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Chapter 11 addresses new naval technologies. It does not deal with those new technologies that merely enhance known capabilities (such as stealth or missile and anti-missile systems) and that can be considered as being in compliance with the contemporary law of the sea and the law of naval warfare. Rather, the Chapter focuses on unmanned maritime systems (UMS), which are increasingly used for a variety of purposes, including military operations. The unresolved legal issues relate to the legal status of UMS, their operation and their navigational rights in various sea areas, and their use and protection under the law of naval warfare and the law of maritime neutrality. The Chapter also focuses on undersea infrastructure, such as submarine cables and pipelines and other devices placed on the seabed. It analyzes the gaps in the law of the sea and the law of naval warfare with regard to the status and protection of undersea infrastructure and provides proposals on how the existing legal framework could be adapted to better meet the increasing importance of said infrastructure.
Chapter 18 discusses the Manual’s coverage in Chapter XVIII of implementation and enforcement of the law of war. After discussing the extent of the obligations set forth in common article 1 of the Geneva Conventions, the Chapter assesses the Manual’s consideration of reasons that support the implementation and enforcement of the law of war. The Manual’s discussion of the duties of individual members of the armed forces, of the obligations of commanders, of the role of judge advocates and legal advisers, and of dissemination, instructions, and inclusion of the law of war in the planning of military operations is then considered in the next couple of sections. Thereafter, the Chapter looks at the Manual’s approach to State obligations with respect to violations of the law of war, including those perpetrated by the enemy. Compensation for violations, reprisals and war crimes are the subject of the concluding sections of the Chapter.
Chapter 5 critiques the Manual’s treatment of the law relating to the conduct of hostilities. As with other Chapters, the sequence in which topics are addressed in the Manual is followed in the Book’s Chapter. The Manual’s treatment of the protection of civilians, of precautions, of the conduct of attacks and of the objects that may lawfully be attacked is subjected to careful criticism. The Manual’s avoidance of reference to Additional Protocol I where this would have been beneficial is criticised. The implications for the principle of distinction of the US’s ‘war sustaining’ approach to defining military objectives and the Manual’s general treatment of that definition are extensively analysed. After a consideration of the position, as disclosed in the Manual, of combatants and of members of organised armed groups, the Chapter tackles its coverage, in turn, of direct participation in hostilities, of hors de combat, of precautions in attack, of proportionality, of human shields and of precautions against the effects of attacks. The concluding topics are shielding, seizure and destruction of enemy property, cultural property protection, sieges, good faith, perfidy, ruses and non-forceful means and methods of warfare.
This introductory Chapter sets out the purpose of the book. Acknowledging the difficulty in deciding to publish such a Manual, the importance of the text to this field of international law is acknowledged. Recognising that the Manual is published on the authority of the Department of Defense alone, its status, or otherwise, as State practice is discussed. Some general points of criticism are mentioned and some general introductory comments as to the structure of the book are ncluded.
Chapter 4 is concerned with the classification of persons under the law of war. The Manual’s treatment of armed forces and the civilian population is discussed, and improvements to the Manual’s chosen language are proposed. The US position on unlawful combatants and unprivileged belligerents, as set forth in the Manual, is subjected to detailed critical analysis. In succeeding sections, the rights, duties and liabilities of combatants, the concepts of armed forces of a state, of militia and volunteer corps and of levee en masse as treated in the Manual are considered. Thereafter the Manual’s discussion, inter alia, of the rights, duties and liabilities of civilians, the status, rights and responsibilities of military medical and religious personnel, of auxiliary medical personnel and of personnel engaged in the protection of cultural property is evaluated. After addressing the complexities associated with persons authorised to accompany the armed forces, the Chapter reviews the Manual’s treatment of crews of the merchant marine and of civil aircraft, spies, saboteurs, private persons who engage in hostilities and the rights, duties and liabilities of unprivileged belligerents, of mercenaries and of a number of other classes of person who are the subject of specific law of war provision.
Chapter 2 addresses the fundamental principles on which the law of war is based, namely military necessity and humanity, both of which are considered in dedicated sections within the corresponding Chapter in the Manual. Having dealt with these topics in a legally acceptable way, the Manual addresses proportionality and Chapter 2 explains why the Manual’s treatment of this topic seems to fall into error by confusing the legal principle with the rule reflected in article 51 of Additional Protocol I. The Chapter then critiques the Manual’s treatment of distinction, in particular its failure adequately to distinguish the discrimination rule. The third and final principle that the Manual addresses and that is therefore discussed in the present Chapter is ‘honour’, a notion broadly to be equated with chivalry.
Chapter XVI of the Manual deals with the novel topic of cyber operations and Chapter 16 of the book gives appropriate credit to the Manual’s authors for including discussion of this novel and controversial topic. Both Chapters are understandably brief. After considering the Manual’s definition of cyberspace, its explanation of cyberspace operations and its discussion of other preliminary matters, the Chapter tackles the vexed question of the application of the law of war to cyber operations. Cyber operations and the jus ad bellum, cyber operations and the law of neutrality, cyber operations and the jus in bello, and the legal review of weapons that employ cyber capabilities are all then the subject of dedicated sections within the Manual and, this, of the Chapter. While, inevitably, there is a great deal more that could have been said in the Manual on this important and contemporary topic, that which the Chapter sets forth represents a useful expression of the US view.
Informed in part by relatively recent experience in Iraq, Chapter XI of the Manual addresses the important subject of military occupation and Chapter 11 of the Book considers what the Manual has to say about this. The Manual’s explanation of what might be termed belligerent occupation is carefully analysed and the Chapter goes on to address when military occupation law applies, how a situation of occupation ends and when GC obligations cease to apply, the authority and obligations of the occupying power e.g. in relation to legislation and courts, the movement of persons in occupied territory and the protection of children there. Responsibilities in respect of food and medical supplies, public health, spiritual assistance, relief consignments, enemy and cultural property and labour by protected persons are also addressed. The Chapter closes with an assessment of the Manual’s treatment of the rules relating to judges, public officials, public finances and of other economic regulation of occupied territory
Chapter XV of the Manual and Chapter 15 of the book address that most controversial topic in international law, namely the law of neutrality. After critiquing the Manual’s general introductory comments on the law of neutrality, the Chapter addresses the Manual’s treatment of the application of that law and of its framework of reciprocal rights and duties. The Manual’s explanations in respect of remedies for violations of neutrality law, in respect of the prohibition on the use of neutral territory as a base for operations, and with regard to neutral persons, neutral waters and the passage of belligerent vessels and aircraft through international straits and archipelagic sea lanes are all then subjected to critical analysis. The Manual’s approach to the right of angary, to neutral commerce, to the carriage of contraband and to the use of navicerts and aircerts, to the belligerent right of visit and search, to the acquisition of enemy character by neutral-flagged merchant vessels and neutral-marked civil aircraft and to the law as to the capture of neutral vessels and aircraft are all the subject of further sections of the Chapter.
In Chapter 6 the Manual’s discussion of the law concerning weapons is dealt with. The Chapter starts by outlining the US DOD weapon review policy. Some interesting omissions from the section in the Manual devoted to weapons that are prohibited by the law are noted. The interesting implication in the Manual that there is no customary law rule prohibiting expanding bullets is noted as are the details of the other Manual provisions dealing with specific weapon types. The Manual’s discussion of autonomy and of the superfluous injury and indiscriminate weapon principles is critiqued and its sections on poisons, poison gases and chemical weapons, on biological weapons, on mines, booby-traps and other devices, on cluster munitions, incendiaries, laser weapons, herbicides and nuclear weapons are all examined carefully and are subjected to criticism where it is thought appropriate. The Chapter ends by reflecting on the Manual’s discussion of explosive remnants of war.
Chapter XIX of the Manual provides some notes relating to treaties and other documents of relevance to the law of war and the content of these notes is considered in Chapter 19 of the Book. Law of war treaties to which the US is and, respectively, is not a party, treaties that the US has signed but not ratified and treaties that the US has neither signed nor ratified are variously noted and discussed. Particular sections are devoted, respectively, to: the Lieber Code; the 1856 Paris Declaration; the 1864 GWS; the 1868 St Petersburg Declaration; the 1899 and 1907 Hague Declarations on Weapons; the Hague Regulations; the 1923 Hague Air and Radio Rules; the 1949 Geneva Conventions; the 1954 Hague Cultural Property Convention; the Additional Protocols to the Geneva Conventions; the Conventional Weapons Convention and its Protocols; the Chemical Weapons Convention and the Rome Statute of the International Criminal Court. The Chapter subjects the Manual’s notes on each of these instruments to critical analysis
The law relating to prisoners of war (PW) is addressed in Chapter IX of the Manual and, thus, in Chapter 9 of the book. After discussing the general principles as to their treatment and the entitlement to PW status, the Chapter considers the Manual’s handling of such topics as humane treatment and basic protection, security measures, interrogation, evacuation, transit and screening, required detailed arrangements for the treatment of PWs and as to the running of PW camps. Sections within Chapter IX and the corresponding sections of the Book consider the law as to PW canteens, financial matters, PW labour, PW correspondence, PW camp discipline and PWs’ requests and complaints. PW representatives, escapes, disciplinary and judicial proceedings and punishments are also all the subject of discrete sections within the Manual and thus the Book. In short, the topic of PWs is discussed thoroughly and, where appropriate, criticism of the Manual’s provisions is offered.
The final Chapter of the Book, Chapter 20, considers the amendments that have been published by the US Department of Defense since the publication of the original Manual text. The preceding Chapters of the Book have considered the text as originally published. In Chapter 20, the amendments are exposed to careful scrutiny. The first set of amendments, published on 31 May 2016, consist of minor changes to the discussion of proportionality in section 2.4, minor revisions of the discussion of the principle of honour in section 2.6, substantial revisions of the discussion of journalists in section 4.24, some minor changes for stylistic consistency, the correction of some typographical or administrative errors and adjustments to punctuation and spacing. In a further set of amendments published on
Chapter 14 examines the Manual’s treatment in Chapter XIV of the law relating to air and space warfare. After noting the limited relevance of the Chicago Convention 1944, the Chapter considers the Manual’s treatment of the legal boundaries of airspace, the different classifications of aircraft, the legal status of the crews of military aircraft, the law that applies to actions short of attack such as interception, diversion and capture, and the belligerent control of aviation in the immediate vicinity of hostilities. The Chapter then discusses the Manual’s explanation of airspace zones, attacks against military objectives in the air and on the ground. In a disappointingly short section, the Manual discusses the international law that applies to warfare in outer space, and this treatment of the subject is critiqued in the final substantive section of the Chapter.
Chapter 7 considers the Manual’s treatment of the law relating to the wounded, sick, shipwrecked and medical personnel. The Manual’s explanation of the rules as to respect for and protection of the wounded sick and shipwrecked is carefully examined and, in certain respects, is found to be less than completely accurate. The Manual’s interpretation of shipwrecked is also criticised. The Chapter goes on to address the Manual’s treatment of the obligation to search for and collect the wounded and sick, the requirements as to humane treatment and care, accounting for captured or dead enemy personnel, treatment of the dead, respect and protection of medical and religious personnel and their capture, military medical units, medical transports and aircraft and the distinctive emblem. The Chapter concludes by discussing civilian hospitals and their personnel, civilian hospital convoys, civilian medical aircraft and, finally, the Additional Protocol I provisions in relation to the wounded, sick and shipwrecked.
The Manual’s consideration of detention is the subject matter of Chapter 8. As the Chapter points out, detention is a topic of great contemporary legal importance and it is therefore surprising to say the least that the ambiguities and potential legal inaccuracies to which attention is drawn are to be found in the corresponding Chapter of the Manual. The requirement for the humane treatment of all detainees, the legitimacy of security measures such as the searching of detainees, interrogation of and medical care for detainees, and criminal procedures against and punishment of such persons are all the subject of discrete sections in the Manual and therefore also in the Book. The conclusion that emerges is that the Manual’s Chapter would benefit from revision and that some restructuring of the entire part of the Manual that addresses the various forms of detention should be considered.
Chapter XVII of the Manual and the corresponding Chapter 17 of the Book deal with the law as it applies to non-international armed conflicts. Starting with the definition and constituent elements of such conflicts, the Chapter goes on to address how the Manual deals with the law that applies to them, including its discussion of the principle of distinction, of the rules as to the conduct of attacks during non-international armed conflicts, of humanitarian organisations and activities, of displacement of the civilian population and of the prohibition of the use of starvation as a method of warfare. Subsequent sections of the Chapter consider the Manual’s treatment of the protection of children, of cultural property, of the use of captured or surrendered enemy personnel, of weapons, and of the protection of the wounded, sick, shipwrecked and dead, medical and religious personnel and medical transports. The Chapter concludes with a assessment of the Manual’s discussion of the law relating to the display of the distinctive emblem, to detention, to non-intervention and to neutral duties.