protocol II and the corresponding article of draft Protocol I, since the practices and rules
current in international and internal law were not the same. Unless that was taken into account, the Protocol would
be inapplicable and might open the way to various forms of interference in the internal affairs of State.); XIV
OFFICIAL RECORDS OF THE CDDH 73 (CDDH/III/SR.9, 14) (Mr. BLISHCHENKO (Union of Soviet Socialist
Republics) said that he wished to reply to certain delegations which had expressed the desire to see the same
revisions in article 26 of draft Protocol II and in article 46 of draft Protocol I. He pointed out that there were
differences between international and internal conflicts. With regard to the latter, it was essential to make rules that
everyone could accept.); XV OFFICIAL RECORDS OF THE CDDH 460 (Committee III Report, CDDH/407/Rev.1,
40) (The Committee was also aided in its task by the somewhat similar word done at the third session of the
Conference by Committee I with respect to draft Protocol II. As a matter of drafting, the Committee adopted the
texts of those parts of Articles 6 and 10 of draft Protocol II which it decided to include in Article 65. The rule
applied was that the same text would be used unless there was reason for changing it inherent in the differences
between international and non-international armed conflicts.); XI OFFICIAL RECORDS OF THE CDDH 248
(CDDH/II/SR.25, 16-18) (Mr. IJAS (Indonesia) said that his delegation understood the concern of those who
objected to draft Protocol II on the grounds that some of its provisions interfered in the internal affairs of States and
were contrary to the principle of national sovereignty. The provisions of Part III of draft Protocol II should not
reproduce automatically those of the corresponding part of draft Protocol I, since they are concerned with different
type of armed conflict. For example, article 16, paragraph 3 could give rise to serious problems if it was left as it
stood.); XIV OFFICIAL RECORDS OF THE CDDH 312 (CDDH/III/SR.32, 15) (Mr. WOLFE (Canada), referring to
his delegations amendment (CDDH/III/221), said that he thought it was dangerous to try to introduce in draft
Protocol II a notion of perfidy which was only valid in international conflicts and very difficult to apply in internal
conflicts.).

1020

internees under the GPW and GC, respectively. 54 Thus, in some instances it may be appropriate
to implement measures during detention of persons during non-international armed conflict by
analogy to the internment of POWs during international armed conflict or by analogy to the
internment of protected persons in occupied territory. 55
17.2.2.4 Application of Law Enforcement Rules. The law applicable to noninternational armed conflict generally has been crafted to reflect baseline rules that States respect
even in addressing common criminals. 56 Thus, if an action would be permissible under the
domestic law enforcement rules of many States, it likely would be permissible as a matter of
customary international law during non-international armed conflict.
17.2.3 Application of Humanitarian Rules and the Legal Status of the Parties to the
Conflict. The application of humanitarian rules to enemy non-State armed groups does not affect
the legal status of such groups. 57 For example, a States decision to apply humanitarian rules in
military operations against a non-State armed group would not constitute an implicit recognition
of a government that such an armed group has purported to establish nor an implicit recognition
of the legitimacy of the armed groups cause. Such application also would not implicitly provide
the members of the armed group with any legal immunity from prosecution.
The principle that the application of humanitarian rules to an armed group does not affect
the legal status of that armed group has been recognized in a number of treaties. For example, by
its express terms, the application of Common Article 3 of the 1949 Geneva Conventions shall not
affect the legal status of the parties to the conflict. 58 Also by express treaty terms, the
application of the provisions of the CCW and its annexed Protocols to parties to a conflict that
are not High Contracting Parties that have accepted the CCW or its annexed Protocols shall not
change their legal status or the legal status of a disputed territory, either explicitly or implicitly. 59
54

Refer to 8.1.4.4 (Analogous GPW and GC Provisions).

55

Refer to 17.17.1.1 (Non-Punitive Detention in Non-International Armed Conflict).

56

See, e.g., GWS COMMENTARY 50 (What Government would dare to claim before the world, in a case of civil
disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was
entitled to leave the wounded uncared for, to inflict torture and mutilations and to take hostages? However useful,
therefore, the various conditions stated above may be, they are not indispensable, since no Government can object to
respecting, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few
essential rules which it in fact respects daily, under its own laws, even when dealing with common criminals.).

57

See LIEBER CODE art. 152 (When humanity induces the adoption of the rules of regular war toward rebels,
whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgement of
their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have no
right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own
acknowledgment of the revolted people as an independent power.).
58

GWS art. 3 (The application of the preceding provisions [in Article 3] shall not affect the legal status of the
Parties to the conflict.); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
59

CCW AMENDED art. 1(6) (The application of the provisions of this Convention and its annexed Protocols to
parties to a conflict which are not High Contracting Parties that have accepted this Convention or its annexed
Protocols, shall not change their legal status or the legal status of a disputed territory, either explicitly or
implicitly.); CCW AMENDED MINES PROTOCOL art. 1(6) (The application of the provisions of this Protocol to
parties to a conflict, which are not High Contracting Parties that have accepted this Protocol, shall not change their
legal status or the legal status of a disputed territory, either explicitly or implicitly.); CCW AMENDED MINES

1021

Further, by the express terms of the 1954 Hague Cultural Property Convention, its provisions
that relate to non-international armed conflict shall not affect the legal status of the parties to the
conflict. 60
17.2.4 Binding Force of the Law of War on Insurgents and Other Non-State Armed
Groups. The law of war applicable in a non-international armed conflict is binding upon all
parties to the armed conflict, including State armed forces and non-State armed groups. A
variety of explanations have been offered for this principle.
Customary law of war rules are binding on a State, even if it is not a Party to a treaty
containing the rule. 61 Similarly, customary law of war rules are binding on those parties to the
armed conflict that intend to make war and to claim the rights of a belligerent, even if they are
not States. 62
Treaty provisions that address non-international armed conflict provide that they apply
not only to the State, but to each party to the conflict. 63 In many cases, these treaty provisions
would also be binding on non-State armed groups as a matter of customary international law. 64

PROTOCOL art. 12(1)(b) (The application of the provisions of this Article to parties to a conflict which are not High
Contracting Parties shall not change their legal status or the legal status of a disputed territory, either explicitly or
implicitly.).
60

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(4) (The application of the preceding provisions shall not
affect the legal status of the parties to the conflict.).
61

Refer to 1.8 (Customary International Law).

62

See Trial of Henry Wirz, Argument of the Judge Advocate (Special Military Commission, Washington D.C., Oct.
20, 1865), reprinted in 40th Congress, House Executive Document No. 23, A Congressionally Mandated Report
Summarizing the Military Commissions Proceedings, 722, 764 (Dec. 7, 1867) (Whatever the form of government
may have been to which the leaders of the confederacy, so-called, aspired; whatever of wrong and injustice they
sought to embody in their system; with whatever of oppression and tyranny they sought to grind down their subjects,
the moment they asked a place among nations they were bound to recognize and obey those laws international
which are and of necessity must be applicable alike to all.); Chacon v. Eighty-Nine Bales of Cochineal, 5 F. Cas.
390, 394 (C.C.D. Va. 1821) (Marshall, C.J.) (whether an entity be a state or not, if she is in a condition to make
war, and to claim the character and rights of a belligerent, she is bound to respect the laws of war;). Refer to
3.4.1.2 (Non-State Armed Groups With the Intention of Conducting Hostilities).

63

See, e.g., GWS art. 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, .); 1954
HAGUE CULTURAL PROPERTY CONVENTION ART. 19(1) (In the event of an armed conflict not of an international
character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be
bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural
property.); CCW AMENDED MINES PROTOCOL art. 1(3) (In case of armed conflicts 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 the prohibitions and restrictions of this Protocol.); CCW AMENDED art. 1(3) (In case of armed conflicts
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 the prohibitions and restrictions of this Convention and its annexed Protocols.).
64

Special Court for Sierra Leone Appeals Chamber, Decision on Challenge to Jurisdiction: Lom Accord Amnesty,
SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), 47 (Mar. 13, 2004) (It suffices to say, for the purpose of the
present case, that no one has suggested that insurgents are bound because they have been vested with personality in
international law of such a nature as to make it impossible for them to be a party to the Geneva Conventions.

1022

As a practical matter, non-State armed groups would often be bound by their States
treaty obligations due to the very fact that the leaders of those non-State armed groups would
claim to be the States legitimate representatives. 65 Other practical considerations, such as the
desire to be seen as legitimate, may also contribute to their compliance with the law of war. 66
17.3 SPECIAL AGREEMENTS BETWEEN PARTIES TO THE CONFLICT
Parties to a conflict may enter into agreements to bring into force law of war rules. 67 For
example, pursuant to Common Article 3 of the 1949 Geneva Conventions, the parties to the
conflict should further endeavor to bring into force, by means of special agreements, all or part
of the other provisions of the 1949 Geneva Conventions. 68 Similarly, pursuant to the 1954
Rather, a convincing theory is that they are bound as a matter of international customary law to observe the
obligations by common Article 3 which is aimed at the protection of humanity.).
65

GWS COMMENTARY 51-52 (On the other hand, what justification is there for the obligation on the adverse Party
in revolt against the established authority? At the Diplomatic Conference doubt was expressed as to whether
insurgents could be legally bound by a Convention which they had not themselves signed. But if the responsible
authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent the
country, or part of the country. The authority in question can only free itself from its obligations under the
Convention by following the procedure for denunciation laid down in Article 63. But the denunciation would not be
valid, and could not in point of fact be effected, unless the denouncing authority was recognized internationally as a
competent Government. It should, moreover, be noted that under Article 63 denunciation does not take effect
immediately.).

66

GWS COMMENTARY 52 (If an insurgent party applies Article 3, so much the better for the victims of the conflict.
No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchy
or brigandage are right.). Refer to 18.2 (Prudential Reasons Supporting the Implementation and Enforcement of
the Law of War).

67

For example, Letter from James Robertson to George Washington (May 1, 1782) (Sir, A Commission from the
King appointing me Commander in Chief of his forces in this country having arrived by a late conveyance, I make it
one of my first cares, to convince you of my wish to carry on the war agreeable to the rules which humanity formed,
and the example of the politest nations recommended. I make this declaration of my resolution, in hope that I may
find a similar inclination in you. To effect this, let us agree to prevent or punish every breach of the rules of war
within the spheres of our command.) and, Letter from George Washington to James Robertson (May 5, 1782)
(Sincerely lamenting the cruel necessity, which alone can induce so distressing a measure in the present instance, I
do assure your Excellency, I am as earnestly desirous as you can be, that the war may be carried on agreeable to the
rules which humanity formed, and the example of the politest nations recommends, and shall be extremely happy in
agreeing with you to prevent or punish every breach of the rules of war within the sphere of our respective
commands.), reprinted in THE REMEMBRANCER; OR, IMPARTIAL REPOSITORY OF PUBLIC EVENTS FOR THE YEAR
1782, PART II, 156-57.
68

GWS art. 3 (The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.); GWS-SEA art. 3 (same); GPW art. 3
(same); GC art. 3 (same). For example, Bosnia and Herzegovina, Agreement No. 1 of May 22, 1992, reprinted in
Marco Sassli, Antoine A. Bouvier, Anne Quintin, III How Does Law Protect In War? Cases and Documents, Case
No. 204: Former Yugoslavia, Special Agreements Between Parties to the Conflicts, 116-17 2 (Mar. 2011) (In
accordance with the Article 3 of the four Geneva Conventions of August 12, 1949, the Parties agree to bring into
force the following provisions . Captured combatants shall enjoy the treatment provided for by the Third Geneva
Convention.); U.N. COMMISSION ON HUMAN RIGHTS, Report on the situation of human rights in Afghanistan
prepared by the Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human Rights
resolution 1984/55, U.N. Doc. E/CN.4/1985/21, 28-29 104 (Feb. 19, 1985) (Apparently in 1982 an agreement on
conditions for the internment of foreign prisoners was signed between the Afghan resistance movement and the
International Committee of the Red Cross (ICRC) under which the resistance expressed its intention to respect the
spirit of the provisions of the Geneva Convention relative to the Treatment of Prisoners of War. This involves the

1023

Hague Cultural Property Convention, the parties to the conflict shall endeavor to bring into force,
by means of special agreements, all or part of the other provisions of that Convention. 69
Parties to a non-international armed conflict may wish to conclude agreements on these
and a variety of other subjects, such as:

temporary ceasefire agreements to collect the wounded;

agreements to permit passage of medical or other relief supplies for the civilian
population;

agreements for the accommodation of detainees in other States; 70

agreements to establish hospital or safety zones;

agreements for the cessation of hostilities; and

agreements for post-conflict clearance of remnants of war. 71

17.3.1 Communications Between Parties to the Conflict. The procedures that are used
for non-hostile relations between belligerents during international armed conflict may also be
applied by parties to a non-international armed conflict. 72
As is the case during international armed conflict, parties to a non-international armed
conflict may agree to specific means of communication between them.

application of article 3 of the Geneva Conventions under which the parties to armed conflict can conclude
agreements or make statements specifying that they will apply all or part of the other provisions of the Conventions.
Analysing this agreement as calculated to set an example for better treatment of prisoners of war, witnesses stated
that since then the resistance movements had endeavoured to ensure that foreign prisoners were not tortured or
assassinated.).
69

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(2) (The parties to the Conflict shall endeavour to bring
into force, by means of special agreements, all or part of the other provisions of the present Convention.).
70

For example, International Committee of the Red Cross, External Activities: AfricaLatin AmericanAsia
Middle EastEurope, 24 INTERNATIONAL REVIEW OF THE RED CROSS 230, 239-40 (Jul.-Aug. 1984) (Negotiations
carried out by the ICRC with, successively, the USSR, the Afghan opposition movement, Pakistan and Switzerland
led to partial success. The parties agreed to the transfer and internment in a neutral country of Soviet soldiers
detained by the Afghan opposition movements, in application, by analogy, of the Third Geneva Convention, relative
to the treatment of prisoners of war. On the basis of this agreement, the ICRC has had access to some of the Soviet
prisoners in the hands of the Afghan movements and has informed them, in the course of interviews without witness,
of the possibility for transfer by the ICRC to Switzerland, where they would spend two years under the
responsibility and watch of the Swiss government before returning to their country of origin. To date, eleven
Soviet soldiers have accepted the proposal. The first three were transferred to Switzerland on 28 May 1982. Eight
others arrived in August and October 1982, January and October 1983, and February and April 1984. One of them
escaped to the Federal Republic of Germany in July 1983.).
71

Refer to 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by
the Cessation of Active Hostilities).
72

Refer to 12.3 (Methods for Communication Between Belligerents).

1024

17.4 A STATES USE OF ITS DOMESTIC LAW AND NIAC


17.4.1 Ability of a State to Use Its Domestic Law Against Non-State Armed Groups. A
fundamental principle of the international legal order is the sovereign equality of States, which
generally prohibits States from exercising sovereignty over one another. 73 However, the
principle of the sovereign equality of States is not applicable in armed conflicts between a State
and a non-State armed group. A State may exercise both sovereign and belligerent rights over
non-State armed groups. 74 This means that a State may use not only its war powers to combat
non-State armed groups, but it may also use its domestic law, including its ordinary criminal law,
to combat non-State armed groups.
The limits imposed by international law on a States action against non-State armed
groups do not alter the basic principle that the State may exercise its sovereign powers against
the non-State armed group. 75
17.4.1.1 A States Power to Prosecute Hostile Activities. An important
consequence of the fact that States may exercise sovereignty over persons belonging to a nonState armed group is that a State may prosecute individuals for participating in hostilities against
it. Such conduct frequently constitutes crimes under ordinary criminal law (e.g., murder, assault,
illegal destruction of property).
Although, during international armed conflict, lawful combatants are afforded certain
immunities from the enemy States jurisdiction, 76 persons belonging to non-State armed groups
lack any legal privilege or immunity from prosecution by a State that is engaged in hostilities
against that group.
On the other hand, the non-State armed group lacks authority to prosecute members of
the State armed forces. In addition, the non-State status of the armed group would not render
inapplicable the privileges and immunities afforded lawful combatants and other State officials.
Thus, for example, members of the armed forces of a State would continue to benefit from any
privileges or immunities from the jurisdiction of foreign States that sought to exercise

73

See Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 2012 I.C.J. 99, 123
(57) (The Court considers that the rule of State immunity occupies an important place in international law and
international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1,
of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal
order.).

74

The Prize Cases, 67 U.S. 635, 673 (1863) (Now, it is a proposition never doubted, that the belligerent party who
claims to be sovereign, may exercise both belligerent and sovereign rights, .).
75

CCW AMENDED art. 1(4) (Nothing in this Convention or its annexed Protocols shall be invoked for the purpose
of affecting the sovereignty of a State or the responsibility of the Government, by all legitimate means, to maintain
or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.).
Consider AP II art. 3(1) (Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a
State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in
the State or to defend the national unity and territorial integrity of the State.).

76

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

1025

jurisdiction with respect to the actions of such State armed forces in a non-international armed
conflict. 77
17.4.1.2 Range of Activities Subject to Prosecution. A State may also use its
domestic law to make punishable a wide range of activity that extend beyond the activities that
constitute actual fighting against the State. For example, joining the non-State armed group,
providing material support to the armed group, failing to report the treasonous activities of the
armed group, and other conduct may be punishable under a States domestic law. 78
17.4.1.3 Other Sovereign Authorities. In addition to the power to criminalize
certain conduct, a State may use its law and other regulatory powers in its effort to address the
threat of non-State armed groups.
For example, the State could use its authority to tax, regulate, seize, or destroy property
(e.g., weapons, vehicles, food, and medical equipment) within its jurisdiction as part of its effort
against the non-State armed group. 79 The use of these sovereign powers would be subject to
domestic law restrictions, and might not depend on whether such action would be imperatively
required by the necessities of war the standard for the seizure of destruction of enemy property
during international armed conflict. 80 In any event, however, it would not be permissible for the
State to seek to starve civilians as a method of combat. 81

77

For example, Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in THE DIPLOMATIC AND OFFICIAL
PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 124 (1848) (This doubt has occasioned the President
some hesitation; but he inclines to take it for granted that the main purpose of the instruction was, to cause it to be
signified to the government of the United States that the attack upon the steamboat Caroline was an act of public
force, done by the British colonial authorities [intended to address insurgents], and fully recognized by the queens
government at home; and that, consequently, no individual concerned in that transaction can, according to the just
principles of the laws of nations, be held personally answerable in the ordinary courts of law as for a private offense;
and that upon this avowal of her majestys government, Alexander McLeod, now imprisoned on an indictment for
murder alleged to have committed in that attack, ought to be released by such proceedings as are usual and are
suitable to the case.).
78

For example, 18 U.S.C. 2339B(a)(1) (Whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15
years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as
defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section
212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism
(as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).); 18
U.S.C. 2382 (Whoever, owing allegiance to the United States and having knowledge of the commission of any
treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President
or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of
misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.).
79

For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, 3-170 (Apr.
2009) (Resource control measures include control of select resources to include foodstuffs, medical supplies, and
key equipment through: Rationing or purchase permits Registration of firearms. Registration of automobiles
and trucks. Export and import restrictions.).

80

Refer to 5.17.2 (Enemy Property Military Necessity Standard).

81

Refer to 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).

1026

17.4.2 Emergency Laws and Regulations. Many States have laws permitting the
government to alter or suspend laws (such as a declaration of martial law, and the establishment
of curfews and other controls on the movement of persons and traffic), to enact emergency
regulations (such as the establishment of monetary or trade regulations, or the rationing of food,
fuel, and other critical materials), and to take other steps to protect the public (such as the
issuance of identification cards, the development of detention rules for members of non-State
armed groups, and the establishment of special emergency courts). 82
The full range of actions that a State may take under its domestic law during noninternational armed conflict would depend on the content of that law, including applicable
constitutional restrictions. 83
17.4.3 Special Courts. As part of its emergency regulations, a State may establish special
or emergency courts for cases involving unprivileged belligerents or other persons suspected of
committing offenses related to the non-international armed conflict.
Such courts must be regularly constituted and afford all the judicial guarantees that are
recognized as indispensable by civilized peoples. 84 Such courts may distinguish based on
82

For example, David Galula, Pacification in Algeria, 1956-1958, 21 (RAND Corporation, 2006) (In the existing
legal framework, proclamation of martial law was the only provision in case of disturbances endangering the
security of the state. It would have entailed handing over all powers to the military authority and suspending private
and public liberties. Government and Parliament considered this step too extreme. Hence they devised a new
contingency, the so-called state of emergency, which was declared for the first time for the Constantine area and
for Kabylia in April 1955, and was extended to all Algeria in August 1955. Parliament voted a Special Powers Act
(with the support of the Communists!), which gave the government a free hand for conducting its policy in Algeria
by decree, notably in matters pertaining to economic development, economic and social reforms, territorial
reorganization, public order, security of persons and property, and protection of the integrity of the territory. These
special powers were vested in the existing government and would lapse with the end of its incumbency; the
succeeding government would have to request an extension from the Parliament. The government in turn gave
authority to the Minister-Resident (who by then had replaced the Governor General in Algiers) to regulate
movements of persons and goods, assign places of residence, create forbidden zones, order searches, ban meetings,
control the press, dissolve associations, collect reparations for willful damage and for aid given to the rebels,
suspend or transfer civil servants, deprive elected representatives of their seats, postpone by-elections, and delegate
certain civil powers to the military. Travel between France and Algeria was made subject to strict control (at least in
theory).); FRANK KITSON, GANGS AND COUNTER-GANGS 44 (1960) (The legal code in Kenya in October 1952 was
not very different from that in England. Certain acts such as theft or murder were illegal and if you committed them
you were prosecuted. When the Emergency started some extra laws were made to fit the special circumstances. For
example, it became illegal to administer the Mau Mau oath or to carry arms and certain areas of the forest were
placed out of bounds. These extra laws, and there were many of them, were known as Emergency Regulations.).
83

For example, FRANK KITSON, GANGS AND COUNTER-GANGS 289 (1960) (No country which relies on the law of
the land to regulate the lives of its citizens can afford to see that law flouted by its own government, even in an
insurgency situation. In other words everything done by a government and its agents in combating insurgency must
be legal. But this does not mean that the government must work within exactly the same set of laws during an
insurgency as existed beforehand, because it is a function of a government when necessary. It does not mean that
the law must be administered in exactly the same way during an uprising as it was in more peaceful times, because
once again a government has the power to modify the way in which the law is administered if necessary, for the
wellbeing of the people, although the exercise of such power is usually and rightly subject to considerable
constitutional restraint.).
84

Refer to 8.16 (Criminal Procedure and Punishment).

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nationality. 85 The procedures of such courts may deviate from those applicable during ordinary
proceedings, but deviations should be warranted by practical need. 86
17.4.4 Reintegration Programs and Amnesty. States have used reconciliation and
reintegration programs during hostilities as alternatives to prosecution to seek to de-radicalize
and rehabilitate violent extremists.87
Although amnesty is normally left to the discretion of the State, AP II provides that, at
the end of hostilities, the authorities in power shall endeavor to grant the broadest possible
amnesty to persons who have participated in the armed conflict, or those deprived of their liberty
for reasons related to the armed conflict, whether they are interned or detained. 88

85

For example, 10 U.S.C. 948b ((a) Purpose. This chapter establishes procedures governing the use of military
commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable
by military commission.) (emphasis added).
86

See Hamdan v. Rumsfeld, 548 U.S. 557, 632-33 (2006) (The Government offers only a cursory defense of
Hamdan's military commission in light of Common Article 3. As Justice Kennedy explains, that defense fails
because [t]he regular military courts in our system are the courts-martial established by congressional statutes. At
a minimum, a military commission can be regularly constituted by the standards of our military justice system
only if some practical need explains deviations from court-martial practice. As we have explained, no such need
has been demonstrated here.) (internal citations omitted); id. at 645-46 (Kennedy, J., concurring) (At a minimum a
military commission like the one at issue--a commission specially convened by the President to try specific persons
without express congressional authorization--can be regularly constituted by the standards of our military justice
system only if some practical need explains deviations from court-martial practice. Relevant concerns, as noted
earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not
mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional
principle that congressional statutes can be controlling, including the congressional direction that the law of war has
a bearing on the determination.).
87

For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for
War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 131-34 (2008)
(In Pakistan, there is a reintegration program akin to the idea of it takes a village. Village loyalties are
paramount, and Pakistani leaders have found that returning a former combatant to his village and holding the village
responsible for his conduct is a successful way to ensure that the person does not return to violence. Under this
program, a village must agree to accept the return of the person and must pay the Government of Pakistan a
retainer equal to about $5000 that it forfeits if the individual returns to hostilities. The Kingdom of Saudi
Arabia uses a similar program, referred to as a counseling program, to de-radicalize and reintegrate former
security prisoners back into society. Prisoners who have not committed capital crimes or killings enter the
program immediately after they are captured. Upon release, the former prisoners are then reconnected with their
families and given psychological evaluation and counseling. After a few months of rehabilitation, they are brought
into contact with moderate Islamic scholars and encouraged to enter into discussions about their beliefs. The
moderate scholars are able to counter extremist views with the Koran and other authoritative texts to explain
alternative interpretations that the former prisoner may not have heard before. Along with the counseling program,
the Saudis try to convince the former combatants that they have a stake in a peaceful and stable government by
encouraging them to marry, paying for their weddings and subsequent education for their children, and helping them
to find suitable employment and housing.).
88

Consider AP II art. 6(5) (At the end of hostilities, the authorities in power shall endeavour to grant the broadest
possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for
reasons related to the armed conflict, whether they are interned or detained.).

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17.5 PRINCIPLE OF DISTINCTION IN NIAC


As discussed below, the principle of distinction applies during non-international armed
conflict. It may be important to note certain differences between the situations that typically
arise in non-international armed conflict as compared to those typically arising in international
armed conflict.
17.5.1 Discrimination in Conducting Attacks Against the Enemy in NIAC. Parties to a
conflict must conduct attacks in accordance with the principle of distinction. 89
As during international armed conflict, an adversarys failure to distinguish its forces
from the civilian population does not relieve the attacking party of its obligations to discriminate
in conducting attacks. 90 On the other hand also as during international armed conflict such
conduct by the adversary does not increase the legal obligations on the attacking party to
discriminate in conducting attacks against the enemy. For example, even though tactics used by
non-State armed groups may make discriminating more difficult, State armed forces though
obligated to be discriminate are not required to take additional protective measures to
compensate for such tactics.
17.5.1.1 Increased Difficulty in Identifying Enemy Forces and Other Military
Objectives. During international armed conflict, State armed forces generally are readily
distinguishable from the civilian population. Traditionally, conventional armed forces would
often confront one another, with the civilian population of each opposing State remaining to the
rear of the lines separating their respective military forces. 91 During non-international armed
conflict, however, discriminating in conducting attacks against the enemy may be more difficult
because non-State armed groups often seek to blend in with the civilian population. 92
17.5.1.2 Different Support Structures for Non-State Armed Groups. In addition to
non-State armed groups, other military objectives may also be more difficult to identify because
89

Refer to 17.7 (Rules on Conducting Attacks in NIAC).

90

Refer to 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).

91

For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 26 (1984) (The Falkland-Malvinas Islands' conflict provides a rare example of
hostilities conducted by both sides with particular concern for the safety of the civilian population, as there were
three civilian casualties. The instructions received both by the Argentine armed forces when disembarking on the
island of South Georgia and on the archipelago, and by the British pilots and soldiers emanated from the desire to
respect the civilian population. However, mention must also be made of the precautionary measures which were
taken by the Parties to the civilian population in accordance with Part II of the Fourth Convention.).
92

For example, Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the
American Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717 (As recent events have shown, al-Qaeda has not
abandoned its intent to attack the United States, and indeed continues to attack us. As you know, this is a conflict
with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks
against us and our allies while hiding among civilian populations. That behavior simultaneously makes the
application of international law more difficult and more critical for the protection of innocent civilians.).

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non-State armed groups often do not use military infrastructure (e.g., military bases, logistics
facilities) to conduct and sustain their operations. Rather, non-State armed groups may seek to
use ostensibly civilian buildings and resources to conduct and sustain their operations. Denying
non-State armed groups such support may be particularly important to the success of military
operations and justifiable under the law of war. 93
17.5.1.3 Increased Strategic Importance of Minimizing Incidental Civilian
Casualties. For various reasons, there may be an increased emphasis by State armed forces on
minimizing the risk of incidental civilian casualties, even beyond the requirements of the law of
war.
The sympathy and support of the civilian population are frequently important objectives
in non-international armed conflict. 94 In order to ensure such support, commanders and their
forces may operate under rules of engagement that are more restrictive than what the law of war
requires. 95

93

Christopher Paul, Colin P. Clarke, and Beth Grill, Victory Has a Thousand Fathers: Sources of Success in
Counterinsurgency, 98 (RAND Corporation, 2010) (The ability of insurgents to replenish and obtain personnel,
materiel, financing, intelligence, and sanctuary (tangible support) perfectly predicts success or failure in the 30
COIN cases considered here. In all eight cases in which the COIN force prevailed, it also disrupted at least three
insurgent support factors, while none of the COIN forces in the 22 losing cases managed to disrupt more than
two.); Robert Wayne Gehring, Protection of Civilian Infrastructures, 42 LAW AND CONTEMPORARY PROBLEMS 86,
95 (1978) (The importance of those who collect funds for the insurgent organizations operations, gather and
analyze information about government forces, procure the necessary supplies from within or without the country,
organize the delivery of the supplies to the military forces of the insurgency, and organize the recruitment of
members of the local population cannot be overestimated. While these functions may be performed by military
members of the movement, in many cases military training is not required or is not even an asset in their
performance. One experienced observer, Sir Robert Thompson, believes that so long as the supporting organization
remains intact, killing insurgents in the field is largely useless: the casualties will be replaced by new recruits. A
study of characteristics that determined the outcome in forty-four revolutions of this century found the single most
important factor was not battlefield success but whether the government was successful in interdicting the
insurgents supply of arms and ammunition. The government cannot rely upon success on the field of battle to bring
its ultimate victory. It must starve the insurgent military forces by uncovering and neutralizing the civilian
infrastructure supporting those military forces.).
94

FRANK KITSON, BUNCH OF FIVE 59, 282, 289 (1977) (The first aim of a government in an Emergency is to retain
or regain the allegiance of the population. [] There has never been much doubt that the main characteristic which
distinguishes campaigns of insurgency from other forms of war is that they are primarily concerned with the struggle
for mens minds, since only by succeeding in such a struggle with a large enough number of people can the rule of
law be undermined and constitutional institutions overthrown.).

95

For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted in
International Security Assistance Force Afghanistan, Headquarters, General Petraeus Issues Updated Tactical
Directive: Emphasizes Disciplined Use of Force, Aug. 4, 2010 (We must continue indeed, redouble our
efforts to reduce the loss of innocent civilian life to an absolute minimum. Every Afghan civilian death diminishes
our cause. If we use excessive force or operate contrary to our counterinsurgency principles, tactical victories may
prove to be strategic setbacks. We must never forget that the center of gravity in this struggle is the Afghan people;
it is they who will ultimately determine the future of Afghanistan ... Prior to the use of fires, the commander
approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence,
fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational
security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with the
previous version, does not prevent commanders from protecting the lives of their men and women as a matter of

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17.5.2 Distinguishing State Forces From the Civilian Population in NIAC. During noninternational armed conflict, as during international armed conflict, the principle of distinction
prohibits the use of protected persons or objects to shield, favor, or impede military operations. 96
However, it may be important to consider certain differences in the circumstances arising in noninternational armed conflict.
17.5.2.1 Positioning Military Forces Near the Civilian Population to Win Their
Support and to Protect Them. During non-international armed conflict, insurgents or terrorists
may seek to attack the civilian population, and the use of the States forces to protect the civilian
population from such attacks may be a key objective of State operations in non-international
armed conflict. 97 Thus, positioning military forces near the civilian population may be essential
to the protection of the civilian population, and States have not interpreted such practices to be
inconsistent with the principle of distinction. 98
17.5.2.2 Role of Civilian Personnel, Including Law Enforcement Personnel, in
Addressing Non-State Armed Groups. Members of States civilian agencies, such as judges,
prosecutors, and police and other members of its law enforcement apparatus, often play a critical
role in addressing non-State armed groups. 99 Although such personnel might be viewed by the
adversary as military objectives or as taking a direct part in hostilities, States have not
interpreted the principle of distinction to require the separation of such personnel from the
civilian population in non-international armed conflict.

self-defense where it is determined no other options are available to effectively counter the threat.).) (ellipsis in
original).
96

Refer to 17.6.3 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
97

For example, General David Petraeus, Multi-National Force Iraq Counterinsurgency Guidance, 1 (Jun. 13,
2007) (1. Secure the people where they sleep. Population security is our primary mission. And achieving
population security promises to be an extremely long-term endeavor a marathon, not a sprint so focusing on this
mission now is essential. Most extra-judicial killings occur at night and in peoples homes, while most spectacular
terrorist attacks occur during the day, where people shop, work and play anywhere they gather publicly. These
key areas must be secured. Once secured, an area cannot be abandoned; it must be permanently controlled and
protected, 24 hours a day, or else the enemy will re-infiltrate and kill or intimidate those who have supported us.
This protection must be kept up until the area can be effectively garrisoned and controlled by Iraqi police (ideally
from the area being secured) and other security services. We cant be everywhere therefore you must assess your
AOR, identify priority areas, work to secure them first, and then expand into other areas.).
98

For example, General David Petraeus, International Security Assistance Force/United States Forces-Afghanistan
Headquarters, COMISAFs Counterinsurgency Guidance, 1 (Aug. 1, 2010) (Live among the people. We cant
commute to the fight. Position joint bases and combat outposts as close to those we're seeking to secure as is
feasible. Decide on locations with input from our partners and after consultation with local citizens and informed by
intelligence and security assessments.).
99

For example, A.H. Peterson, G.C. Reinhardt and E.E. Conger, Symposium on the Role of Airpower in
Counterinsurgency and Unconventional Warfare: The Malayan Emergency, 13 (RAND Corporation, Jul. 1963)
(COMMODORE GARRISSON: This Malayan campaign was run basically as a civilian operation by the civilian
power. The first line of defense was the civilian Police, who received more equipment than the normal police. Any
military operation had to be cleared with the civilian authority, who in effect called for military operations of a
specific nature. I think this is the first thing to bear in mind. Police provided protection of the local population
wherever possible. The true military forces went out to try to get the bandits.).

1031

17.6 RESPECT AND HUMANE TREATMENT OF PERSONS TAKING NO ACTIVE PART IN HOSTILITIES
IN NIAC
All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person, honor and
convictions, and religious practices. They shall in all circumstances be treated humanely,
without any adverse distinction. 100
In addition, the following prohibitions apply:
17.6.1 Prohibition on Declaring That No Quarter Be Given. It is prohibited to order that
there shall be no survivors. 101
17.6.2 Prohibition on the Taking of Hostages. The taking of hostages is prohibited. 102
17.6.3 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede
Military Operations. It is prohibited to use civilians, persons placed hors de combat, or other
protected persons to shield, favor, or impede military operations. 103
17.6.4 Prohibition on Pillage. Pillage is prohibited. 104 There is an affirmative obligation
to take measures to protect the wounded, sick, and shipwrecked from pillage, and the dead from
being despoiled. 105
17.6.5 Prohibition on Acts of Terrorism. It is prohibited to commit, or threaten to
commit, acts of terrorism against persons who do not take a direct part or who have ceased to
take part in hostilities. 106

100

Consider AP II art. 4(1) (All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and
religious practices. They shall in all circumstances be treated humanely, without any adverse distinction.).

101
Consider AP II art. 4(1) (It is prohibited to order that there shall be no survivors.). Refer to 5.5.7 (Prohibition
Against Declaring That No Quarter Be Given).
102

See GWS art. 3 (prohibiting taking of hostages;); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3
(same). Consider AP II art. 2 (prohibiting taking of hostages;). Refer to 5.16.3 (Prohibition on Taking
Hostages).
103

Refer to 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
104

Consider AP II art. 4(2)(g) (prohibiting pillage at any time and in any place whatsoever against [a]ll persons
who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been
restricted). Refer to 5.17.4 (Pillage Prohibited).
105

Refer to 17.14.3 (Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).

106

Consider AP II art. 4(2) (prohibiting with respect to all persons who do not take a direct part or who have ceased
to take part in hostilities, whether or not their liberty has been restricted, d) acts of terrorism and h) threats to
commit any of the foregoing acts). Refer to 10.5.3.2 (Collective Penalties and Measures of Intimidation or
Terrorism).

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17.6.6 Prohibition on Offering of Rewards for Persons Dead or Alive. As during


international armed conflict, it is prohibited to offer a reward for enemy persons to be turned
over dead or alive. 107 On the other hand, as in international armed conflict, there is no
prohibition against offering rewards for the apprehension of insurgents or for giving information
leading to the apprehension or killing of insurgents in combat. 108
17.6.7 Prohibition on Collective Punishment. Collective punishments, whether
administered by a court or through administrative measures, are prohibited. 109 Collective
penalties are prohibited as a general matter. 110
17.7 RULES ON CONDUCTING ATTACKS IN NIAC
Parties to a conflict must conduct attacks in accordance with the principles of distinction
and proportionality. In particular, the following rules must be observed:

107

Combatants may not direct attacks against civilians, civilian objects, or other protected
persons and objects. 111

The distinctive emblem must not be used while engaging in attacks. 112

Combatants must refrain from attacks in which the expected loss of life or 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. 113

Combatants must take feasible precautions in conducting attacks to avoid incidental harm
to civilians and civilian objects. 114

Refer to 5.26.3.1 (Prohibition on Offering Rewards for Enemy Persons Dead or Alive).

108

See 1958 UK MANUAL 116 note 1(b) (If a government or military commander offers rewards for all or
individual armed insurgents killed or wounded by the forces engaged in quelling the insurrection, such offers are
open to the same objection as those set out above in respect of hostilities between belligerents, and are probable
unlawful. On the other hand, there is no objection to offering rewards for the apprehension of insurgents or for
giving information leading to the apprehension or killing of insurgents in combat. A State is entitled to secure the
capture of armed rebels in order that they may be tried as such, or to kill or wound them in combat. However, the
probable effect of the common Art. 3, when applicable, is to prohibit inducements being given to troops, police or
civilians, to take the law into their own hands.).
109

Consider AP II art. 4(2) (Without prejudice to the generality of the foregoing, the following acts against the
persons referred to in paragraph 1 [i.e., all persons who do not take a direct part or who have ceased to take part in
hostilities, whether or not their liberty has been restricted,] are and shall remain prohibited at any time and in any
place whatsoever: b) collective punishments;); BOTHE, PARTSCH & SOLF, NEW RULES 642 (AP II art. 4, 2.5)
(Paragraph 2 (b) prohibits collective punishments. The Committee had proposed collective penalties. The
change of this wording was accepted in order to include not only penalties imposed by a court but also penalties
imposed by administrative measures.).
110

Refer to 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

111

Refer to 5.6 (Discrimination in Conducting Attacks).

112

Refer to 17.16.2 (Improper Use of the Distinctive Emblem).

113

Refer to 5.12 (Proportionality in Conducting Attacks).

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In conducting attacks, combatants must assess in good faith the information that is
available to them. 115

Specific rules apply to the use of certain types of weapons. 116

These rules apply to all parties to a non-international armed conflict, including persons
belonging to non-State armed groups, and persons who decide to participate in hostilities of their
own initiative. However, persons who belong to non-State armed groups, or who decide to
participate in hostilities of their own initiative, may also be subject to the States domestic
law. 117
17.7.1 AP II Rule on Works and Installations Containing Dangerous Forces. AP II
provides that works or installations containing dangerous forces, namely dams, dykes, and
nuclear electrical generating stations, shall not be made the object of attack, even where these
objects are military objectives, if such attack may cause the release of dangerous forces and
consequent severe losses among the civilian population. 118 The United States has objected to
this rule in the context of international armed conflict and does not view it as reflecting
customary international law in either international or non-international armed conflict insofar as
the rule deviates from the regular application of the distinction and proportionality rules. 119
However, the Executive, in submitting AP II to the Senate for its advice and consent to
ratification in 1987, did not recommend a reservation from or an understanding applicable to this
provision of AP II based on an assessment that preserving the option to attack works or
installations containing dangerous forces would not be as important in internal conflicts as
preserving that option would be in international armed conflicts. 120

114

Refer to 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
115

Refer to 5.4 (Assessing Information Under the Law of War).

116

Refer to 17.13.2 (Certain Types of Weapons With Specific Rules on Use in NIAC).

117

Refer to 17.4 (A States Use of Its Domestic Law and NIAC).

118

Consider AP II art. 15 (Works or installations containing dangerous forces, namely dams, dykes and nuclear
electrical generating stations, shall not be made the object of attack, even where these objects are military objectives,
if such attack may cause the release of dangerous forces and consequent severe losses among the civilian
population.).
119

Refer to 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).

120

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law
(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 434 (1987)
(Professor HAMILTON DESAUSSURE asked for an explanation of the apparent inconsistency between the United
States rejection of the provisions in article 56 of Protocol I, relating to dams and dykes, and the simultaneous
acceptance of article 15 of Protocol II, which contains similar provisions. Mr. MATHESON replied that the United
States military based its objections on a pragmatic, real-world estimation of the difference between the two
situations. The military perceives that in international conflicts, many situations may arise where it is important to
attack and destroy parts of an electric power grid, such as a nuclear or hydroelectric generating station. In internal
conflicts, on the other hand, such a significant real-world need will not exist. Preserving the military option in

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17.8 IMPARTIAL HUMANITARIAN ORGANIZATIONS AND HUMANITARIAN ACTIVITIES DURING


NIAC
An impartial humanitarian body, such as the International Committee of the Red Cross,
may offer its services to the parties to the conflict. 121 The civilian population may, even on its
own initiative, offer to collect and care for the wounded, sick, and shipwrecked. 122 Similarly, the
United Nations Educational, Scientific and Cultural Organization may offer its services to the
parties to the conflict. 123
17.8.1 State Consent for Humanitarian Organizations. The activities of relief
organizations are subject to the consent of the State concerned. 124
States may withhold consent for, inter alia, legitimate military reasons, but should not
arbitrarily withhold consent. 125 The safety of personnel of humanitarian organizations is a
legitimate consideration for a government in consenting to their operations.
17.9 PROTECTION OF THE CIVILIAN POPULATION IN NIAC
17.9.1 Displacement of the Civilian Population. The displacement of the civilian
population shall not be ordered for reasons related to the conflict unless the security of the
civilians involved or imperative military reasons so demand. 126 Should such displacements have

international conflicts where such facilities are more likely to become an object of military attack, therefore, is very
important.).
121

GWS art. 3 (An impartial humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). Consider
AP II art. 18 (Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red
Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional
functions in relation to the victims of the armed conflict.).
122

Consider AP II art. 18(1) (The civilian population may, even on its own initiative, offer to collect and care for
the wounded, sick and shipwrecked.).
123

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(3) (The United Nations Educational, Scientific and
Cultural Organization may offer its services to the parties to the conflict.).

124

Consider AP II art. 18(2) (If the civilian population is suffering undue hardship owing to a lack of the supplies
essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are
of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall
be undertaken subject to the consent of the High Contracting Party concerned.).
125

Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE
6 (For its part, the United States would expect that the requirement of
consent [in article 18 of AP II] by the party concerned would not be implemented in an arbitrary manner, and that
essential relief shipments would only be restricted or denied for the most compelling and legitimate reasons.).

FROM THE PRESIDENT TRANSMITTING AP II

126

Consider AP II art. 17(1) (The displacement of the civilian population shall not be ordered for reasons related to
the conflict unless the security of the civilians involved or imperative military reasons so demand.).

1035

to be carried out, all possible measures shall be taken in order that the civilian population may be
received under satisfactory conditions of shelter, hygiene, health, safety, and nutrition. 127
Civilians shall not be compelled to leave their own territory for reasons connected with
the conflict. 128 A State must not compel civilians to leave its territory for reasons connected to
the conflict, while insurgents that control territory must not compel civilians to leave the area
under their authority. 129
17.9.1.1 Security of the Civilians Involved or Imperative Military Reasons.
Legitimate reasons to order the movement of the civilian population may include, for example:

affording the civilian population greater protection from insurgents; and

reducing the support provided to insurgents from elements of the civilian population. 130

Legitimate reasons to order the movement of civilians do not include the use of individuals or
groups of civilians around military objectives as involuntary human shields. 131
17.9.2 Prohibition on Starvation of Civilians as a Method of Combat. Starvation of
civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy,
remove, or render useless, for that purpose, objects indispensable to the survival of the civilian

127

Consider AP II art. 17(1) (Should such displacements have to be carried out, all possible measures shall be
taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health,
safety and nutrition.).
128

Consider AP II art. 17(2) (Civilians shall not be compelled to leave their own territory for reasons connected
with the conflict.).

129

Cf. ICRC AP COMMENTARY 1475 (4859) (First, there is a question whether, within the meaning of this
provision [in article 17 of AP II], the term territory is equivalent to country. The ICRC draft referred to national
territory. Some amendments proposed substituting the formula across the frontiers of the country of origin. It is
clear that there was never any doubt in anyone's mind that the phrase was intended to refer to the whole of the
territory of a country. However, the text states that it is prohibited to compel civilians to leave their own territory.
In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by
Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive
part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel
civilians to leave the area under their authority.).
130

For example, Lt. Col. Jerome F. Bierly and Timothy W. Pleasant, MalayaA Case Study, MARINE CORPS
GAZETTE 46, 48 (Jul. 1990) (The Briggs Plan called for the movement of the general population into protected
areas. In all, a total of 410 villages were eventually moved into areas fortified against guerrilla attacks. This served
two purposes: It helped to protect the populace from the attacks, and at the same time it cut off the majority of the
food supply to the guerillas. Also, the Chinese population, from which the guerillas drew most of their support, was
provided a situation in which they could participate in the local government and establish a degree of economic
prosperity they had not previously enjoyed.).
131

Refer to 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

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population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops,
livestock, drinking water installations and supplies, and irrigation works. 132
17.9.2.1 Starvation of Enemy Forces Not Prohibited. It is only actions that are for
the purpose of starving civilians as a method of combat that are prohibited under this rule;
measures to starve enemy forces are not prohibited. 133 For example, States may institute general
food control programs that involve the destruction of crops and the adequate provision of the
civilian population with food. 134
Military action intended to starve enemy forces, however, must not be taken where it is
expected to result in incidental harm to the civilian population that is excessive in relation to the
military advantage anticipated to be gained. 135
Feasible precautions to reduce the risk of harm to the civilian population or other
reasonable measures to mitigate the burden to the civilian population may also be warranted
when seeking to starve enemy forces. 136
17.10 PROTECTION OF CHILDREN IN NIAC
17.10.1 General Protection and Care of Children. Children shall be provided with the
care and aid they require. 137
Children shall receive an education, including religious and moral education, in keeping
with the wishes of their parents, or in the absence of parents, of those responsible for their
care. 138
All appropriate steps shall be taken to facilitate the reunion of families temporarily
separated. 139
132

Consider AP II art. 14 (Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to


attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian
population, such as food stuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water
installations and supplies and irrigation works.).
133

Refer to 5.20.1 (Starvation Distinction).

134

For example, R.W. Komer, The Malayan Emergency in Retrospect: Organization of A Successful
Counterinsurgency Effort, 59 (RAND Corporation, Feb. 1972) (In order to force the insurgents to make supply
their major concern, the GOM turned to sizable food denial campaigns as the preferred form of security force
operations. By July 1953 no less than 77 such operations had been mounted in the state of Negri Sembilan alone.
It did not take much seepage to feed a guerrilla who could subsist on a daily ration of a handful of rice. But he
could store without detection only about six to eight weeks supply, and the number of people, time, and effort
involved in a food lift from village to jungle edge to deep jungle was such as to make the lift vulnerable to
discovery.).
135

Refer to 5.20.2 (Starvation Proportionality).

136

Refer to 5.20.2 (Starvation Proportionality).

137

Consider AP II art. 4(3) (Children shall be provided with the care and aid they require, .).

138

Consider AP II art. 4(3)(a) (they shall receive an education, including religious and moral education, in keeping
with the wishes of their parents, or in the absence of parents, of those responsible for their care;).

1037

Measures shall be taken, if necessary, and whenever possible with the consent of their
parents or persons who by law or custom are primarily responsible for their care, to remove
children temporarily from the area in which hostilities are taking place to a safer area within the
country and ensure that they are accompanied by persons responsible for their safety and wellbeing. 140
The death penalty shall not be pronounced on persons who were under the age of
eighteen years at the time of the offense and shall not be carried out on pregnant women or
mothers of young children. 141
17.10.2 Children and Participation in Non-International Armed Conflict. Children who
have not attained the age of fifteen years shall neither be recruited in the armed forces or groups
nor allowed to take part in hostilities.142 Children who are captured and who have taken a direct
part in hostilities remain entitled to the special protections afforded to children. 143
The use or recruitment of child soldiers is an offense in U.S. law. 144 The United States
has additional obligations as a Party to the Child Soldiers Protocol. 145
17.11 PROTECTION OF CULTURAL PROPERTY IN NIAC
17.11.1 Application of Certain Provisions of the 1954 Hague Cultural Property
Convention. In the event of an armed conflict not of an international character occurring within
the territory of one of the Parties to the 1954 Hague Cultural Property Convention, each party to
the conflict shall be bound to apply, as a minimum, the provisions of the 1954 Hague Cultural
Property Convention that relate to respect for cultural property. 146

139

Consider AP II art. 4(3)(b) (all appropriate steps shall be taken to facilitate the reunion of families temporarily
separated;).
140

Consider AP II art. 4(3)(e) ([M]easures shall be taken, if necessary, and whenever possible with the consent of
their parents or persons who by law or custom are primarily responsible for their care, to remove children
temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they
are accompanied by persons responsible for their safety and well-being.).
141

Refer to 8.16.2.4 (Limitations on the Death Penalty).

142

Consider AP II art. 4(3)(c) ([C]hildren who have not attained the age of fifteen years shall neither be recruited in
the armed forces or groups nor allowed to take part in hostilities;); ROME STATUTE art. 8(2)(e)(vii) (defining war
crime to include [c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or
using them to participate actively in hostilities in non-international armed conflict).
143

Consider AP II art. 4(3)(d) (the special protection provided by this Article to children who have not attained the
age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of
sub-paragraph c) and are captured;).
144

Refer to 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).

145

Refer to 4.20.5 (Child Soldiers); 17.2.1.2 (Implicit Application of Treaty Provisions to Situations in NIAC).

146

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (In the event of an armed conflict not of an
international character occurring within the territory of one of the High Contracting Parties, each party to the
conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for
cultural property.).

1038

17.11.2 Obligations to Respect Cultural Property. The obligation to respect cultural


property includes essentially negative duties, i.e., duties to refrain from acts of hostility directed
against cultural property and duties to refrain from the use of cultural property in support of
military operations where such use is not imperatively necessary. 147
For example, parties to a conflict must not direct acts of hostility against cultural
property, its immediate surroundings, or appliances in use for its protection, unless such action is
required by imperative military necessity. 148
In addition, 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, unless such action is required by imperative military
necessity. 149
17.12 USE OF CAPTURED OR SURRENDERED ENEMY PERSONNEL IN NIAC
In contrast to the rules during international armed conflict, State forces may use captured
or surrendered enemy personnel in operations against enemy non-State armed groups. The
cooperation of enemy personnel may not, however, be procured through illegal methods.
17.12.1 Compelling Captured or Surrendered Enemy Personnel to Take Part in the
Conflict. During international armed conflict, it is prohibited to compel the nationals of the
hostile party to take part in the operations of war directed against their own country. 150
Additional restrictions apply with respect to POWs, retained personnel, protected persons in the
home territory of a belligerent, and protected persons in occupied territory. 151
These rules, however, do not apply during non-international armed conflict. Under
international law, a State may compel its nationals to serve in its armed forces and to fight
against non-State armed groups. 152 For example, in contrast to POWs, captured insurgents who

147

Refer to 5.18.2 (Respect and Safeguarding of Cultural Property). Consider AP II art. 16 (Without prejudice to
the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14
May 1954, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places
of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military
effort.).
148

Refer to 5.18.5 (Refraining From Any Act of Hostility).

149

Refer to 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or
Damage).
150

Refer to 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
151

Refer to 9.19.2.3 (Labor Assignments That May Be Compelled); 7.9.5.6 (No Other Compulsory Duties);
10.7.3 (Compulsory Work for Protected Persons in a Belligerents Home Territory); 11.20.1.1 (Prohibition on
Compulsory Service in an Occupying Powers Armed Forces).
152

Refer to 4.5.2.4 (Draftees).

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are nationals of that State could be required to serve in that States armed forces or to take part in
operations directed against their former comrades. 153
17.12.2 Methods of Gaining Cooperation. Inhumane treatment or other illegal methods
(such as threats to commit unlawful acts) may not be used to gain the cooperation of captured
enemy persons. 154
However, a combination of threats of criminal punishment and inducements (e.g.,
amnesty, monetary rewards) may be used to seek to gain the cooperation of captured enemy
persons. 155 For example, law enforcement authorities often use the cooperation of members of
criminal gangs or conspiracies to thwart and to prosecute the other participants or leaders in that
criminal enterprise. 156

153

For example, Donald A. MacCuish and Spencer C. Tucker, Pseudoforces, in ENCYCLOPEDIA OF INSURGENCY
A NEW ERA OF MODERN WARFARE 452 (2013) (Pseudoforces are military units made
up of former insurgents who have been turned to work with counterinsurgency forces against their former
colleagues. This is possible because insurgent rank and filers are generally not as committed as their ideologically
bound leaders. Pseudoforces are a tremendous advantage in counterinsurgency operations. They can identify
certain of the insurgents, are well familiar with the operational terrain and the villagers, and understand what
motivates the insurgents and their supporters. They are of immense importance. Pseudoforces have played a role in
virtually every insurgency since World War II (1939-1945). During the Dhofar campaigns in Oman (1970-1975),
the British made extensive use of pseudoforces, employing some 1,600 in 21 different units based on tribal
affiliations. The Portuguese also made extensive use of pseudoforces during the insurgencies in their African
territories. Notable among these were the Flechas (Arrows) in Angola.); MAJOR LAWRENCE M. GREENBERG, THE
HUKBALAHAP INSURRECTION: A CASE STUDY OF A SUCCESSFUL ANTI-INSURGENCY OPERATION IN THE PHILIPPINES
1946-1955 125 (1986) (On the island of Panay, the Philippine Army tried a variation of the Force X concept to
break the local guerrilla structure. Accompanied by three military intelligence agents, a group of twenty former
Huks were infiltrated into the islands interior. After three months of gathering information, establishing their cover
as a bona fide Huk unit, and gaining the confidence of the islands Huk leadership, they hosted a by invitation only
barbecue for the Panay High Command. Between the ribs and potato salad, the covert government force sprang an
ambush that killed or captured nearly all the Panay commanders and crippled the organization on the island for the
duration of the campaign.).
AND COUNTERINSURGENCY:

154

Refer to 8.2 (Humane Treatment of Detainees); 8.2.4 (Threats to Commit Inhumane Treatment).

155
For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-19 (1-104) (Dec. 2006)
(Nothing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters
among the public are deserting or providing information to government authorities. Counterinsurgents may attract
deserters or informants by arousing fear of prosecution or by offering rewards.).
156

For example, Benjamin Weiser, Terrorist Has Cooperated With U.S. Since Secret Guilty Plea in 2011, Papers
Show, THE NEW YORK TIMES, Mar. 25, 2013 (A Somali terrorist with ties to Al Qaeda whose capture and
interrogation aboard a United States naval ship in 2011 fueled debate about the Obama administrations
counterterrorism tactics secretly pleaded guilty in Manhattan and has been cooperating with the authorities, court
documents released on Monday show. The terrorist, Ahmed Abdulkadir Warsame, served as a military commander
with the Shabab in Somalia and worked as a liaison with Al Qaedas branch in Yemen, including brokering a deal
for the Shabab to buy weapons directly from the Qaeda group, the government has said. The newly unsealed court
papers show Mr. Warsame pleaded guilty in a closed court proceeding in Manhattan in December 2011, about five
months after he was brought to New York. After the plea, he met weekly with the government for hours at a time,
disclosing intelligence information about his Shabab and Qaeda co-conspirators, who included high-level
international terrorist operatives, prosecutors said in one highly redacted letter dated March 2012.).

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17.13 WEAPONS IN NIAC


17.13.1 Prohibited Weapons in NIAC. The use of the following types of weapons is
prohibited during non-international armed conflict:

weapons calculated to cause superfluous injury; 157

inherently indiscriminate weapons; 158

poison, poisoned weapons, poisonous gases, and other chemical weapons; 159

biological weapons; 160

weapons that injure by fragments that are non-detectable by X-rays; 161

certain types of mines, booby-traps, and other devices; 162 and

blinding lasers. 163

17.13.2 Certain Types of Weapons With Specific Rules on Use in NIAC. Certain types
of weapons are subject to specific rules that apply to their use by the U.S. armed forces in noninternational armed conflict. These weapons include:

mines, booby-traps, and other devices (except certain specific classes of prohibited
mines, booby-traps, and other devices); 164

incendiary weapons; 165

laser weapons (except blinding lasers); 166 and

explosive ordnance. 167

157

Refer to 6.6 (Weapons Calculated to Cause Superfluous Injury).

158

Refer to 6.7 (Inherently Indiscriminate Weapons).

159

Refer to 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).

160

Refer to 6.9 (Biological Weapons).

161

Refer to 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

162

Refer to 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).

163

Refer to 6.15.1 (Prohibition on Blinding Laser Weapons).

164

Refer to 6.12 (Landmines, Booby-Traps, and Other Devices).

165

Refer to 6.14 (Incendiary Weapons).

166

Refer to 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
167

Refer to 6.19 (Explosive Ordnance).

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17.14 PROTECTION OF THE WOUNDED, SICK, SHIPWRECKED, AND DEAD IN NIAC


17.14.1 Respect, Protection, Humane Treatment, and Medical Care of the Wounded,
Sick, and Shipwrecked. All the wounded, sick, and shipwrecked, whether or not they have taken
part in the armed conflict, shall be respected and protected. 168
17.14.1.1 Types of Persons Who Are Considered Wounded, Sick, and
Shipwrecked in NIAC. The wounded, sick, and shipwrecked in non-international armed conflict
may be understood to include:

persons who have been rendered unconscious or otherwise have been incapacitated
because of their wounds, sickness, or shipwreck; 169

persons who have surrendered as a consequence of their health; and 170

persons who have been shipwrecked (i.e., helpless persons in distress at sea or stranded
on the coast) from any cause, including forced landings at sea by or from aircraft. 171

Of course, any person who commits hostile acts or attempts to evade capture forfeits
protection as someone who is placed hors de combat. 172
17.14.1.2 Meaning of Respect and Protection of the Wounded, Sick, and
Shipwrecked. The wounded, sick, and shipwrecked must be respected and protected at all times.
This means that they should not be knowingly attacked, fired upon, or unnecessarily interfered
with. 173
Certain persons, however, are deemed to have accepted the risk of harm due to deliberate
proximity to military objectives; thus, expected incidental harm to such persons would be
understood not to prohibit attacks under the proportionality rule, even if such persons become
wounded, sick, or shipwrecked. 174

168

Consider AP II art. 7(1) (All the wounded, sick and shipwrecked, whether or not they have taken part in the
armed conflict, shall be respected and protected.).
169

Refer to 5.10.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or


Shipwreck).
170

Refer to 5.10.3 (Persons Who Have Surrendered).

171

Compare 7.3.1.2 (Shipwrecked).

172

Refer to 5.10 (Persons Placed Hors de Combat).

173

Compare 7.3.3 (Meaning of Respect and Protection of the Wounded, Sick, and Shipwrecked).

174

Compare 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives);
7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).

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The respect and protection afforded the wounded, sick, and shipwrecked do not
immunize them from search, or other necessary security measures, or capture and detention, even
if they are receiving medical care. 175
Booby-trapping the wounded or sick is expressly prohibited. 176
17.14.2 Humane Treatment and Practicable Medical Care and Attention. In all
circumstances, the wounded, sick, and shipwrecked shall be treated humanely and shall receive,
to the fullest extent practicable and with the least possible delay, the medical care and attention
required by their condition. 177 There shall be no distinction among them founded on any
grounds other than medical ones. 178
17.14.3 Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and
Dead. Whenever circumstances permit, and particularly after an engagement, all possible
measures shall be taken, without delay, to search for and collect the wounded, sick, and
shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and
to search for the dead, prevent their being despoiled, and decently dispose of them. 179
The obligations to search for, collect, and take affirmative steps to protect the wounded,
sick, and shipwrecked 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. 180
17.14.3.1 Mistreatment and Booby-Trapping of the Dead Prohibited. The
mistreatment of the dead is prohibited. 181 In addition, the dead may not be booby-trapped. 182

175

Compare 7.3.3.2 (Search and Other Security Measures Not Prohibited); 7.3.3.3 (Capture of Wounded, Sick,
and Shipwrecked Not Prohibited).
176

Refer to 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

177

Consider AP II art. 7(2) (In all circumstances they shall be treated humanely and shall receive, to the fullest
extent practicable and with the least possible delay, the medical care and attention required by their condition.).
178

Consider AP II art. 7(2) (There shall be no distinction among them founded on any grounds other than medical
ones.).
179

Consider AP II art. 8 (Whenever circumstances permit, and particularly after an engagement, all possible
measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them
against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being
despoiled, and decently dispose of them.).
180

Compare 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the
Wounded, Sick, and Shipwrecked).
181

For example, Karen Parrish, Panetta Orders Investigation of Video, Vows Accountability, AMERICAN FORCES
PRESS SERVICE, Jan. 12, 2012 (Defense Secretary Leon E. Panetta released a statement today strongly condemning
the actions of a small group of Marines depicted in a video that began circulating online yesterday. The video shows
four Marines apparently urinating over three enemy corpses in Afghanistan. The secretarys statement said he has
seen the footage and finds the behavior depicted in it utterly deplorable. I condemn it in the strongest possible
terms, Panetta said. I have ordered the Marine Corps and ISAF commander [Marine Corps] Gen. John Allen to
immediately and fully investigate the incident. This conduct is entirely inappropriate for members of the United
States military and does not reflect the standards or values our armed forces are sworn to uphold. Those found to

1043

17.15 PROTECTION OF MEDICAL AND RELIGIOUS PERSONNEL AND MEDICAL TRANSPORTS IN


NIAC
17.15.1 Protection of Medical and Religious Personnel. Medical and religious personnel
shall be respected and protected and shall be granted all available help for the performance of
their duties. They shall not be compelled to carry out tasks that are not compatible with their
humanitarian mission. 183
17.15.1.1 Types of Persons Who Are Considered Medical and Religious
Personnel in NIAC. Medical and religious personnel include those persons who are exclusively
(e.g., permanently) engaged in those duties. 184 For example, persons who intermittently take a
direct part in hostilities are not considered medical and religious personnel. 185
17.15.1.2 Meaning of Respect and Protection of Medical and Religious
Personnel. The respect and protection accorded to medical and religious personnel mean that
they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging
their proper functions. 186
Certain medical and religious personnel, however, are deemed to have accepted the risk
of harm due to their deliberate proximity to military objectives; thus, expected incidental harm to
such persons would be understood not to prohibit attacks under the proportionality rule. 187
The respect and protection afforded medical and religious personnel do not immunize
them from search, or from other necessary security measures, or from capture and detention. 188
AP II and applicable treaties to which the United States is a Party (such as the 1949 Geneva
Conventions) do not afford medical and religious personnel belonging to non-State armed groups
retained personnel status if captured.
17.15.2 Protection of Medical Units and Transports. Medical units and transports shall
be respected and protected at all times and shall not be the object of attack. 189 The protection to
which medical units and transports are entitled shall not cease unless they are used to commit
have engaged in such conduct will be held accountable to the fullest extent.). Compare 7.7.1.1 (No
Disrespectful or Degrading Treatment of the Dead).
182

Refer to 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

183

Consider AP II art. 9(1) (Medical and religious personnel shall be respected and protected and shall be granted
all available help for the performance of their duties. They shall not be compelled to carry out tasks which are not
compatible with their humanitarian mission.).
184

Refer to 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

185

Refer to 5.9.3 (Taking a Direct Part in in Hostilities).

186

Compare 7.8.2 (Meaning of Respect and Protection of Medical and Religious Personnel).

187

Compare 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives);
7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
188

Compare 7.8.2.2 (Search and Other Security Measures Not Prohibited); 7.8.2.3 (Capture Not Prohibited).

189

Consider AP II art. 11(1) (Medical units and transports shall be respected and protected at all times and shall not
be the object of attack.).

1044

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. 190
17.15.2.1 Types of Units and Vehicles That Are Considered Medical Units and
Transports. Medical units and transports include those units and vehicles that are exclusively
(e.g., permanently) engaged in those activities. 191 For example, units and transports that
intermittently are used in hostilities are not considered medical units and transports.
17.15.2.2 Meaning of Respect and Protection of Medical Units and Transports.
The respect and protection accorded to medical units and transports mean that they must not
knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper
functions. 192
Certain medical units and transports, however, are deemed to have accepted the risk of
harm due to their deliberate proximity to military objectives; thus, expected incidental harm to
such medical units and transports would be understood not to prohibit attacks under the
proportionality rule. 193
The respect and protection afforded medical units and facilities does not immunize them
from search or capture. 194
17.16 DISPLAY OF THE DISTINCTIVE EMBLEM IN NIAC
Under the direction of the competent authority concerned, the distinctive emblem of the
red cross, red crescent, or red lion and sun on a white ground shall be displayed by medical and
religious personnel and medical units, and on medical transports. It shall be respected in all
circumstances. It shall not be used improperly. 195
These rules also apply to the distinctive emblem of the red crystal. 196

190

Consider AP II art. 11(2) (The protection to which medical units 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.).
191

Refer to 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

192

Compare 7.10.1 (Meaning of Respect and Protection of Military Medical Units and Facilities).

193

Compare 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives);
7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).
194

Compare 7.10.1.2 (Search Not Prohibited); 7.10.1.3 (Capture Not Prohibited).

195

Consider AP II art. 12 (Under the direction of the competent authority concerned, the distinctive emblem of the
red cross, red crescent or red lion and sun on a white ground shall be displayed by medical and religious personnel
and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used
improperly.).
196

Refer to 7.15.1.3 (Red Crystal); 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

1045

17.16.1 Display of the Emblem Under the Direction of the Competent Authority
Concerned. The display of the distinctive emblem is under the direction of the competent
authority concerned, which authority may authorize the removal or obscuring of the distinctive
emblem for tactical purposes, such as camouflage. 197 Similarly, it would be appropriate for the
distinctive emblem to be removed if it is assessed that enemy forces will fail to respect the
emblem and seek to attack medical personnel; display of the emblem in such circumstances
would be deemed not to be feasible. 198
17.16.2 Improper Use of the Distinctive Emblem. Improper use of the distinctive
emblem includes use: (1) while engaging in attacks; (2) in order to shield, favor, or protect ones
own military operations; or (3) to impede enemy military operations. 199
17.17 DETENTION IN NIAC
17.17.1 State Authority to Detain. Law of war treaties have not limited the scope of
whom a State may detain for reasons related to a non-international armed conflict, but have
prescribed humane treatment for such persons. 200 A States authority to conduct detention
operations has often been understood as incident to the legal basis of the State to engage in
operations against the non-State armed group. 201
The precise legal requirements for a detention regime established by a State in noninternational armed conflict would likely depend a great deal on its domestic law.
17.17.1.1 Non-Punitive Detention in Non-International Armed Conflict. Nonpunitive detention may be conducted on a variety of legal theories under international law. 202
For example, although enemy non-State armed groups would not be entitled to POW status, a
State may detain persons belonging to enemy armed groups, by analogy to the detention of
POWs in international armed conflict. Similarly, although persons would not be protected
persons under the GC, a State may detain persons for security reasons, by analogy to the
197

Compare 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem).

198

Refer to 5.3.3.2 (What Precautions Are Feasible).

199

Refer to 5.24 (Improper Use of Certain Signs).

200

AP II art. 5(1) (In addition to the provisions of Article 4, the following provisions shall be respected as a
minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are
interned or detained:).

201

Refer to 8.1.3.1 (Detention Authority).

202

For example, FRANK KITSON, GANGS AND COUNTER-GANGS 45 (1960) (There was one other legal means of
getting at the Mau Mau. This was for the Police to submit a dossier giving a full list of all that was known against a
person to the Governor, who could then sign an order for detention during the Emergency providing he was satisfied
that such action was necessary in the interests of maintaining public order. This was a good idea as far as it went but
the Governor could only sign a comparatively limited number. Certainly the system could not take care of all the
committee members of all the committees though it was satisfactory for the most senior ones. It was an advance in
another way, in that it all but recognized the status of prisoner of war by saying to a man You are not a criminal but
you are on the wrong side. You must be restrained until this trouble is over. It was of course contrary to the
principles of British justice but it was merciful. In its extended form later in the Emergency it saved thousands of
loyalist lives by reducing the number of Mau Mau, and probably saved many Mau Mau lives by locking up people
who would otherwise have joined the gangs and been killed by the Security Forces.).

1046

detention of protected persons in international armed conflict or occupation. Other legal


rationales for the detention of persons in non-international armed conflict also may be available.
17.17.1.2 Punitive Detention in Non-International Armed Conflict. During noninternational armed conflict, a State could also detain persons pursuant to its criminal law. For
example, persons who support enemy non-State armed groups could be sentenced to a variety of
offenses (e.g., murder, criminal conspiracy, treason or other offenses against the State, material
support to terrorism or terrorist organizations).
17.17.2 Detention by Non-State Armed Groups. Non-State armed groups typically
would lack domestic legal authority to conduct detention operations. Their actions may be
subject to prosecution under domestic statutes making punishable kidnapping, hostage taking,
false imprisonment, interference with State officials, etc. Nonetheless, detention during noninternational armed conflict by non-State armed groups is not prohibited by international law. In
any case, non-State armed groups that conduct detention operations must provide humane
treatment to detainees.
17.17.3 Humane Treatment and Other Applicable Requirements. All persons (including
those belonging to the State or those belonging to non-State armed groups) who are detained by
the adverse party are entitled to the protections of Common Article 3 of the 1949 Geneva
Conventions, including humane treatment. 203 Although detainees are afforded humane
treatment, they do not receive POW status. 204
Chapter VIII addresses the baseline rules for the humane treatment of detainees that
apply to all U.S. military operations, including those in non-international armed conflict. 205
17.18 NON-INTERVENTION AND NEUTRAL DUTIES IN NIAC
17.18.1 Duty of Non-Belligerent States to Refrain From Supporting Hostilities by NonState Armed Groups Against Other States. Under international law, principles of friendly
relations and non-intervention require States to refrain from supporting non-State armed groups
in hostilities against other States. 206
203

Refer to 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

204

See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 646 (AP II art. 5, 2.3) (It must be emphasized in this
connection that Protocol II does not confer a special status on members of the armed forces of either side captured
by the adverse party similar to the status of a prisoner of war in an international armed conflict. The rebel does not
enjoy any privilege with regard to acts committed during the rebellion.); ICRC AP COMMENTARY 1386 (4570)
(Protocol II, following the example of common Article 3, does not grant a special status to members of the armed
forces or armed groups who have fallen into enemy hands. They are not legally prisoners of war entitled to special
protection; this is why it is so important that the rules laid down in this article [5 of AP II] establish minimum
guarantees.).
205

Refer to 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).

206

See, e.g., Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, annex to U.N. GENERAL ASSEMBLY
RESOLUTION 2625 (XXV), U.N. Doc. A/RES/2625(XXV) (1970) (Every State has the duty to refrain from
organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion
into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or

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These are closely analogous to the duties that neutral States have under the law of
neutrality to refrain from supporting military operations against belligerents. 207
In particular, States are required to take all reasonable steps to ensure that their territory is
not used by non-State armed groups for purposes of armed activitiesincluding planning,
threatening, perpetrating, or providing material support for armed attacksagainst other States
and their interests. 208 The failure to fulfill this duty may have consequences in regard to whether
other States that are threatened by these armed activities must seek the consent of that State
before taking action in self-defense in that States territory. 209
Violations of law of war treaties applicable to non-international armed conflict by a State
generally have not been understood to provide an independent basis in international law for a
non-belligerent State to intervene against the violating State in that conflict. 210
17.18.2 Duty of Belligerent States to Respect the Sovereignty of Other States. States that
are engaged in hostilities against non-State armed groups must respect the sovereignty of other
States. 211 In general, States must obtain the consent of a territorial State before conducting
military operations against a non-State armed group in that States territory. 212

participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its
territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a
threat or use of force.).
207

See, e.g., Christopher Greenwood, International law and the war on terrorism, 78 INTERNATIONAL AFFAIRS
301, 313 (2002) (By allowing Al-Qaida to operate from the territory which it controlled, the Talibanand thus
Afghanistanviolated the general duty of a state under international law not to allow its territory to be used as a
base for attacks on other states. At the very least, its position was analogous to that of a neutral state which
allows a belligerent to mount military operations from its territory: even though it is not responsible for those
operations, it exposes itself to the risk of lawful military action to put a stop to them. Similarly, where a state allows
terrorist organizations to mount concerted operations against other states from its territory and refuses to take the
action required by international law to put a stop to such operations, the victims of those operations are entitled to
take action against those terrorists.); H. Lauterpacht, Revolutionary Activities by Private Persons Against Foreign
States, 22 AJIL 105, 127 (1928) (The nearest approach to what is believed to be the true juridical construction of
the states duty to prevent organized hostile expeditions from proceeding in times of peace against a friendly state
will be found in the law of neutrality. The two situations being closely analogous, it is only natural that they are
regulated in Great Britain and in the United States in the same legal enactments. The law of hostile expeditions is
nothing else than the law of neutrality in relation to an actual or impending civil war.).
208

Daniel Bethlehem, Principles Relevant to the Scope of a States Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (9. States are required to take all reasonable steps
to ensure that their territory is not used by nonstate actors for purposes of armed activitiesincluding planning,
threatening, perpetrating, or providing material support for armed attacksagainst other states and their interests.).
209

Refer to 17.18.2 (Duty of Belligerent States to Respect the Sovereignty of Other States).

210

See, e.g., CCW AMENDED art. 1(5) (Nothing in this Convention or its annexed Protocols shall be invoked as a
justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or
external affairs of the High Contracting Party in the territory of which that conflict occurs.). Consider AP II art.
2(2) (Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any
reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the
territory of which that conflict occurs.). Refer to 1.11.4.4 (Humanitarian Intervention).

211

See, e.g., Jeh Charles Johnson, General Counsel, Department of Defense, National Security Law, Lawyers, and
Lawyering in the Obama Administration, Feb. 22, 2012, 2012 DIGEST OF UNITED STATES PRACTICE IN

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The consent of the territorial State, however, is not necessary when the U.N. Security
Council has authorized the military operations. 213
In addition, the United States has expressed the view that consent is not required when
the territorial State is unwilling or unable to prevent its territory from being used by non-State
armed groups as a base for launching attacks. 214 Other States have also expressed this view. 215

INTERNATIONAL LAW 575, 577 (Third: there is nothing in the wording of the 2001 AUMF or its legislative history
that restricts this statutory authority to the hot battlefields of Afghanistan. The legal point is important because,
in fact, over the last 10 years al Qaeda has not only become more decentralized, it has also, for the most part,
migrated away from Afghanistan to other places where it can find safe haven. However, this legal conclusion too
has its limits. It should not be interpreted to mean that we believe we are in any Global War on Terror, or that we
can use military force whenever we want, wherever we want. International legal principles, including respect for a
states sovereignty and the laws of war, impose important limits on our ability to act unilaterally, and on the way in
which we can use force in foreign territories.); Harold Hongju Koh, Legal Adviser, Department of State, Address at
the Annual Meeting of the American Society of International Law: The Obama Administration and International
Law Mar. 25, 2010, 2010 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717-18 (As recent events
have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.
Thus, in this ongoing armed conflict, the United States has the authority under international law, and the
responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such
as high-level al-Qaeda leaders who are planning attacks. Of course, whether a particular individual will be
targeted in a particular location will depend upon considerations specific to each case, including those related to the
imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states
to suppress the threat the target poses.).
212

Daniel Bethlehem, Principles Relevant to the Scope of a States Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (Subject to the following paragraphs, a state may
not take armed action in self-defense against a nonstate actor in the territory or within the jurisdiction of another
state (the third state) without the consent of that state. The requirement for consent does not operate in
circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed
force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.).
213

Daniel Bethlehem, Principles Relevant to the Scope of a States Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (The requirement for consent does not operate in
circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed
force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.). Refer to
1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the Charter of the
United Nations).
214

See, e.g., Samantha J. Power, Letter dated 23 September 2014 from the Permanent Representative of the United
States of America to the United Nations addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014)
(ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the
United States and our partners in the region and beyond. States must be able to defend themselves, in accordance
with the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of the
United Nations, when, as is the case here, the government of the State where the threat is located is unwilling or
unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not
confront these safe havens effectively itself.); John B. Bellinger, III, Department of State Legal Adviser, Legal
Issues in the War on Terrorism, Oct. 31, 2006, 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW
1104, 1109-10 (Let me be very clear here: I am not suggesting that, because we remain in a state of armed conflict
with al Qaida, the United States is free to use military force against al Qaida in any state where an al Qaida terrorist
may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter,
though, a state must be responsible for preventing terrorists from using its territory as a base for launching attacks.
And, as a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use
military force in self-defense to address that threat.); Abraham Sofaer, The Sixth Annual Waldemar A. Solf Lecture
in International Law: Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 108 (1989)

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It may be unnecessary for a belligerent State to seek consent when there is a strong,
reasonable, and objective basis for concluding that the seeking of consent would be likely to
undermine materially the effectiveness of the action against the non-State armed group (e.g.,
reasons of disclosure, delay, incapacity to act) or would increase the risk of armed attack,
vulnerability to future attacks, or other development that would give rise to an independent
imperative to act in self-defense. 216

(The United States in fact supported the legality of a nation attacking a terrorist base from which attack on its
citizens are being launched, if the host country is either unwilling or unable to stop the terrorists from using its
territory for that purpose.).
215

For example, Michael Grant, Letter dated 31 March 2015 from the Charg daffaires a.i. of the Permanent
Mission of Canada to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2015/221
(Mar. 31, 2015) (ISIL also continues to pose a threat not only to Iraq, but also to Canada and Canadians, as well as
to other countries in the region and beyond. In accordance with the inherent rights of individual and collective selfdefence reflected in Article 51 of the United Nations Charter, States must be able to act in self-defence when the
government of the State where a threat is located is unwilling or unable to prevent attacks emanating from its
territory.); Russian Federation President V.V. Putin, Statement of Sept. 11, 2002, annexed to Sergey Lavrov, Letter
dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations
addressed to the Secretary-General, U.N. Doc. S/2002/1012 (Sept. 11, 2002) (The Russian Federation firmly
adheres to its international obligations and respects the sovereignty and integrity of other States, but it demands the
same attitude towards itself. If the Georgian leadership is unable to establish a security zone in the area of the
Georgian-Russian border, continues to ignore United Nations Security Council resolution 1373 (2001) of 28
September 2001, and does not put an end to the bandit sorties and attacks on adjoining areas in the Russian
Federation, we reserve the right to act in accordance with Article 51 of the Charter of the United Nations, which lays
down every Member States inalienable right of individual or collective self-defence. None of this will be
necessary, no measures or special operations will be needed if the Georgian leadership actually controls its own
territory, carries out international obligations in combating international terrorism and prevents possible attacks by
international terrorists from its territory against the territory of the Russian Federation.); Hayati Gven, Letter
Dated 24 July 1995 from the Charge Daffaires A.I. of the Permanent Mission of Turkey to the United Nations
Addressed to the President of the Security Council, U.N. Doc. S/1995/605 (Jul. 24, 1995) (As Iraq has not been
able to exercise its authority over the northern part of its country since 1991 for reasons well known, Turkey cannot
ask the Government of Iraq to fulfil its obligation, under international law, to prevent the use of its territory for the
staging of terrorist acts against Turkey. Under these circumstances, Turkeys resorting to legitimate measures which
are imperative to its own security cannot be regarded as a violation of Iraqs sovereignty. No country could be
expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of a
terrorist organization based and operating from a neighbouring country, if that country is unable to put an end to
such attacks. The recent operations of limited time and scope were carried out within this framework, as explained
to the world public.); Statement of Mr. Blum, representative of Israel, in U.N. Doc. S/PV.2292 54-56 (Members
of the [Security] Council need scarcely be reminded that under international law, if a State is unwilling or unable to
prevent the use of its territory to attack another State, that latter state is entitled to take all necessary measures in its
own defence. The Government of Israel is in fact exercising the inherent right of self-defence enjoyed by every
sovereign State, a right also preserved under Article 51 of the Charter of the United Nations. Israels response to
PLO terror is what any self-respecting sovereign State would do in similar circumstances. I must stress that Israels
actions are specifically directed against concentrations of PLO terrorists in Lebanon.).
216

Daniel Bethlehem, Principles Relevant to the Scope of a States Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (In such circumstances, in addition to the preceding
requirements, there must also be a strong, reasonable, and objective basis for concluding that the seeking of consent
would be likely to materially undermine the effectiveness of action in self-defense, whether for reasons of
disclosure, delay, incapacity to act, or otherwise, or would increase the risk of armed attack, vulnerability to future
attacks, or other development that would give rise to an independent imperative to act in self-defense.).

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17.18.3 States Support to Other States in Hostilities Against Non-State Armed Groups.
International law does not prohibit States from assisting other States in their armed conflicts
against non-State armed groups. To the extent those States intend to conduct hostilities or
actually do so, they may incur obligations under the law of war. 217 For example, a State that is
conducting detention operations would have obligations to treat detainees (e.g., persons
belonging to non-State armed groups) humanely regardless of whether it considers itself a party
to the non-international armed conflict.
17.18.4 Liability of Private Individuals for Supporting Non-State Armed Groups. Private
individuals who support non-State armed groups that are preparing for, or engaged in, hostilities
against a State may be subject to prosecution. Such conduct may be criminalized under a variety
of domestic laws relating to treason, hostile expeditions against other States, material support to
terrorism, or piracy. 218
The State that is threatened by such activities may prosecute such individuals for treason
or other offenses against the State.
States in which such conduct occurs may seek to prosecute such conduct for a variety of
reasons, including its duties under international law to refrain from materially supporting
hostilities against another State, and to repress terrorism or piracy.

217

Refer to 3.4 (When Jus in Bello Rules Apply).

218

Refer to 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).

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