flict benefit from the law. It is unacceptable to make their legal protection contingent upon an international consensus on the causes of the conflict.

e. Domestic Law:

(1) Relationship with International Law.25 International law primarily governs the relations between states. In addition, it may be a part of the domestic law of particular states. Within a domestic legal system, international law will be one of the sources of legal norms that must be harmonized with principles of domestic law either constitutional, statutory or decisional. In the relationships between states, a state cannot generally defend a failure to abide by international law or strict treaty requirements by pleading its own domestic legal constraints.

(2) US View. Since the US Constitution, state and federal courts have declared international law to be part of the law of the land.26 Generally, courts attempt to harmonize US law with international law under various theories. With respect to treaties, Article VI, clause 2 of the Constitution explicitly states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (emphasis supplied).

(3) Relationship with Uniform Code of Military Justice. The Uniform Code of Military Justice (UCMJ), 27 is a statute enacted by Congress with Presidential assent to insure that American armed forces are subject to effective military discipline. International law requires an armed force to be disciplined through command by a person responsible for his subordinates. 28 Only through a disciplined force can military operations be conducted in accordance with the international law of armed conflict. Discipline thus serves the dual function of

insuring that orders are carried out expeditiously and that operations are conducted within the law. This important function of military discipline, avoidance of violations of the law of armed conflict, is illustrated by a graphic example found in the "Lieber Code" of 1863, in force during the US Civil War.

All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. Art. 44, Instructions for the Government of Armies of the United States by Order of the Secretary of War, General Order No. 100, April 24, 1863.

f. Functions of the Law of Armed Conflict. 29 The law of armed conflict is essentially inspired by the humanitarian desire of civilized nations to diminish the effects of conflicts. It protects both combatants and noncombatants from unnecessary suffering, and safeguards the fundamental rights of civilians, PWs, and the wounded and sick. The law also attempts to prevent degeneration of conflicts into savagery and brutality, thereby facilitating the restoration of peace and the friendly relations which must, at some point, inevitably accompany or follow the conclusion of hostilities. It has been said to represent in some measure minimum standards of civilization.

1-3. Determinants of the Law: a. Basic Principles: 30

(1) Military Necessity.31 Military necessity is the principle which justifies measures

of regulated force not forbidden by international law which are indispensable for securing the prompt submission of the enemy, with the least possible expenditures of economic and human resources. This concept has four basic elements: (i) that the force used is capable of being and is in fact regulated by the user; (ii) that the use of force is necessary to achieve as quickly as possible the partial or complete submission of the adversary; (iii) that the force used is no greater in effect on the enemy's personnel or property than needed to achieve his prompt submission (economy of force), and (iv) that the force used is not otherwise prohibited. The 1907 Hague Regulations (Article 23g) state the principle that "it is especially forbidden to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war." The principle of military necessity is not the 19th Century German doctrine, Kriegsraison, asserting that military necessity could justify any measures-even in violation of the laws of war-when the necessities of the situation purportedly justified it. War crimes trials after World War II clearly rejected this view. "Military necessity" cannot justify actions absolutely prohibited by law; the means to achieve military victory are not unlimited. Armed conflict must be carried on within the limits of the prohibitions of international law, including the restraints inherent in the principle of "necessity." However, the legitimacy of any particular act cannot be judged without reference to all the principles which govern armed conflict including reciprocity as discussed in chapter 10.

(2) Humanity. 32 Complementing the principle of necessity and implicitly contained within it is the principle of humanity which forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes. This principle of humanity results. in a specific prohibition against unnecessary suffering, a requirement of proportionality, and a variety of more specific rules examined later. The principle of humanity also

confirms the basic immunity of civilian populations and civilians from being objects of attack during armed conflict. This immunity of the civilian population does not preclude unavoidable incidental civilian casualties which may occur during the course of attacks against military objectives, and which are not excessive in relation to the concrete and direct military advantage anticipated.

(3) Chivalry. 33 Although difficult to define, chivalry refers to the conduct of armed conflict in accord with well-recognized formalities and courtesies. During the Middle Ages, chivalry embraced the notion that combatants belonged to a caste, that their combat in arms was ceremonial, that the opponent was entitled to respect and honor, and that the enemy was a brother in the fraternity of knights in arms. Modern technological and industrialized armed conflict has made war less a gentlemanly contest. Nevertheless, the principle of chivalry remains in specific prohibitions such as those against poison, dishonorable or treacherous misconduct, misuse of enemy flags, uniforms, and flags of truce. The principle of chivalry makes armed conflict less savage and more civilized for the individual combatant.

b. Custom. 34 Some of the law of armed conflict has never been incorporated in any treaty or convention to which the United States is a party. Yet the United States, as are other nations, is bound by customary rules of international law. Custom develops from the practice of states and has been referred to as the "common law" of nations.

In the Nuremberg judgment in the case of the Major War Criminals, the International Military Tribunal observed,

The law of war is to be found not only in treaties, but in the customs and practices of States which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accu

rate reference the principles of law already existing.35

Evidence of customary law arises from the general consent and practice of states under the belief that the practice is required by law. It may be found in certain international conventions or drafts of conventions and declarations, judicial decisions of international and national tribunals (e.g. trial of Major Henry Wirz, who was in charge of the Confederate prison at Andersonville), and other documentary materials and acts of states. Some of the sources of the law of war, for example, go back as far as the second millennium, B.C. The United States is bound to follow such law, not because a treaty requires it, but because international law imposes the obligation on all states. An example is the 1899 Declaration Respecting Expanding Bullets, commonly termed the Dum Dum Declaration.36 The preamble to Hague IV, to which the United States is a party, provides,

Until a more complete code of laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience. 37

c. International Agreements. The law of armed conflict affecting aerial operations is not entirely codified. Therefore, the law applicable to air warfare must be derived from general principles, extrapolated from the law affecting land or sea warfare, or derived from other sources including the practice of states reflected in a wide variety of sources. Yet the US is a party to numerous treaties which affect aerial operations either directly or by analogy. It is especially important that treaties, having the force of law equal to laws enacted by the Congress of the United States, be scrupulously adhered to by the United States

armed forces. The following are relevant examples of treaties to which the US is a party: 38

(i) Hague Convention III of 18 October 1907, Relative To The Opening Of Hostilities (herein Hague III).

(ii) Hague Convention IV of 18 October 1907, Respecting The Laws And Customs Of War On Land and Annex Thereto (herein Hague IV, HR).

(iii) Hague Convention V of 18 October 1907, Respecting The Rights And Duties of Neutral Powers And Persons In Case of War On Land (herein Hague V).

(iv) Hague Convention VIII of 18 October 1907, Relative to the Laying of Automatic Submarine Contact Mines (herein Hague VIII).

(v) Hague Convention IX of 18 October 1907, Concerning Bombardment By Naval Forces In Time Of War (herein Hague IX).

(vi) Hague Convention XI of 18 October 1907, Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War (herein Hague XI).

(vii) Hague Convention XIII of 18 October 1907, Concerning the Rights and Duties of Neutral Powers in Naval War (herein Hague XIII).

(viii) Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare of 1925.

(ix) Inter-American Treaty On The Protection Of Artistic And Scientific Institutions and Historical Monuments of 15 April 1935 (herein Roerich Pact).

(x) Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (herein GWS).

(xi) Geneva Convention for the Amelioration of the Conditions of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (herein GWS-SEA).

(xii) Geneva Convention Relative to Treatment of Prisoners of War, 12 August 1949 (herein GPW).

(xiii) Geneva Convention Relative to the Protection of Civilians in Time of War, 12 August 1949 (herein GC).

(xiv) Convention on the High Seas, 29 April 1958.

(xv) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and other Celestial Bodies, 27 January 1967. 1-4. Views on the Law of Armed Conflict:

a. International Community. 39 The views of the international community on the importance of codifying the law of armed conflict have varied over time. On occasion, elaborate rules were drafted, such as the 1874 Declaration of Brussels and the 1923 Draft Hague Rules of Aerial Warfare, but these never came into formal effect. The 1899 and 1907 Hague Peace Conferences, exerting considerable effort, ultimately produced 15 distinct Conventions on the subject. These remain the foundation stones of the modern law of armed conflict. In spite of a reluctance to clarify the rules after World War II, partially resulting from an idealistic view that universal adherence to the letter and spirit of the UN Charter would preclude future wars, the 1949 Geneva Conference produced four detailed Conventions to better protect the victims of armed conflicts. As a result of efforts by the International Committee of the Red Cross (ICRC), and others, renewed interest in attempts to reaffirm and clarify the law has been evident since 1968. Numerous Conferences of Government experts, as well as three separate sessions of a Diplomatic Conference, have considerably clarified certain areas in an attempt to formulate specific multilateral Protocols to the 1949 Geneva Conventions.

b. US Views. 40 The US has always viewed the law of armed conflict as important. In 1863, the United States issued the first comprehensive code regulating armed conflict in modern times. Named after the author, Francis Lieber, the "Lieber Code" was issued as General Orders No. 100, entitled "Instructions for the Government of Armies of the United States in the Field". Although formulated with particular refer

ence to a civil, as distinguished from an international war, it served as a model for the 1907 Hague Convention IV regulating international conflict. The failure of Germany to respect the law of neutrality governing naval warfare was cited as a principal basis for US entry into World War I on the side of the Allies. After World War II, the US was a principal participant in the War Crimes trials and a leader in the adoption of the 1949 Geneva Conventions. Numerous public statements by the highest officials of the US during the Vietnam struggle, as well as a leadership role in the 1970's in the Diplomatic Conferences considering the Protocols to the Conventions, confirm the continued importance of the subject in official US views.

c. DOD. DOD policy on the Law of Armed Conflict is set forth in DOD Directive 5100.77, 5 November 1974, establishing the DOD Law of War Program. Paragraphs V and VI(E) of that Directive are as follows:

V. POLICY

A. The Armed Forces of the United States will comply with the law of war in the conduct of military operations and related activities in armed conflict however such conflicts are characterized.

B. The Armed Forces of the United States will insure that programs to prevent violations of the law of war to include training and dissemination as required by the Geneva Conventions (GWS Art. 47, GWS-Sea Art. 48, GPW Art. 127, GC Art. 144 and by Hague Convention IV (Art. I)), are instituted and implemented. C. Violations of the law of war alleged to have been committed by or against members of, or persons accompanying or serving with, the Armed Forces of the United States will be promptly reported, thoroughly investigated, and, where appropriate, followed by corrective action.

D. Violations of the law of war alleged

to have been committed by or against allied military or civilian personnel will be reported through appropriate command channels for ultimate transmission to appropriate agencies of allied governments.

VI. RESPONSIBILITIES

E. The Secretaries of the Military Departments will develop internal policies and procedures consistent with this Directive in support of the DoD law of war program in order

to:

1. Provide publications, instructions, and training so that the principles and rules of the law of war will be known to members of their respective departments, the extent of such knowledge to be commensurate with each individual's duties and responsibilities.

2. Provide for the prompt reporting and investigation of alleged violations of the law of war committed by or against members of their respective departments.

3. Provide for the appropriate disposition, under the Uniform Code of Military Justice, of cases involving alleged violations by persons subject to court-martial jurisdiction of their respective departments.

4. Provide for the central collection of reports and investigations of violations of the law of war alleged to have been committed by members of their respective military departments.

5. Insure that programs within their respective departments to prevent violations of the law of war are subject to periodic review and evaluation, particularly in light of any violations reported.

d. Importance to Individuals. 41 The system of international law regulating armed conflict represents an effort to provide humanitarian protections while maintaining the

concept of military necessity. The Chairman, JCS, has noted

The Armed Forces of the United States have benefited from, and highly value, the humanitarianism encompassed by the laws of war. Many are alive today only because of the mutual restraint imposed by these rules, notwithstanding the fact that the rules have been applied imperfectly.

Because of its importance to the international community, to the US, and to the DOD, individual service members should understand the law of armed conflict. The profession of arms has a long and proud tradition and the law of armed conflict is an integral part of that tradition. Although international law chiefly serves to regulate state conduct, combatants individually are responsible for following the law of armed conflict which obligates their nation. Compliance is important because states have reciprocal interests in the law's continued application. Individuals have a personal interest as well. Not only are obligations imposed, but rights are created in individuals by the law of armed conflict. Most important is the right of the combatant to engage in combatant acts, which if not done by recognized combatants in armed conflict, would be unlawful. Every legal system is based on rights and responsibilities. One of the best ways to protect rights is the diligent fulfillment of responsibilities. If responsibilities are not executed in accordance with the law regulating conflict, corresponding rights may be compromised. Rights not only belong to combatants but equally concern the nation and populations their services protect and defend.

1-5. Application of Law:

a. Traditional View of War Explained. 43 Under traditional international law, war is a legal state, the commencement, and to a lesser extent, termination, of which are regulated by formal acts recognized in international law. War begins when specified in a declaration, upon receipt of a declaration if not specified, or by attacks accompanied by