Prohibitions or Restrictions on the Use of Mines, Booby-Traps & Other devices (Protocol II as amended May, 1996)
when the U.S. is a party to such Protocol and the violation willfully kills or causes serious injury to civilians.
U.S. policy on application of the Law of War is stated in DoD Directive 5100.77 (DoD Law of War Program) and
further explained in CJCSI 5810.01 (12 Aug 96) (Implementation of the DoD Law of War Program). Except when
properly determined by the National Command Authority that it is not applicable, DoD Components "will comply with
the Law of War in the conduct of all military operations and related activities in armed conflict, however such conflicts
are characterized...." The CJCS SROE state that, "U.S. Forces will always comply with the Law of Armed Conflict."
Command Responsibility. Commanders are legally responsible for war crimes committed by their subordinates
when any one of three circumstances applies:
(1) The commander ordered the commission of the act;
(2) The commander knew of the act, either before or during its commission, and did nothing to prevent or stop it;
or
(3) The commander should have known, "through reports received by him or through other means, that troops or
other persons subject to his control [were] about to commit or [had] committed a war crime and he fail[ed] to take the
necessary and reasonable steps to insure compliance with the LOW or to punish violators thereof." (FM 27-10, para.
501).
Judge advocates must keep their commanders informed of their responsibilities concerning the investigation and
prosecution of war crimes. The commander must also be aware of his potential responsibility for war crimes committed
by his subordinates. CJSCI 5810.01A requires that legal advisers review all operation plans, concept plans, ROE, execute
orders, deployment orders, policies and directives to ensure compliance with the instruction, the DoD Law of War
Program, "as well as domestic and international law." The CJCSI also requires integrating the reporting and investigative
requirement of the DoD Law of War Program into all appropriate policies, directives, and operation and concept plans.
Investigative Assets. Several assets are available to assist commanders investigating suspected violations of the LOW.
Investigations can be conducted with organic assets and legal support, using AR 15-6 or commander's inquiry
procedures. (Command regulations, drafted IAW DoD Directive 5100.77, should prescribe the manner and level of unit
investigation.) An investigation may also be conducted by the Criminal Investigation Division Command (CID). CID
has investigative jurisdiction over suspected war crimes in two instances. The first is when the suspected offense is one
of the violations of the UCMJ listed in Appendix B to AR 195-2, Criminal Investigation Activities. The second is when
the investigation is directed by HQDA (para. 3-3a(7), AR 195-2).
In addition to CID, and organic assets and legal support, a commander may have Reserve Component JAGSO teams
available to assist in the investigation. JAGSO teams perform judge advocate duties related to international law,
including the investigation and reporting of violations of the Law of War, the preparation for trials resulting from such
investigations, and the provision of legal advice concerning all operational law matters. Other available investigative
assets include the military police, counterintelligence personnel, and judge advocates.
Reports. WHEN IN DOUBT, REPORT. Report a "reportable incident" by the fastest means possible, through command
channels, to the responsible CINC. A "reportable incident" is a possible, suspected, or alleged violation of the law of war.
The reporting requirement should be stated not only in a "27 series" regulation or legal appendix to an OPLAN or
OPORD, but also in the unit TACSOP or FSOP. Normally, an OPREP-3 report established in Joint Pub 1-03.6, JRS,
Event/Incident Reports, will be required.
Alleged violations of the law of war, whether committed by or against U.S. or enemy personnel, are to be promptly
reported, thoroughly investigated, and, where appropriate, remedied by corrective action.
Chapter 2
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Law of War
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