Second, did the commander act reasonably based on the gathered information? Of course, factors such as time, available
staff, and combat conditions affecting the commander must also weigh in the analysis.
Principle of Discrimination or Distinction. This principle requires that combatants be distinguished from non-
combatants, and that military objectives be distinguished from protected property or protected places. Parties to a conflict
shall direct their operations only against combatants and military objectives. (GP I, Art. 48) GP I prohibits
"indiscriminate attacks." Under Article 51, paragraph 4, these are attacks that: are "not directed against a specific
military objective," (e.g., Iraqi SCUD missile attacks on Israeli and Saudi cities during the Persian Gulf War); "employ a
method or means of combat the effects of which cannot be directed at a specified military objective," (e.g., might prohibit
area bombing in certain populous areas, such as a bombardment "which treats as a single military objective a number of
clearly separated and distinct military objectives in a city, town, or village..."(GP I, art. 51, para. 5(a)); or "employ a
method or means of combat the effects of which cannot be limited as required" by the Protocol (e.g., release of dangerous
forces (GP I, art. 56) or collateral damage excessive in relation to concrete and direct military advantage (GP I, art. 51,
para. 5(b)); and "consequently, in each case are of a nature to strike military objectives and civilians or civilian objects
without distinction."
APPLICATION OF THE LAW OF WAR
The Law of War applies to all cases of declared war or any other armed conflicts that arise between the U.S. and
other nations, even if the state of war is not recognized by one of them. FM 27-10, para. 8. It also applies to cases of
partial or total occupation. This threshold is codified in common article 2 of the Geneva Conventions. Armed conflicts
such as the Falklands War, the Iran-Iraq War, and Desert Storm were clearly international armed conflicts to which the
Law of War applied. While the 1977 Protocol I to the 1949 Geneva Conventions has expanded this scope of application
to include certain wars of "national liberation," the U.S. is not a Party to the Protocol and does not recognize this
extension of the Law of War.
In peace operations, such as those in Somalia, Haiti, and Bosnia, the question frequently arises whether the Law of
War applies to those operations. The issue hinges on whether the peace operations forces undertake a combatant role. It
has thus far been the U.S., UN, and NATO opinion that their forces have not become combatants, despite carrying out
some offensive-type operations (e.g. Task Force Ranger in Somalia, Operations Deny Flight and Deliberate Force in
Bosnia). Despite the legal inapplicability of the Law of War to these operations, it is, nonetheless, the position of the
U.S., UN, and NATO that their forces will apply the "principles and spirit" of the Law of War in these operations.
This approach is consistent with DoD policy to comply with the Law of War "in the conduct of military operations
and related activities in armed conflict, however such conflicts are characterized." (DoD Directive 5100.77, para. 5.3.1)
CJCSI 5810.01, para. 5.a. states that the U.S. "will apply law of war principles during all operations that are categorized
as Military Operations Other Than War." In applying the DoD policy, however, allowance must be made for the fact that
during these operations U.S. Forces often do not have the resources to comply with the Law of War to the letter. It has
been U.S. practice to comply with the Law of War to the extent "practicable and feasible." Memorandum of W. Hays
Parks to the Judge Advocate General of the Army, 1 October 1990.
SOURCES OF THE LAW OF WAR.
The Law of The Hague (ref. (1) and (2)). Regulates "methods and means" of warfare--prohibitions against using certain
weapons such as poison; and humanitarian concerns such as warning the civilian population before a bombardment. The
rules relating to the methods and means of warfare are primarily derived from articles 22 through 41 of the Regulations
Respecting the Laws and Customs of War on Land [hereinafter HR] annexed to Hague Convention IV. (HR, art. 22-41.)
Article 22 states that the means of injuring the enemy are not unlimited.
Geneva Conventions of 1949 (ref. (3) - (6)). The Conventions protect "victims" of war such as wounded and sick,
shipwrecked at sea, prisoners of war, and civilians.
1977 Geneva Protocols (ref. (7)). Although the U.S. has not ratified GP I and II, judge advocates must be aware that
approximately 150 nations have ratified the Protocols (thus most of the 185 member states of the UN). The Protocols will
come into play in most international operations. U.S. Commanders must be aware that many allied forces are under a
Chapter 2
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Law of War
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