Relations between U.S. Forces and the ICRC
Subject to essential security needs and other reasonable requirements, the ICRC must be permitted to visit PWs and
provide them certain types of relief. Typically, the U.S. will invite the ICRC to observe PW conditions as soon as
circumstances permit. Once on the scene, the ICRC will closely examine compliance with the Law of War and, in
particular, the Geneva Conventions concerning a broad range of issues.
Given his professional qualifications and specialized training in the Law of War, the judge advocate should serve as
the escort and liaison officer with the ICRC.7 This role is doctrinal, and stated in FM 71-100-2, INFANTRY DIVISION
OPERATIONS TACTICS, TECHNIQUES, AND PROCEDURES, page 6-28. The judge advocate can quickly identify and resolve
many Law of War issues before they become a problem for the commander. For those Law of War matters requiring
command decision, the judge advocate is best suited to provide advice to the commander and obtain timely responses.
These same skills are essential in dealing with ICRC observers. The judge advocate can best serve as the commander's
skilled advocate in discussions with the ICRC concerning the Law of War.
Both the commander and the judge advocate should recognize that the ICRC, as an impartial humanitarian
organization, is not a political adversary, eagerly watching for and reporting Law of War violations.8 Rather, it is capable
of providing assistance in a variety of ways. In recent conflicts, the ICRC assisted in making arrangements for the
transportation of the remains of dead enemy combatants and for repatriating PWs and civilian detainees. By maintaining
a close working relationship with ICRC representatives, the judge advocate receives a two-fold benefit. He is assisted in
identifying Law of War issues before they pose problems to the command, and he has access to additional legal resources
that may be used to resolve other Law of War matters.
The ICRC is also heavily involved in MOOTW, where it may be present in conjunction with numerous other
organizations and agencies. In the former Yugoslavia, Somalia, and Rwanda, for example, many international
organizations are or were engaged in "humanitarian relief" activities. Among the most significant is the UN High
Commissioner for Refugees (UNHCR). The list of private voluntary organizations (PVOs) and Nongovernment
organizations (NGOs) in the field is large; approximately 350 humanitarian relief agencies are registered with the U.S.
Agency for International Development (USAID).
REMEDIES FOR VIOLATIONS OF THE LAW OF WAR
U.S. Military and Civilian Criminal Jurisdiction
It is DoD policy that a member of the armed forces who commits an offense that qualifies as a "war crime" will be
charged under a specific article of the UCMJ. In the case of other persons subject to trial by general courts-martial for
violating the laws of war (UCMJ, art. 18), the charge shall be "Violation of the Laws of War" rather than a specific
UCMJ article.
The War Crimes Act of 1997 (18 U.S.C. ... 2401) provides federal courts with jurisdiction to prosecute any person
inside or outside the U.S. for war crimes where a U.S. national or member of the armed forces is involved as an accused
or as a victim.
"War Crimes" are defined in the War Crimes Act as (1) grave breaches as defined in the Geneva Conventions of
1949 and any Protocol thereto to which the U.S. is a party; (2) violations of Articles 23, 25, 27, 28 of the Annex to the
Hague Convention IV; (3) violations of Common Article 3 of the Geneva Conventions of 1949 and any Protocol thereto
to which the U.S. is a party and deals with a non-international armed conflict; (4) violations of provisions of Protocol on
7
General Prugh (former TJAG) fulfilled the task of "interfacing" with the ICRC when he was the legal advisor to CDR, MACV in Vietnam. General
Prugh relates that during the early stages of Viet Nam, OTJAG concluded that the U.S. was involved in an Art 3, not Art 2, conflict. In June '65 the
situation had changed, and by Aug '65 a formal announcement was made that Art 2 now applied. Soon, ICRC delegates began to arrive, and it fell upon
the judge advocates to meet with the delegates. This role continued in operations in Grenada, Panama, Somalia, Haiti, and during the Gulf War. The
development of this liaison role was also apparent in Haiti, particularly in the operation of Joint Detention Facility.
8
It is essential to understand the neutrality principle of the ICRC. One must stay at arm's length from the delegates so not to risk harming their
relationships with the enemy. For example, ICRC personnel will meet with prisoners in private.
Chapter 2
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Law of War
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