Chapter 17 NIAC

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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 non-State 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.

Non-International Armed Conflict Notes on Terminology. Non-international 17.1.1armed 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). 2 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 non-international 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.

3 Refer to 3.4.2.2 (Distinguishing Armed Conflict From Internal Disturbances and Tensions). 4 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). 6 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). 8 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.

Important Commonalities Between the Law Applicable to International Armed 17.1.2Conflict 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.

Important Differences Between the Law Applicable to International Armed 17.1.3Conflict 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).

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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.).

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law of war has developed.29 The discretion afforded States in applying law of war rules to non-international 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.

Treaties That Apply to NIAC. Relatively few treaties have provisions that 17.2.1expressly 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 non-international 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.).

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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 .).

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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 non-international 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

Assessing Customary International Law Applicable to NIAC. As a consequence 17.2.2of 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).

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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 non-international 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 self-contained; 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.).

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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.).

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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 non-international 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.

Application of Humanitarian Rules and the Legal Status of the Parties to the 17.2.3Conflict. 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

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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

Binding Force of the Law of War on Insurgents and Other Non-State Armed 17.2.4Groups. 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.

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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

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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

Communications Between Parties to the Conflict. The procedures that are used 17.3.1for 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 AmericanAsiaMiddle 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).

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17.4 A STATES USE OF ITS DOMESTIC LAW AND NIAC

Ability of a State to Use Its Domestic Law Against Non-State Armed Groups. A 17.4.1fundamental 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 non-State 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).

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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).

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Emergency Laws and Regulations. Many States have laws permitting the 17.4.2government 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 non-international armed conflict would depend on the content of that law, including applicable constitutional restrictions.83

Special Courts. As part of its emergency regulations, a State may establish special 17.4.3or 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

Reintegration Programs and Amnesty. States have used reconciliation and 17.4.4reintegration 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.

Discrimination in Conducting Attacks Against the Enemy in NIAC. Parties to a 17.5.1conflict 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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Distinguishing State Forces From the Civilian Population in NIAC. During non-17.5.2international 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 non-international 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 c