ADDP06_4.book

ADDP 06.4

EXECUTIVE SERIES

ADDP 06.4

LAW OF ARMED CONFLICT

Australian Defence Doctrine Publication 06.4 is issued for use by the

Australian Defence Force and is effective forthwith. This publication

supersedes Australian Defence Force Publication 37—Law of Armed

Conflict.

A.G. HOUSTON, AO, AFC

Air Chief Marshal

Chief of the Defence Force

Australian Defence Headquarters

Canberra ACT 2600

11 May 2006

Defence Publishing Service

DPS: June 2006

This work is copyright. Apart from any use as permitted under the Copyrig

Act 1968, no part may be reproduced by any process without prior written

permission from the Australian Government Department of Defence.

Announcement statement—ma

y be announced to the public.

Secondary release—may be rele

ased to the public.

All Defence information, whether classified or not, is protected from

nauthorised disclosure under the Crimes Act 1914. Defence information

may only be released in accordance with the Defence Security Manual and/

or Defence Instruction (General) OPS 13–4—Release of Classified Defence

Information to Other Countries, as appropriate.

ADFP 37

First edition 1996

ADDP 06.4

First edition 2006

Sponsor

Vice Chief of the Defence Force

Headquarters Australian Defence Force

Developer

Commandant

Australian Defence Force Warfare Centre

WILLIAMTOWN NSW 2314

Publisher

Defence Publishing Service

Department of Defence

CANBERRA ACT 2600

iii

ADDP 06.4

FOREWORD

1. Australian Defence Doctrine Publications (ADDP) and Australian

Defence Force Publications (ADFP) are authorised joint doctrine for the

guidance of Australian Defence Force (ADF) operations. ADDP are pitched at

the philosophical and high-application level, and ADFP at the application and

procedural level. Policy is prescriptive as represented by Defence

Instructions, and has legal standing. Doctrine is not policy and does not have

legal standing, however it provides authoritative and proven guidance which

can be adapted to suit each unique situation.

2. ADDP 06.4—Law of Armed Conflict promulgates guidance to

commanders for the planning and conduct of ADF operations in armed

conflict and details responsibilities and obligations for ADF members.

3. The law of armed conflict (LOAC) is that part of international law which

regulates the conduct of armed hostilities between states. LOAC

encompasses all international law with respect to the conduct of armed

conflict and its provisions are binding on Australia and individual members of

the ADF.

4. It is essential that ADF commanders are aware of their legal duties and

responsibilities under LOAC and that operational planning and the conduct of

operations comply with LOAC.

5. The Vice Chief of the Defence Force is the publication sponsor and

Commandant Australian Defence Force Warfare Centre (ADFWC) is

responsible for its continued development, amendment and production.

Further information on Joint Doctrine is promulgated in Defence Instructions

(General) ADMIN 20–1—Joint Operations Doctrine.

6. Every opportunity should be taken by users of this publication to

examine its contents, applicability and currency. If deficiencies or errors are

found, amendment action should be taken. ADFWC welcomes any

assistance, from

whatever source, to improve this publication.

ADDP 06.4

AMENDMENTS

Proposals for amendment of ADDP 06.4 may be initiated in either of the

following ways:

• By Minute to:

Director Doctrine and Training

Australian Defence Force Warfare Centre

RAAF Base

WILLIAMTOWN NSW 2314

• By directly entering comment into the Joint Doctrine Development

Environment (JDDE) found on the ADFWC Defence Restricted

Network (DRN) web site (see

http://defweb.cbr.defence.gov.au/

adfwc). Select JDDE on the ADFWC homepage and open either the

ADDP or ADFP block as required. Open the relevant publication and

utilise the ‘Add Comment’ function button of the summary page for

each publication.

Note

The second option is a proposed addition to encourage feedback from

the wider ADF, as well as encouraging use of the JDDE in general.

This publication is current as at May 2006.

This publication will be periodically reviewed and amended.

The latest version of this publication is available on the ADFWC DRN web

site http://defweb.cbr.defence.gov.au/adfwc.

vii

ADDP 06.4

AUSTRALIAN DEFENCE DOCTRINE

PUBLICATIONS

Abbreviation Superseded

ADFP No

Title

CAPSTONE DOCTRINE

ADDP–D N/A Foundations of Australian Military Doctrine

ADDP–D.2 N/A Force 2020

ADDP–D.3 N/A Future Warfighting Concepts

ADDP–D.3.1 N/A Enabling Future Warfighting: Network

Centric Warfare

ADDP–D.4 N/A Joint Warfighting

0–EXECUTIVE SERIES

ADDP 00.1 2 Command and Control

ADDP 00.2 4 Preparedness and Mobilisation

ADDP 00.3 N/A Coalition Operations

ADDP 06.1 3 Rules of Engagement

ADDP 06.2 3 Sup 1 Rules of Engagement—Operational Rules

ADDP 06.3 3 Sup 3 Combined Rules of Engagement for

Australian and United States Military

Forces

ADDP 06.4 37 Law of Armed Conflict

1–PERSONNEL SERIES

ADDP 1.0 N/A Personnel

ADDP 1.1 N/A Personnel Support to Operations

ADDP 1.2 53 Operational Health Support

2–INTELLIGENCE AND SECURITY SERIES

ADDP 2.0 19 Intelligence

ADDP 2.1 N/A Counterintelligence

ADDP 2.2 N/A Security

ADDP 2.3 N/A Geospatial Information and Services

viii

ADDP 06.4

3–OPERATIONS SERIES

ADDP 3.0 6 Operations

ADDP 3.1 11 Offensive Support

ADDP 3.2 12 Amphibious Operations

ADDP 3.3 13 Aerospace Battle Management

ADDP 3.4 15 Operations in a Chemical, Biological,

Radiological and Nuclear Environment

ADDP 3.5 24 Electronic Warfare

ADDP 3.6 N/A Joint Personnel Recovery

ADDP 3.7 29 Collection Operations

ADDP 3.8 35 Peace Operations

ADDP 3.9 39 Airborne Operations

ADDP 3.10 43 Evacuation Operations

ADDP 3.11 44 Civil-Military Cooperation

ADDP 3.12 45 Special Operations

ADDP 3.13 N/A Information Operations

ADDP 3.14 23 Targeting

ADDP 3.15 N/A Airbase Operations

ADDP 3.16 N/A Mounting Operations

4–LOGISTICS SERIES

ADDP 4.0 N/A Defence Logistics

ADDP 4.1 N/A Capability Support

ADDP 4.2 20 Support to Operations

ADDP 4.3 N/A Supply

ADDP 4.4 14, 21 and 22 Movements and Transport

ADDP 4.5 N/A Equipment Engineering and Maintenance

ADDP 4.6 N/A Infrastructure Engineering and

Maintenance

Abbreviation Superseded

ADFP No

Title

ADDP 06.4

5–PLANS SERIES

ADDP 5.0 9 Joint Planning (Provisional)

ADDP 5.1 9 Sup 1 AUS–USA Planning Manual

6–COMMUNICATIONS AND INFORMATION SYSTEMS SERIES

ADDP 6.0 10 Communications and Information

Systems

7–DOCTRINE AND TRAINING SERIES

ADDP 7.0 N/A Doctrine and Training

ADDP 7.1 N/A Training Adversary

Abbreviation Superseded

ADFP No

Title

ADDP 06.4

CONTENTS

Page

Foreword iii

Amendments v

Australian Defence Doctrine Publications vii

Contents xi

List of Figures xxi

Paragraph

CHAPTER 1 INTRODUCTION AND HISTORICAL BACKGROUND

INTRODUCTION

General 1.1

Domestic law 1.4

International law 1.5

Sources of international law 1.7

Compliance with international law 1.11

Binding nature of the law of armed conflict 1.12

HISTORICAL BACKGROUND

The modern law of armed conflict 1.17

Hague Law 1.21

Geneva Law 1.23

World War II 1.25

Geneva Conventions 1949 1.26

Cultural Property Convention 1954 1.29

Biological Weapons Convention 1972 1.31

Additional Protocols I and II 1977 1.32

Conventional Weapons Convention 1980 1.37

Chemical Weapons Convention 1993 1.38

International criminal tribunals 1.39

Ottawa Convention 1997 1.40

International Criminal Court 1.42

Naval warfare 1.43

Land warfare 1.47

Air warfare 1.48

ARMED CONFLICT

International armed conflict 1.51

Non-international or internal armed conflict 1.52

OPERATIONS LAW

ROLE OF THE UNITED NATIONS

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ADDP 06.4

CHAPTER 2 PRINCIPLES OF THE LAW OF ARMED CONFLICT

INTRODUCTION

BASIC PRINCIPLES OF THE LAW OF ARMED

CONFLICT

Military necessity 2.6

Unnecessary suffering 2.7

Proportionality 2.8

DISTINCTION

RULES OF ENGAGEMENT AND LAW OF

ARMED CONFLICT

CHAPTER 3 APPLICATION OF THE LAW OF ARMED CONFLICT

Parties to whom the law of armed conflict

applies 3.1

United Nations Charter 3.2

Resort to war 3.3

Definition of armed conflict 3.4

International armed conflict 3.6

Non-international armed conflict 3.8

Beginning and end of application 3.11

CHAPTER 4 WEAPONS

INTRODUCTION

PROHIBITED WEAPONS

General 4.4

Indiscriminate weapons 4.5

Weapons calculated or modified to cause

unnecessary suffering 4.7

Poison 4.8

Non-detectable fragments 4.9

Exploding small arms projectiles 4.10

Environment altering weapons 4.11

Laser weapons 4.12

Gas 4.13

Bacteriological warfare 4.14

Chemical weapons 4.15

Biological weapons 4.20

EXPLOSIVE REMNANTS OF WAR

Obligations imposed on States 4.22

Remedial and preventative measures 4.23

LANDMINES

Anti-personnel landmines 4.24

Anti-vehicle landmines 4.25

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LIMITATIONS ON LAWFUL WEAPONS

General 4.30

Incendiary weapons 4.31

Sea mines 4.34

Torpedoes 4.35

Landmines, booby traps and other devices 4.36

Landmines 4.39

Booby traps 4.41

Other devices 4.44

Nuclear weapons 4.45

Rockets, missiles and bombardment 4.48

CHAPTER 5 TARGETING

INTRODUCTION

Targeting principles 5.3

APPLICATION OF LAW OF ARMED CONFLICT

PRINCIPLES TO TARGETING

Distinction 5.4

Military necessity 5.5

Unnecessary suffering 5.8

Proportionality 5.9

PERSONNEL

Combatants 5.12

Non-combatants 5.18

Prisoners of war 5.20

MILITARY OBJECTIVES

CIVILIANS AND CIVILIAN OBJECTS

Definitions 5.33

Protection of civilians and civilian objects 5.35

Collateral damage 5.38

OBJECTS AFFORDED SPECIAL PROTECTION

Medical units and facilities 5.41

Religious, cultural and charitable buildings

and objects 5.45

Civil defence establishments 5.48

Dams, dykes and nuclear power stations 5.49

Environment 5.50

OFFENSIVE SUPPORT AND STRIKE

OPERATIONS

Precautions in attack 5.53

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ADDP 06.4

Axis of attack 5.57

Defensive locations 5.58

Terrorisation of civilian population 5.59

Non-lethal bombardment 5.60

DUTIES OF AUSTRALIAN DEFENCE FORCE

COMMANDERS

Annex:

A. Australia’s Declarations of Understanding to the

Additional Protocols

CHAPTER 6 MARITIME OPERATIONS AND THE LAW OF ARMED

CONFLICT

INTRODUCTION

DEFINITIONS

Archipelagic sea lanes passage 6.4

Archipelagic state 6.5

Auxiliary vessel 6.6

High seas 6.7

Innocent passage 6.8

Innocent passage in archipelagic waters 6.9

International waters 6.10

Vessel 6.11

Warship 6.12

AREAS OF NAVAL OPERATIONS

General area of naval operations 6.13

Immediate area of naval operations 6.16

PASSAGE RIGHTS DURING ARMED

CONFLICT AT SEA

Internal waters, territorial sea and archipelagic

waters 6.18

International straits and archipelagic sea lanes 6.22

MEANS AND METHODS OF ARMED

CONFLICT AT SEA

Means of armed conflict at sea 6.27

Methods of armed conflict at sea 6.32

RESTRICTIONS ON TARGETING

MEASURES OF NAVAL WARFARE

AGAINST TRADE

Visit and search of merchant vessels 6.46

Exemptions from visit and search of merchant

vessels 6.48

Contraband 6.50

Capture of enemy vessels and goods 6.54

ADDP 06.4

Capture of neutral merchant vessels and goods 6.57

Blockade 6.60

RESCUE AND CARE OF THE WOUNDED,

SICK AND SHIPWRECKED IN ARMED

CONFLICT AT SEA

CHAPTER 7 LAND OPERATIONS AND THE LAW OF ARMED

CONFLICT

INTRODUCTION

METHODS OF COMBAT

Stratagems and ruses 7.2

Perfidy 7.3

Improper use of protective symbols and emblems 7.5

Quarter must be granted 7.7

Persons ‘hors de combat’ 7.8

Starvation and devastation—scorched earth 7.10

Protection of the environment 7.14

Espionage and sabotage 7.18

Assassination 7.25

Undefended localities 7.27

Non-defended locality 7.28

Siege warfare 7.35

Demilitarised zone 7.40

Civil affairs 7.41

Law of armed conflict profiles 7.42

PROPERTY ON THE BATTLEFIELD

Destruction or seizure of civilian property 7.43

Booty 7.45

Pillage 7.46

Annex:

A. Law of armed conflict profile format

CHAPTER 8 AIR OPERATIONS AND THE LAW OF ARMED

CONFLICT

INTRODUCTION

CONTROL OF AIRSPACE

Airspace 8.5

Legal division of the oceans and airspace 8.9

Outer space 8.10

Status of military aircraft and personnel 8.11

Air navigation rights 8.15

Navigation in international airspace 8.20

Air defence identification zones 8.23

Security zones 8.27

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ADDP 06.4

Exclusion zones 8.29

Interception of aircraft 8.31

Neutral airspace during armed conflict 8.32

METHODS OF COMBAT

Targeting 8.35

Precision-guided weapons 8.38

Quarter must be granted 8.39

Propaganda 8.44

RESTRICTIONS ON THE USE OF AERIAL

WEAPONS

AIR–TO–AIR OPERATIONS

Parachutists and downed airmen 8.51

Search and rescue operations 8.55

Civil aircraft and occupants 8.56

Medical aircraft 8.60

CHAPTER 9 PROTECTED PERSONS AND OBJECTS

INTRODUCTION

PROTECTED SYMBOLS

Red Cross, Red Crescent and Red Crystal 9.5

Other protective symbols 9.7

Identity cards 9.9

White flag 9.10

LOSS OF PROTECTED STATUS

PROTECTION FOR CIVILIANS AGAINST THE

EFFECTS OF HOSTILITIES

Basic rule 9.12

Definition of civilian 9.14

Journalists 9.15

Civilian objects 9.16

Protection of civilians and civilian objects 9.17

Relief operations for civilians 9.26

SPECIALLY PROTECTED OBJECTS

Cultural objects 9.27

Cultural property 9.28

Objects indispensable to survival 9.30

Installations containing dangerous forces 9.34

Protected zones and localities 9.40

GENERAL PROTECTION OF ALL PERSONS

AFFECTED BY ARMED CONFLICT

Basic standards of treatment 9.45

Prohibited acts 9.46

Arrest, detention and internment 9.47

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ADDP 06.4

Protection of women 9.48

Protection and welfare of children 9.50

Free passage of relief supplies 9.53

RULES FOR THE TREATMENT OF PROTECTED

PERSONS

Protected persons 9.55

General treatment of protected persons in both

their own territory and occupied territory 9.58

Treatment of foreigners in a territory of a party to

the conflict 9.59

THE ENVIRONMENT

Civil defence 9.60

Tasks 9.62

General protection 9.64

Identification 9.66

Australian civil defence organisations 9.67

MEDICAL PERSONNEL, TRANSPORT AND

FACILITIES

Medical personnel 9.68

Medical facilities and transports 9.75

Medical facilities 9.78

Medical transport 9.83

Chaplains and religious personnel 9.88

Wounded, sick and shipwrecked 9.89

Collection of wounded, sick and shipwrecked 9.91

Treatment of wounded, sick and shipwrecked 9.95

MISSING AND DEAD

Search for missing and dead 9.99

Missing persons 9.100

The dead 9.103

Annexes:

A. Protective symbols

B. Identity card for medical/religious personnel

C. Identity card for civil defence personnel

CHAPTER 10 PRISONERS OF WAR AND DETAINED PERSONS

INTRODUCTION

Action to be taken at the start of hostilities 10.3

Prisoner of war status 10.4

Determination of status 10.15

PROTECTION OF PRISONERS OF WAR

Violations 10.23

PRISONER OF WAR CAMPS

RULES OF CAPTIVITY

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ADDP 06.4

Identity cards 10.31

Interrogation 10.33

Articles and equipment 10.35

Quarters, food and clothing 10.37

Medical and hygiene 10.40

Religious, intellectual and physical activities 10.42

Labour 10.44

Prisoner representatives 10.48

DISCIPLINARY AND JUDICIAL SANCTIONS

Disciplinary punishment 10.52

Judicial sanctions 10.53

Repatriation 10.57

Effect of repatriation 10.60

Annexes:

A. Identity card for a person who accompanies the

armed forces

B. Capture card for prisoner of war

CHAPTER 11 RIGHTS AND DUTIES OF NEUTRALS

INTRODUCTION

Neutral status 11.3

Primary rights and duties of neutral states 11.4

Neutrality and the United Nations Charter 11.6

Neutrality and its relationship to regional and

collective security arrangements 11.7

NEUTRAL TERRITORY

Neutral land territory 11.9

NEUTRAL WATERS

Neutral internal waters 11.18

Neutral territorial waters 11.22

Neutral international straits 11.23

Neutral archipelagic waters 11.24

NEUTRAL COMMERCE

NEUTRAL PERSONS AND PROPERTY

Neutral nationals and property in belligerent

territory 11.29

Neutral nationals or property in a theatre of war 11.31

Neutral nationals in occupied territory 11.32

Loss of neutral status 11.33

BREACH OF NEUTRALITY

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ADDP 06.4

CHAPTER 12 OCCUPATION

INTRODUCTION

COMMENCEMENT AND TERMINATION OF

BELLIGERENT OCCUPATION

Commencement 12.5

Termination 12.9

GENERAL EFFECTS OF OCCUPATION

Limits on legislative power of occupying power 12.11

Constitutional position 12.12

Annexation prohibited 12.17

Maintenance of public order 12.18

ADMINISTRATION OF OCCUPIED TERRITORY

Officials, civil servants, police and judges 12.20

Law applicable in occupied territory 12.22

Occupying force exempt from local laws 12.27

Welfare measures 12.28

Relief measures 12.30

Population movements into occupied territory

prohibited 12.31

The economy 12.32

EFFECTS OF OCCUPATION ON THE

POPULATION

Rights of inhabitants of occupied territory 12.36

Control of persons in occupied territory 12.38

Compulsory labour 12.40

ENEMY PROPERTY IN OCCUPIED AREA

Destruction prohibited 12.42

Pillage prohibited 12.47

Confiscation 12.48

Seizure 12.49

Requisition 12.51

CHAPTER 13 COMPLIANCE

Unilateral compliance 13.3

Orders and instructions 13.4

Yamashita principles 13.5

Commander’s responsibilities 13.6

Individual responsibility 13.7

Dissemination 13.8

Training 13.10

Legal advisers 13.11

FACT FINDING

Role of the United Nations 13.12

Fact finding 13.14

ADDP 06.4

INDEPENDENT SUPERVISION

The protecting power 13.15

REPRISALS

Nature of reprisals 13.17

Conditions for reprisal action 13.18

Unlawful reprisals 13.19

WAR CRIMES

Introduction 13.21

Grave breaches and war crimes 13.24

Grave breaches 13.25

War crimes 13.27

The Hague Regulations 13.29

Customary law 13.30

International tribunals 13.32

The International Criminal Court 13.35

CRIMINAL RESPONSIBILITY

Individual criminal responsibility 13.39

Glossary

Acronyms and Abbreviations

Main international treaties on the law of armed conflict

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ADDP 06.4

LIST OF FIGURES

Figure Title Page

1–1 Australian war crimes trial, 1945–1951 1–8

2–1 Destruction of SMS EMDEN by HMAS SYDNEY 2–3

2–2 Taliban ambassador to Pakistan seated in front of

Taliban Militia. The clothing worn by Taliban

made it difficult to distinguish them from civilians 2–5

3–1 Unarmed peacekeeping by negotiation,

Bougainville 1998 3–4

4–1 Disposal of chemical and biological weapons

following the Gulf War 1991 4–2

4–2 Clearing the anti-personnel minefield, Nui Dat 1969 4–9

5–1 Result of the terrorist attack, Bali 2002 5–10

7–1 Cordon and search of a village, South Vietnam 1970 7–7

8–1 Flight 902 landed safely on the ice 8–8

8–2 United States Ship VINCENNES which mistakenly

shot down an Iranian airliner, Persian Gulf 1988 8–14

9–1 Her Majesty’s Australian Hospital Ship CENTAUR as

she was marked when sunk, Moreton Island 1943 9–3

9–2 A map of the Battle of Kapyong 9–8

10–1 Italian prisoner of war camp, Australia 1944 10–11

11–1 A map of the invasion through Thailand to Malaya 11–4

11–2 A painting of Australian E class submarine AE2

interdicting enemy shipping, Sea of Marmora 1915 11–9

12–1 Japanese queue for food in the Australian Occupation

Zone,Kure 1946 12–7

13–1 Breaker Morant—first Australian convicted as a

war criminal 13–14

ADDP 06.4 Chapter 1

1–1

CHAPTER 1

INTRODUCTION AND HISTORICAL

BACKGROUND

INTRODUCTION 1.1

General 1.1

1.1 While it is the military objective of all commanders to win in battle,

there must be limits to the means and methods that may be used.

Commanders must be aware of their legal obligation to prevent unnecessary

injury and suffering and to alleviate as much as possible the calamities of war.

1.2 The law of armed conflict (LOAC) seeks to not only regulate the

conduct of nations but also govern the behaviour and conduct of both

combatants and non-combatants during times of armed conflict. The LOAC is

synonymous with the term ‘the Laws of War’.

1.3 The main purposes of the LOAC, which is part of international law, are

to protect combatants and non-combatants from unnecessary suffering; to

safeguard certain fundamental rights of persons who fall into the hands of an

enemy, such as prisoners of war (PW), the sick and civilians; to maintain the

distinction between combatants and non-combatants; and to facilitate the

restoration of peace.

Executive summary

• Commanders have a legal obligation to prevent unnecessary injury

and suffering during times of armed conflict.

• International and domestic laws have evolved to create laws which

are binding on nations and individuals involved in armed conflict.

WAR CRIMES

The Tokyo and the Nuremberg war crimes trials were manifestations of an

intellectual and moral revolution which will have a profound and

far-reaching influence upon the future of world society.

Tokyo Chief Prosecutor J.B. Keenan

ADDP 06.4 Chapter 1

1–2

Domestic law 1.4

1.4 Domestic law encompasses all those internal laws that govern the

behaviour of persons within a nation, and at times, of nationals abroad. In the

case of Australia, these are the laws that are made by Australian legislatures

applicable to Australian citizens and residents, to persons visiting Australia

and in some cases to Australian nationals abroad. It is possible for Australian

law to have extraterritorial operation. The Defence Force Discipline

Act

1982 (DFDA) is an example of a domestic law which binds Australian

Service personnel abroad including those engaged in armed conflict under

the Geneva Conventions and their Additional Protocols, and all members of

the Australian Defence Force (ADF) serving within Australia. Furthermore,

international law may become part of a nation’s domestic law. This is evident

in the Australian Parliament’s incorporation of the 1949 Geneva Conventions

and the 1977 Protocols Additional to the Geneva Conventions of 1949 (G.

P. I

and II) into domestic law.

International law 1.5

1.5 International law is concerned with the principles and rules of conduct

which nations observe in their relationships with each other and which

include:

• the rules of law relating to the functioning of international institutions

or organisations, their relations with each other and their relations with

states and individuals; and

• certain rules of law relating to individuals and non-state entities so far

as the rights or duties of such individuals and non-state entities are the

concern of the international community.

1.6 International law, then, is primarily concerned with the actions of

states, though important aspects of it, including the LOAC, also govern the

actions of individuals. In international law the term ‘states’ refers to nations

which have been accepted as part of the international community and enjoy

sovereignty. For simplicity the term ‘nation’ is used throughout this publication

except in

chapter 6—‘Maritime operations and the law of armed conflict’

where it is necessary to refer to ‘archipelagic states’.

Sources of international law 1.7

1.7 There are four recognised sources of international law:

• international custom, as evidence of a general practice accepted as

law;

• international conventions and treaties, whether general or particular,

establishing rules expressly recognised by the contesting states;

ADDP 06.4 Chapter 1

1–3

• the general principles of law recognised by civilised nations; and

• judicial decisions of international and national judicial bodies and the

influences of the writings of the most highly qualified publicists of the

various nations, as subsidiary means for the determination of rules of

law.

1.8 The most important sources of international law today are custom and

treaties.

1.9 Customary international law. This encompasses those laws which

represent the general and consistent practice among most nations with

respect to a particular subject and are considered obligatory by nations.

Custom becomes customary international law when, after a period of time, a

practice is accepted by the international community as international law.

Customary international law is the principal source of international law.

All

nations are bound by customary international law, although some nations

refuse to recognise customary international law.

1.10 Treaties. Treaties are international agreements or commitments

entered into by two or more nations. Agreements can be bilateral treaties,

such as the Five Power Defence Arrangements, which comprise a number of

bilateral treaties, or multilateral conventions such as the 1949 Geneva

Conventions. Some treaties codify customary law while some broad

multilateral treaties may eventually become customary international law

which binds all nations regardless of whether they are party to the treaty or

not.

Compliance with international law 1.11

1.11 While international law is often criticised because there is no central

enforcement authority, breaches of international law can still have dire

consequences. In the worst cases, armed conflict may result if two nations

cannot resolve their differences through international law and diplomacy.

International law covers the actions not only of nations but also of individuals.

For example, this is seen in the jurisdiction of the International Criminal

Court

(ICC), discussed in chapter 13—‘Compliance’. International law

provides stability in international relations and an expectation that certain acts

or omissions will result in predictable consequences. Failure to observe

international law often involves political and economic costs.

Binding nature of the law of armed conflict 1.12

1.12 The LOAC, being part of international law, is binding on nations but it

also regulates the conduct of individuals. The Criminal Code Act 1995

(Criminal Code) makes the offences of genocide, crimes against humanity,

and war crimes that are grave breaches of the Geneva Conventions and G.

ADDP 06.4 Chapter 1

1–4

P. I, as well as other serious violations of the LOAC, offences under

Commonwealth law. A member of the ADF who is in breach of the LOAC

would also be liable to be charged under the DFDA for corresponding service

offences.

1.13 A violation of the LOAC by the armed forces of a nation involves the

international responsibility of that nation. A violation may also lead to the

prosecution of the individuals concerned for war crimes. It follows that

membership of the armed forces requires knowledge of the LOAC.

1.14 Following World War II, the Allies tried a number of former

German leaders and commanders for crimes committed during the war.

The

International Military Tribunal at Nuremberg rejected the assertion that

the LOAC applies only to nations. Since that time, decisions in many war

crimes trials have reinforced the principle of individual criminal responsibility

of members of the armed forces or others who violate the LOAC.

This

principle has been confirmed in the statutes of the Yugoslavia and

Rwanda War Crimes Tribunals and in the statute of the ICC.

HISTORICAL BACKGROUND 1.15

1.15 Human societies have always developed legal systems to govern their

relations. This includes situations of conflict between groups. Early man and

primitive societies had basic rules and ritualistic behaviour. As societies

became more developed so did the rules. Agreements on the treatment of PW

can be found in Egypt as far back as 1400 BC. There are also records of rules

for humane treatment of non-combatants in some Indian states around

500

BC. A rudimentary form of international law was practised by Greek city

states and the Romans. This included rules which regulated warfare.

The

rationale for these rules is the same today: to inflict unnecessary

suffering can be counterproductive; for example, actions such as poisoning

wells would have detrimental effects which may destroy the gains of victory.

1.16 It is believed that the first systematic code of war was that of the

Saracens, based on the Koran. During the sixteenth century, nation states

emerged in Europe and a system of international law came into being. Part of

this law was a code of chivalry; however, the desire for regulating war derived

principally from national or personal interests rather than humanitarian

concerns. For example, the conference called by Tsar Nicholas II in 1899 was

motivated by the fact that Russia was falling behind in the nineteenth century

arms race rather than by genuine humanitarian concerns. The modern LOAC

originated from the customary practices adopted by those taking part in

battles.

ADDP 06.4 Chapter 1

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The modern law of armed conflict 1.17

1.17 The origins of the modern LOAC can be traced to the battle of

Solferino in 1859 in northern Italy. After witnessing the results of this battle a

young Swiss merchant, Henri Dunant, wrote an influential book which

described the carnage and the neglect of the wounded. The impact of this

book and Dunant’s subsequent efforts led to the formation of the Red Cross.

1.18 In 1864, the Swiss Government, at the urging of the Red Cross,

convened the first conference on International Humanitarian Law (IHL).

this conference the first Geneva Convention for the Amelioration of the

Condition of the Wounded in Armies in the Field was drawn up and signed by

16 nations. Subsequent conferences in 1906, 1929 and 1949 further

developed and refined IHL. The latest development has been the Additional

Protocols (G. P. I and G. P. II) which were adopted in 1977. Australia is a party

to all of these conventions and protocols.

1.19 Perhaps the most celebrated early attempt at codifying the customs

and usages of war came with the American Civil War. In 1863, Dr Francis

Lieber, an eminent lawyer, at the request of President Lincoln and in

consultation with a board of officers, drew up a code of conduct titled

‘Instructions for the Government of Armies of the United States in the Field’.

This instruction established limits on a belligerent’s means to wage war and

identified military objectives as the only legitimate targets for deliberate

attack.

1.20 An early agreement dealing with the means and methods of war was

the Declaration of St Petersburg in 1868 which prohibited the use of any

projectile weighing less than 400 grams which was either explosive or

charged with fulminating or inflammable substances. The principles stated in

the preamble to the declaration are still relevant today:

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Hague Law 1.21

1.21 Hague Law is a term used to describe the set of international laws,

which regulate the means and methods of warfare. It comprises a series of

treaties which state what is, or is not legitimate in waging war. In 1899, Tsar

Nicholas II of Russia in a note addressed to the diplomatic representatives at

St Petersburg called for a conference with the purpose of seeking ‘a real and

lasting peace and above all, of limiting the progressive development of

existing armaments’. While the conference failed in its main objective to limit

armaments, it was partially successful. Three declarations were adopted, one

prohibiting the discharge of projectiles from balloons, a second prohibiting the

use of asphyxiating gases and a third prohibiting the use of expanding bullets.

The most important achievement from this conference, however, was the

Convention for the Pacific Settlement of International Disputes creating the

Hague Permanent Court of Arbitration, and creating a list of judges from

which the parties to a controversy might select the members of an arbitral

tribunal for their particular case.

1.22 Subsequent conventions include the Hague Convention of 1907,

the 1923 draft Hague Rules for Aerial Warfare (never formally adopted), the

Gas Protocol of 1925, 1954 Hague Cultural Property Convention,

1972

Biological Weapons Convention, 1980 Conventional Weapons

Convention and the 1993 Chemical Weapons Convention. G. P. I and G. P.

II are not confined to humanitarian issues; they also address issues which are

traditionally regarded as Hague Law. Much of Hague Law is accepted as

customary international law and directly affects the use of combat power.

That the progress of civilisation should have the effect of alleviating as

much as possible the calamities of war.

That the only legitimate object which states should endeavour to

accomplish during war is to weaken the military forces of the enemy.

That for this purpose it is sufficient to disable the greatest possible number

of men.

That this object would be exceeded by the employment of arms which

uselessly aggravate the sufferings of disabled men, or render their death

inevitable.

That the employment of such arms would, therefore be contrary to the laws

of humanity.

International Military Commission,

Declaration of St Petersburg,

29 November 1868

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Geneva Law 1.23

1.23 In 1864 at the invitation of the Swiss Government, a conference was

held in Geneva which drew up ‘the first Convention for the Amelioration of the

Condition of the Wounded in Armies in the Field’. This convention was

subsequently amended by the Geneva Conventions of 1906, 1929 and 1949,

and by G. P. I. These agreements now constitute what is referred to as

Geneva Law, which is fundamentally concerned with the relief of suffering of

PW, the wounded and sick in the field, wounded, sick and shipwrecked

mariners and civilians caught up in conflict.

1.24 The LOAC thus developed along two separate streams, each named

after the city where most of the relevant agreements were developed.

Whereas Hague Law is concerned essentially with how operations are

conducted, Geneva Law is concerned with the protection of persons not

involved or no longer involved in the conflict. Generally speaking,

Geneva

Law has become a more developed and less contentious body of law

than Hague Law. In recent years, particularly since the completion and

introduction of G. P. I and G. P. II, there has been a merging of the two bodies

of law. The Protocols, linked to the Geneva Conventions, deal not only with

the protection of victims of war but also with the means and methods of

warfare, which were traditionally the domain of Hague Law. G. P. I deals with

international armed conflict while non-international armed conflict is further

addressed by G. P. II.

World War II 1.25

1.25 Following World War II, tribunals were established at Nuremberg and

Tokyo to try the major war criminals of the Axis powers. These tribunals were

empowered to deal not only with war crimes but also with crimes against

peace and crimes against humanity. The latter were defined by the tribunals,

and identified as crimes under international law.

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Geneva Conventions 1949 1.26

1.26 Following the experiences in World War II, Geneva Law was revised

in 1949 with four new conventions dealing with the protection of:

• the wounded and sick (replacing the conventions of 1864, 1906 and

1929);

HISTORICAL EXAMPLE—1946 MOROTAI TRIALS

Figure 1–1: Australian war crimes trial, 1945–1951

Senior Japanese naval officers with their Australian defending

officers, and a witness questioned through an interpreter, at their trial

at Morotai in 1946.

Nearly 1000 Japanese nationals were tried for atrocities alleged to

have been committed against Australian servicemen and women,

against allied United Kingdom, Indian, Indonesian and Chinese

servicemen, and Papua New Guinea, Chinese and European

civilians, in flagrant breach of the LOAC (source: Australian War

Memorial OG3701).

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• the wounded, sick and shipwrecked at sea (replacing Hague

Convention X 1907);

• PW (replacing the convention of 1929); and

• civilians.

1.27 All four Geneva Conventions apply:

• in any international armed conflict, whether war is declared or not, and

even if one of the parties does not recognise the existence of a state

of war; or

• if there is a partial or total occupation of another state’s territory, even

if the occupation has met with no armed resistance.

1.28 The Geneva Conventions are of virtually universal application and

certain provisions are generally considered to embody customary

international law.

Cultural Property Convention 1954 1.29

1.29 In response to the destruction and looting of cultural property that had

taken place during World War II, the Hague Convention for the Protection of

Cultural Property in the Event of Armed Conflict was concluded in 1954 under

the auspices of the United Nations (UN) Educational, Scientific and Cultural

Organization. A second protocol to this convention was adopted in 1999.

1.30 This convention places an obligation on defenders and attackers by

requiring nations to refrain from uses of cultural property that would expose

such property to danger in armed conflict and to refrain from acts of hostility

against cultural property.

Biological Weapons Convention 1972 1.31

1.31 The Biological Weapons Convention 1972 prohibited State Parties

from developing, producing, stockpiling or otherwise acquiring or retaining

biological agents and toxins that could be used for other than protective or

peaceful purposes. The Convention also prohibited any weapons, equipment

or means of delivery designed to use the biologic agents or toxins for hostile

purposes or in armed conflict.

Additional Protocols I and II 1977 1.32

1.32 A major development in the LOAC was the adoption in 1977 of two

Protocols Additional to the Geneva Conventions of 1949. G. P. I deals with

international armed conflicts and G. P. II deals with internal armed conflicts.

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1.33 International armed conflicts. As well as codifying existing principles

of customary law, G. P. I also includes new treaty provisions relating to

international armed conflicts, some of which have since crystallised into

customary international law. Among other things it sets out detailed rules on

targeting and the means and methods of warfare and expands on the concept

of grave breaches. It also extends the range of persons entitled to combatant

status. The definition of international armed conflict is itself expanded to

include certain conflicts fought by peoples ‘in exercise of their right of

self-determination’.

1.34 Internal armed conflicts. G. P. II develops and supplements the

humanitarian protection provided by Common Article 3 to the

Geneva

Conventions of 1949 in the context of internal armed conflicts.

1.35 International law has historically regulated relations between states.

state’s internal affairs, including responsibility for the maintenance of law

and order and the defence of territorial integrity against domestic insurgents,

were largely regarded as within the exclusive jurisdiction of the state

concerned. The notion of international law regulating a conflict occurring

within a state was generally regarded as being at variance with this approach.

However, it is possible for insurgents in an internal armed conflict to be

recognised as belligerents and for the LOAC to apply.

1.36 G. P. II does not apply to the internal use of force against criminal and

terrorist activity unless the activity is of such a nature as to amount to armed

conflict.

Conventional Weapons Convention 1980 1.37

1.37 The convention has five protocols dealing with:

• the prohibition of the use of weapons the primary effect of which is to

injure by fragments which in the human body cannot be detected by

X-rays;

• the regulation of mines, booby traps and similar devices;

• the prohibition of the use of incendiary weapons against a military

objective located within civilian populated areas and the regulation of

the use of other incendiary weapons;

• the prohibition of the use of laser weapons designed to cause

permanent blindness; and

• the requirement for each party to an armed conflict to remove and to

provide assistance for the removal of explosive remnants of war.

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Chemical Weapons Convention 1993 1.38

1.38 This Convention introduces a complete ban on the development,

production, stockpiling, retention, transfer or use of chemical weapons.

Chemical weapons are those munitions and devices, specifically designed to

cause death or harm through the toxic properties of chemicals contained

within the weapon which are released as a result of the employment of such

munitions and devices. The Convention also includes an undertaking from

each signatory country to destroy chemical weapons it owns or possesses

and further to destroy any chemical weapons production facilities it owns or

possesses.

International criminal tribunals 1.39

1.39 International criminal tribunals were established by the UN Security

Council:

• in 1993 to deal with grave breaches of the Geneva Conventions, war

crimes, genocide and crimes against humanity committed in the

former Yugoslavia since 1991; and

• in 1994 to deal with genocide, crimes against humanity and violations

of Common Article 3 of the Geneva Conventions and of G. P. II

committed in Rwanda or by Rwandans in neighbouring states in 1994.

Ottawa Convention 1997 1.40

1.40 The Ottawa Convention prohibits the use, development, production,

acquisition, stockpiling, retention or transfer of anti-personnel mines and

requires the destruction of stocks. It does however, permit the retention of

limited stocks for training purposes.

1.41 The Convention also prohibits the assistance, encouragement or

inducement of anyone to engage in an activity prohibited under the

Convention. Australia has interpreted ‘assistance’ to mean actual and direct

physical participation in any activity prohibited by the Convention;

‘encouragement’ to mean the actual request for the commission of a

prohibited activity; and ‘inducement’ as the active engagement in the offering

of threats or incentives to obtain the commission of a prohibited activity.

International Criminal Court 1.42

1.42 In 1998 a conference was held in Rome to discuss international

criminal law. On 18 July 1998, the conference adopted the ‘Rome Statute’ of

the ICC. The Statute came into force on 01 July 2002. Australia ratified the

Statute on the same date and introduced offences covered by the Statute into

domestic law under the Commonwealth Criminal Code. The Statute entered

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into force for Australia on 01 September 2002. The Court has jurisdiction over

genocide, crimes against humanity and war crimes committed after the entry

into force of the statute. The statute is discussed and explained in

chapter 13.

Naval warfare 1.43

1.43 Prior to 1945 the conduct of naval warfare was relatively unlimited as

to both goals and means. The Hague Conventions of 1899 and 1907 imposed

some restrictions upon the methods of warfare employed, but the primary

goal of belligerent naval operations was the total destruction of opposing

naval units. If armed conflict should occur, traditional rules of naval warfare as

modified by the UN Charter and other customary developments will continue

to apply.

1.44 In international conflicts since 1945, naval operations have reflected

the limitations inherent in the international law concept of self-defence.

The

scale of operations and weaponry have normally been adjusted to meet

the threat posed. There are still no specific modern conventions or protocols

dealing with naval warfare. In most cases requiring the use of force by naval

units since 1945, political and legal constraints have dictated a graduated

escalation of force in response to threats.

1.45 The 1982 United Nations Convention on Law of the Sea (UNCLOS)

established a comprehensive legal order for the world’s oceans. It clarified the

regime of the territorial sea, set out navigation rights, recognised claims to

exclusive economic zones and created legal provisions for mining the deep

seabed as well as for the protection and preservation of the marine

environment. Further, it recognised the jurisdictional claims of some coastal

and island nations establishing the concept of the archipelagic state.

The

international legal regime established by UNCLOS has important

implications for naval operations. A more detailed explanation of the law with

respect to naval operations and the operation of UNCLOS is covered in

chapter 6.

1.46 Another international document of significance in the area of naval

warfare is the San Remo Manual on International Law Applicable to Armed

Conflicts at Sea. It contains an extensive coverage of maritime issues directly

connected with naval warfare. Although not a legally binding document, it

represents a restatement of the law in part, and certain provisions of the

manual are widely recognised as representing principles of customary

international law. The manual was prepared during the period 1988–1994 by

a group of legal and naval experts in a series of round table meetings

convened by the International Institute of Humanitarian Law. The object of the

manual is to provide a comprehensive statement of the international law

applicable to armed conflict at sea.

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Land warfare 1.47

1.47 The laws relating most specifically to land warfare are covered in

chapter 7—‘Land operations and the law of armed conflict’.

Air warfare 1.48

1.48 Aerial bombardment has always been controversial. The first law

which dealt with aerial bombardment, the Hague Peace Conference of 1899,

simply prohibited the dropping of bombs from balloons. An attempt was made

in 1923 to reach international consensus on aerial warfare, but the draft

Hague Rules for Aerial Warfare were never formally adopted. During World

War II, Royal Air Force Air Marshal Harris believed that in ‘the use of aircraft

in war there is, it so happens, no international law at all’. In Vietnam,

considerable restraint was placed on United States air power by political

directives. Some reasons why these directives were so restrictive are a

misunderstanding of the LOAC and a lack of authoritative and practical

guidance.

1.49 More recently, G. P. I and G. P. II particularly have provided guidance.

This body of law was applied by air planners of the coalition forces during

Operation DESERT STORM in 1991, later in Yugoslavia and Kosovo, and

most recently in Iraq. One of the major successes of Operation DESERT

STORM was the impressive result of the coalition air effort, conducted in

accordance with the LOAC. The application of the LOAC to strike operations

is critical because of the potential for these operations to cause heavy and

widespread damage.

1.50 A detailed explanation of the law with respect to air warfare is covered

chapter 8—‘Air operations and the law of armed conflict’.

ARMED CONFLICT 1. 51

International armed conflict 1.51

1.51 The term ‘international armed conflict’ refers to conflict between

nations in which at least one party has resorted to the use of armed force to

achieve its aim. It may also include conflict between a nation and an

organised and disciplined force such as an armed resistance movement from

another nation.

Non-international or internal armed conflict 1.52

1.52 Non-international or internal armed conflict is defined in G. P. II as

conflict which takes place within the territory of a nation between its armed

forces and dissident armed forces or other organised armed groups which,

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under responsible command, exercise such control over part of its territory as

to enable them to carry out sustained and concerted military operations.

The

term does not apply to internal disturbances and tensions such as riots

or isolated or sporadic acts of violence.

OPERATIONS LAW 1.53

1.53 Operations law is that domestic and international law associated with

planning and execution of military operations in peacetime or during

hostilities. It includes but is not limited to the LOAC, human rights law,

Australian and foreign domestic law, air law, law of the sea, counter-terrorist

activities, overseas procurement, discipline, pre-deployment preparation

(wills, power of attorney, etc), deployment (contracts, etc), status of forces

agreements, operations against hostile forces, aid to the civil power and

civil-military matters (liaison, warning, coordination, etc).

ROLE OF THE UNITED NATIONS 1.54

1.54 In recent years, the increased role of the UN in world trouble spots has

raised questions with respect to the application of the LOAC to UN forces

operating under a UN mandate. The UN General Assembly has passed a

resolution stipulating that principles of the LOAC apply to UN operations.

The

resolution has been restated in a bulletin issued by the Secretary

General of the UN. Australian troops deployed on peace operations are

required to observe the principles of the LOAC.

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CHAPTER 2

PRINCIPLES OF THE LAW OF ARMED CONFLICT2

INTRODUCTION 2.1

2.1 LOAC forms part of a larger body of international law. International law

is made up of those principles and rules of conduct that govern states and

which they commonly observe in their relations with each other. While the

practical application of those principles and rules varies as they are tested

against new (and often unforeseen) situations, and the detailed application of

the rules is consequently continually evolving, the actual laws, in the majority

of cases, are not disputed. LOAC was traditionally categorised as being either

Hague Law or Geneva Law, the former relating to the actual means and

methods of warfare while the latter related to humanitarian aspects of LOAC.

Both these legal streams merged in Additional Protocols I and II; the Protocols

have combined the Hague and Geneva Law.

2.2 The development of LOAC has parallelled military capability

developments. As more efficient means and methods of killing and

destruction have been developed, LOAC has evolved to try and limit the

suffering and damage caused by new weapons and consequent tactics

developed to utilise them. The twentieth century, which has seen dramatic

advance in weapons technology, has also seen the greatest development of

LOAC. This development of LOAC has been influenced by the fact that at the

beginning of the century approximately ten per cent of people killed in warfare

were non-combatants, compared with 90 per cent in the late twentieth

century.

Executive summary

• The law of armed conflict (LOAC) is based on the three principles of

military necessity, avoidance of unnecessary suffering and

proportionality.

• Rules of engagement (ROE) provide authoritative guidance on the

use of military force by the Australian Defence Force (ADF). They

outline and emphasise the critical aspects of the laws of war relevant

to a specific mission, and proscribe additional policy and command

constraints on the use of military power.

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BASIC PRINCIPLES OF THE LAW OF ARMED CONFLICT 2.3

2.3 The basic principles underpinning LOAC are:

• military necessity,

• avoidance of unnecessary suffering, and

• proportionality.

2.4 Unnecessary suffering is often also referred to as the principle of

humanity. Traditionally, chivalry has been included in the list of principles but

this is now classified as an element of the principle of unnecessary suffering

and is not treated as a separate topic.

2.5 The three principles must be considered together in that no single

principle can be considered in isolation from the other two. In other words,

whilst military necessity may justify a particular action, the action may cause

unnecessary suffering including civilian death, or damage may be totally

disproportionate to the military advantage to be gained. If so, the action

should not proceed because the military necessity is outweighed by

proportionality and humanitarian considerations.

Military necessity 2.6

2.6 The principle of military necessity states that a combatant is justified

in using those measures, not forbidden by international law, which are

indispensable for securing complete submission of an enemy at the soonest

moment. Military necessity requires combat forces to engage in only those

acts necessary to accomplish a legitimate military objective. It permits the

killing of enemy combatants and other persons whose death is unavoidable.

It permits the destruction of property if that destruction is imperatively

demanded by the necessities of war. Destruction of property as an end in

itself is a violation of international law. There must be a reasonable

connection between the destruction of property and the overcoming of enemy

forces. The principle cannot be used to justify actions prohibited by law, as the

means to achieve victory are not unlimited. This also reflects the principle of

war of economy of effort.

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HISTORICAL EXAMPLE—DESTRUCTION VS OVERCOMING

ENEMY FORCES

Figure 2–1: Destruction of SMS EMDEN by HMAS SYDNEY

Longer-range guns allowed HMAS SYDNEY to systematically

demolish the German light cruiser SMS EMDEN. When EMDEN was

run up on a reef to avoid capture, SYDNEY unleashed extra salvos.

Although his ship had not struck its colours, the captain of EMDEN

later accused the opposing captain of inflicting unnecessary

casualties on a clearly defeated foe. SYDNEY’s Captain maintained

he was taking prudent self-protective action against an enemy which

had not surrendered. The line was very fine. (source: Australian

War Memorial G01442A)

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Unnecessary suffering 2.7

2.7 The principle of avoiding unnecessary suffering forbids the use of

means or methods of warfare which are calculated to cause suffering which

is excessive in the circumstances. It has also been expressed as averting the

infliction of suffering, injury or destruction not actually necessary for the

accomplishment of legitimate military objectives.

Proportionality 2.8

2.8 The principle of proportionality provides a link between the concepts

of military necessity and unnecessary suffering. In simple terms, the principle

generally relates to the reduction of incidental injuries caused by military

operations and requires that the losses and damage resulting from military

action should be proportionate (ie not be excessive) in relation to the

anticipated military advantage. The proportionality principle, together with the

unnecessary suffering principle, dictates that civilians should not be made the

object of attack, and that while civilian casualties may be an inevitable

consequence of an attack, every effort must be made to spare them, and

other parties who are non-combatants, from becoming adversely affected.

HISTORICAL EXAMPLE—AVOIDING COLLATERAL DAMAGE,

AFGHANISTAN 2002–2003

The campaign to remove the Taliban Government and forces from

control of Afghanistan occurred at a point in weapons development

when over half the air and ship-launched weapons available were

precision-guided, surveillance and geopositioning. Coalition armed

forces were alert to their responsibilities under the LOAC according

to which their ROE were tailored. Yet the civilian casualty rate in

Afghanistan was twice that of the bombardment of Serbia in the

North Atlantic Treaty Organisation Kosovo operation, despite

employing one third of the number of attack sorties and using half the

number of weapons. Whilst both sets of figures are remarkably low

by standards of previous wars, this raw comparison raises questions

on proportionality. Principal factors were:

• Density of the population and its location in relation to

legitimate military targets. Attacks in Kosovo-Serbia were

related either to formed military units or to infrastructure

facilities, as opposed to the fairly densely populated areas in

which the Taliban made some of its stands.

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HISTORICAL EXAMPLE—(cont)

• A major focus in Afghanistan was the leadership.

This meant targeting residences and road convoys, with

difficulties of identification and the consequent

acceptance of non-combatant casualties as a necessary

proportionate risk to achieve the military objective.

• Unreliable intelligence. Disinformation was provided by

supposed allies anxious to settle scores or eliminate

rivals.

• Elusiveness of targets. Instead of fixed facilities readily

identifiable, the emphasis was on taking fleeting

opportunities which might not recur.

Figure 2–2: Taliban ambassador to Pakistan seated in front of

Taliban Militia. The clothing worn by Taliban made it difficult to

distinguish them from civilians

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2.9 The principle of proportionality not only requires that an attacker must

assess what feasible precautions must be taken to minimise incidental loss,

but must also make a comparison between different methods or axes of

attack so as to be able to choose the least destructive method or axis

compatible with military success. When making that assessment the attacker

should naturally take into account likely friendly casualties.

2.10 Many authoritative writers on the laws of war have put forward the

following three principles as encapsulating the concept of proportionality:

• Only that degree and kind of force, not otherwise prohibited by the

LOAC, required for the partial or complete submission of the enemy

with a minimum expenditure of time, life and physical resources may

be applied.

• The employment of any kind or degree of force not required for the

purpose of the partial or complete submission of the enemy with the

minimum expenditure of time, life, and physical resources, is

prohibited.

• Dishonourable (treacherous) means, dishonourable expedients, and

dishonourable conduct during armed conflict are forbidden.

HISTORICAL EXAMPLE—(cont)

• Distinction between civilians and combatants. It was

difficult to determine the difference between civilians and

combatants as the Taliban did not wear conventional

uniforms.

Other factors included the use of high proportion of area bombing,

the extra crew fatigue from long carrier-borne turnarounds, and

higher release heights of cluster munitions.

The analysis indicates that the raw comparison does not

demonstrate either loss of intent to minimise collateral damage or

deterioration in technique. Rather it hangs on different operational

factors. The 700 000 deaths inflicted by the Soviet Union during their

conflict with Afghanistan can be attributed to the type of weapons

used, the intention of the Soviets and the fact that the conflict lasted

for ten years. Proportionality considerations were observed by the

Coalition, and by earlier standards of even the Gulf War, was

remarkable for the minimised loss of life of protected persons in such

a confused environment. (source: various)

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DISTINCTION 2.11

2.11 Although not a basic principle, distinction is said to be a related

principle and seeks to ensure that only legitimate military objects are

attacked. Distinction has two components. The first, relating to personnel,

seeks to maintain the distinction between combatants and non-combatants or

civilian and military personnel. The second component distinguishes between

legitimate military targets and civilian objects. Military operations must only be

conducted against military objectives, including combatants. Non-combatants

and civilian objects are protected from attack, that is, they are not legitimate

objects of attack. LOAC therefore requires that belligerents maintain the clear

distinction between armed forces and civilians taking no direct part in

hostilities; that is, between combatants and non-combatants, and between

objects that might legitimately be attacked and those protected from attack.

RULES OF ENGAGEMENT AND LAW OF ARMED

CONFLICT 2.12

2.12 ROE provide authoritative guidance on the use of military force by the

ADF. ROE are meant to be a brief directive and summary which outline and

emphasise the critical aspects of the laws of war relevant to a specific mission

or operation rather than a restatement of the law generally. ROE will be

issued by Chief of the Defence Force to Chief of Joint Operations (CJOPS).

Australian joint force commanders will receive ROE from CJOPS. ROE will

take into account legal considerations and so will comply with LOAC.

2.13 ROE and their relationship with the law are rightly a matter of concern

for planners and commanders. ROE do not form part of the law but it is

important to clarify their relationship with the law. LOAC determines which

actions are lawful and are therefore permissible. Government then places

further limitations upon the ADF (for operational, political, diplomatic and legal

reasons) and does so by the use of ROE. ROE do not override the inherent

right of individual or self defence.

2.14 ROE are of particular importance for multinational forces operating in

the same theatre. It is important for agreement to be reached between the

states on the interpretation to be given to the terms of the ROE to ensure they

comply with the domestic law of each state and to avoid confusion and

inconsistent application of the ROE during the operation.

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CHAPTER 3

APPLICATION OF THE LAW OF ARMED

CONFLICT

Parties to whom the law of armed conflict applies 3.1

3.1 Nations are bound by the LOAC either by way of an international

agreement or under customary international law. Where the LOAC is

applicable in a particular conflict it is not only binding on nations but also on

individuals, and in particular on the individual members of the armed forces of

nations. The LOAC must be applied without discrimination irrespective of

which country is the aggressor and without any adverse distinction founded

on race, nationality, colour, political, philosophical or religious opinions, sex,

language, birth, social standing, wealth or any other criteria.

United Nations Charter 3.2

3.2 The United Nations (UN) Charter requires all nations to settle their

international disputes by peaceful means and to refrain from the threat or use

of force against the territorial integrity or political independence of other

nations. However, the UN Charter does permit nations to engage in armed

conflict in the exercise of the right of individual or collective self-defence

against aggression. An example of that right occurred with the initial

international response to the armed invasion of Kuwait by Iraq where the UN

affirmed ‘the inherent right of collective self-defence, in response to the armed

attack of Iraq against Kuwait’. In general, the LOAC applies to such conflicts.

Resort to war 3.3

3.3 A formal declaration of war is not an essential condition for the

application of the LOAC. The LOAC applies to any armed conflict (whether

there is a declared war or not) and whether or not a state of armed conflict is

recognised by all parties to the conflict. The Geneva Conventions also apply

to all cases of partial or total occupation of the territory of a party to the

Convention, even if that occupation meets with no armed resistance.

Executive summary

• International agreements or customary international law bind all

nations in the law of armed conflict (LOAC).

• The LOAC is binding on individuals and must be applied without

discrimination irrespective of which country is the aggressor and

without any adverse distinction founded on race, nationality, colour,

political, philosophical or religious opinions, or other similar criteria.

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Definition of armed conflict 3.4

3.4 Neither the Geneva Conventions nor Additional Protocols contain any

definition of the term ‘armed conflict’ but the following may serve as guidance:

• ‘any difference arising between States [sic] and leading to the

intervention of members of the armed forces is an armed conflict’

;

• ‘an armed conflict exists whenever there is a resort to armed force

between States [sic] or protracted armed violence between

governmental authorities and organised armed groups within a State

[sic]’

3.5 These definitions do not deal with the threshold for an armed conflict.

Whether any particular fact situation meets the threshold so as to become an

armed conflict will depend on all circumstances surrounding a particular

event. For example, the replacing of border police with soldiers or an

accidental border incursion by members of the armed forces would not, in

itself, amount to an armed conflict. At the other extreme, a full-scale invasion

would amount to an armed conflict.

International armed conflict 3.6

3.6 The LOAC applies to situations of international armed

conflict—whether there is an attack or self-defence. What constitutes an

attack or self-defence is a matter of fact. Once an attack or self-defence has

been identified, the LOAC applies regardless of what political decisions may

be made about the official recognition of a state of armed conflict.

3.7 The operation of the LOAC gives inalienable legal rights to various

categories of persons: eg wounded soldiers, civilian women and civil defence

personnel. Those rights cannot be diminished or denied for political reasons.

The duration and intensity of the conflict are not relevant to whether an armed

conflict exists.

1 Commentary on Common Article 2 of the Geneva Conventions.

2 Decision on the defence motion for interlocutory appeal on jurisdiction by Appeals Chamber

in The Prosecutor v Dusko Tadic 02 October 1995 IT–94–1 AR72 (RP D6413–D6491).

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Non-international armed conflict 3.8

3.8 A non-international armed conflict is distinct from an international

armed conflict because of the legal status of the entities opposing each other;

the parties to the conflict are not sovereign states, but the Government of a

single state in conflict with one or more armed forces within its territory.

3.9 The 1949 Geneva Conventions, by Common Article 3, make provision

for the application of certain basic humanitarian safeguards during armed

conflicts which are not of an international character and which occur in the

territory of one of the parties to the Geneva Conventions.

3.10 Additional Protocol II (G.P.II) develops and supplements Common

Article 3 of the Geneva Conventions. Its provisions apply to all armed conflicts

that are not covered by Article 1 of Additional Protocol I (G.P.I) and provide

for humanitarian treatment in conflicts which take place solely within the

territory of a party to the Protocol (an internal armed conflict), and in which its

armed forces and dissident armed forces or other organised armed groups

under responsible command are involved. The Protocol specifically provides

that situations of internal disturbances and tensions such as riots and other

isolated and sporadic acts of violence are not armed conflicts.

Beginning and end of application 3.11

3.11 The point of commencement of armed conflict is often open to

argument, eg there may be no formal declaration of war. Similarly, the precise

point at which hostilities are terminated may also be unclear. Although the

clearest way of indicating a formal end to hostilities may be by way of a peace

treaty, the conclusion of a formal peace treaty may not occur. Armed conflicts

may also conclude on the declaration of a general armistice.

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3.12 Article 3 of G. P. I does essentially govern, however, when the

provisions of the Geneva Conventions and Protocols apply. Article 3 provides

that the Conventions and Protocols apply from the beginning of any situation

referred to in Article 1 of G. P. I and cease on the general close of operations.

The application of the Geneva Conventions and G. P. I will also cease, in the

case of occupied territory, on the termination of the occupation,

notwithstanding that military operations may have ceased at an earlier time.

Persons who continue to remain in the power of an adversary until repatriation

will continue to benefit from the relevant provisions of the Conventions and

Protocols until their final release, repatriation or re-establishment.

HISTORICAL EXAMPLE—BOUGANVILLE 1998

Figure 3–1: Unarmed peacekeeping by negotiation,

Bougainville 1998

The Australian-led multinational Peace Monitoring Group, with

contingents from New Zealand, Fiji and Vanuatu, was designed to

facilitate a peace earnestly desired, but still mired in long-held

mutual animosity and suspicion, both within island factions and with

the Papua New Guinea central Government.

A significant aspect of gaining agreement, by avoiding the

appearance of an occupying force, was that the peacekeepers were

unarmed, there by consent and under protection of the warring

parties. The mission was completed successfully in 2003 after five

years. (source: Army Magazine December 1998)

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CHAPTER 4

WEAPONS 4

INTRODUCTION 4.1

4.1 Weapons, projectiles, materials and means of warfare which cause

unnecessary injury or suffering are not permissible, that is, when the practical

effect is to cause injury or suffering which is out of proportion to the military

effectiveness of the weapon, projectile, material or means. Limitations on the

use of weapons fall into two broad categories, namely:

• prohibited weapons, and

• the illegal use of lawful weapons.

4.2 Defence Instructions (General) OPS 44–1—Legal Review of New

Weapons requires legal review of all proposed new weapon acquisitions to

determine whether their intended use is consistent with the Australian

Government’s obligations under international law. While Australian Defence

Force (ADF) members can be confident that their issued weapons do not

violate the law of armed conflict (LOAC), care must be taken to ensure that

they are used and employed in a manner that complies with the LOAC.

Weapon use will be unlawful under the LOAC when it breaches the principle

of proportionality by causing unnecessary injury or suffering.

4.3 In a major or extended conflict, ADF members could be called upon to

utilise captured enemy weapons. While the LOAC recognises that such

weapons may be used (after enemy markings are removed and provided they

do not cause unnecessary injury or suffering), prior command approval

should normally be obtained if the captured weapon is not currently in the

ADF inventory.

Executive summary

• Certain weapons are totally prohibited. The blanket prohibitions are

based on concerns that the weapons in question are either

indiscriminate in their effect or cause unnecessary suffering.

• Legal weapons are limited in the way in which they may be used.

They cannot be used indiscriminately, against protected persons or

places, or in a manner calculated to cause unnecessary suffering.

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PROHIBITED WEAPONS 4.4

General 4.4

4.4 Some weapons and weapons systems are totally prohibited.

These

blanket prohibitions, which may be traced to treaty or customary

international law, are justified on the grounds that the weapons in question are

either indiscriminate in their effect or cause unnecessary suffering.

HISTORICAL EXAMPLE—PROGRESSIVE WEAPONS

RESTRICTION

Although the Hague Conventions of 1899 and 1907 proscribed the

use of poisonous gases, when Germany initiated chemical warfare

in April 1915, free-for-all use resulted in 1.3 million casualties.

Similarly the use of flame warfare became a standard option. In 1922

the major powers signatory to the Washington Treaty joined in

prohibiting chemical weapons, underpinned in part by the 1925

Geneva Protocol, which prohibited first use of chemical and

bacteriological weapons, but not their development or production.

Although there has been relatively restricted usage of such

weapons—Italy in Ethiopia 1935–1936, Egypt in North Yemen

1963–1967 and Iran-Iraq 1983–1988, there was no use in World

War II other than by Japan in China 1937–1945. The 1993 Chemical

Weapons Convention (CWC) now totally prohibits their use.

Figure 4–1: Disposal of chemical and biological weapons

following the Gulf War 1991

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Indiscriminate weapons 4.5

4.5 It is prohibited to employ weapons which cannot be directed at a

specific military objective or the effects of which cannot be limited as required

by Additional Protocol I (G.P.I) and are therefore of a nature that they may

strike military objectives and civilians or civilian objects without distinction or

which may be expected to cause incidental loss to civilians or civilian objects

which would be excessive in relation to the military advantage anticipated.

HISTORICAL EXAMPLE—(cont)

Parallel strong pressure to limit all ‘weapons of mass destruction’

has resulted in bilateral moves to reduce arsenals of nuclear

weapons by Russia and the United States of America, South African

destruction of its nuclear weapons, and pressure on countries

attempting to join the nuclear club to desist. This has not been

effective with India-Pakistan, and other countries of dubious

responsibility have also continued their attempts—Iraq, now

forestalled, Iran and North Korea remain serious aspirants and

threats. Biological weapons, prohibited under a 1972 convention,

also remain an achievable goal for many third world countries, which

either do not subscribe to the Protocol or are prepared to flout it. As

with chemical weapons, these are in reach of countries with a

modest industrial base. Other techniques which were standard up to

the Vietnam War, such as incendiary, flame and fragmentary

weapons, and blinding lasers, have been restricted by the 1980

Convention on Prohibitions or Restrictions on the use of Certain

Conventional Weapons which may be deemed to be Excessively

Injurious or to have Indiscriminate Effects (CCW).

Anti-personnel mines were targeted for proscription in the 1990s.

With over 100 million mines already laid, and an annual rate

exceeding the recovery rate by a factor of more than 100, the need

for action was clear. Now 147 countries, including Australia,

subscribe to the 1997 Ottawa Convention. This Treaty proscribes

the use of anti-personnel landmines as a method of warfare. The

nations party to the Convention have also committed to an

aggressive campaign to destroy existing minefields throughout the

world. (source: various)

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4.6 G. P. I operates as an effective prohibition on the use of weapons that

are so inaccurate that they cannot be directed at a military target. The Scud

rockets used during the Gulf conflict of 1990–1991 are examples of weapons

likely to be caught by this provision. Further clarification of what constitutes

indiscriminate use or effect is covered in

chapter 5—‘Targeting’.

Weapons calculated or modified to cause unnecessary suffering 4.7

4.7 Weapons such as irregularly shaped bullets, projectiles filled with

broken glass, bullets which have been scored, have had their ends filed, have

been altered or which have been smeared with any substance likely to

exacerbate a trauma injury are prohibited. ‘Dum dum’ bullets (those with a

hard envelope that does not entirely cover the core or which have been

pierced with incisions or which have had their points filed off) come within this

category of weapon.

Poison 4.8

4.8 Poison or poisoned weapons are illegal because of their potential to

be indiscriminate. So, for example, the poisoning or contamination of any

source of drinking water is prohibited and the illegality is not cured by posting

a notice that the water has been so contaminated or poisoned.

Non-detectable fragments 4.9

4.9 Weapons which cause injury by the use of fragments that are

undetectable by X-ray in the human body are prohibited.

Exploding small arms projectiles 4.10

4.10 Bullets or other projectiles weighing less than 400 grams which are

either explosive or contain fulminating or inflammable substances (exploding

small arms projectiles) are prohibited. It should be noted however, that tracer

and incendiary ammunition are not prohibited.

Environment altering weapons 4.11

4.11 Environmental modification techniques having widespread, long

lasting or severe effects are prohibited. An example of this is defoliant

chemicals used by militaries to deprive the enemy of ground cover or kill food

crops. The United States used Agent Orange during the Vietnam War for this

purpose. These chemicals are not discriminating and are difficult to contain,

often resulting in effects to water supplies and creation of toxins dangerous to

humans. Further details are contained in

chapter 5.

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Laser weapons 4.12

4.12 Under the 1995 Protocol IV of the CCW (CCW P. IV), laser weapons

are prohibited from use where they are specifically designed to cause

permanent blindness. While CCW P. IV does not prohibit use of lasers for

other purposes, precautions must be taken when using laser systems for

other purposes in order to avoid causing permanent blindness.

Gas 4.13

4.13 Asphyxiating, poisonous or other gases are prohibited.

Smoke grenades, smoke ammunition from indirect fire weapons and tank

smoke ammunition, all primarily used to conceal position or movement or

mask a target are not prohibited.

Bacteriological warfare 4.14

4.14 Bacteriological methods of warfare are prohibited.

Chemical weapons 4.15

4.15 Under the CWC, States Parties, including Australia, undertake:

never under any circumstances:

to develop, produce, otherwise acquire, stockpile or retain chemical

weapons, or transfer, directly or indirectly, chemical weapons to anyone;

to use chemical weapons;

to engage in any military preparations to use chemical weapons; and

to assist, encourage or induce, in any way, anyone to engage in any

activity prohibited to a State Party under the convention.

Article 1 of the Chemical Weapons Convention

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4.16 The Convention contains a definition of chemical weapons as follows:

4.17 Permitted uses of chemicals include industrial, agricultural, research,

medical, pharmaceutical or other peaceful purposes; purposes directly

related to protection against toxic chemicals and chemical weapons;

military

purposes not connected with the use of chemical weapons and

not dependent on the use of the toxic properties of chemicals as a method

of warfare; and law enforcement, including domestic riot control purposes.

4.18 The CWC also requires States Parties to destroy existing chemical

weapons and chemical weapons production facilities. It establishes an

Organisation for the Prohibition of Chemical Weapons and contains very

detailed provisions for verification, including short notice challenge

inspections.

4.19 The use of riot control agents, including tear gas and other gases

which have debilitating but non-permanent effects as a means of warfare is

prohibited under the CWC. This does not mean riot control agents cannot be

used in times of conflict to maintain order, for example, in a prisoner of war

camp, or to contain a riot by the civilian population. Legal advice should be

sought on the occasions when their use is considered.

Biological weapons 4.20

4.20 Nations are prohibited from manufacturing, storing and using

biological weapons. Both chemical and biological weapons are prohibited

because they cause unnecessary suffering and may affect the civilian

population in an indiscriminate fashion. Australia is a party to the international

convention prohibiting the development, production and stockpiling of

bacteriological (biological) and toxin weapons. As a party, Australia has

‘chemical weapons’ means the following, together or separately:

toxic chemicals and their precursors, except where intended for purposes

not prohibited under this Convention, as long as the types and quantities

are consistent with such purposes;

munitions and devices, specifically designed to cause death or other harm

through the toxic properties of those toxic chemicals specified in

sub-paragraph (a), which would be released as a result of the employment

of such munitions and devices; and

any equipment specifically designed for use directly in connection with the

employment of munitions and devices specified in sub-paragraph (b).

Article 2 Chemical Weapons Convention

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undertaken not to develop, produce, stockpile or otherwise acquire or retain

biological agents or toxins that have no justification for prophylactic,

protective or other peaceful purpose. Further, Australia has undertaken not to

develop, produce, stockpile or otherwise acquire or retain weapons,

equipment or means of delivery designed to use such agents or toxins for

hostile purposes or in armed conflict.

EXPLOSIVE REMNANTS OF WAR 4.21

4.21 In 2003 States Parties to the CCW negotiated a new protocol to deal

with explosive remnants of war (ERW). After two years of discussions and

negotiations by a group of governmental experts, the States Parties to the

CCW, including Australia, adopted Protocol V (CCW P. V) on ERW in

November 2003. It

will enter into force once 20 States Parties have

consented to be bound by the protocol.

Obligations imposed on States 4.22

4.22 The Protocol requires each party to an armed conflict to remove and

to provide assistance for the removal of these weapons and to take other

measures to reduce the threat to civilians. This is the first international

agreement to require the parties to an armed conflict to clear all unexploded

munitions that threaten civilians, peacekeepers and humanitarian workers

once the fighting is over. What characterises CCW P. V is that it provides for

both post-conflict remedial measures and preventive measures that aim, in so

far as possible, to minimise future risks. Remedial measures mainly include

the marking of ERW-affected areas as well as the clearance, removal or

destruction of ERW. Although CCW P. V primarily applies to future cases, it

also calls upon States Parties to cooperate in the clearance, removal or

destruction of existing ERW.

Remedial and preventative measures 4.23

4.23 The Protocol addresses the post-conflict humanitarian problems

caused by ERW, by proposing remedial measures of a generic nature, as well

as generic preventive measures. It also addresses issues such as: clearance,

removal and destruction of ERW, recording, retaining and transmission of

information on the (potential) location of ERW, protection of civilians and

humanitarian missions, and cooperation and assistance. Its technical annex

also includes preventive measures aimed at minimising the occurrence

ERW. States Parties are encouraged to apply these measures when

manufacturing, storing, and transferring munitions. As a preventive measure,

States Parties have agreed to improve the reliability of munitions in order to

minimise the occurrence of ERW.

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LANDMINES 4.24

Anti-personnel landmines 4.24

4.24 Parties to the Ottawa Convention 1997, including Australia, accept a

prohibition on the possession or use of anti-personnel landmines as well as

assistance, encouragement or inducement to any other person to possess or

use these mines. Members of the ADF will not, however, be guilty of an

offence merely by reason of taking part in joint operations with forces of an

ally not bound by the Ottawa Convention which deploy landmines.

Anti-vehicle landmines 4.25

4.25 The use of anti-vehicle landmines is permitted so long as:

• they are not designed to be detonated by mine detectors;

• any anti-handling device is deactivated when the mine deactivates;

• they are either cleared, removed, destroyed, or appropriately

maintained after cessation of active hostilities.

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4.26 Restrictions on use. The following rules apply to anti-vehicle mines:

• they may only be deployed against or to protect military objectives,

• they may not be directed against civilians,

• indiscriminate use is prohibited,

HISTORICAL EXAMPLE—ANTI-PERSONNEL MINEFIELDS

Figure 4–2: Clearing the anti-personnel minefield, Nui Dat 1969

In 1967, a barrier minefield of jumping anti-personnel mines, fitted

with anti-lift devices, was laid south of the 1 Australian Task Force

base, and expected to be protected by the Army Republic of Vietnam

troops. This protection did not eventuate, so the minefield became

both a lying-up haven at night for passing enemy, and as well a

magazine from which to take mines which were used with great

success in ambushing Australian forces. Several attempts to clear

the minefield safely failed until a system of rollers towed by armoured

personnel carriers, fast enough to out-run the hails of ball bearings

which had defeated tank mine-clearers, enabled safe and rapid

destruction of the mines. Australia now subscribes to the

international ban on anti-personnel mines. (source: Australian War

Memorial BEL/69/0575VN)]

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• feasible precautions must be taken to protect civilians from their

effects,

• effective advance warning must be given of any deployment of mines

that might affect the civilian population unless circumstances do not

permit, and

• mines must not be of a nature to cause superfluous injury or

unnecessary suffering.

4.27 Civilian protection factors. In considering the protection of the

civilian population, regard should be had to the following factors, though these

are not exclusive:

• the short and long-term effect of mines on the local civilian population;

• possible measures to protect civilians (for example fencing, signs,

warning and monitoring);

• the availability and feasibility of using alternatives to mines; and

• the short and long-term military requirements for a minefield.

4.28 Self-deactivation. It is prohibited to use remotely delivered

anti-vehicle mines ‘unless, to the extent feasible, they are equipped with an

effective self-destruction or self-neutralisation mechanism and have a

back-up self-deactivation feature, which is designed so that the mine will no

longer function as a mine when the mine no longer serves the military purpose

for which it was placed in position’

4.29 Recording. The recording of information about minefields, mined

areas and mines (as well as booby traps and other devices) is mandatory.

LIMITATIONS ON LAWFUL WEAPONS 4.30

General 4.30

4.30 All legal weapons are limited in the way in which they may be used.

Specifically, no weapons may be used indiscriminately or in such a way as to

cause unnecessary injury or suffering. Similarly, non-combatants and those

who have not been or are no longer in the fight (sick and wounded,

shipwrecked, medical personnel, chaplains and most civilians) must not be

targeted.

1 Article 6 of the CCW Protocol II as Amended.

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Incendiary weapons 4.31

4.31 Incendiary weapons include any weapon or munition which is

designed to set fire to objects or to cause burn injury to humans through the

action of flame, heat or a combination of the two caused by a chemical

reaction of a substance delivered on a target. They include flame throwers,

shells, rockets, grenades, mines, bombs and other containers of incendiary

materials.

4.32 Incendiary weapons do not include munitions which have incidental

incendiary effects such as illuminants, tracers, smoke or signalling devices;

nor do they include munitions designed to combine penetration, blast or

fragmentation effects with an additional incendiary effect, such as armour

piercing projectiles, fragmentation shells, explosive bombs and similar

combined effects ammunition in which the incendiary effect is not specifically

designed to cause burn injury to humans, but to be used against military

objectives such as armoured vehicles, aircraft and installations and facilities.

4.33 Specific rules prohibit the use of incendiary weapons:

• in all circumstances to attack the civilian population, individual citizens

or civilian objects with incendiary weapons;

• in all circumstances to make any military objective located within a

concentration of civilians the object of attack by air-delivered

incendiary weapons;

• to make any military objective located within a concentration of

civilians the object of an attack by other than air delivered incendiary

weapons, except where the military objective is clearly separated from

the civilians and all feasible precautions are taken to minimise

incidental loss of civilian life and damage to civilian objects (separation

in this context can mean a barrier (such as an air raid shelter or a hill)

or distance); and

• on forests or plant cover except when the forests or plant cover are

either being used to cover, conceal or camouflage military objectives

or are military objectives themselves (if it is necessary to use

incendiaries on a forest to clear a field of fire or facilitate an advance

or attack against an enemy, the forest has become a military objective

and may legitimately be attacked).

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Sea mines 4.34

4.34 There are very few restrictions on the use of sea mines. Sea mines

must be able to self neutralise if control over them is lost. Their location must

be recorded. They must not be laid in neutral waters and when first laid in the

territorial waters of the nation laying them, there must be provision for free exit

of neutral shipping located in ports of the nation laying the mines. More

detailed discussion concerning sea mines is contained in

chapter 6—‘Maritime operations and the law of armed conflict’.

Torpedoes 4.35

4.35 International law prohibits the use of torpedoes that do not sink or

otherwise become harmless when they have completed their run.

Landmines, booby traps and other devices 4.36

4.36 In addition to the specific prohibition on the use of anti-personnel

mines, all feasible precautions must be taken to protect civilians from the

effects of mines, booby traps and similar devices. They must not be directed

at civilians nor may they be used indiscriminately. It is indiscriminate to place

them so that they are not on or not directed at a military objective, to use a

means of delivery which cannot be directed at a military target, or to place

them so that they may be expected to cause excessive collateral damage,

that is injury, loss or damage to civilians which is excessive in relation to the

concrete and direct military advantage anticipated.

4.37 Booby traps and similar devices must not be used in areas containing

civilian concentrations if combat between ground forces is neither imminent

nor actually taking place unless they are placed on, or in the vicinity, of an

enemy military objective or there are protective measures for civilians such as

warning signs, sentries, fences or other warnings to civilians.

4.38 The location of all pre-planned minefields and areas in which there has

been large scale and pre-planned use of booby traps must be recorded.

record should also be kept of all other minefields, mines and booby traps so

that they may be disarmed when they are no longer required.

Landmines 4.39

4.39 Landmines other than anti-personnel mines, are defined as any

munition on, under or near the ground or other surface area and designed to

be detonated by the presence, proximity or contact of a vehicle and includes

remotely delivered mines, that is, mines delivered by artillery, rocket, mortar

or aircraft. Time delayed weapons are not landmines.

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4.40 Remotely delivered landmines can only be used within the area of a

military objective if their location can be accurately recorded and they can be

neutralised when they no longer serve the military purpose for which they

were placed in position. Either each mine must have an effective self

neutralising or destroying mechanism or a remotely controlled mechanism

designed to render the mine harmless or destroy it. If circumstances permit,

effective advance warning should be given where remotely delivered mines

are likely to affect civilians.

Booby traps 4.41

4.41 Booby traps are objects that are designed to injure or kill and which

explode when a person approaches or disturbs an apparently harmless object

or performs an apparently safe act.

4.42 Booby traps that appear to be apparently harmless portable objects

which are specifically designed and constructed to contain explosive material

are prohibited. In particular they should not be attached to or associated with:

• internationally recognised protective emblems;

• corpses, casualties or the sick;

• burial, cremation sites or graves;

• medical facilities, equipment, supplies or transportation;

• children’s toys or objects designed for feeding, health, hygiene,

clothing or education of children;

• food or drink;

• kitchen utensils or appliances (except those in military establishments,

locations or supply depots);

• objects of a religious nature;

• historic monuments, works of art or places of worship which constitute

the cultural or spiritual heritage of peoples; or

• animals or their carcasses.

4.43 Where booby traps are not prohibited, those that are used must not be

designed to cause unnecessary injury or suffering.

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Other devices 4.44

4.44 ‘Other devices’ are manually emplaced munitions and devices

designed to kill, injure or damage and which are activated either remotely or

by time delay. Restrictions on the use of these other devices are as for

landmines and booby traps.

Nuclear weapons 4.45

4.45 The United Nations General Assembly has condemned nuclear

weapons as illegal, although the international community itself is divided on

this question. In 1996 the International Court of Justice handed down an

advisory opinion on the legality of the threat or use of nuclear weapons

determining that ‘...the threat or use of nuclear weapons would generally be

contrary to the rules of international law applicable in armed conflict, and in

particular the principles and rules of humanitarian law’. The Court could not

however, conclude definitely whether the threat or use of nuclear weapons

would be lawful or unlawful in an extreme circumstance of self-defence, in

which the very survival of a state would be at stake.

4.46 The commentary to G. P. I states that ‘there is no doubt that during the

four sessions of the Conference agreement was reached not to discuss

nuclear weapons’. Nevertheless, general humanitarian law principles aimed

at limiting unnecessary suffering and protecting the civilian population,

further clarified by G. P. I, must be considered in the employment of all

weapons of war, including nuclear weapons. The International Court of

Justice took the view that only in cases of extreme necessity, where the very

survival of the nation is at stake, would the use of a nuclear weapon possibly

be appropriate.

4.47 In 1985 Australia ratified the Treaty of Rarotonga, which brought into

effect the South Pacific Nuclear Free Zone. Pursuant to the terms of this

Treaty, Australia has undertaken to prevent the stationing of any nuclear

explosive device on Australian territory. The treaty preserves Australia’s right

to decide whether to allow visits by foreign aircraft or ships which might be

either nuclear-powered or nuclear-armed.

Rockets, missiles and bombardment 4.48

4.48 The LOAC restrictions of proportionality and unnecessary suffering

apply to all facets of aerial warfare. With the advent of modern technology

many defence forces are now able to deliver weapons with much greater

precision. However, nations are not obliged to use only precision munitions;

attack by conventional, free-fall weapons or ‘dumb’ weapons is lawful

provided that the overriding the LOAC principles of proportionality and

unnecessary suffering and other applicable rules are not violated.

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CHAPTER 5

TARGETING 5

INTRODUCTION 5.1

5.1 The LOAC will affect military decisions concerning targeting.

These may range from what weapons to use against an objective, to whether

an object or person is a legitimate military target. Attacks can only be directed

against military objectives and all reasonable precautions must be taken to

avoid civilian deaths and damage to civilian objects. Due regard must be paid

to the principle of proportionality and all feasible precautions must be taken to

gather relevant intelligence and ensure attacks are directed against military

objectives.

5.2 This chapter will set out the legal rules applicable to all international

armed conflict. Targeting in the three combat environments will be briefly

outlined, but the specialised rules governing the conduct of combat on land,

at sea and in the air are comprehensively covered in

chapter 6—‘Maritime

operations and the law of armed conflict’, chapter 7—‘Land operations and

the law of armed conflict’ and chapter 8—‘Air operations and the law of armed

conflict’ respectively. This chapter also should be considered with

chapter 4—‘Weapons’ when making targeting decisions. For the purposes of

this publication the following terms are defined:

• Attacks. Attacks are defined as acts of violence directed against an

adversary. This includes both defensive and offensive operations.

• Indiscriminate attacks. Indiscriminate attacks are those:

– which are not directed against a specific military objective;

– involve use of a weapon that cannot be directed against a

specific military objective; or

– the effect of which cannot be limited, as required by the LOAC.

Executive summary

• Targeting must be based on the three principles of the law of armed

conflict (LOAC). These are military necessity, avoidance of

unnecessary suffering and proportionality.

• Commanders have duties to take care to spare civilians and civilian

objects to the maximum extent possible in an armed conflict.

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An example of an indiscriminate attack would be to bomb a city, town,

village or area as though it were a single military objective when it

contains a number of separate and distinct military objectives mixed in

with a similar concentration of civilians and civilian objects.

Similarly

an indiscriminate attack is one which is expected to cause

incidental loss, injury or collateral damage to civilians or civilian

objects which is excessive in relation to the concrete and direct military

advantage anticipated as a result of the attack.

– Collateral damage and incidental injury. Collateral damage

and incidental injury are damage to civilian property and

incidental death or injury to civilians respectively which arises

out of any attack against a legitimate military objective.

Targeting principles 5.3

5.3 Targeting is premised on the basic principles set out in

chapter 2—‘Principles of the law of armed conflict’. These principles lead to

the following rules:

• the right to adopt means of defeating the enemy is not unlimited;

• attacks directed against the civilian population or civilian objects are

prohibited; and

• distinction must be drawn between combatants and non-combatants,

with every effort being made to avoid involving non-combatants in the

conflict.

APPLICATION OF LAW OF ARMED CONFLICT

PRINCIPLES TO TARGETING

5.4

Distinction 5.4

5.4 The LOAC establishes a requirement to distinguish between

combatants and civilians, and between military objectives and civilian objects.

This requirement imposes obligations on all parties to a conflict to establish

and maintain the distinction. Inherent in this requirement, and to make it

effective, is the obligation not to use civilians to protect military objectives.

Civilians may not be used as shields as the Iraqi President Saddam Hussein

threatened to do on the eve of the Gulf War of 1991. Any party who uses

civilians in this manner violates international law including its obligations to

protect its own civilian population.

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Military necessity 5.5

5.5 As detailed in chapter 2, military necessity is one of the fundamental

LOAC principles. The four factors critical to adherence to the concept of

military necessity are:

• combatants can only use such force as is necessary to achieve a

military objective,

• the particular use of such force is not prohibited by the LOAC,

• the use of such force must result in the least expenditure of life and

damage to property as is possible under the prevailing circumstances,

and

• the force used is regulated by the user.

5.6 These factors are relevant to targeting decisions particularly if

collateral damage is a possibility. While Additional Protocol I (G. P. I) does not

define military necessity it does make a number of implied concessions to the

principle. Article 51(5) provides, in the context of civilian protection, that

unlawful indiscriminate attacks include any:

5.7 Despite the use of negative language, the implied concession to

military necessity is the recognition that ‘the concrete and direct military

advantage’ to be gained from some attacks might outweigh collateral damage

which might otherwise be considered excessive. This is one of the most

delicate military judgments demanded of commanders by international law.

Unnecessary suffering 5.8

5.8 Related to the principle of military necessity, and implicitly contained

within it, is the principle of unnecessary suffering. This concept forbids any

attack on an enemy, which inflicts unnecessary suffering, injury or

destruction. The principles applicable are that:

• the force used must not exceed the minimum required to achieve the

military objective;

• there must be a valid military objective;

... which may be expected to cause incidental loss of civilian life which

would be excessive in relation to the concrete and direct military

advantage anticipated.

Article 51(5) of G. P. I

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• destruction as an end in itself is prohibited;

• any destruction of property must contribute to the defeat of the enemy;

and

• wanton killing and wilful infliction of suffering, as revenge, are

prohibited.

Proportionality 5.9

5.9 Proportionality requires a commander to weigh the military value

arising from the success of the operation against the possible harmful effects

to protected persons and objects. There must be an acceptable relationship

between the legitimate destruction of military targets and the possibility of

consequent collateral damage.

5.10 Additional Protocol I and proportionality. In relation to G. P. I,

Australia has made a declaration to the effect that the Australian

Government’s understanding is that references to military advantage in

Articles 51(5)(b) and 57 mean:

5.11 In addition, the declaration makes it clear that military advantage

involves a number of considerations, including the security of attacking

forces. The Australian Government’s Declarations of Understanding also

recognise that Australian Defence Force (ADF) commanders will, by

necessity, have to reach decisions on the basis of their assessment of the

information available to them at the relevant time. Australia’s Declarations of

Understanding to the Additional Protocols are in

annex A.

PERSONNEL 5.12

Combatants 5.12

5.12 For the LOAC purposes people are either combatants or

non-combatants. Subject to the exceptions below, combatants are legitimate

targets for attack whereas non-combatants are not. Combatants comprise all

organised armed forces, groups and units (except medical service and

religious personnel) which are under the command of a party to a conflict and

are subject to an internal disciplinary system, which enforces compliance with

the LOAC. Where persons are not members of armed forces, they must also

have a fixed distinctive sign recognisable at a distance and carry arms openly.

the advantage anticipated from the attack as a whole and not only from

isolated or particular parts of the attack.

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5.13 Enemy identification. A member of the armed forces does not lose

combatant status merely by operating covertly or as a guerrilla. That is, while

combatants are normally expected to distinguish themselves from the civilian

population by wearing a uniform, the LOAC recognises that they do not have

to wear a uniform on operations to retain their status as combatants. This is

conditional on combatants who cannot so distinguish themselves because of

the nature of hostilities, openly carrying arms during:

• each military engagement, and

• at such times as they are visible to the adversary while engaged in a

military deployment preceding the launching of an attack in which they

are to participate.

5.14 Levee en masse. Where the inhabitants of a country or territory

spontaneously ‘take up arms’ to resist an invader, the LOAC recognises them

as combatants provided they do so when there has not been time to form

themselves into units and they respect the LOAC. Individuals acting on their

own are not entitled to combatant status nor the benefits or detriment flowing

from that status.

5.15 Saboteurs. Targeting and the LOAC aspects with respect to

saboteurs, spies and espionage are covered in paragraphs 7.18 to 7.26.

5.16 Significance of combatant status. The significance of combatant

status is that, subject to the qualifications listed in paragraphs 5.17 to 5.24,

combatants are liable to attack and, if captured, must be treated as prisoners

of war (PW). Further, they receive immunity for their lawful warlike acts and

must be repatriated at the end of a conflict.

5.17 Terrorists. Terrorists do not comply with the LOAC and are not

accorded combatant status. They are not entitled to PW status. While they are

entitled to minimum standards of humane treatment, they are fully

accountable for actions and will face punishment for violations of international

and domestic laws.

Non-combatants 5.18

5.18 Non-combatants may not be attacked, although the LOAC recognises

that, in certain circumstances, unavoidable non-combatant casualties may

occur during operations.

5.19 PW, military personnel who are surrendering or attempting to

surrender, and those who are wounded or sick must not be attacked.

The basic principle is that any combatant who is hors de combat

, whether by

choice or circumstance, is entitled to be treated as a PW provided they refrain

from any further participation in hostilities.

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Prisoners of war 5.20

5.20 Protected from the moment of their surrender or capture, PW must not

be made the object of attack or reprisals. Similarly, PW camps and any

transports used to convey PW are protected and may not be attacked.

Military

commanders should also ensure that PW are not located near military

objectives and that they mark PW camps and transports with the protective

distinctive emblem shown in annex A to chapter 9—‘Protected persons and

objects’. Chapter 10—‘Prisoners of war and detained persons’ contains a full

description of the responsibilities associated with the care of PW and

detained persons.

5.21 Civilians. Civilians must be protected from the dangers of military

operations. They must not be the object of attack nor of acts or threats of

violence which are intended to create terror. They must not be subjected to

indiscriminate attacks. Further treatment of civilians is covered in

paragraphs 5.33 to 5.42.

5.22 Refugees and displaced persons. The situation of refugees and

internally displaced persons in wars and civil wars raises significant legal

issues encompassing elements of human rights and refugee law as well as

the laws of war. Refugees and displaced persons are civilians and as such

are protected persons and must be afforded corresponding protection.

5.23 Medical personnel. Included in the category of non-combatants are

all medical personnel. They are protected so long as they do not participate

in hostilities. The carriage of light individual weapons for self-defence or for

defence of wounded or sick in their care is not considered participation.

Medical personnel include persons on the permanent staff of medical

establishments and any person temporarily assigned to medical duties such

as soldiers who are carrying wounded from the battlefield. The underlying

principle is that care of the wounded and sick (who are now non-combatants)

is paramount and nothing should interfere with that care.

5.24 Religious personnel. Religious personnel, including military

chaplains, are protected persons in the same way as are medical personnel.

Religious personnel who participate directly in combat operations lose their

protected status.

5.25 Civil Defence personnel. People assigned exclusively to civil

defence tasks, administration and transport are protected persons.

1 A person is hors de combat if they are ‘out of combat’. Paragraph 7.8 provides a full

definition.

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MILITARY OBJECTIVES 5.26

5.26 Only military objectives are legitimate objects of attack. During an

armed conflict, and subject to the overriding considerations of proportionality

and unnecessary suffering, the ADF may target any military objective.

5.27 The term ‘military objective’ includes combatant members of the

enemy armed forces and their military weapons, vehicles, equipment and

installations. It may include other objects that have military value such as

bridges, communications towers, electricity and refined oil production

facilities. Objects are however, only military objectives if they come within the

following definition:

‘those objects which by their nature, location, purpose or use make an

effective contribution to military action and whose total or partial destruction,

capture or neutralisation, in the circumstances ruling at the time, offers a

definite military advantage’. (Article 52 (2) G. P. I)

5.28 These criteria require commanders and others planning, deciding on

or launching attacks to exercise their discretion. In doing so they must

necessarily reach their decisions on the basis of their assessment of the

information from all sources which is practicably available to them at the

relevant time.

5.29 The taxonomy of defining of military objectives contains a number of

elements:

• The second part of the definition limits the first. Both parts must apply

before an object can be considered a military objective.

• Nature refers to the type of object, for example, military transports,

command and control centres or communications stations.

• Location includes areas which are militarily important because they

must be captured or denied to the enemy or because the enemy must

be made to retreat from them. An area of land can, thus, be a military

objective.

• Purpose means the future intended use of an object while ‘use’

means its present function.

•The words nature, location, purpose or use seem at first sight to

allow a wide discretion, but they are subject to the qualifications later

in the definition of ‘effective contribution to military action’ and the

offering of ‘a definite military advantage’. There does not have to be

geographical proximity between ‘effective contribution’ and ‘military

advantage’. That

means that attacks on military supply dumps in the

rear or diversionary attacks, away from the area of actual military

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operations, can be launched.

• Military action means military action generally, not a limited or

specific military operation.

•The words in the circumstances ruling at the time are important. If,

for example, the enemy moved a divisional headquarters into a

disused textile factory, an attack on that headquarters would be

permissible (even though the factory might be destroyed in the

process) because of the prevailing circumstances. Once the enemy

moved their headquarters away, the circumstances would change

again and the protection of the factory as a civilian object would be

restored.

• Definite means a concrete and perceptible military advantage rather

than a hypothetical and speculative one.

•The military advantage anticipated from an attack refers to the

advantage anticipated from the attack considered as a whole and not

only from isolated or particular parts of the attack. The advantage need

not be immediate.

5.30 The presence of non-combatants, including civilians, in or around a

military objective does not change its nature as a military objective.

Non-combatants in the vicinity of a military objective must share the danger

to which the military objective is exposed. Attacks on military objectives that

cause incidental loss or damage to civilians are not prohibited as long as the

proportionality rule is complied with.

5.31 Military objectives may include a very wide range of persons, locations

and objects. Some examples are:

• military equipment, units and bases;

• power stations, industry and transport facilities which support military

operations;

• facilities which support or enhance command and control, such as

communications facilities;

• all persons taking a direct part in hostilities, whether military or civilian;

• civilian aircraft, vessels, vehicles and buildings which contain

combatants, military equipment or supplies;

• transportation systems for military supplies, transportation centres

where lines of communication converge, rail yards, industrial

installations producing materiel for combat forces, fuel dumps and

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distribution centres supplying military users, industrial installations that

repair and replenish lines of communication and other economic

targets the destruction, capture or neutralisation of which offers a

definite military advantage;

• economic targets that indirectly but effectively support operations are

also military objectives if an attack will gain a definite military

advantage;

• areas of land which are of direct use to defending or attacking forces,

eg land through which an adversary is likely to move its forces or which

may be used as a forming up point preceding an attack; and

• objects, normally dedicated to civilian purposes, but which are being

used for military purposes, eg a school house or home which is being

used temporarily as a battalion headquarters.

5.32 In cases of doubt whether objects which are normally dedicated to

civilian purposes, such as a church, are being used to make an effective

contribution to military action, they are presumed to be civilian objects.

CIVILIANS AND CIVILIAN OBJECTS 5.33

Definitions 5.33

5.33 Under G. P. I a civilian is ‘any person who is not a member of the

armed forces’. Similarly, the civilian population comprises all persons who are

‘civilians’. In cases of doubt about civilian status, the benefit of the doubt must

be given to the person concerned. A civilian has no general right to take part

in hostilities.

5.34 G. P. I defines ‘civilian objects’ as all objects which are not military

objectives. In cases of doubt about whether an object, normally dedicated to

civilian purposes, is being used to make an effective contribution to military

action, the presumption is that it is a civilian object. For this purpose, ‘use’

does not necessarily mean occupation. For example, if enemy soldiers use a

school building as shelter from attack by direct fire, then they are clearly

gaining a military advantage from the school. This means the school becomes

a military objective and can be attacked.

Protection of civilians and civilian objects 5.35

5.35 There is a fundamental rule that parties to a conflict must direct their

operations only against military objectives. G. P. I expressly provides that the

civilian population and civilian objects are to be protected against attack.

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Acts or threats of violence primarily intended to spread terror among the

civilian population are prohibited. Reprisal actions against civilians are also

prohibited.

5.36 Civilians are only protected as long as they refrain from taking a direct

part in hostilities. Whether or not a civilian is involved in hostilities is a difficult

question, which must be determined by the facts of each individual case.

Civilians bearing arms and taking part in military operations are clearly taking

part in hostilities; civilians working in a store on a military air base may not

necessarily be taking such a direct part. However, stores depots, supply

columns and military installations are clearly military objectives which may be

attacked, regardless of the presence of civilian workers.

HISTORICAL EXAMPLE—TERRORIST ATTACK IN BALI

Figure 5–1: Result of the terrorist attack, Bali 2002

The attack on the Sari nightclub with the clear intention of causing

maximum civilian casualties was part of the unfolding attack of

Jemaah Islamiah extremists on western interests. Attacking civilians

demonstrates a flagrant disregard for the essential principle that

civilians shall not be made the object of attack. The ability of civilised

nations to respond to acts of terrorism represents one of the great

challenges of our time. (source: various)

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5.37 Towns, villages, dwellings or buildings which are undefended are also

protected from attack. Starvation of the civilian population as a method of

warfare is forbidden. G. P. I expressly forbids attacks against objects that are

indispensable to the survival of the civilian population. Examples given in the

Protocol are: foodstuffs, agricultural areas, crops, livestock and drinking water

installations. This prohibition relates to attacks made for the specific purpose

of denying these items to the civilian population. Collateral damage to

foodstuffs is not a violation of the rules as long as the intention was to gain a

military advantage by attacking a military objective.

Collateral damage 5.38

5.38 Collateral damage may be the result of military attacks. This fact is

recognised by the LOAC and, accordingly, it is not unlawful to cause such

injury and damage. The principle of proportionality dictates that the results of

such action must not be excessive in light of the military advantage

anticipated from the attack.

5.39 Commanders must take all practicable precautions, taking into

account military and humanitarian considerations, to keep civilian casualties

and damage to a minimum consistent with mission accomplishment. This is

one of the most difficult decisions a commander will make and one of the most

difficult to describe. The commander is required to make a reasonable and

honest effort to minimise civilian injuries and damage after they have

considered all the available information, and the requirement to complete the

mission. Further guidance is set out in G. P. I and specialist legal advice may

need to be sought when making targeting decisions which may cause

collateral damage.

OBJECTS AFFORDED SPECIAL PROTECTION 5.40

5.40 Protected persons, objects and localities must not be attacked.

Protected persons are those categories of persons classified as

non-combatants described in paragraphs 5.18 to 5.25. Particular classes of

protected objects are described below.

Medical units and facilities 5.41

5.41 Medical units, materials and means of transportation are protected.

This applies to any form of medical transportation, whether by sea, land or air.

Medical units include hospital ships. Medical materials are any equipment

and supplies which are exclusively used for the benefit of the wounded and

sick. Civilian medical facilities are entitled to the same protection as military

medical units. Military commanders should ensure that medical units and

facilities are situated such that they are not endangered by military attacks.

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5.42 The distinctive Red Cross, Red Crescent or Red Crystal

should be

clearly displayed on all these facilities. If medical facilities are used for military

purposes, inconsistent with their humanitarian purposes, the right to special

protection is lost. Any medical facility is protected regardless of whether it is

marked with a Red Cross, Red Crescent or Red Crystal. These distinctive

protective symbols are shown in chapter 9,

annex A. Chapter 10 has further

guidance on medical units and their protection.

5.43 Transports of wounded and sick or of medical equipment shall be

respected and protected in the same way as mobile medical units.

Should such transports or vehicles fall into the hands of the adverse party,

they shall be subject to the laws of war, on condition that the party to the

conflict who captures them shall in all cases ensure the care of the wounded

and sick they contain.

5.44 Medical aircraft, that is, aircraft exclusively employed for the removal

of wounded and sick for the transport of medical personnel and equipment,

shall not be attacked, but shall be respected by the belligerents, while flying

at heights, at times and on routes specifically agreed upon between the

belligerents concerned. These aircraft should bear clearly marked, distinctive

emblems, together with their national colours on their upper and lower

surfaces.

Religious, cultural and charitable buildings and objects 5.45

5.45 Buildings devoted to religion, the arts, or charitable purposes; historic

monuments; and other religious, cultural, or charitable facilities should not be

attacked, provided they are not used for military purposes. It is the

responsibility of the local population to ensure that such buildings are clearly

marked with the distinctive emblem. These emblems are also shown in

chapter 9,

annex A.

5.46 Cultural property is generally protected. This includes, but is not

limited to, all buildings, locations, manuscripts, objects, works of art, archives,

archaeological sites, historical documents and book collections which have

any cultural significance. Also included in this category are places of worship

which constitute the cultural or spiritual heritage of people.

5.47 Religious objects, including articles of a religious character and

objects or equipment used exclusively by military religious personnel.

2 In 2005 a third additional protocol to the Geneva Conventions introduced the ‘Red Crystal’ as

another protective symbol for the purposes of the Geneva Convention.

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Civil defence establishments 5.48

5.48 Establishments and transport used exclusively for civil defence tasks,

where organised and authorised by governmental authorities are also

protected. Civil defence establishments should bear the distinctive

international emblem which is shown in chapter 9,

annex A. Chapter 10 has

further guidance on the protection of civil defence personnel and facilities.

Dams, dykes and nuclear power stations 5.49

5.49 Dams, dykes and nuclear power stations may not be made the object

of an attack if such attack may cause the release of dangerous forces and

consequent severe losses amongst the civilian population. This is the position

even if such installations are military objectives. Such objects should be

identified using the distinctive emblems shown in chapter 9,

annex A. Failure

to display the emblem does not remove the protection afforded the

installation. In exceptional circumstances, the protection ceases if the

installation is used in ‘regular, significant and direct support of military

operations’. In any case, such an attack must be the only feasible way to stop

the support, and any such attack would be approved at the highest command

level.

Environment 5.50

5.50 Those responsible for planning and conducting military operations

have a duty to ensure that the natural environment is protected. Specific rules

are in effect which protect the environment. In addition, the environment

remains under the protection and authority of customary international law,

principles of humanity and dictates of public conscience. Some of the specific

rules are shown below:

• The natural environment is not a legitimate object of attack.

Destruction of the environment, not justified by military necessity, is

punishable as a violation of international law.

• It is prohibited to employ methods or means of war which cause

widespread, long term and severe damage to the environment or may

be expected to cause such damage and prejudice the health or

survival of the population.

• The general prohibition on destroying civilian objects, unless justified

by military necessity, also protects the environment.

• Attacks on forests or other types of plant cover with incendiary

weapons are prohibited, unless such natural elements are used to

cover, conceal or camouflage combatants or other military objectives,

or are themselves military objectives.

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• It is prohibited to use environmental modification techniques, ie any

technique for changing, through deliberate manipulation of natural

process, the dynamics, composition or structure of the earth; including

its biota (plant or animal life), lithosphere, hydrosphere and

atmosphere, or of outer space; having widespread, long lasting or

severe effects as the means of destruction, damage or injury to an

enemy.

• Attacks against the environment by way of reprisal are prohibited.

• In times of armed conflict, parties to the conflict shall facilitate and

protect the work of impartial organisations contributing to the

prevention of damage, or repair of damage to the environment (eg civil

defence organisations). This shall be done by agreement between the

parties to a conflict or with the permission of a party to a conflict. Any

such work shall be done with due regard to the security interests of the

party concerned.

• In the event of breaches to the rules protecting the environment,

commanders are required to stop the violations, take action to prevent

further breaches and report violations to higher authority so further

action can be taken.

OFFENSIVE SUPPORT AND STRIKE OPERATIONS 5.51

5.51 Offensive support and strike operations include the use of naval

gunfire support, fire support from any ground-based weapon system other

than small arms and any air strike. In the Geneva Conventions and Protocols

the use of these types of weapons and weapons systems is referred to as

bombardment. Because of their potential to cause collateral damage,

commanders should take particular care when carrying out offensive support

or strike operations.

5.52 In order to ensure that any combat action complies with the LOAC,

there are a whole range of matters which must be considered in the targeting

process but are also relevant to the planning of any type of military attack.

These factors will influence the choice of axes, objects of attack, and the siting

of defences, and include:

• clear identification of persons, objects or locations to be attacked to

ensure as little risk as possible to protected persons, objects and

locations, consistent with military advantage;

• a concrete and direct military advantage in any proposed course of

action;

• the least possible collateral damage; and

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• prohibitions on the use of weapons, projectiles or other means and

methods of warfare that cause superfluous injury or unnecessary

suffering.

Precautions in attack 5.53

5.53 Attacks must only be made against military objectives. All reasonable

precautions must be taken to avoid injury, loss or damage to civilians and

civilian objects and locations. It is therefore important to obtain accurate

intelligence before mounting an attack. While the LOAC recognises that

civilian casualties are unavoidable at times, a failure to take all reasonable

precautions to minimise such damage may lead to a breach of those laws.

The same principles apply to the risk of damage or injury to any other

protected persons, places and objects.

5.54 Accordingly, the best possible intelligence is required concerning:

• concentrations of civilians;

• civilians who may be in the vicinity of military objectives;

• the nature of built-up areas such as towns, communities, shelters, etc;

• the existence and nature of important civilian objects and specifically

protected objects; and

• the environment.

5.55 Civilians who are not directly involved in combat but are performing

military tasks are not combatants. If they are killed or injured during an attack

on a legitimate military objective there is no breach of the LOAC provided the

death or injury is not disproportionate to the direct and concrete military

advantage anticipated from the attack. The presence of civilians on or near

the proposed military objective (either in a voluntary capacity or as a shield)

is one of the factors that must be considered when planning an attack.

5.56 When a planned attack is likely to affect the civilian population, those

making the attack are required to give, if practicable, effective advance

warning of the attack to the authorities or civilian population. This requirement

must obviously be applied in a commonsense manner in light of all other

factors. If the proposed action is likely to be seriously compromised by a

warning then there is no requirement to provide any warning.

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Axis of attack 5.57

5.57 Objects and axes of attack should be chosen to minimise collateral

damage wherever possible. Where a similar military advantage may be

gained by attacking any one of several military objectives, the attack should

be made against the objective that is likely to cause the least collateral

damage. The same principle applies to choosing axes of advance or attack

where more than one practicable and reasonable axis is available.

Defensive locations 5.58

5.58 Defences and defensive positions should also be sited, if practicable,

to avoid or minimise collateral damage. Ideally, all military objectives,

including defensive positions, should be sited outside heavily populated

areas. As in offensive operations, where a location or object may be equally

successfully defended from any one of several defensive positions, the LOAC

requires that the defence should be conducted from the position which would

cause the least danger to civilians and civilian objects.

Terrorisation of civilian population 5.59

5.59 Offensive support or strike operations against the civilian population

for the sole purpose of terrorising the civilian population is prohibited.

Non-lethal bombardment 5.60

5.60 The use of non-lethal technologies for bombardment is permitted if the

technologies used and results expected comply with the general protection

afforded the civilian population, non-combatants and civilian objects under

the LOAC. In addition, they must accord with any other LOAC rules which

may impact on the use of chemical or biological agents. In the past, a

common and successful tactic has been the use of radio broadcasts and

pamphlet drops for propaganda purposes as part of psychological operations.

These are permitted.

DUTIES OF AUSTRALIAN DEFENCE FORCE

COMMANDERS 5.61

5.61 One of the most significant consequences of G. P. I has been the

emphasis placed on commanders to comply with the LOAC. The Protocol

reminds commanders that, in the conduct of military operations, constant care

must be taken to spare the civilian population and civilian objects to the

maximum extent possible. This includes:

• removing civilians and civilian objects from the vicinity of military

objectives;

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• refraining from locating military objectives within or near

densely-populated areas;

• taking precautions to protect civilians and civilian objects from the

dangers of military operations;

• doing everything feasible to verify that objects being attacked are

military objectives;

• taking all feasible precautions, in the choice of means and methods of

attack, to minimise collateral damage; and

• refraining from launching any attack which may be expected to cause

collateral injury, or collateral damage, which would be excessive in

relation to the concrete and direct military advantage anticipated.

5.62 While some of the above obligations rest primarily on civilian

authorities, the commander’s responsibility is to protect those civilians under

their control, and those who may be affected by any attacks that they plan or

carry out. As a part of a targeting process, a targeting directive will be issued

for operations by the Chief of the Defence Force. The targeting directive will

include a number of steps outlining the methodology of the LOAC underlying

targeting decisions. These steps would include:

• locate and observe the potential target,

• assess the target as a valid military objective and otherwise

unprotected by the LOAC,

• take all necessary means to minimise collateral damage,

• assess collateral damage as proportional,

• release weapon to achieve best possible chance of impacting the

selected aim point commensurate with the tactical situation, and

• cancel or suspend the attack should it become apparent that the

assessment made under dot points 2 and 4 are no longer valid.

Annex:

A. Australia’s Declarations of Understanding to the Additional Protocols

Annex A to

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AUSTRALIA’S DECLARATIONS OF

UNDERSTANDING TO THE ADDITIONAL

PROTOCOLS

1. In depositing its instrument of ratification for Protocol 1, Australia

hereby makes declarations of understanding in relation to Articles 5, 44 and

51 to 58 inclusive of the said Protocol.

2. It is Australia’s understanding that in relation to Article 5, with regard

to the issue whether, and in what measure, Protecting Powers may have to

exercise any functions within the combat zone (such as may be implied by

provisions in Parts II and IV of the Protocol), the role of the Protecting Power

will be of a like character to that specified in the First and Second Conventions

and Part II of the Fourth Convention, which apply mainly to the battlefield and

its immediate surroundings.

3. It is the understanding of Australia that in relation to Article 44, the

situation described in the second sentence of paragraph 3 can exist only in

occupied territory or in armed conflicts covered by paragraph 4 of Article 1.

Australia will interpret the word ‘deployment’ in paragraph 3(b) of the Article

as meaning any movement towards a place from which an attack is to be

launched. It will interpret the words ‘visible to the adversary’ in the same

paragraph as including visible with the aid of binoculars, or by infra-red or

image intensification devices.

4. In relation to Articles 51 to 58 inclusive it is the understanding of

Australia that military commanders and others responsible for planning,

deciding upon, or executing attacks, necessarily have to reach their decisions

on the basis of their assessment of the information from all sources, which is

available to them at the relevant time.

5. In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of

Article 57, it is the understanding of Australia that references to the ‘military

advantage’ are intended to mean the advantage anticipated from the military

attack considered as a whole and not only from isolated or particular parts of

that attack and that the term ‘military advantage’ involves a variety of

considerations including the security of the attacking force. It is the further

understanding of Australia that the term ‘concrete and direct military

advantage anticipated’, used in Articles 51 and 57, means a bona fide

expectation that the attack will make a relevant and proportional contribution

to the objective of the military attack involved.

6. It is the understanding of Australia that the first sentence of

paragraph

2 of Article 52 is not intended to, nor does it, deal with the question

of incidental or collateral damage resulting from an attack directed against a

military objective.

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CHAPTER 6

MARITIME OPERATIONS AND THE LAW OF

ARMED CONFLICT

INTRODUCTION 6.1

6.1 The purpose of this chapter is to state the legal rules governing the

conduct of hostilities at sea. The parties to an armed conflict at sea are bound

by the principles and rules of International Humanitarian Law (IHL), already

expounded in

chapter 2—‘Principles of the law of armed conflict’.

6.2 The principles of necessity and proportionality apply equally to armed

conflict at sea and require that the conduct of hostilities by a state should not

exceed the degree and kind of force, not otherwise prohibited by the law of

armed conflict (LOAC), required to repel an armed attack against it and

restore its security.

DEFINITIONS 6.3

6.3 For the LOAC purposes, the following definitions additional to those

included in the glossary apply. The definitions are sourced from the 1982

United Nations Convention on the Law of the Sea (UNCLOS).

Archipelagic sea lanes passage 6.4

6.4 An archipelagic state may designate archipelagic sea lanes suitable

for continuous and expeditious transit by vessels and aircraft through and

over the archipelago. Such sea lanes are defined by axis lines. Ships and

Executive summary

• Hostile actions by naval forces may be conducted in, on or over the

territorial sea and internal waters, the land territories, the exclusive

economic zone (EEZ), continental shelf and, where applicable,

the

archipelagic waters of belligerent states; on the high seas; and in

the EEZ, contiguous zone and continental shelf of neutral states.

• Rights of passage and activities in various maritime zones vary

depending on the type of passage, the nature of the vessel, and the

status of the state, whether neutral or belligerent, controlling the

water.

• All efforts must be made to search for and rescue the shipwrecked,

wounded and sick.

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aircraft are not to deviate more than 25 nautical miles on either side of such

axis lines, except in congested areas where this amount of sea room is not

available, ships and aircraft must not navigate closer to the coast than

per cent of the distance between the nearest bordering islands. All vessels

and aircraft may exercise the right of archipelagic sea lanes passage through

these sea lanes. (The right of archipelagic sea lanes passage is the right to

conduct continuous and expeditious transit of the archipelago in the normal

mode of operation observing the same conditions applicable to transit

passage through straits used for international navigation). Where an

archipelagic state has not designated archipelagic sea lanes, the right of

archipelagic sea lanes passage may be exercised through all routes normally

used for international navigation. Archipelagic sea lanes passage may not be

suspended or obstructed by the archipelagic state.

Archipelagic state 6.5

6.5 An archipelagic state is a nation consisting wholly of islands and which

meets certain established criteria in UNCLOS.

Auxiliary vessel 6.6

6.6 An auxiliary vessel is a vessel, other than a warship, that is owned by

or under the exclusive control of the armed forces of a state and used for the

time being on government non-commercial service.

High seas 6.7

6.7 High seas are those waters seaward of declared territorial waters and

EEZ.

Innocent passage 6.8

6.8 All vessels may exercise the right of innocent passage in the territorial

seas of foreign nations. The right of innocent passage entitles a vessel to

traverse a foreign nation’s territorial sea continuously and expeditiously

without entering internal waters unless it is proceeding to or from internal

waters. Submarines are to navigate on the surface and fly state flag.

Passage

is innocent so long as it is not prejudicial to the peace, good order

or security of the coastal state. Activities inconsistent with innocent passage

include:

• the threat or use of force against the territorial integrity or political

independence of the coastal state;

• any exercise or practice with weapons;

• intelligence collection activities;

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• the carrying out of research or survey activities;

• the launching, landing or taking on board of military devices or aircraft;

• any other activity not having a direct bearing on passage.

Innocent passage may be temporarily suspended by the coastal state in

specified areas of the territorial sea if such suspension is essential for the

protection of its security. Innocent passage does not apply to aircraft.

Innocent passage in archipelagic waters 6.9

6.9 Vessels transiting archipelagic waters outside archipelagic sea lanes

or routes normally used for international navigation, as the case may be, have

the right of innocent passage through these waters. This right of innocent

passage may be temporarily suspended by the coastal state for reasons

essential to the protection of its security, including weapons practice and

military exercises. Such a temporary suspension must be published in

‘Notices to Mariners’.

International waters 6.10

6.10 International waters include all areas of the ocean not subject to

territorial sovereignty. All waters seawards of the territorial sea are

international waters in which high seas freedoms of navigation and overflight

apply. International waters thus include contiguous zones, EEZ and the high

seas.

Vessel 6.11

6.11 Every description of water craft, including non-displacement craft and

seaplanes, used or capable of being used as a means of transportation on

water.

Warship 6.12

6.12 A warship is a ship belonging to the armed forces of a state bearing

the external marks distinguishing such ships of its nationality, under the

command of an officer duly commissioned by the government of that state

and whose name appears in the appropriate Service list or its equivalent, and

manned by a crew which is under armed forces discipline.

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AREAS OF NAVAL OPERATIONS 6.13

General area of naval operations 6.13

6.13 Hostile actions by naval forces may be conducted in, on or over:

• the territorial sea and internal waters, the land territories, the EEZ, the

continental shelf and, where applicable, the archipelagic waters of

belligerent states;

• the high seas; and

• the EEZ, the contiguous zone and the continental shelf of neutral

states (see chapter 11—‘Rights and duties of neutrals’).

6.14 In carrying out operations, commanders should endeavour to avoid

conducting hostile actions in marine areas containing:

• rare or fragile ecosystems; or

• the habitat of depleted, threatened or endangered species or other

forms of marine life.

6.15 In carrying out operations in areas where neutral states enjoy

sovereign rights or jurisdiction, belligerents shall have due regard for the

legitimate rights and duties of those neutral states (see

chapter 11).

Immediate area of naval operations 6.16

6.16 Within the immediate area or vicinity of naval operations, a belligerent

may establish special restrictions upon the activities of neutral vessels and

aircraft and may prohibit altogether such vessels and aircraft from entering

the area. Neutral vessels and aircraft which fail to comply with a belligerent’s

orders expose themselves to the risk of being fired upon or captured.

This

traditional belligerent right to control neutral vessels and aircraft in the

immediate area or vicinity of naval operations should be distinguished from

the concept of exclusion zones (EZ).

6.17 Within the immediate area or vicinity of naval operations, a

commanding officer of a belligerent warship may exercise control over the

communications of any neutral merchant vessel or aircraft whose presence

might otherwise endanger the success of the belligerent operation.

Legitimate

distress communications by neutral vessels and aircraft should

permitted if they do not prejudice the success of operations.

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PASSAGE RIGHTS DURING ARMED CONFLICT AT SEA 6.18

Internal waters, territorial sea and archipelagic waters 6.18

6.18 Neutral waters consist of the internal waters, territorial sea, and, where

applicable, the archipelagic waters of neutral states. Within and over neutral

waters, including neutral waters comprising an international strait and waters

in which the right of archipelagic sea lanes passage may be exercised, hostile

actions by belligerent forces are forbidden. Hostile actions for this purpose

include:

• attack on or capture of persons or objects located in, on or over neutral

waters or territory;

• use as a base of operations, including attack on or capture of persons

or objects located outside neutral waters, if the attack or seizure is

conducted by belligerent forces located in, on or over neutral waters;

• laying of mines; and

• visit, search, diversion or capture.

These prohibitions on hostile actions by belligerent forces in neutral waters do

not include the exercise of the right of unit self-defence when units are

subjected to a hostile act or demonstration of hostile intent. In such

circumstances proportionate use of force in self-defence may be exercised no

matter where a unit finds itself.

6.19 In addition, belligerent forces may not use neutral waters as a

sanctuary.

6.20 A neutral state may, without discrimination, place conditions on,

restrict or prohibit the entrance to or passage through its internal waters,

territorial waters and archipelagic waters outside archipelagic sea lanes by

belligerent warships and auxiliary vessels. A neutral state may also, without

jeopardising its neutrality, permit within its neutral waters:

• passage through its territorial sea and where applicable its

archipelagic waters, by warships, auxiliary vessels and prizes of

belligerent states;

• replenishment by a belligerent warship or auxiliary vessel of its food,

water and fuel sufficient to reach a port in its own territory; and

• repairs of belligerent warships or auxiliary vessels found necessary by

the neutral state to make them seaworthy but not to restore or increase

their fighting strength.

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6.21 A belligerent warship or auxiliary vessel may not extend the duration

of its passage through neutral waters, or its presence in those waters for

replenishment or repair, for longer than 24 hours unless unavoidable on

account of damage or weather.

International straits and archipelagic sea lanes 6.22

6.22 The rights of transit passage and archipelagic sea lanes passage

applicable to international straits and archipelagic waters in peacetime

continue to apply in time of armed conflict. Belligerent and neutral surface

ships, submarines in normal mode and aircraft have the rights of transit

passage and archipelagic sea lanes passage through, under and over all

straits and archipelagic waters to which these rights apply. Neutral states may

not suspend, hamper or otherwise impede the right of transit passage nor the

right of archipelagic sea lanes passage.

6.23 A belligerent in transit passage through, under or over a neutral

international strait, or in archipelagic sea lanes passage through, under or

over neutral archipelagic waters, is required to proceed without delay, to

refrain from the threat or use of force against the territorial integrity or political

independence of the neutral littoral or archipelagic state and otherwise to

refrain from any hostile actions or other activities not incidental to their transit.

6.24 Belligerents passing through, under or over neutral straits or

archipelagic sea lanes are permitted to take defensive measures consistent

with their security, including launching and recovery of aircraft, screen

formation steaming, and acoustic and electronic surveillance. Belligerents in

transit or archipelagic sea lanes passage may not, however, conduct

offensive operations against enemy forces, nor use such neutral waters as a

place of sanctuary or base of operations.

6.25 In time of armed conflict, belligerent and neutral surface ships and

submarines also continue to have the right of non-suspendable innocent

passage, ascribed to certain international straits by international law.

MEANS AND METHODS OF ARMED CONFLICT AT SEA 6.26

6.26 In conducting hostilities at sea, surface ships, submarines and aircraft

are bound by the same principles and rules outlined in chapter 2. The use of

weapons in armed conflict at sea must comply with the principles of necessity,

unnecessary suffering and proportionality as well as the duty to avoid

indiscriminate attacks and the taking of all reasonable precautions to avoid

loss of civilian lives and damage to civilian objects. As with any armed conflict,

the right of the parties to the conflict to choose the means or methods of

warfare is not unlimited.

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Means of armed conflict at sea 6.27

6.27 Mines. Mines may only be used in armed conflict at sea for legitimate

military purposes, including the denial of sea areas to the enemy. Mines may

not be laid off coasts with the sole object of intercepting commercial shipping.

The parties to the conflict shall not lay mines unless effective neutralisation

occurs when they have become detached or control over them is otherwise

lost. In the case of free floating mines, they should not be used unless they

are directed against a military objective and they become harmless within an

hour after loss of control over them.

6.28 Belligerents are to record the locations where they have laid sea mines

to ensure accurate notification of danger areas to shipping of other states and

facilitate subsequent removal or deactivation. Mining of neutral waters by a

belligerent should not occur. Mining operations in the internal waters,

territorial sea or archipelagic waters of a belligerent state should provide,

when the mining is first executed, for free exit of shipping of neutral states.

Where mines are laid in international waters, belligerents should pay due

regard to the legitimate uses of international waters by providing safe

alternative routes for passage of neutral shipping. Likewise, transit passage

through international straits and archipelagic sea lanes should not be

impeded by belligerent minelaying unless safe and convenient alternative

routes are provided.

6.29 Following an armed conflict, parties to the conflict are obliged under

international law to do their utmost to remove or render harmless the mines

they have laid and to cooperate with other states and international

organisations to remove sea mines and render them harmless.

6.30 Torpedoes. Torpedoes should only be employed in armed conflict at

sea if they sink or otherwise become harmless when they have completed

their run.

6.31 Missiles and other projectiles. These means of armed conflict at

sea, including those with over the horizon capabilities, may be used in

conformity with the principles of target discrimination contained in

chapter 5—‘Targeting’.

Methods of armed conflict at sea 6.32

6.32 Exclusion zones. Maritime exclusion zones (MEZ), variously referred

to as defensive sea areas, total EZ, maritime control areas or operational

zones, are areas of ocean space from which a belligerent declares some or

all types of ships or aircraft to be excluded. MEZ must be distinguished from

EEZ which bear no relationship to armed conflict at sea. An MEZ may be

moving or stationary and is sometimes declared to include the airspace above

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it. MEZ differ from the immediate area of naval operations because they

normally encompass quite large water areas and are not confined to areas in

the close vicinity of naval operations.

6.33 There is no specific international law treaty provision referring to MEZ,

however, their use has acquired a degree of validity under customary

international law. The International Military Tribunal at Nuremberg held that

establishment of EZ in which neutral merchant ships were subjected to a ‘sink

on sight’ policy was illegal. However, the Tribunal implicitly accepted the

legitimacy of an EZ in which belligerent merchant ships were subjected to a

sink on sight policy where such ships were incorporated into the belligerent

war effort.

6.34 The establishment of an MEZ does not relieve the belligerent of its

duties under IHL to avoid adversely affecting the legitimate uses of defined

areas of ocean space. Where a belligerent establishes an MEZ the following

conditions should apply:

• The extent, location and duration of the zone and the measures

imposed should not exceed what is strictly required by military

necessity and the principle of proportionality.

• Due regard must be given to the rights of neutral states in their

exercise of the legitimate uses of the seas.

• The commencement, duration, location and extent of the zone, as well

as the restrictions imposed, must be publicly declared and

appropriately notified to other states.

• Necessary safe passage through the zone for neutral vessels and

aircraft should be provided:

– where the geographical extent of the zone significantly

impedes free and safe access to the ports and coasts of a

neutral state; or

– in other cases where normal navigation routes are affected,

except where military requirements do not permit.

6.35 Ruses of war and perfidy in armed conflict at sea. The basic

definitions applicable to ruses of war and perfidy in armed conflict on land

also apply to these methods of warfare at sea. However, there are some

methods

of lawful and unlawful deception peculiar to the naval environment.

Warships and auxiliary vessels may fly a false flag up until the moment of

launching an attack but are prohibited from launching an attack whilst flying a

false flag, and at all times from actively simulating the status of:

• hospital ships, small coastal rescue craft or medical transports;

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• vessels on humanitarian missions;

• passenger vessels carrying civilian passengers;

• vessels protected by the United Nations (UN) flag;

• vessels guaranteed safe conduct between the parties, including cartel

vessels;

• vessels entitled to be identified by the emblem of the Red Cross, Red

Crescent or Red Crystal; or

• vessels engaged in transporting cultural property under special

protection.

6.36 Perfidious acts also include the launching of an attack while feigning:

• exempt, civilian, neutral or protected UN status; or

• surrender or distress, eg by sending a distress signal or by the crew

taking to life rafts.

RESTRICTIONS ON TARGETING 6.37

6.37 As outlined in chapter 5, the principle of distinction applies equally to

armed conflict at sea. Attacks must be directed only at military objectives.

common with land warfare, maritime military objectives are limited to those

objects which by their nature, location, purpose or use make an effective

contribution to military action and whose total or partial destruction, capture or

neutralisation, in the circumstances ruling at the time, offers a definite military

advantage. Merchant vessels and civil aircraft are civilian objects unless they

are military objectives. Principles of neutrality are described in

chapter 11.

6.38 Enemy warships and military aircraft. Enemy warships,

auxiliary vessels and military aircraft are military objectives and may be

attacked unless contained in the list of exempt categories of vessels and

aircraft given below.

6.39 Enemy merchant vessels. Enemy merchant vessels may only be

attacked if they meet the definition of military objective given above.

The

following activities may render enemy merchant vessels military

objectives:

• engaging in belligerent acts on behalf of the enemy;

• acting as an auxiliary to an enemy’s armed forces, eg carrying troops

or replenishing warships;

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• being incorporated into or assisting the enemy’s intelligence gathering

system;

• sailing under convoy of enemy warships or military aircraft;

• refusing an order to stop or actively resisting visit, search or capture;

• being armed to an extent that could inflict damage to a warship; and

• otherwise making an effective contribution to military action.

6.40 Enemy civil aircraft. Enemy civil aircraft may likewise only be

attacked if they meet the definition of a military objective. The following

activities may render enemy civil aircraft military objectives:

• engaging in acts of war on behalf of the enemy;

• acting as an auxiliary aircraft to an enemy’s armed forces,

eg transporting troops or military cargo or refuelling military aircraft;

• being incorporated into or assisting the enemy’s intelligence gathering

system;

• flying under the protection of accompanying enemy warships or

military aircraft;

• being armed with air-to-air or air-to-surface weapons; or refusing an

order to identify itself, divert from its track, or proceed for visit and

search to a belligerent airfield that is safe for the type of aircraft

involved and reasonably accessible, or operating fire control

equipment that could reasonably be construed as part of an aircraft

weapon system, or on being intercepted clearly manoeuvring to attack

the intercepting belligerent aircraft; or

• otherwise making an effective contribution to military action.

6.41 Neutral merchant vessels. Merchant vessels flying the flag of neutral

states may not be attacked unless they:

• are believed on reasonable grounds to be carrying contraband or

breaching a blockade, and after prior warning they intentionally and

clearly refuse to stop, or intentionally and clearly resist visit, search or

capture;

• engage in belligerent acts on behalf of the enemy;

• act as auxiliaries to the enemy’s armed forces;

• are incorporated into, or assist the enemy’s intelligence gathering

system;

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• sail under convoy of enemy warships or military aircraft; or

• otherwise make an effective contribution to the enemy’s military

action, eg by carrying military material, and it is not feasible for the

attacking forces to first place passengers and crew in a place of safety.

6.42 The mere fact that a neutral merchant vessel is armed provides no

grounds for attacking it.

6.43 Neutral civil aircraft. Civil aircraft bearing the marks of neutral states

may not be attacked unless they:

• are believed on reasonable grounds to be carrying contraband and,

after prior warning or interception, they intentionally and clearly refuse

to divert from their destination, or intentionally and clearly refuse to

proceed for visit and search to a belligerent airfield that is safe for the

type of aircraft involved and reasonably accessible;

• engage in belligerent acts on behalf of the enemy;

• act as auxiliaries to the enemy’s armed forces;

• are incorporated into or assist the enemy’s intelligence gathering

system; or

• otherwise make an effective contribution to the enemy’s military

action.

6.44 Classes of vessels exempt from attack. The following classes of

enemy vessels are exempt from attack:

• hospital ships;

• small craft used for coastal rescue operations and other medical

transports;

• vessels granted safe conduct by agreement between the belligerent

parties including:

– cartel vessels, eg vessels designated for and engaged in the

transport of prisoners of war (PW); and

– vessels engaged in humanitarian missions including vessels

carrying supplies indispensable to the survival of the civilian

population, and vessels engaged in relief actions and rescue

operations;

• vessels engaged in transporting cultural property under special

protection;

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• passenger vessels when engaged only in carrying civilian passengers;

• vessels charged with religious, non-military scientific or philanthropic

missions (vessels collecting scientific data with likely military

application are not protected);

• small coastal fishing vessels and small boats engaged in local coastal

trade;

• vessels designed or adapted exclusively for responding to pollution

incidents in the maritime environment;

• vessels which have surrendered; and

• life rafts and lifeboats.

6.45 The above vessels are exempt from attack only if they:

• are innocently employed in their normal role,

• submit to identification and inspection when required, and

• do not intentionally hamper the movement of combatants and obey

orders to stop or move out of the way when required.

MEASURES OF NAVAL WARFARE AGAINST TRADE 6.46

Visit and search of merchant vessels 6.46

6.46 In exercising their legal rights in international armed conflict at sea,

belligerent warships and military aircraft have a right to visit and search

merchant vessels outside neutral waters in order to determine their character

(enemy or neutral), the nature of their cargo, their manner of employment and

other facts which bear on their relationship to the armed conflict. Historically,

visit and search was considered the only legally acceptable method for

determining whether a merchant vessel was subject to capture. It is now

recognised that changes in warfare may render this method either hazardous

or impracticable in some circumstances.

6.47 Procedures for visit and search. In the absence of special

instructions issued during a period of armed conflict, the following procedures

should be adhered to:

• In general, a belligerent’s right of visit and search should be exercised

with tact and consideration.

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• Before summoning a vessel to lie to, a warship’s own flag should be

hoisted. The summons should be made by firing a blank charge,

international flag signal or other recognised means. The summoned

vessel, if neutral, is bound to stop, lie

to and display its colours; if an

enemy, it may resist by force, but thereby assumes all risks of resulting

damage. On the other hand, a neutral merchant vessel is obliged not

to resist the belligerent’s right of visit and search.

• If a summoned vessel takes flight, it may be pursued and brought to

by forcible means.

• When a summoned vessel is brought to, a boat with at least one officer

is to be sent to conduct the visit and search. Arming

of the officers and

the boat’s crew is left to the discretion of the commanding officer of the

visiting ship.

• If visit and search at sea of a neutral merchant vessel is deemed

hazardous or impracticable, the neutral vessel may be escorted by the

summoning vessel, or by another vessel, to the nearest place where

search may be made.

• A boarding officer should first examine a ship’s papers in order to

determine its character, ports of departure and destination, nature of

its cargo and employment, and other essential facts. Ship’s papers

generally found on board a merchant vessel include:

– certificate of registry of nationality;

– crew list;

– passenger list;

– log book;

– bill of health;

– clearance;

– charter party, if chartered;

– invoices or manifest of cargo;

– bills of lading; and

– a consular declaration certifying the innocence of the cargo

may be included.

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• Evidence furnished by papers against a vessel may be taken as

conclusive:

– Regularity of papers and evidence of innocence of cargo or

destination furnished by papers are not necessarily conclusive,

and if any doubt exists, the personnel of the vessel are to be

questioned and a search made, if practical, of the ship or cargo.

If search, under suspicious circumstances, does not satisfy a

boarding officer, the vessel is to be captured and sent in for

adjudication to the nearest port of the belligerent

apprehending.

• Unless military security prohibits, the boarding officer must record in

the log book the facts concerning the visit and search of the vessel,

including the date and position. The entry in the log book should be

authenticated by the signature and rank of the boarding officer.

Neither the names of the visiting vessel nor the name and rank of the

commanding officer are to be disclosed.

Exemptions from visit and search of merchant vessels 6.48

6.48 A neutral merchant vessel is exempt from the right of visit and

search,

if:

• it is bound for a neutral port;

• it is under the convoy of an accompanying neutral warship of the same

nationality or a neutral warship of a state with which the flag state of

the merchant vessel has concluded an agreement providing for such

convoy;

• the flag state of the neutral warship warrants that the neutral merchant

vessel is not carrying contraband or otherwise engaged in activities

inconsistent with its neutral status; and

• the commander of the neutral warship provides, if requested by the

commander of an intercepting belligerent warship or military aircraft,

all information as to the character of the merchant vessel and its cargo

as could otherwise be obtained by visit and search.

6.49 In order to avoid the necessity of visit and search, belligerent states

may establish reasonable measures for the inspection of cargo of neutral

merchant vessels and certification that a vessel is not carrying contraband.

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Contraband 6.50

6.50 Contraband consists of all goods which are destined for an enemy and

which may be suspected to be of use in war. Contraband goods are divided

into two categories; absolute and conditional. Absolute contraband consists

of goods which are used primarily for war or goods whose very character

makes them destined for use in war. Conditional contraband consists of

goods which are equally suitable for use either for peaceful or warlike

purposes. The distinction between absolute and conditional contraband is of

declining importance, at least in major maritime conflicts, as there is a

tendency to assume that all goods, which one party considers important

enough to import during armed conflict must be of some value to its war effort.

6.51 On the initiation of armed conflict, belligerents may declare

contraband lists setting forth the classification of articles to be regarded as

contraband, as well as the distinction to be made between goods considered

as absolute contraband and those considered conditional. Goods consisting

of absolute contraband are liable to capture if their destination is the territory

belonging to or occupied by an enemy, or the armed forces of an enemy. It is

immaterial whether the carriage of such goods is direct or involves

trans-shipment or transport overland. In the case of absolute contraband,

destination of territory belonging to or occupied by an enemy or its armed

forces, is presumed to exist when:

• the transporting vessel is to call at an enemy port before arriving at a

neutral port for which the goods are documented;

• goods are documented to a neutral port serving as a port of transit to

an enemy, even though the goods are consigned to a neutral; or

• goods are consigned ‘to order’ or to an unnamed consignee, but

destined to a neutral state in the vicinity of enemy territory.

6.52 Goods consisting of conditional contraband are liable to capture if

destined for the use of an enemy government or its armed forces. It is

immaterial whether the carriage of such goods is direct or involves

trans-shipment or transport overland.

6.53 Goods not on the belligerent’s contraband lists are ‘free goods’,

that are not subject to capture. As a minimum, ‘free goods’ shall include:

• religious objects;

• articles intended exclusively for treatment of the wounded and sick

and prevention of disease (particulars concerning the carriage of such

articles must be transmitted to the adverse party and approved by it);

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• clothing, bedding, essential foodstuffs, and means of shelter for the

civilian population in general, and women and children in particular,

provided there is not serious reason to believe that such goods will be

diverted to other purposes, or that a definite military advantage would

accrue to the enemy by their substitution for enemy goods that would

thereby become available for military purposes;

• items destined for PW, including individual parcels and collective relief

shipments containing food, clothing, education, cultural and

recreational articles;

• goods otherwise specifically exempted from capture by international

treaty or by special arrangement between the belligerents; and

• other goods not susceptible for use in armed conflict.

Capture of enemy vessels and goods 6.54

6.54 Enemy vessels, whether merchant or otherwise, and goods on board

such vessels may be captured outside neutral waters. Prior exercise of visit

and search is not required. Categories of vessels exempt from capture

correspond to those listed in

paragraph 6.44. Capture of a merchant vessel is

exercised by taking such vessel as a prize for adjudication. If military

circumstances preclude taking such a vessel as a prize at sea, it may be

diverted to an appropriate area or port in order to complete capture.

6.55 A captured enemy merchant vessel may, as an exceptional measure,

be destroyed when military circumstances preclude taking, or sending such a

vessel for adjudication, as an enemy prize, only if the following conditions are

met beforehand:

• the safety of passengers and crew is provided for (for this purpose, the

ship’s lifeboats are not regarded as a place of safety unless the safety

of the passengers and crew is assured in the prevailing sea and

weather conditions by the proximity of land or the presence of another

vessel which is in a position to take them on board);

• documents and papers relating to the prize are safeguarded; and

• if feasible, personal effects of the passengers and crew are saved.

6.56 The destruction of enemy passenger vessels carrying only civilian

passengers is prohibited at sea. For the safety of the passengers,

such

vessels shall be diverted to an appropriate area or port in order to

complete capture.

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Capture of neutral merchant vessels and goods 6.57

6.57 Neutral merchant vessels are subject to capture outside neutral

waters if they are engaged in any of the activities described in paragraph 6.41

or if it is determined, as a result of visit and search, or by other means,

that

they:

• are carrying contraband;

• are on a voyage especially undertaken with a view to the transport of

individual passengers who are embodied in the armed forces of the

enemy;

• are operating directly under enemy control, orders, charter,

employment or direction;

• present irregular or fraudulent documents, lack necessary documents,

or destroy, deface or conceal documents;

• are violating regulations established by a belligerent within the

immediate area of naval operations; or

• are breaching or attempting to breach a blockade.

Capture of a neutral merchant vessel is exercised by taking such vessel as a

prize for adjudication. Goods on board neutral merchant vessels may only be

captured if they are contraband (see paragraphs 6.50 to 6.53).

6.58 A neutral vessel, which is captured in accordance with the criteria

given above may, as an exceptional measure, be destroyed when military

circumstances preclude taking or sending such a vessel for adjudication as

an enemy prize only if the following conditions are met beforehand:

• the safety of passengers and crew is provided for (for this purpose the

ship’s boats are not regarded as a place of safety unless the safety of

the passengers and crew is assured in the prevailing sea and weather

conditions by the proximity of the land, or the presence of another

vessel which is in a position to take them on board);

• documents and papers relating to the captured vessel are

safeguarded; and

• if feasible, personal effects of the passengers and crew are saved.

6.59 Every effort should be made to avoid destruction of a captured neutral

vessel. Destruction shall not be ordered without there being entire satisfaction

that the captured vessel can neither be sent into a belligerent port,

nor

diverted, nor properly released. The destruction of captured neutral

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passenger vessels carrying civilian passengers is prohibited at sea. For the

safety of the passengers, such vessels should be diverted to an appropriate

port to complete the capture.

Blockade 6.60

6.60 A blockade is a belligerent operation intended to prevent vessels of all

states from entering or leaving specified coastal areas which are under the

sovereignty, occupation, or control of an enemy. Such areas may include

ports, harbours, the entire coastline or part of it. A blockade is accomplished

by establishing a cordon which separates the enemy from international

waters and airspace. A blockade by sea may be extended to include the

airspace above those portions of the high seas in which the blockading forces

are operating.

HISTORICAL EXAMPLE—BLOCKADE, SOUTH ASIA,

WORLD WAR I

Part of Germany’s plan for disruption of the British Empire in World

War I was promotion of revolution in India. An Indian National Group

was attached to the German General Staff in Berlin. The Group had

ambitious plans for gun-running from San Francisco, the

Netherlands East Indies (NEI) and Philippines to Bengal, and for

releasing and arming of Indian convicts in penal settlements in the

Andaman Islands to attack Rangoon. With agents throughout

South-East Asia and 74 German merchant ships sheltering in

neutral NEI, there was both the will and physical potential to cause

serious disruption to British possessions and trade in South Asia.

Responding to an Admiralty request, the Royal Australian

Navy (RAN) commissioned, armed and crewed the mothballed

cruiser HMAS PSYCHE and survey vessel HMAS FANTOME in

Sydney for protective duties in the Persian Gulf. The India-Burma

plots caused their diversion on 04 September 1914 to join in a

combined patrol in the Bay of Bengal, searching all vessels detected

in the area and landing shore parties to search suspected landing

areas.

Collapse of the plot in India by January 1915 shifted the centre of

gravity of the blockade from British waters to the international and

neutral waters east of Singapore, HMAS FANTOME moving to

British Borneo, HMAS PSYCHE remaining in the Bay of Bengal.

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6.61 In order to be binding, a blockade must be established by a belligerent

government. A blockade shall be declared and notified to all belligerents and

neutral states. The declaration should include the date of commencement,

duration, location, extent of the blockade and the period within which vessels

of neutral states may leave the blockaded coastline. Notification of a blockade

is an essential element in establishing whether a vessel or aircraft has

breached a blockade.

6.62 A blockade must be effective. Its effectiveness is a question of fact.

a guide, however, a blockade should be maintained by a force sufficient to

render ingress and egress from the blockaded area dangerous. The force

maintaining the blockade may be stationed at a distance determined by

military requirements. A blockade may be enforced and maintained by a

combination of legitimate methods and means of warfare. A blockade must

not bar access to or departure from neutral ports or coasts and must be

applied equally to the vessels and aircraft of all states.

HISTORICAL EXAMPLE—(cont)

These patrols were ‘very active and admirably carried out, and the

Germans find grave difficulty in developing or carrying out any

plans’. After a year of this grindingly tedious work, some were

relieved by the new destroyers HUON, SWAN and TORRENS, with

PARRAMATTA and YARRA remaining until 1917.

These blockaders also had ongoing political problems.

The countries from which German agents operated were

neutral—Siam, NEI, and America’s colony the Philippines.

The neutral waters surrounding these countries enabled suspect

traffic, posing as merchantmen, to sail coastwise and claim

sanctuary in the neutral ports. Inspection of vessels was also a

problem, neutral captains objecting to search in international straits

and claiming neutral waters in the Archipelago. This work, in a

backwater of the war, demonstrated careful, restrained execution

and strong self-discipline. (source: Official History of Australia in

the War of 1914–1918 volume 9)

Meanwhile, the RAN destroyer flotilla completed operations in the

capture of German New Guinea by the Australian Naval and Military

Naval Force. HMA Ships PARRAMATTA, WARREGO, YARRA and

UNA were diverted to Singapore, joined there by the light cruiser

HMAS ENCOUNTER from Fiji. This force patrolled from Java to

Siam, based variously at the British ports of Singapore, Sandakan

and the French-owned Saigon.

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6.63 Vessels and aircraft are liable to capture for breach of blockade.

Merchant vessels believed on reasonable grounds to be breaching a

blockade may be captured. Merchant vessels which, after prior warning,

clearly resist capture may be attacked. The liability of a blockade runner to

capture begins with the commencement of its voyage or flight and terminates

with the end of its journey.

6.64 Neutral warships and neutral military aircraft have no positive right of

entry to a blockaded area. However, they may be allowed to enter or leave a

blockaded area as a matter of courtesy. Permission to visit a blockaded area

is subject to any conditions, such as the length of stay, that the blockading

force may deem necessary and expedient. Neutral vessels and aircraft in

urgent distress may be permitted to enter and leave a blockaded area under

conditions prescribed by the commander of the blockading force.

6.65 The declaration or establishment of a blockade is prohibited if:

• it has the sole purpose of starving the civilian population or denying it

other objects essential for its survival; or

• the damage to the civilian population is, or may be expected to be,

excessive in relation to the concrete and direct military advantage

anticipated from the blockade.

6.66 If the civilian population of the blockaded territory is inadequately

provided with food and other objects essential for its survival, the blockading

party must provide for free passage of such foodstuffs and other essential

supplies, subject to:

• the right to prescribe the technical arrangements, including search,

under which such passage is permitted; and

• the condition that the distribution of such supplies shall be made under

the local supervision of a Protecting Power or a humanitarian

organisation which offers guarantees of impartiality.

6.67 The blockading belligerent shall allow the passage of medical supplies

for the civilian population or for the wounded and sick members of armed

forces, subject to the right to prescribe technical arrangements, including

search, under which such passage is permitted.

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RESCUE AND CARE OF THE WOUNDED, SICK AND

SHIPWRECKED IN ARMED CONFLICT AT SEA 6.68

6.68 General rules. All possible measures are to be taken to search for and

collect the shipwrecked, wounded and sick in armed conflict at sea and

ensure their adequate care in accordance with the provisions of the Second

Geneva Convention (G. II) and Additional Protocol I. Rescued personnel shall

be respected and protected. The parties to an armed conflict at sea may

agree for humanitarian purposes to create a zone in a defined area of the sea

in which only activities consistent with those humanitarian purposes are

permitted.

6.69 Protected persons. Persons on board vessels and aircraft having

fallen into the power of a belligerent or neutral shall be respected and

protected. Members of the crews of hospital ships may not be captured during

the time they are in the service of these vessels. Members of the crews of

rescue craft may not be captured while engaging in rescue operations.

Religious and medical personnel assigned to the spiritual and medical care of

the wounded, sick and shipwrecked shall not be considered PW. They may

however, be retained as long as their services are required for PW.

6.70 Nationals of an enemy state, in the context of armed conflict at sea are

entitled to PW status if they are:

• members of the enemy’s armed forces;

• persons accompanying the enemy’s armed forces;

• crew members of auxiliary vessels;

• crew members of enemy merchant vessels; or

• crew members of neutral merchant vessels that have taken a direct

part in the hostilities on the side of the enemy or served as an auxiliary

of the enemy.

6.71 Nationals of a neutral state:

• who are passengers on board enemy or neutral vessels are to be

released and may not be made PW unless they are members of the

enemy’s armed forces or have committed acts of hostility against the

enemy;

• who are members of the crew of enemy warships or auxiliary vessels

are entitled to PW status; and

• who are members of the crew of enemy or neutral merchant vessels

are to be released and may not be made PW unless the vessel or the

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crew member has personally committed an act of hostility against the

captor.

6.72 Medical transports. In order to provide maximum protection for

hospital ships from the moment of the outbreak of hostilities, states may

beforehand give general notification of the characteristics of their hospital

ships as specified in Article 22 of G. II. Hospital ships may be equipped with

purely passive means of defence, such as chaff and flares. The presence of

such equipment should be notified. In order to fulfil their humanitarian

mission, hospital ships should be permitted to use cryptographic equipment

provided such equipment is not used to transmit intelligence data nor in any

other way to acquire military advantage.

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CHAPTER 7

LAND OPERATIONS AND THE LAW OF ARMED

CONFLICT

INTRODUCTION 7.1

7.1 The purpose of this chapter is to state the legal rules concerning the

conduct of military operations on land. Reference should be made to

chapter 2—‘Principles of the law of armed conflict’, where the basic principles

of the LOAC are outlined. chapter 4—‘Weapons’, chapter 5—‘Targeting’,

chapter 9—‘Protected persons and objects’ and chapter 10—‘Prisoners of

war and detained persons’ contain specific guidance on those particular

areas.

METHODS OF COMBAT 7.2

Stratagems and ruses 7.2

7.2 Ruses of war and the employment of measures necessary for

obtaining information about the enemy and the enemy country are

permissible. Ruses of war are used to obtain an advantage by misleading the

enemy. They are permissible provided they are free from any suspicion of

treachery or perfidy. Legitimate ruses include surprises, ambushes,

camouflage, decoys, mock operations and misinformation. Psychological

operations are also permitted.

Perfidy 7.3

7.3 Perfidy is forbidden. Acts which constitute perfidy are those inviting

the confidence of an adversary, thus leading that adversary to believe that

there is an entitlement, or an obligation, to accord protection provided under

the LOAC, with an intent to betray that confidence. Acts which constitute

perfidy include feigning of:

Executive summary

• The law of armed conflict (LOAC) allows certain methods of combat

to be used to engage the enemy such as surprise and camouflage.

Other methods are prohibited such as perfidy and improper use of

protected symbols.

• The three principles of military necessity, avoidance of unnecessary

suffering and proportionality must be obeyed during land operations.

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• an intent to negotiate under a flag of truce or surrender;

• an incapacitation by wounds or sickness;

• civilian or non-combatant status; and

• protected status by the use of protective symbols, signs, emblems or

uniforms of the United Nations (UN) or of neutral or other states not

involved in the conflict.

7.4 Difference between perfidy and ruses. It would be perfidious,

for

example, to falsely declare to the enemy that an armistice had been

signed so as to gain the element of surprise for a subsequent attack. It would

be lawful however, for a few soldiers to summon an enemy force to surrender

on the false ground that it was surrounded, or to threaten bombardment when

no guns were actually in place. To demand a cease-fire and then to break it

by surprise, or to violate a safe conduct or any other agreement, in order to

kill, wound or capture enemy troops would be perfidious. On the other hand,

it has been considered a legitimate ruse to utilise an informal cease-fire for

the purpose of collecting wounded and dead (which is sometimes arranged

during a battle) to withdraw unseen by the enemy.

Improper use of protective symbols and emblems 7.5

7.5 It is prohibited to improperly use the distinctive emblem of the

Red Cross, Red Crescent or Red Crystal. Deliberate misuse of other

protective symbols and emblems, signs and signals, including the flag of truce

and the protective emblem of cultural property, is also prohibited. Use of the

distinctive emblem of the UN is prohibited except as authorised by the UN.

7.6 In armed conflict it is prohibited to use flags, military emblems, insignia

or uniforms of neutral or other nations not party to the conflict. It is also

prohibited to use the flags or military emblems, insignia or uniforms of the

enemy while engaging in attacks or in order to shield, favour, protect or

impede military operations. Enemy uniforms may otherwise be worn.

Any

soldier who is captured not wearing a military uniform risks being treated

as a spy.

Quarter must be granted 7.7

7.7 It is prohibited to order that no prisoners will be taken, threaten an

enemy that such an order will be given or conduct hostilities on the basis that

no prisoners will be taken. Ambiguous orders, such as, ‘take that objective at

any cost’ should be avoided.

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Persons ‘hors de combat’ 7.8

7.8 Those who do not participate in hostilities must not be the direct object

of an attack. Soldiers who are ‘out of combat’ and civilians are to be treated

in the same manner and cannot be made the object of attack. A person is hors

de combat if that person:

• is under the control of an enemy;

• clearly expresses an intention to surrender; or

• has been rendered unconscious, or is otherwise incapacitated by

wounds or sickness, and therefore incapable of defending himself.

Provided that person abstains from any hostile act and does not attempt to

escape.

7.9 Other persons who are not taking a direct part in hostilities are also

considered to be out of combat. Those persons include medical personnel,

chaplains and any person parachuting from an aircraft in distress.

Starvation and devastation—scorched earth 7.10

7.10 Starvation of civilians as a method of warfare is prohibited.

Objects indispensable to the survival of the civilian population cannot be

attacked, destroyed, removed or rendered useless for the specific purpose of

denying them for their sustenance value to the civilian population, such as

foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock,

drinking water installations and supplies and irrigation works. This includes

starving civilians or causing them to move away.

7.11 Foodstuffs and agricultural areas producing them, crops, livestock and

supplies of drinking water intended for the sole use of the armed forces may

be attacked and destroyed. Extreme care will need to be exercised when

making some objectives a military target, eg drinking water installations,

such objects are likely not used solely for the benefit of armed forces.

7.12 When objects are used for a purpose other than sustenance of

members of the armed forces but such use is in direct support of military

action, attack on such objects is lawful unless that action can be expected to

leave the civilian population with such inadequate food or water as to cause

its starvation or force its movement.

7.13 It is permissible to destroy objects which are indispensable to the

survival of the civilian population in the course of ordinary military operations

only if it is militarily imperative to do so, for example, to destroy a wheat field

to deny concealment to enemy forces, because this is a tactical measure and

does not amount to a scorched earth policy.

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Protection of the environment 7.14

7.14 Any method or means of warfare which is planned, or expected,

to cause widespread, long-term and severe damage to the natural

environment and thereby jeopardise the survival or seriously prejudice the

health of the population is prohibited. In this context, ‘long-term’ means

continuing for decades. Means or methods which are not expected to cause

such damage are permitted even if damage results.

7.15 Australia, as a signatory to the UN’s Convention on the Prohibition of

Military or Any Other Hostile Use of Environmental Modification (ENMOD)

Techniques has undertaken not to engage in any military or hostile use of

ENMOD techniques which would have widespread, long lasting or severe

effects as the means of destruction, damage or injury to any other state which

is a party to the Convention.

7.16 For the purposes of ENMOD, the terms ‘widespread’, ‘long lasting’,

and ‘severe’ are interpreted as follows:

• ‘widespread’: encompassing an area on the scale of several hundred

square kilometres;

• ‘long lasting’: lasting for a period of months, or approximately a

season; and

• ‘severe’: involving serious or significant disruption or harm to human

life, natural economic resources or other assets.

7.17 ENMOD techniques are defined by ENMOD as any technique for

changing, through deliberate manipulation of natural processes, the

dynamics, composition or structure of the earth, including:

• animal and plant life (forbidding long-term defoliation and the like);

• the earth’s crust (forbidding artificial earthquakes);

• the earth’s water surface; and

• the gaseous envelope surrounding the earth.

Espionage and sabotage 7.18

7.18 International law recognises the right of belligerents to employ spies

and other secret agents to obtain information about the enemy. Espionage is

the clandestine collection of information behind enemy lines or in the area of

operations with the intention of communicating that information to a hostile

party to the conflict. A member of an armed force who is in territory controlled

by an adverse party to a conflict gathering, or attempting to gather,

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information is not considered as a spy if that person is wearing a military

uniform. Any person captured while engaging in espionage is not entitled to

the status of prisoner of war (PW) and is liable to be tried by the civil courts of

the adversary.

7.19 Sabotage is permitted if directed against a legitimate military objective.

Saboteurs in uniform are combatants and entitled to PW status if captured.

Civilian saboteurs or saboteurs not in uniform are not so protected.

Generally

speaking, saboteurs are persons operating behind the lines of the

enemy to commit acts of destruction. If they are operating in civilian clothing

they are liable to be treated as spies.

7.20 Members of forces participating in acts of espionage or sabotage

should wear uniform whenever possible while in enemy or enemy-occupied

territory. Otherwise, they run the risk of being treated as spies if captured.

7.21 Civilian residents of occupied territory who commit sabotage or

espionage in that territory may be punished if captured. This does not apply

to members of:

• national liberation movements engaged in a conflict seeking

self-determination;

• resistance or properly organised guerrilla movements; and

• a levee en masse while acting in those capacities.

These people are to be treated as PW.

7.22 A person engaged in gathering intelligence and captured in an aircraft

or vessel while dressed in civilian clothes may only be charged with

espionage if they are engaged in such activities. However, the crew of an

aircraft carrying spies cannot be treated as spies in the absence of clear

evidence that they are spying.

7.23 Should combatants, including personnel from crashed aircraft, wear

civilian clothing to facilitate escape, the burden of proving they are not spies

is upon them. When the question arises as to whether a captive is to be

treated as a PW, the person should be presumed to be a PW and given that

status until the contrary is proved.

7.24 Persons assisting the escape of saboteurs, spies, aircrew or escaped

PW are liable to face trial in accordance with the national laws of the

belligerent against whose interests they have been acting, or if within

occupied territory, in accordance with the law of the occupying authority.

They

may be accused of espionage even though their acts do not technically

fall within this definition and may jeopardise any civilian or other protected

status they may have. Offenders are entitled to a proper trial.

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Assassination 7.25

7.25 Assassination is the sudden or secret killing by treacherous means of

an individual who is not a combatant, by premeditated assault, for political or

religious reasons. Assassination is unlawful. In addition, it is prohibited to put

a price on the head of an enemy individual. Any offer for an enemy ‘dead or

alive’ is forbidden. If prior information of an intended assassination or other

act of treachery should reach the party on whose behalf the act is to be

committed, that party should endeavour to prevent its occurrence.

7.26 The prohibition against assassination is not to be confused with

attacks on individual members of the enemy’s armed forces as those persons

are combatants and are legitimate military targets.

Undefended localities 7.27

7.27 The attack or bombardment, by whatever means, of towns, villages,

dwellings, or buildings which are undefended is prohibited. The reason for this

rule is that there is no military need to attack a place that is not being

defended. It can simply be occupied without resistance or bypassed.

The

concept of an undefended place does not apply to places in rear areas

behind enemy lines. It applies only to places that are open to occupation by

ground forces.

Non-defended locality 7.28

7.28 It is prohibited for parties to a conflict to attack, by any means

whatsoever, non-defended localities.

7.29 The parties to the conflict may declare as a non-defended locality any

inhabited or uninhabited place near or in a zone where armed forces are in

contact which is open for occupation by an adverse party. In order to be

considered a non-defended locality, the following conditions must be fulfilled:

• all combatants, weapons and military equipment, must have been

evacuated or neutralised;

• no hostile use is made of fixed military installations or establishments;

• no acts of hostility are to be committed by the authorities or the

population; and

• no activities in support of military operations shall be undertaken.

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7.30 The presence in this locality of protected persons and police forces

retained for the sole purpose of maintaining law and order, does not change

the character of a non-defended locality.

7.31 The declaration of a non-defended locality must describe the

geographical limits of the locality and be addressed to the relevant party to the

conflict which must acknowledge its receipt and from that time treat the

locality as a non-defended locality unless the conditions for establishment of

the locality are not met. In that case, the locality continues to enjoy the

protection provided by other provisions of Additional Protocol I and other rules

of international law applicable in armed conflict.

HISTORICAL EXAMPLE—NON-DEFENDED LOCALITY,

VIETNAM 1970

Figure 7–1: Cordon and search of a village, South Vietnam 1970

Villages suspected of harbouring enemy soldiers and equipment

were surrounded, and then systematically searched,

with interrogation of the inhabitants on enemy intelligence.

This Montagnard village has been cordoned and searched by a

mobile strike force battalion; the Australian Army Training Team

Vietnam officer commanding the battalion and an interpreter are

questioning the village headman.

As non-defended localities, no force was used against villages

unless initiated from within it by enemy occupants. Civil and medical

assistance was provided to the inhabitants. (source: Australian

War Memorial FAI/70/0590/VN)

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7.32 The parties to the conflict may also agree to grant the status of a

non-defended locality to a particular area even if the conditions referred to in

paragraph 7.29 are not fulfilled. Although there is no specific format or content

for any such agreement, the principal points should be:

• the exact geographical limits of the area;

• the date and time of entry into force;

• the duration;

• the rules on marking the limits of the area and the type of marking to

be used;

• persons or classes of persons authorised to enter the locality;

• if necessary, the methods of supervision; and

• the ultimate fate of the locality and the possible conditions under which

the area may be occupied by enemy troops.

7.33 Non-defended localities are to be signposted and although the status

may be lost when the conditions upon which it was established are no longer

being satisfied, the locality shall continue to enjoy any other protection

afforded by the LOAC.

7.34 Even though all the conditions are not met, the parties may agree

between themselves to treat an area as a non-defended locality.

The

agreement should be in writing and should specify the exact

geographical limits of the locality, the date and time of the entry into force of

the agreement and its duration, rules on marking the locality and agreed

signs, persons authorised to enter the locality, methods of supervision

(if

any), whether and under what conditions the locality may be occupied by

enemy troops.

Siege warfare 7.35

7.35 Attack on towns, villages, habitations or buildings that are undefended

is prohibited unless they have become military objectives.

7.36 If the attack is likely to affect the civilian population, the commander of

an attacking force shall give effective advance warning unless circumstances

do not permit. If there are non-combatants in the locality, the anticipated

collateral damage must not be excessive in relation to the concrete and direct

military advantage expected to result from the bombardment.

Buildings

devoted to religion, art, science and charity, hospitals and places

where the sick and wounded are collected, should not be made the specific

subject of attack unless they are being used for military purposes, subject to

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warning requirements. The besieged population should indicate by visible

signs the buildings or places to be protected and should notify the attacking

force of these signs.

7.37 Diplomatic and consular personnel of a neutral nation should not be

prevented from leaving a besieged place before hostilities commence.

This

privilege cannot be claimed while hostilities are in progress. Should they

voluntarily decide to remain, they are subject to the same risks as other

inhabitants.

7.38 The commander of the besieging force has the right to forbid all

communications and access outside the besieged place. The opposing

parties are required to try and conclude local agreements for the removal from

besieged or encircled areas of wounded, sick, infirm and aged persons,

children and maternity cases, and for the passage of ministers of all religions,

medical personnel and medical equipment on their way to such areas.

Similar

considerations are made for the passage of consignments of medical

and hospital stores and objects necessary for the religious worship of civilians

and of essential foodstuffs, clothing and tonics intended for children under 15,

expectant mothers and maternity cases.

7.39 The commander of a besieging force is not required to permit

non-combatants to leave a besieged locality. A commander cannot direct fire

at non-combatants who attempt to leave or enter a besieged place.

Demilitarised zone 7.40

7.40 Demilitarised zones are areas in which, by express agreement

between the parties to the conflict, military operations are not conducted.

The

aim of these zones is common to that of non-defended localities.

The differences between the two areas relate to how they are established and

their situation. A non-defended locality may be created by unilateral

declaration, whereas a demilitarised zone is created by express agreement

between the parties. From the commander’s point of view, protection granted

to each zone is identical. Therefore, as long as sufficient notice is given of the

zones and they are adequately marked, they are protected from attack.

Civil affairs 7.41

7.41 Commanders should give consideration to establishment of civil

affairs units or teams to aid military operations by providing a means of

communication between local authorities and military forces to assist in

ensuring that planning and conduct of operations is in accordance with

obligations under the LOAC. Areas in which civil affairs teams or units may

support commanders include:

• assisting the commander in meeting legal and moral obligations to the

civilian population (eg liaison, advice, coordination, warning);

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• advising the commander on civil affairs aspects of current and

proposed plans and operations;

• advising the commander on actions to minimise civilian interference

with military operations; and

• identifying and coordinating acquisition of local resources.

Law of armed conflict profiles 7.42

7.42 The LOAC profiles should be prepared where possible for populated

areas within an area of operations, to be included in the operational planning

process. A LOAC profile format is in annex A.

PROPERTY ON THE BATTLEFIELD 7.43

Destruction or seizure of civilian property 7.43

7.43 Public and private property. The destruction or seizure of civilian

property, whether it belongs to private individuals or the state, to other public

authorities or to social or cooperative organisations is permitted if imperative

for military purposes. Otherwise such action is forbidden.

7.44 Municipal, religious, charitable and cultural property. The

property of municipalities and that of institutions dedicated to religion, charity,

education, the arts and sciences is treated as private property and any

seizure or destruction of that property is prohibited. If that property is located

in any area that is subject to seizure or bombardment, then it must be secured

against all avoidable damage and injury.

Booty 7.45

7.45 All enemy military equipment captured or found on a battlefield is

known as booty and becomes the property of the capturing state.

Booty

includes all articles captured with PW and not included under the term

‘personal effects’. Personal effects are considered to be those items listed in

paragraph 10.35.

Pillage 7.46

7.46 Pillage, the violent acquisition of property for private purposes, is

prohibited. In this regard the pillage of a town or place, even when taken by

assault, is prohibited.

Annex:

A. Law of armed conflict profile format

Annex A to

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LAW OF ARMED CONFLICT PROFILE FORMAT A

LOAC PROFILE FOR OPERATIONS IN THE .....................

AREA 1

1. Civilian population:

a. What is the populated area?

b. What are the concentration centres of the population and what

are their geographic parameters?

c. What materials are used, in the majority of cases, for the

construction of domestic dwellings?

d. What objects are indispensable to the civilian population and

where are they?

2. Protected objects:

a. What is the location, size, and construction of any hospital,

medical centre, medical storage facility, research or health

facility in the populated area or vicinity?

b. What is the location and number of shrines, churches, religious

objects or houses of worship?

c. What is the location of any civil defence facility?

d. What is the location and nature of the major:

(1) water supply systems including dams, reservoirs or

dykes;

(2) power stations, both conventional and nuclear;

(3) transport systems, railheads, harbour facilities and

airports;

(4) food distribution; and

(5) food production areas, for the civilian population?

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3. Dangerous substances/hazards:

a. Are there any bulk handling or storage facilities for:

(1) petroleum or other inflammable substances,

(2) explosives,

(3) chemicals or other toxic substances, or

(4) radioactive materials,

the release of which will endanger the civilian population?

b. Of the facilities mentioned above, which are located below

ground level, at what depth, what is their construction and what

would be the likely effects upon the civilian population should

they be destroyed or damaged?

c. Should they be damaged or destroyed, would any dams,

dykes, channels or other systems either carrying domestic

water supplies or withholding the effects of the ocean be likely

to cause serious or catastrophic damage to the civilian

population?

d. Are there any other facilities, substances or materials not

mentioned above which would cause irreparable

consequences to the civilian population?

e. Are there any medical or research facilities in the area which

are likely to hold dangerous viruses or bacteria, the escape of

which is likely to significantly risk the civilian population?

4. LOAC guidance:

a. Care is required in the planning of operations to avoid or

minimise the damage to protected objects or inflicting

casualties on the civilian population.

b. The use of indirect fire or close air support should be avoided

where the civilian population is concentrated.

c. Immunity is to be given to targets which, if damaged or

destroyed, will pose major environmental hazards.

d. Damage from other dangerous substances stored in the

vicinity of military objects should be limited to the immediate

area so as to cause as few civilian casualties as possible and

minimum damage to the environment.

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e. Commanders should be reminded that LOAC requires that if

there is more than one military option open in achieving an

objective, the option involving the least civilian casualties and

collateral damage should be chosen.

f. Commanders are prohibited from launching indiscriminate

attacks.

g. Further LOAC guidance is to be included depending on the

nature of the operation.

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CHAPTER 8

AIR OPERATIONS AND THE LAW OF ARMED

CONFLICT

INTRODUCTION 8.1

8.1 An attempt was made in 1923 by some international jurists from a

number of nations to reach international consensus on aerial warfare.

These rules, which are referred to as the 1923 Draft Hague Rules for Aerial

Warfare, were never formally adopted although some of the rules have now

become part of customary international law. By the end of hostilities in 1945

there was little law of armed conflict (LOAC) relating specifically to the

conduct of air warfare.

8.2 Since 1944 international law has developed to encompass the

regulations of international aviation through the Chicago Convention and the

formation of the ICAO. In addition, Additional Protocol I (G. P. I) and

Additional Protocol II have included specific provisions which deal with air

warfare and aircraft operations. This chapter addresses these general issues

as they apply to the conduct of Australian Defence Force (ADF) air

operations. Reference should also be made to the Air Force publication

Australian Air Publication (AAP) 1003—Operational Law for RAAF

Commanders.

8.3 Airspace has traditionally been classified either as national or

international airspace. This division closely follows the maritime regime

whereby oceans are regarded as national waters or international waters.

Air

law and the law of the sea are closely related and an understanding of

each is critical when planning and conducting ADF operations. The LOAC

considerations relating to maritime operations are covered in

chapter 6—‘Maritime operations and the law of armed conflict’.

Executive summary

• Airspace is divided into zones similar to maritime zones. Aircraft do

not have a right of overflight through national airspace, particularly if

it is the airspace of a neutral during armed conflict.

• The Convention on International Civil Aviation 1944 (Chicago

Convention) and the International Civil Aviation Organisation (ICAO)

rules do not bind military and state aircraft.

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CONTROL OF AIRSPACE 8.4

8.4 International law recognises that the legal status of airspace is akin to

that of a nation’s territory, internal waters and territorial seas. Sovereignty

extends to national airspace. The concept of territorial sovereignty includes

the right to regulate, and if necessary prevent access, exit or transit of both

personnel and aircraft, whether manned or not. This right in relation to civil

aircraft has been modified by the provisions of the Chicago Convention.

Airspace 8.5

8.5 Lateral extent of airspace. The Chicago Convention provides that

every state has complete and exclusive sovereignty over the airspace above

its territory. For the purposes of the convention the territory of a state shall be

deemed to be the land areas and territorial waters adjacent thereto under the

sovereignty, suzerainty, protection or mandate of such state. Despite the fact

that this convention applies only to civil aircraft, this definition reflects

accepted customary law regarding the lateral extent of airspace.

8.6 Vertical extent of airspace. While views differ as to the precise

vertical and horizontal extent of airspace, for practical purposes, it can be said

that the upper limit to a state’s rights in airspace is above the highest altitude

at which an aircraft can fly and below the lowest possible perigee of an earth

satellite in orbit. The result is that anything in orbit or beyond can safely be

regarded as in outer space.

8.7 International airspace. Aircraft have freedom of overflight over

exclusive economic zones (EEZ) of other states and over other areas of the

high seas. The airspace in question is often known as ‘international airspace’.

It is lawful for a military aircraft of one state to fly in international airspace

adjacent to the national airspace of another state, for example, for the

purpose of surveillance and observation of activities within that other state’s

national airspace or territory.

8.8 Chicago Convention. In accordance with the Chicago Convention

the aircraft of one nation may not enter another nation’s airspace without

permission. The Chicago Convention is primarily concerned with the

regulation of civil aviation. State aircraft are generally not subject to its

provisions and do not enjoy its privileges. Some nations have, however,

concluded bilateral agreements, which grant overflight rights to their

respective state aircraft.

Legal division of the oceans and airspace 8.9

8.9 An understanding of the legal division of the oceans is necessary so

that aircrew are aware of the rights of aircraft which transit above these ocean

space divisions. The legal regimes of airspace and oceans directly affect

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military operations because they determine the degree of control that a

coastal nation may exercise over foreign aircraft and vessels within these

zones. Details of the legal divisions of oceans are detailed in

chapter 6,

AAP 1003 and in the Royal Australian Navy Publication Australian Book of

Reference 5179—RAN Manual of International Law.

Outer space 8.10

8.10 Outer space, while not having a clearly defined boundary, is still

recognised as a zone to which particular legal obligations apply. All nations

enjoy equal access to outer space and none may claim it as national airspace

or for exclusive use.

Status of military aircraft and personnel 8.11

8.11 Military aircraft are classified as state aircraft under the terms of the

Chicago Convention. This means that military aircraft are not subject to the

provisions of the Chicago Convention and, therefore, the standards, practices

and procedures of the ICAO do not apply. Likewise, military aircraft do not

enjoy the overflight rights of civil aircraft accorded by the transit agreements

negotiated under the Chicago Convention.

8.12 Nationality and markings. A nation’s aircraft, like its ships, bear the

nationality of the country in which they are registered. Civil aircraft must bear

markings indicating their nationality. Military aircraft must bear markings

indicating both nationality and military status.

8.13 Immunity. Military aircraft, similar to warships, have sovereign

immunity from foreign laws in relation to search and inspection. This means

that military aircraft should not be boarded, searched or inspected by foreign

authorities without permission. Because military aircraft require diplomatic

clearance to enter another nation’s airspace, they may be required to submit

to search as a condition of entry.

8.14 Military contract aircraft. Civilian aircraft that are contracted to

support ADF operations are not normally regarded as state or military aircraft.

If used exclusively by the ADF, civil aircraft could be designated as state

aircraft and thus enjoy sovereign immunity, and not be subject to ICAO

regulation. However, only military aircraft can exercise the combat rights of a

belligerent. Examples of such rights include attacking military objectives and

overflying enemy territory. Civilian owned and registered aircraft would enjoy

the rights of a military aircraft if they carried the markings of a military aircraft,

were manned by ADF personnel and were used for national tasks.

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Air navigation rights 8.15

8.15 General principles. Military and civil aircraft are free to operate in

international airspace without interference. Civil aircraft are able to enter

another nation’s airspace without diplomatic clearance, if they have followed

ICAO procedures. The Chicago Convention reaffirmed the principle that

every nation has complete sovereignty over its national airspace. Crew of

military aircraft must always seek permission to enter another nation’s

airspace. This may be a specific clearance or general permission granted by

agreement. The clearance can be made conditional and any aircraft entering

national airspace are subject to the agreed terms and conditions. Aircraft in

distress are entitled to such measures of assistance as are necessary and

practicable.

8.16 Innocent passage. Unlike warships, which have right of innocent

passage in other nations’ territorial seas, aircraft have no right of innocent

passage through the airspace over those territorial seas.

8.17 International straits passage. International straits are those straits

used for international maritime navigation. They are international waterways,

including territorial waters, which join areas of the high seas or EEZ.

All

aircraft have the right to unimpeded transit passage through national

airspace above international straits. Any transit must be continuous and

expeditious though aircraft may conduct air-to-air refuelling. Aircraft must not

threaten or use force against the aircraft of the nation, or nations, bordering

the strait. In addition, all aircraft must monitor the internationally designated

air-traffic control circuit or distress frequency while engaged in transit

passage. This right of transit cannot be suspended in peacetime for any

reason.

8.18 Archipelagic sea lanes passage. All aircraft and ships enjoy the right

of archipelagic sea lanes passage in designated archipelagic sea lanes.

The

right of archipelagic sea lanes passage is the right to conduct expeditious

and continuous transit in the normal mode of operation, observing the same

conditions applicable to transit passage through international straits.

This

right of transit exists even if the nation has not declared such sea lanes.

In common with vessels, aircraft can use all routes normally used for

international navigation to transit the archipelago in the absence of

designated archipelagic sea lanes.

8.19 Innocent passage in archipelagic waters. Unlike vessels, aircraft

have no right of innocent passage over archipelagic waters outside

archipelagic sea lanes.

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Navigation in international airspace 8.20

8.20 International airspace is that airspace over the high seas, EEZ,

contiguous zone and territory not subject to territorial sovereignty (eg the

Arctic). International airspace is open to aircraft of all nations. Accordingly,

military aircraft are free to operate in international airspace without

interference from any other nation. While in international airspace, military

aircraft are free to engage in normal flight operations, including weapons

testing and firing, surveillance, intelligence gathering, and support of naval

activities. All such operations must be conducted with due regard to the safety

and rights of other aircraft and vessels.

8.21 International Civil Aviation Organisation flight procedures. ICAO

flight procedures are established under the terms of the Chicago Convention.

As military aircraft are generally not subject to this convention, they are not

bound by ICAO regulations, other than the requirement to operate with due

regard to the safety of civil aircraft. It is ADF practice to follow ICAO

procedures, unless operational circumstances dictate otherwise. Operational

circumstances which may not lend themselves to ICAO flight procedures

include security contingencies and classified missions.

8.22 Flight information regions. Flight information regions (FIR) are

defined areas within which flight information and alerting services are

provided. FIR are established by ICAO for the safety of civil aviation and

encompass both national and international airspace. As a matter of policy,

ADF aircraft on routine missions follow ICAO procedures and utilise FIR

services. Acceptance by a nation’s government of responsibility for an FIR

does not grant that government sovereignty over that international airspace.

Furthermore military aircraft retain the right to transit international airspace

without interference and are not required to use FIR services.

Air defence identification zones 8.23

8.23 An air defence identification zone (ADIZ) is a defined area within which

civil aircraft are required to identify themselves. The asserted legal basis for

such zones is the right of nations, under the Chicago Convention, to establish

conditions and procedures for entry into their national airspace. These zones

are established above the high seas adjacent to the coast, and over the

territorial sea, land and territory. Declaration of an ADIZ does not constitute a

claim of any sovereign rights. Australia, from time to time, has declared an

ADIZ for military exercise purposes. Nations who have standing ADIZs

include Indonesia (over Java), United States, Japan, Canada and France.

8.24 Air defence identification zone procedures. An aircraft

approaching an ADIZ can be required to identify itself as a condition of entry

to national airspace. ADIZ regulations generally require aircraft, bound for

national airspace, to file flight plans and periodic position reports.

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Failing voluntary identification, aircraft can expect to be identified by intercept

aircraft. The declaration of an ADIZ does not confer on an intercepting pilot

the right to engage an aircraft. Rules of engagement (ROE) will provide

guidance on the circumstances in which an aircraft may be engaged. There

no right to require an aircraft to identify itself if it does not intend to enter

national airspace. These procedures reflect the peacetime position. In the

case of imminent or actual hostilities, a nation may take self-defence

measures, which will affect overflight in international airspace.

8.25 Promulgation of an air defence identification zone. The activation

of an ADIZ is effected by promulgation through military and civil agencies.

Australia, Air Services Australia, in concert with Headquarters Joint

Operations Command, promulgates ADIZs by the issue of Notices to Airmen.

8.26 In order to avoid exposing a medical aircraft to unnecessary harm,

international law allows nations that operate medical or prisoner of war (PW)

transport aircraft to enter into agreements with belligerents and neutrals to

ensure safe passage of the aircraft over foreign territory.

Security zones 8.27

8.27 In the interests of safety, any nation may declare a temporary closure,

or warning area, on and over the high seas to advise other nations of the

conduct of hazardous activities. These warnings are cautionary,

not

mandatory. International law does not recognise the right of any nation to

restrict the right of navigation of military aircraft in international airspace.

Some nations have declared exclusion zones (EZ) in times of conflict,

pursuant to the inherent right of self defence. The United Nations (UN) also

sanctioned an air EZ over Bosnia following Security Council resolutions, in an

effort to protect areas from attack.

8.28 Claims of security zones. Some nations have asserted claims that

purport to restrict the activities of military aircraft and warships in so-called

‘security zones’ that extend beyond national airspace. These zones have no

basis in international law except in times of conflict. Customary international

law does not determine the extent of security zones, beyond having a

requirement that they be reasonable in relation to the needs of national

security.

Exclusion zones 8.29

8.29 In situations of international conflict and times of tension, a nation is

entitled, under the UN Charter, to exercise measures of individual or

collective self-defence against an imminent threat of armed attack or an

actual armed attack. On many occasions this century, nations have declared

an EZ in areas adjacent to national territory, invoking the principle of individual

or collective self-defence.

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8.30 An EZ is an area declared by a nation, or military force, into which

entry by designated forces is prohibited. An EZ may be stationary or moving.

Neutral aircraft and ships should avoid such zones; those that enter navigate

at their own risk. The use of EZ is expected to increase, as not only nations

but also the UN, seek ways to localise conflicts. Because acceptability of the

EZ will depend on factors unique to each situation, providing clear guidance

on the legal acceptability of an EZ is difficult. In times of conflict a belligerent

is not barred from using force outside the zone to eliminate enemy threats.

Further guidance on the use of EZ can be obtained from Australian Defence

Doctrine Publication 06.1—Rules of Engagement and ADF legal advisers.

Interception of aircraft 8.31

8.31 Where national airspace is violated by intrusion without permission it

is considered that the following rules reflect current international law:

• Intruding aircraft must obey all reasonable orders to land at a

determined place, to turn back or to fly on a prescribed course.

• In attempting to control the movement of an intruding aircraft an

intercepting aircraft may not expose the intruder to unnecessary or

unreasonable danger. The ‘reasonableness’ of the action must be

determined by such factors as the character of the intruding aircraft,

its probable motives for intrusion, the

possibility of control without the

use of force, the proximity of the aircraft to important installations and

the frequency of previous intrusions.

• In peacetime, when there is no reason to believe the intrusion is hostile

or harmful to the security or other appropriate interests of the nation,

the intruder may not be attacked merely because it disobeys orders to

land. On the other hand, if the intruder’s intentions are unknown and

cannot reasonably be ascertained, the intruder may, after disregarding

appropriate warnings, be required to land. Article 3 of the Chicago

Convention stipulates that ‘contracting states’ are to: ‘refrain

from the

use of weapons against civil aircraft in flight and that, in case of

interception, the lives of persons on board and the safety of the aircraft

must not be endangered’.

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HISTORICAL EXAMPLE—INTERCEPTION OF AIRLINERS 1978,

1983

Two South Korean airliners were shot down by Soviet warplanes

within five years—in the first event a fortuitous minimum loss of life,

in the second, total. The circumstances were as follows:

Boeing 707 KAL Flight 902 on 20 April 1978: Flying on the polar

route from Amsterdam to Anchorage, the aircraft veered slowly to

the right, apparently due to a miscoded magnetic correction, until it

was over the Kola Peninsula. Here it was intercepted by a Soviet

fighter who positioned itself on the right rather than on the left side

as required by ICAO procedures. The airliner captain, in accordance

with ICAO procedures, reduced speed, lowered his landing gear and

flashed his lights as a demonstration of his willingness to obey the

interceptor’s instructions. The fighter pilot was ordered to attack, and

after he protested the order, launched a missile, which blew off part

of a wing and killed two passengers with the shrapnel. The pilot

dived sharply through a cloud to gain breathable atmosphere, and in

so doing evaded the fighter and Soviet radar, later landing safely on

a frozen lake.

Figure 8–1: Flight 902 landed safely on the ice

Boeing 747 KAL Flight 007 on 01 September 1983: The flight from

New York to Seoul via Anchorage began veering slowly to the north

after leaving the latter, so that it passed over the Kamchatka

restricted zone. Soviet fighter aircraft were scrambled, but it left their

airspace over the Sea of Okhotsk and the fighters returned to base.

Still veering off course, it passed into Soviet airspace again over

Sakhalin and fighters again took off to intercept.

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Neutral airspace during armed conflict 8.32

8.32 The national airspace of a neutral nation must be respected by

belligerents. ADF aircraft should avoid overflying airspace of a neutral country

without permission during times of armed conflict. However, archipelagic sea

lanes and transit passage overflight are two exceptions. If a belligerent

aircraft enters neutral airspace without permission the neutral nation is

obliged to take appropriate action to expel it. If a neutral nation repeatedly fails

to assert the territorial integrity of its airspace, a belligerent nation may be

justified in taking appropriate action against another belligerent nation inside

neutral airspace on the basis of self-defence.

8.33 In times of armed conflict neutral nations may impose conditions and

restrictions impartially on belligerent aircraft entering their national airspace.

If a belligerent military aircraft enters neutral airspace without permission and

must land in that territory (whether because of disability or at the direction of

HISTORICAL EXAMPLE—(cont)

The crew of the airliner was unaware of the presence of the

interceptors and the interceptors were neither certain of the identity

of the aircraft, nor did they comply with the ICAO challenging and

warning conventions. The fighters were ordered to engage the

airliner, with the result that it crashed with the loss of all 269 lives on

board.

These were but two incidents of many in the Cold War stand-off,

where both sides continuously flew intelligence missions at the

fringes of each other’s airspace.

There are many excuses, counter-claims and conspiracy theories

that have arisen on the above incidents, however, the unavoidable

facts are that:

• The ICAO has established procedures to protect civil air

traffic passing by or through sensitive areas, including

positive identification, interrogation, warning standards and

procedures.

• The established ICAO procedures were not complied with in

these cases, resulting in unnecessary loss of protected

aircraft and lives. (source: Oberg Uncovering Soviet

Disasters)

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the neutral nation), the aircraft and its crew will be interned by the neutral state

until the cessation of hostilities and released in accordance with provisions

similar to those for PW.

8.34 ADF medical aircraft that are engaged solely in humanitarian functions

must have prior approval to overfly or land in neutral territory. If permission is

not obtained, the law is uncertain and the practice of nations varies. The most

widely accepted view is that aircraft that violate neutral airspace may be

asked to land by the nation in whose airspace they are flying. If their protected

status is confirmed by subsequent search they are to be allowed to proceed.

If a violation has occurred then aircraft and crews are to be held until the

conclusion of hostilities.

METHODS OF COMBAT 8.35

Targeting 8.35

8.35 An attack must be cancelled or suspended at any stage where it

becomes apparent that the objective is not a military one, is subject to special

protection, or the attack may be expected to cause incidental loss of civilian

life, injury to civilians, damage to civilian objects, or a combination thereof,

which would be excessive in relation to the concrete and direct military

advantage anticipated.

8.36 The LOAC principles of proportionality, military necessity and

unnecessary suffering determine which targets may be attacked by military

aircraft. Target selection is based on current intelligence and information.

However, aircrew have a special and personal responsibility, under the

Additional Protocols, to ensure LOAC compliance if they acquire information

that was not available at the planning stage. For example, aircrew may be

ordered to bomb what the mission planner believes to be a command and

control centre. If, in the course of the mission, the command and control

centre is displaying an unbriefed symbol of protection, eg Red Cross symbol,

then aircrew must refrain from completing their attack. The Red Cross symbol

indicates the facility is a protected installation and is immune from attack

unless intelligence, or higher authority, determines that the facility has lost its

protected status because the emblem is being misused.

8.37 As targeting decisions have the potential to lead to extensive collateral

damage, air planners and commanders need to pay close attention to the

LOAC considerations that will impact on their decisions. Guidance on

targeting is provided in

chapter 5—‘Targeting’.

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Precision-guided weapons 8.38

8.38 The existence of precision-guided weapons, such as GBU 10 and

Harpoon missiles, in a military inventory does not mean that they must

necessarily be used in preference to conventional weapons even though the

latter may cause collateral damage. In many cases, conventional weapons

may be used to bomb legitimate military targets without violating the LOAC

requirements. It is a command decision as to which weapon to use.

This

decision will be guided by the basic principles of the LOAC: military

necessity, avoidance of unnecessary suffering and proportionality.

Quarter must be granted 8.39

8.39 It is illegal to order that no prisoners will be taken, to make a threat that

such an order might be given or to conduct hostilities on this basis.

8.40 The LOAC forbids the killing or wounding of an enemy who, in good

faith, surrenders or is otherwise hors de combat (out of combat). Surrenders

in air combat are rarely offered. Nevertheless, actions or signals that suggest

surrender should be respected. The surrendered aircraft should then be

escorted to a suitable landing place.

8.41 Although relatively rare, surrenders by defecting enemy aircrew of

military aircraft do offer valuable intelligence and psychological opportunities,

and should be encouraged.

8.42 Disabled enemy aircraft in air combat are frequently pursued to

destruction because of the difficulty of verifying their true status and inability

to enforce surrender. Although disabled, the aircraft may or may not have lost

its combat capability. Moreover, it may still represent a valuable military asset.

If an aircraft in distress is clearly hors de combat from the information known

to the attacking force at the time, then its destruction offers no military

advantage, and the attack should be broken off to permit possible evacuation

by crew or passengers. If the aircraft is a support or civil aircraft it is

particularly important that this rule be observed.

8.43 Aircraft may not open fire on any personnel who have indicated an

intention to surrender. This applies to ships as well as land forces.

Additionally, aircraft may not fire upon shipwrecked personnel, including

those who may have parachuted into the sea or otherwise come from downed

aircraft, so long as the personnel have not been picked up. These rules do not

alter the fact that any attempt by the enemy to recover downed crew may be

opposed.

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Propaganda 8.44

8.44 The use of military aircraft for the purpose of disseminating

propaganda from the air is well established in warfare. Dissemination of

propaganda by military aircraft includes dropping of leaflets, air-to-ground

broadcasts and the like.

8.45 Propaganda for the purposes of inducing enemy combatants to rebel,

desert, or surrender is not prohibited. Inducements may take the form of

monetary rewards. Although the LOAC sanctions the use of military aircraft

and aircrews to deliver propaganda, not all forms of propaganda are lawful.

Propaganda that would incite illegal acts of warfare, as for example killing

civilians, killing or wounding by treachery or the use of poison or poisonous

weapons, is forbidden.

RESTRICTIONS ON THE USE OF AERIAL WEAPONS 8.46

8.46 The rules covering air-delivered incendiary weapons and air-delivered

mines are outlined in chapter 4—‘Weapons’.

AIR–TO–AIR OPERATIONS 8.47

8.47 Generally for air operations, the LOAC is the same as for the maritime

and land environments.

8.48 Enemy military aircraft may be attacked and destroyed in any airspace

other than neutral airspace. Enemy military aircraft may be captured

anywhere other than in neutral jurisdiction. Ownership of captured aircraft

passes to the captor’s government by virtue of the capture.

8.49 A military aircraft is generally a legitimate target in armed conflict.

There will be exceptions such as a medical aircraft or aircraft that have been

granted specific protection by agreement between the parties concerning

non-hostile uses such as negotiations to conclude hostilities, cease-fire,

surrender, exchange of prisoners or the exchange of official communications.

In all such circumstances, the agreement should include appropriate

markings and other means of identification. In the absence of entitlement to

protection, the status of personnel on board a military aircraft is irrelevant;

their individual status is subsumed by the military character of the aircraft until

such time as they leave it.

8.50 All reasonable precautions should be taken during the conduct of

military operations in the air to avoid loss of civilian lives and damage to

civilian objects.

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Parachutists and downed airmen 8.51

8.51 Aircrew descending by parachute from a disabled aircraft are immune

from attack. If such personnel land in enemy territory they must be given an

opportunity to surrender before being made the object of an attack, unless it

is apparent that they are engaging in some hostile act.

8.52 If personnel from a disabled aircraft do not surrender on being called

upon to do so, they may be attacked in the same way as any other combatant.

While they may be captured by non-combatants, they may not be subject to

violent assault by them. This does not include such violence as may lawfully

be used by a police officer or other non-combatant in effecting their capture.

8.53 If the crew of a disabled aircraft lands by parachute in territory

occupied by their own forces or under the control of their own national

authority, they may be attacked in the same way as any other combatant,

unless wounded, in which case they are protected. If in a raft or similar craft

at sea after parachuting, they are to be treated as if shipwrecked and may not

be attacked.

8.54 Paratroopers and other airborne troops may be attacked, even during

their descent. If the carrying aircraft has been disabled it may be difficult to

distinguish between members of the crew abandoning such aircraft who are

immune from attack, and the airborne troops who are not so protected.

Search and rescue operations 8.55

8.55 It is permitted to attack those who are not protected persons under the

Conventions while they are attempting to rescue aircrew who have crashed.

However, rescuers such as medical personnel attempting to rescue injured

airmen are protected. In such cases, the airman and his rescuers are

protected in accordance with the Geneva Conventions.

Civil aircraft and occupants 8.56

8.56 Civil aircraft in flight (including state aircraft, which are not military

aircraft) should not be attacked. They are presumed to be carrying civilians

who may not be made the object of direct attack. If there is doubt as to the

status of a civil aircraft, it should be called upon to clarify that status. If it fails

to do so, or is engaged in non-civil activities, such as ferrying troops, it may

be attacked. Civil aircraft should avoid entering areas that have been

declared conflict zones by the belligerents.

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8.57 Civil aircraft, which have been absorbed into a belligerent’s air force

and are being ferried from the manufacturer to a belligerent for this purpose,

may be attacked.

8.58 Civilian crew members of a military aircraft, together with those

responsible for ferrying aircraft intended for military use, become PW if

captured by the enemy.

8.59 Civil aircraft on the ground may only be attacked in accordance with

the normal rules relating to military objectives. However, since they may be

used for transporting troops or supplies, their status will frequently depend

HISTORICAL EXAMPLE—UNITED STATES SHIP VINCENNES

Figure 8–2: United States Ship VINCENNES which mistakenly

shot down an Iranian airliner, Persian Gulf 1988

On duty to protect tanker traffic in the Persian Gulf from Iranian

interdiction, this leading-edge air defence cruiser mistook a climbing

Iranian civil Airbus for an Iranian military F–14 apparently on a

downward attack course. Several Iranian Revolutionary Guard

vessels were simultaneously harassing the USS VINCENNES.

The United States ROE were followed, and permission to engage

the aircraft was sought and received from a superior headquarters.

A series of ship crew errors aboard the cruiser, combined with the

failure of the Airbus crew to respond to warnings, led to the airliner

overflying the sea skirmish and being shot down, with the loss of all

290 lives aboard. (source: USN Image 165)

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upon the prevailing military situation. In addition, airfields maybe subject to

attack, and collateral damage to civil aircraft on the ground does not render

the attack unlawful, provided that damage is not excessive in relation to the

concrete and direct military advantage anticipated.

Medical aircraft 8.60

8.60 Medical aircraft, correctly identified and exclusively used as such,

must not be attacked. Like other medical facilities, medical aircraft have

special protected status. Medical aircraft must be clearly marked with the Red

Cross, Red Crescent or Red Crystal and national emblem on their lower,

upper and lateral surfaces. Medical aircraft are those aircraft assigned

exclusively to medical transportation and under the control of a competent

authority of a party to the conflict. Medical aircraft may fly over areas

controlled by their own forces and over sea areas not controlled by the

enemy.

8.61 Flights over enemy controlled areas are forbidden without prior

agreement. The parties to a conflict may agree to confer immunity from attack

upon specific aircraft. Such aircraft remain protected only so long as they take

no part in hostilities and rigorously respect the conditions laid down in the

agreement.

8.62 In the absence of any agreement, medical aircraft flying over the battle

zone do so at their own risk.

8.63 Regardless of any agreement, aircraft recognised as medical aircraft

cannot be attacked, but may be ordered to land and be inspected. They can

be attacked if they do not comply with such directions. Medical aircraft must

not be used to gain any military advantage. G. P. I contains seven articles

which outline the rules applicable to medical aircraft, and these should be

considered by those ADF commanders involved in the use of medical aircraft

during armed conflict.

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CHAPTER 9

PROTECTED PERSONS AND OBJECTS 9

INTRODUCTION 9.1

9.1 The LOAC provides rules for both the conduct of hostilities and the

protection of victims of hostilities. This chapter focuses on groups and

objects, which have special protection under the LOAC, and is mainly

concerned with the protection of non-combatants, and civilians and civilian

objects. In modern times, the civilian population has become increasingly

involved in hostilities as nations have waged ‘total war’.

9.2 Apart from civilians, other particular groups, objects, buildings and

facilities are given special protection. These include:

• medical personnel, equipment, transport and facilities;

• all religious personnel, including chaplains;

• sick, wounded and shipwrecked;

• civil defence personnel and facilities;

• installations containing dangerous forces;

• neutrals and neutral property;

• prisoners of war (PW), PW camps and internment camps;

• cultural, religious and historic buildings and items; and

• the environment.

Executive summary

• Civilians and other particular groups, objects, buildings and facilities

are provided protection under the law of armed conflict (LOAC).

• The use of certain symbols assists in recognising protected persons

and objects.

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PROTECTED SYMBOLS 9.3

9.3 In order for protected persons, transport, buildings and facilities to be

identified, several internationally recognised symbols and markings are

provided in international conventions. The main symbols and markings are

explained in the following paragraphs and are illustrated in

annex A. Use of

the protected symbols is strongly recommended but not compulsory.

Not displaying a symbol does not automatically leave a protected facility or

person open to attack. If a belligerent has knowledge that a person or facility

is protected under the Geneva Conventions, then the protected status of the

facility or person must be respected. The practical problem is that it may be

very difficult in combat for an attacker to identify and distinguish the unmarked

protected person or facility.

9.4 Protected symbols will be used by the Australian Defence Force (ADF)

and the civilian population unless overriding military considerations dictate

otherwise. To conceal a military deployment, a commander may choose not

to display the Red Cross, Red Crescent or Red Crystal symbol on field

ambulances or medical facilities which by necessity must be located close to

a military objective such as a medical transit post adjacent to a military airfield.

Red Cross, Red Crescent and Red Crystal 9.5

9.5 A red cross on a white background is the internationally accepted

symbol for protected medical and religious personnel, facilities, transports

and activities. Moslem countries utilise a red crescent on a white background.

In 2005 a third additional protocol to the Geneva Conventions introduced the

Red Crystal (a hollow red diamond on a white background) as another

protective symbol for the purposes of the Geneva Convention.

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9.6 Wearing of military uniform. In addition to identity cards, medical

and religious personnel, regardless of whether they are permanent or

temporary, are to wear the distinctive emblem on both their headgear and

clothing.

HISTORICAL EXAMPLE—SINKING OF CENTAUR 1943

Figure 9–1: Her Majesty’s Australian Hospital Ship CENTAUR

as she was marked when sunk, Moreton Island 1943

A Japanese submarine off Moreton Island sank HMAHS CENTAUR

at night, her lights brilliantly lit and Red Cross markings

unmistakable. While there was suggestion that there were warlike

stores aboard, these were confined to the lawful personal weapons

of the drivers of the field ambulance embarked. The idea that

Japanese intelligence was so acute in Australia as to detect and

disseminate this in time is not credible, and was not claimed as a

defence by the Japanese Government. This was a blatant disregard

of a protected symbol. (source: Australian War Memorial 302800)

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Other protective symbols 9.7

9.7 Other protective symbols include an oblique red band on a white

background to designate hospital zones and safe havens for noncombatants.

PW and PW camps are marked by the letters ‘PW’ or ‘PG’ (prisonnier de

guerre) and civilian internment camps with the letters ‘IC’ (internment camp).

A royal-blue diamond and royal-blue triangle on a white shield is used to

designate cultural buildings, museums, historic monuments, and other

cultural objects that are exempt from attack. In some countries, a red circle

with triple red spheres in the circle, on a white background (the ‘Roerich Pact’

symbol) is also used for that purpose.

9.8 Two new protective symbols were established by Additional Protocol I

(G. P. I). They are for ‘Works and Installations Containing Dangerous Forces’,

ie dams, dykes, and nuclear power plants, which are to be marked by three

bright orange circles of equal size on the same axis; and for ‘Civil Defence’

facilities and personnel who are to be identified by an equilateral blue triangle

on an orange background.

Identity cards 9.9

9.9 Identity cards are to be issued to both medical and religious personnel

regardless of whether they are of permanent or temporary status. Under no

circumstances are they to be deprived of this identification.

Should

circumstances prevent the issue of an identity card, a certificate may

be issued temporarily until such time as a proper card can be issued.

Identity

cards are to:

• bear the distinctive emblem and be capable of being carried in a

pocket;

• be as durable as practicable and be worded in the national or official

language (it may carry an additional language);

• state the capacity of the holder and carry the name, date of birth,

distinguishing features, identity number, photograph and signature or

thumbprint of the holder; and

• bear the stamp and signature of the issuing authority, date of issue

and expiry date of the card.

A model identity card for medical and religious personnel is in annex B.

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White flag 9.10

9.10 International law recognises the white flag as symbolising a request to

cease-fire, negotiate, or surrender. An adversary displaying a white flag

should be permitted the opportunity to communicate a willingness to

surrender, or to communicate a request for cease-fire or negotiation.

The

feigning of an intent to negotiate under a flag of truce or surrender is

perfidious conduct.

LOSS OF PROTECTED STATUS 9.11

9.11 Protected personnel lose their protected status when:

• as medical, religious or shipwrecked personnel they engage in hostile

acts, or attempt to shield military objectives from attack, other than

circumstances in which:

– they use arms in self-defence or for the defence of the

wounded and sick;

– they are used as guards, pickets and sentries for unit

protection; and

– small arms and ammunition taken from the wounded and sick

are found within a medical unit;

• an otherwise protected person, in the territory of one of the belligerents

is suspected of, or engaged in, activities hostile to the security of that

state; and

• an otherwise protected person in an occupied territory is detained as

a spy or saboteur.

PROTECTION FOR CIVILIANS AGAINST THE EFFECTS OF

HOSTILITIES

9.12

Basic rule 9.12

9.12 A basic rule of the LOAC expressed in G. P. I is that:

• ‘In any armed conflict the right of the parties to the conflict to choose

methods of or means of warfare is not unlimited’.

9.13 The basic rule in respect of civilians which flows from this is that a

distinction must be made between the civilian population and combatants,

and between civilian objects and military objectives, in order that military

operations will only be directed against military objectives.

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Definition of civilian 9.14

9.14 G. P. I defines a civilian in a negative fashion, namely, any person not

belonging to the armed forces. The definition covers civilians collectively as

well, when they are referred to as the ‘civilian population’. In cases of doubt

about civilian status, the benefit of the doubt is given to the person concerned.

Journalists 9.15

9.15 Special provision is made for civilian journalists engaged in dangerous

professional missions in areas of armed conflict. They are to be afforded the

protection that normally applies to civilians. Granting of this protection is

subject to the journalists not engaging in conduct that is inconsistent with their

civilian status. Such journalists are normally issued with special identity cards.

Protection does not extend to war correspondents who are members of the

military forces of a nation. War correspondents are detained as PW upon

capture whereas civilian journalists are deemed protected persons and would

not normally be detained.

Civilian objects 9.16

9.16 Civilian property or objectives are defined as anything that are not

military objectives.

Protection of civilians and civilian objects 9.17

9.17 Military operations may only be directed against military objectives

and not against the civilian population and civilian objects. To give effect to

this general protection the LOAC contains a number of specific prohibitions.

9.18 It follows from the general rule that it is forbidden to attack the civilian

population, individual civilians and civilian objects as a deliberate method of

warfare. Furthermore, acts or threats of violence, the primary object of which

is to spread terror among the civilian population are also prohibited. Objects,

which are normally civilian objects, can become military objects due to the

military situation, in the same way civilians who take part in the conflict

become unlawful combatants and legitimate targets.

9.19 The failure of one party to comply with the specific rules below

concerning the protection of civilians does not release the other party from its

duty to protect civilians.

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9.20 Refugees and internally displaced persons in war always raise issues

involving elements of human rights and the laws of war. Refugees and those

fleeing armed conflict are protected persons who must at all times be treated

humanely and shall not be attacked or threatened with acts or threats of

violence. Refugees are entitled to the same rights and privileges as other

protected persons. They are entitled to respect for their person, honour, their

family rights, their religious convictions and practices and their manners and

customs. Women shall be especially protected against attack in particular

against rape and any form of indecent assault. Furthermore, the party to the

conflict in whose hands protected persons may be, shall be responsible for

their treatment and for making available to such persons facilities to enable

such persons to make contact with and application to international

humanitarian organisations such as the International Committee of the Red

Cross (ICRC).

HISTORICAL EXAMPLE—REFUGEES PROBLEM,

KAPYONG 1951

In response to the successful Chinese offensive down the main

route to Seoul in April 1951, 27 Britcom Brigade was rushed into

deployment near the village of Kapyong to stem the tide. 3 Royal

Australian Regiment occupied the exposed forward right position

covering the road south, taking up its positions by last light, at which

stage the flow of rearward-moving Korean soldiers and transport had

increased to a torrent, indicating that the lead Chinese division had

broken through and could be expected on the heels of this influx.

Subsequently, this flow changed to mostly civilians, and it was

expected that, as usual, Chinese soldiers would mix amongst them

to infiltrate to the rear. As some shots were heard, the commander

of A Company described it as:

‘It looked like the infiltration stage had been reached and I reckoned

a few bursts of MMG (medium machine gun) fire would sort the

situation out—the civilians scurrying off the road, leaving the

Chinese to declare their hand. I requested permission to open fire

but, in the absence of identified enemy, I was refused’.

The battalion commander’s refusal of this counter-infiltration

measure in conformity with the rules of engagement did him no

personal benefit. The infiltrators were in strength and shortly were

attacking his headquarters and the mortar platoon which were

located to the rear of the infantry companies, and they were fighting

for survival. These enemy troops then further disrupted the other fire

support units, denying their cover to the forward troops.

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HISTORICAL EXAMPLE—(cont)

Figure 9–2: A map of the Battle of Kapyong

Such situations place commanders in a quandary. Refugees are

classed as protected persons, and so should not be fired on. On the

other hand, they provide an effective human shield and camouflage

for belligerents to use to their distinct military advantage.

The battalion commander correctly took responsibility for rejecting

the suggestion of random firing when it was impossible to

discriminate between fleeing civilians and oncoming troops.

There are circumstances, however, when it is necessary to engage

enemy forces using civilians as shields. In such circumstances,

military forces must make every effort to minimise civilian casualties.

(source: Official History of Australia in the Korean War

1950–1953 volume 2, Anzac Day Magazine)

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9.21 Reprisals. A reprisal is an otherwise illegal act done in response to a

prior illegal act by the enemy. A reprisal aims to counter unlawful acts of

warfare and to force the enemy to comply with the LOAC. Reprisals are

prohibited against civilians and civilian objects.

9.22 Indiscriminate attacks. An extension of the general rule for the

protection given to civilians is that indiscriminate attacks, that is, attacks not

directed at military targets but likely to strike at both military and civilian

targets without distinction, are forbidden.

9.23 Shielding military objectives. The civilian population shall not be

used to attempt to render military objectives immune from attack or to shield,

favour or impede military operations.

9.24 Other general prohibitions. Other general prohibitions which provide

for the protection of civilians or their property are as follows:

• It is prohibited to attack or bomb undefended towns, villages, dwellings

or buildings. This prohibition does not apply where the undefended

building or place becomes a military objective and its destruction is

necessary. An example is a munitions factory or a railway yard used

to support the enemy war effort.

• It is forbidden to destroy or requisition enemy property unless it is

militarily necessary to do so. In the same manner pillage is also

forbidden, even if the town or place concerned is taken by assault.

• Starvation of civilians cannot be used as a method of warfare.

• Enemy nationals cannot be compelled to take part in operations

against their own country even if they were in your service before the

outbreak of hostilities.

9.25 Warning requirement. Where a military objective is to be attacked

and civilians may be in danger, there is a general requirement to warn them

of the attack, unless circumstances do not permit. An example would be

where surprise is essential to the mission. This rule specifically applies in

cases of bombardment where civilians are likely to be endangered.

Relief operations for civilians 9.26

9.26 In addition to the special immunity granted to civilian and military

medical services there are numerous civilian bodies which are given special

protection. These include the ICRC, the Red Cross and Red Crescent

Societies, personnel engaged in the protection of cultural property, personnel

involved in relief operations and civil defence organisations.

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SPECIALLY PROTECTED OBJECTS 9.27

Cultural objects 9.27

9.27 The LOAC provides for the specific protection of cultural objects and

places of worship, which supplements the general protection given to civilian

objects. Buildings dedicated to religion, science or charitable purposes,

and

historic monuments, are given immunity from attack as far as possible,

so long as they are not being used for military purposes. Such places are to

be marked with distinctive and visible signs, which must be notified to the

other party.

Cultural property 9.28

9.28 Cultural property is also protected. Cultural property includes movable

and immovable objects of great importance to the cultural heritage of people,

whether their state is involved in the conflict or not, such as historical

monuments, archaeological sites, books, manuscripts or scientific papers and

the buildings or other places in which such objects are housed.

Obligations

are placed upon all parties to respect cultural property by not

exposing it to destruction or damage in the event of armed conflict and by

refraining from any act of hostility directed against such property.

These

obligations may be waived where military necessity requires such

waiver, as in the case where the object is used for military purposes.

9.29 Historic monuments, places of worship and works of art,

which constitute the cultural and spiritual heritage of peoples, are protected

from acts of hostility. These objects must not be used in support of any military

effort or be the subject of reprisals.

Objects indispensable to survival 9.30

9.30 Protection is provided from certain types of attack upon civilian

populations by providing special protection for certain types of objects.

The

first relates to objects indispensable to the survival of the civilian

population.

9.31 Starvation of civilians as a method of warfare is forbidden. G. P. I

further prohibits the attacking, destruction, spoiling or removal of objects

indispensable to the survival of the civilian population whatever the motive of

such destruction. Examples of such objects include foodstuffs, agricultural

areas producing foodstuffs, crops, livestock, drinking water installations and

irrigation works.

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9.32 Loss of protection. Objects indispensable to the survival of the

civilian population are excluded from protection if:

• they are used solely for the sustenance of the armed forces;

• they are used in direct support of military action, but the civilian

population may not be thus reduced to starvation or forced to move; or

• the military necessity for the defence of territory against invasion so

requires.

9.33 Details on the protection of objects is in chapter 7—‘Land operations

and the law of armed conflict’.

Installations containing dangerous forces 9.34

9.34 The works or installations containing dangerous forces are specifically

limited to dams, dykes and nuclear electrical generating stations. Even where

these objects are military objectives, they shall not be attacked if such attack

may cause the release of dangerous forces and consequently severe losses

amongst the civilian population. The purpose of this rule against such attacks

is to avoid excess damage or loss to the civilian population.

9.35 Military objectives at or in the vicinity of an installation mentioned in

paragraph 9.34 are also immune from attack if the attack might directly cause

the release of dangerous forces from that installation in question and

subsequent severe losses upon the civilian population.

9.36 The release of the dangerous forces may have a consequent severe

loss among the civilian population. This is an absolute standard rather than

the relative one set by the rule of proportionality. If massive civilian losses are

foreseeable, the attack would be prohibited regardless of the anticipated

military advantage.

9.37 Loss of protection. In the case of a dyke or dam, the protection

afforded ceases if three special conditions are evident. These are that:

• it is used for other than its normal function;

• it is used in regular, significant and direct support of military

operations; and

• an attack is the only feasible way to terminate such support.

9.38 In relation to nuclear electrical generating stations and other military

objectives located in the vicinity, only the last two conditions in

paragraph 9.37 apply.

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9.39 Defensive weapons. Defensive weapons systems may be erected to

protect works or installations from attack. These systems may only be used

for the limited purpose for which they are intended. The erection of such

defence facilities is not without danger and could lead to the work or

installation losing its protection.

Protected zones and localities 9.40

9.40 The LOAC allows various zones to be set up for the protection of

civilians from the effects of hostilities. They include hospital, safety,

neutralised and demilitarised zones and non-defended localities.

9.41 Hospital and safety zones. Hospital and safety zones are

established for the protection from the effects of war of the wounded, sick and

aged persons, children under 15 years, expectant mothers and mothers of

children under seven years. Such zones are:

• generally permanent in character;

• located outside the combat zone in either a state’s own or occupied

territory; and

• established in peacetime or during war by agreement between the

parties. (Such agreement may be reached through the offices of any

protecting power or the ICRC.)

9.42 Neutralised zones. Neutralised zones may be established in regions

where fighting is taking place to shelter wounded and sick combatants or

non-combatants and civilian persons who take no part in hostilities and who

perform no work of a military character. The zones are set up by written

agreement, which includes details of location, administration and duration of

the neutralisation of the zone.

9.43 Non-defended localities. Generally non-defended localities are

protected from attack. Further detail is covered in

paragraphs 7.28 to 7.33.

9.44 Demilitarised zones. Generally, demilitarised zones are protected

from attack. Further detail is covered in paragraph 7.39.

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GENERAL PROTECTION OF ALL PERSONS AFFECTED

BY ARMED CONFLICT 9.45

Basic standards of treatment 9.45

9.45 All persons are to be treated humanely in all circumstances and

without any adverse distinction based upon race, colour, sex, language,

religion or belief, political or other opinion, national or social origin, wealth,

birth or other status or on any other similar criteria. Their person, honour,

convictions and religious practices must be respected. G. P. I provides

‘fundamental guarantees’ or basic human rights to all persons who find

themselves under the control of one of the parties to an international armed

conflict, and who do not benefit more favourably from other LOAC provisions.

This would include a party’s own nationals such as German Jews and

dissidents who were brutally treated by the Nazis during World War II.

Prohibited acts 9.46

9.46 The following acts are prohibited at any time and in any place

whatsoever:

• Violence to the life, health or physical or mental well-being of persons,

in particular:

– murder;

– torture of all kinds, whether physical or mental;

– corporal punishment; and

– mutilation;

• outrages upon personal dignity, in particular humiliating and degrading

treatment, enforced prostitution and any form of indecent assault;

• the taking of hostages;

• collective punishments; and

• threats to commit any of the foregoing acts.

Arrest, detention and internment 9.47

9.47 Where a person is arrested, detained or interned for actions related to

the armed conflict, they must be informed promptly in a language that they

understand of the reason for these measures. Unless the arrest or detention

is for penal offences, they must be released ‘with the minimum delay possible

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and in any event as soon as the circumstances justifying the arrest, detention

or internment have ceased to exist’. Pending release, they retain the

protection of G.

P. I.

Protection of women 9.48

9.48 Women must be accorded ‘special respect and shall be protected in

particular against rape, forced prostitution and any other form of indecent

assault’.

9.49 Women arrested, detained or interned for reasons connected with the

armed conflict must be kept in separate quarters from men and under the

immediate supervision of women. In cases where families are detained or

interned, they should, whenever possible, be held in the same place and

accommodated ‘as family units’.

Protection and welfare of children 9.50

9.50 Children are to be respected and protected, especially against

indecent assault. The care and aid needed by children must be provided.

is the case with women, children are granted special protection under the

LOAC. Important rules are shown below:

• because of their age children should receive all the aid and care they

require;

• children under 18 years of age should not take a direct part in

hostilities

;

• in case of arrest, children should be kept in separate quarters from

those of adults;

• the death penalty must not be executed on children who are under the

age of 18 at the time the offence was committed; and

• children who are not nationals of the state may not be evacuated by

that state to a foreign country unless the evacuation is temporary and

accords to certain conditions set out in G. P. I.

9.51 Recruitment. There is a minimum voluntary recruitment age of 17

years, the exception being for entrants to military schools, apprentices and

members of Service cadet schemes. All feasible measures are to be taken to

ensure minors are not deployed to an area of operations.

1 Note that G. P. I and the Convention on the Rights of the Child (CROC) stipulate 15 years of

age. The 2000 Optional Protocol to the CROC on the involvement of children in armed

conflict, and the preferred position of Australia, is 18 years of age.

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9.52 Arrest and detention. If arrested, detained or interned for reasons

connected with the armed conflict, children must be kept in quarters separate

from adults unless they belong to an interned family unit.

Free passage of relief supplies 9.53

9.53 The free passage of medical and hospital stores, essential foodstuffs,

clothing, bedding, means of shelter and articles necessary for religious

worship, which are intended for civilians including those of an enemy, must

be allowed.

RULES FOR THE TREATMENT OF PROTECTED PERSONS9.54

9.54 The majority of the Fourth Geneva Convention (G. IV) deals with a

specific group of civilians called ‘protected persons’. The rules applicable to

these persons are in addition to the general rules that apply to all civilians.

Protected persons 9.55

9.55 Protected persons are defined as: ‘... those persons who, at any given

moment and in any manner whatsoever, find themselves, ... in the hands of a

party to the conflict or occupying power of which they are not nationals’.

The

words, ‘in the hands of’, mean that the person concerned is in a territory

which is under the control of that party. The most common groups within the

definition are:

• enemy nationals who are in their own territory,

• the whole population of an occupied territory other than persons of the

occupying power,

• persons considered as refugees or stateless persons under

international law, and

• military and civilian medical personnel.

9.56 Persons excluded from the definition of a protected person include:

• nationals of that party;

• nationals of neutral states who are present in the territory of a party to

the conflict;

• nationals of states not parties to the conventions;

• persons protected by the other three Geneva Conventions,

for

example, crews of merchant ships if protected under one of the

other Geneva Conventions;

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• an otherwise protected person in the territory of one of the parties who

is suspected of, or engaged in, activities hostile to the security of the

state; and

• an otherwise protected person in an occupied territory who is detained

as a spy or saboteur.

9.57 The rights of a protected person cannot be renounced by them.

General treatment of protected persons in both their own territory and

occupied territory 9.58

9.58 Basic rule. The general rule for the treatment of protected persons is

similar to that outlined in the previous section dealing with fundamental rights.

An obligation is imposed on all parties to deal humanely with protected

persons. The person, honour, family rights, religious convictions, manners

and customs of protected persons shall be respected. Women are granted

specific protection. Violence, torture, biological experiments, intimidation or

coercion to obtain information, imposition of corporal or collective

punishment, pillage and the taking of hostages are all forbidden.

Treatment of foreigners in a territory of a party to the conflict 9.59

9.59 Foreign inhabitants (aliens) who desire to leave the territory of one of

the parties to the conflict are normally entitled to do so. Special rules apply to

aliens who fall within the category of enemy aliens and thus the definition of

a protected person under G. IV. Such persons will not be allowed to leave if

their departure is contrary to the national interests of the state. Procedures

exist for those who are not allowed to leave to appeal to an appropriate court

or administrative board set up by the detaining power. For those that do leave,

special procedures dictate the method of repatriation.

THE ENVIRONMENT 9.60

Civil defence 9.60

9.60 The nature of modern warfare has the potential to cause significant

losses, damage and suffering to the civilian population. Organised protection

of the civilian population is commonly referred to as civil defence. The method

and application of civil defence differs from country to country.

Protection

under G. P. I is based on the specific functions performed by the

person or object, not the type of organisation to which the person or object

belongs. The similarity of civilian civil defence organisations to military

organisations, and indeed national compulsory service in them, shall not

deprive them of protection.

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9.61 Australia’s position is that ADF members will not be attached to civil

defence organisations for the purposes of conducting civil defence tasks.

ADF personnel may undertake military tasks in support of civil defence

requests, but not under their command or control and not within the

immediate vicinity of civil defence personnel. ADF members will not wear the

civil defence emblem, nor will they receive the protection afforded to civil

defence personnel.

Tasks 9.62

9.62 G. P. I describes civil defence for the LOAC purposes as ‘the

performance of some or all of the tasks intended to protect the civilian

population against the dangers, and to help it recover from the immediate

effects of hostilities or disasters, and to provide the conditions necessary for

its survival’.

9.63 There are 15 specific civil defence tasks, namely:

• warning;

• evacuation;

• management of shelters;

• management of blackout measures;

• rescue;

• medical services, including first aid and religious assistance;

• firefighting;

• detection and marking of danger areas;

• decontamination and similar protective measures;

• provision of emergency accommodation and supplies;

• emergency assistance in the restoration and maintenance of order in

distressed areas;

• emergency repair of indispensable public utilities;

• emergency disposal of the dead;

• assistance in the preservation of objects essential for survival; and

• complementary activities necessary to carry out any of the tasks

included above including but not limited to planning and organisation.

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General protection 9.64

9.64 Scope of protection. Civilian civil defence organisations and their

personnel must be respected and protected under the same conditions and

considerations as apply to civilians. The provisions also apply to civilians who,

although not members of a civilian defence organisation, respond to a request

from the appropriate authority and perform civil defence tasks under their

control. Civil defence buildings, material and shelters have no greater

protection from attack than any other prima facie civilian object. The purpose

of granting civil defence organisations a special status is to ensure that the

general protection given to them applies when they are performing their tasks,

some of which could be mistaken for military tasks.

9.65 Carriage of weapons. Civilian civil defence personnel may carry light

individual weapons for the purpose of self-defence, or maintaining order,

without losing their protection. If operating where fighting is likely to take

place, such weapons must be confined only to hand guns to assist in

recognition. Australia’s interim policy is that civilians will only perform civil

defence tasks and they will not be armed while doing so.

Identification 9.66

9.66 The international distinctive symbol for civil defence is an equilateral

blue triangle on an orange square background, and for distinctive purposes

must be clearly visible. Civil defence personnel must also carry an identity

card if they are in areas where fighting is taking place, or in occupied

territories. A model identity card is in

annex C.

Australian civil defence organisations 9.67

9.67 Australia does not have totally dedicated civil defence organisations.

Emergency Management Australia (EMA) maintains a civil defence

responsibility at the national level. EMA is a new division of the

Attorney-General’s Department. EMA’s role includes: ‘to promote and support

the development of a core civil defence capability’. At the state level the civil

defence function is handled by the various State and Territory Emergency

Services.

MEDICAL PERSONNEL, TRANSPORT AND FACILITIES 9.68

Medical personnel 9.68

9.68 Military and civilian medical personnel are protected persons.

Similarly, civilian medical facilities, transports and supplies are not to be made

the target of attack or unnecessarily destroyed.

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9.69 Military medical personnel, facilities and equipment are also entitled to

general protection. However, they may lose this protection if they engage in

acts harmful to the enemy. Before the protection of medical personnel and

facilities is lost, a warning will normally be provided and reasonable time

allowed to permit cessation of improper activities. In extreme cases,

overriding military necessity may preclude such a warning. Protection will not

be lost if medical members act in self-defence. Weapons may be carried.

9.70 Captured military medical personnel are not PW and so they should

be repatriated to their home country unless their medical services are

required by PW. Similarly, civilian medical personnel should not be detained

and must be permitted to continue to provide medical assistance.

9.71 Medical personnel are those persons, military or civilian, assigned

exclusively to medical tasks or to the administration of medical units or the

operation or administration of medical transports. Such assignment may be

permanent or temporary. In addition to doctors, dentists, nurses, medical

orderlies and hospital administrators attached to the forces or military and

civilian establishments, medical personnel include:

• personnel of national Red Cross and other voluntary aid societies

recognised and authorised by a party to the conflict;

• medical personnel attached to civil defence units; and

• any persons made available for humanitarian purposes by a neutral

state, a recognised and authorised aid society of such a state, or an

impartial international humanitarian organisation.

9.72 Medical personnel, military or civilian, cannot be compelled to give

preferential treatment to any sick or wounded person, except on medical

grounds, nor may they be compelled to carry out any act incompatible with

their humanitarian mission or medical ethics. No person may be punished for

carrying out medical activities in accordance with medical ethics, regardless

of the nationality or status of the person treated.

9.73 Medical personnel, whether belonging to the belligerents, relief

societies or neutral powers, are generally required to wear on their left arm a

water-resistant armlet bearing the protective emblem, issued and stamped by

the military authority to which they are attached. They are also required to

carry an official identity card. Members of the military who are detailed to act

as orderlies or stretcher bearers must also wear the armband when so

employed.

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9.74 In the most extreme circumstances, for example where an enemy was

unlawfully targeting medical personnel, a military commander may order

military personnel to not wear their brassard. The military commander may

order the medical personnel to reinstate the brassard without jeopardising

their special protection.

Medical facilities and transports 9.75

9.75 As far as possible given the circumstances of a conflict, medical

personnel, units and transports must be clearly marked with the Red Cross,

Red Crescent or Red Crystal, each on a white background. Fixed or mobile

units like hospitals or ambulances should fly a flag portraying this emblem and

if the unit belongs to a neutral state, the national flag should be flown together

with the flag of the belligerent to which they are attached.

9.76 Military hospital ships, hospital ships used by national Red Cross

Societies, recognised relief societies or private persons, whether belonging to

or nationals of a party to the conflict or a neutral, and small craft employed by

the state or officially recognised lifeboat institutions for coastal rescue work,

must be painted white, with a large dark red cross on the sides and on

horizontal surfaces so they may be visible from the sea and the air.

9.77 Medical aircraft must be marked clearly with the protective emblem

together with the national emblem on their lower, upper and lateral surfaces,

as well as with any other emblems, which may be agreed upon by the parties

to the conflict.

Medical facilities 9.78

9.78 Medical facilities on land, hospital ships and medical aircraft must be

respected and protected at all times and must not be attacked. Their immunity

ceases once they are used for purposes hostile to the adverse party and

outside their humanitarian purpose.

9.79 Medical units are establishments, whether military or civilian,

organised for medical purposes, and may be fixed or mobile, permanent or

temporary; medical transports are any means of transportation, military or

civilian, permanent or temporary, assigned exclusively to medical

transportation and under control of a competent authority of a party to the

conflict; and the rights guaranteed by the LOAC apply equally to both

temporary and permanent personnel, units and transports.

9.80 The material of mobile medical units falling into enemy hands must be

reserved for the care of wounded and sick. The buildings, materials and

stores of fixed medical establishments are subject to the LOAC, but may not

be diverted from their purpose as long as they are required for the care of the

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wounded and sick. Commanders may use them in the event of urgent military

necessity, as long as proper arrangements are made for the care of the

wounded and sick nursed in them.

9.81 The sick bay on a warship must, in case of a fight on board, be

respected and protected as far as possible, but, provided proper care is taken

of the wounded and sick therein, a captor may use the sick bay for other

purposes in situations of military necessity.

9.82 Hospital ships and other craft employed on medical duties are subject

to control and search. They may be required to follow a particular course; their

radios and other means of communication may be controlled; and if the

gravity of the circumstance so requires, they may be detained for up to seven

days. Neutral observers may also be put on board to ensure that the

provisions of the LOAC are obeyed. Hospital ships found in a port at the time

of its occupation by an adverse party must be allowed to leave.

Medical transport 9.83

9.83 Medical aircraft may fly over land physically controlled by their own or

friendly forces, and over sea areas not under enemy control. However, it is

advisable that the enemy be informed if such flights are likely to bring the

aircraft within range of enemy surface-to-air weapon systems.

9.84 In accordance with the LOAC, flight of such aircraft over enemy or

enemy-occupied territory is forbidden without prior agreement. In the absence

of such agreement, medical aircraft operating in parts of the zone controlled

by friendly forces, and over areas the control of which is doubtful, do so at

their own risk, but once they are recognised as medical aircraft they must be

respected.

9.85 Provided prior agreement has been obtained from the enemy, medical

aircraft belonging to a combatant remain protected while flying over land or

sea areas under the physical control of the enemy. If it deviates for any reason

from the terms of such an agreement, the aircraft shall take immediate steps

to identify itself. Upon being recognised as a medical aircraft, the adverse

party may order it to land, or take such other steps to safeguard its own

interests, and must allow time for compliance before attacking the aircraft.

9.86 Known medical aircraft are entitled to protection when performing

medical functions. The detailed rules to be applied may legitimately take into

account the nature and flight characteristics of the particular medical aircraft,

for example helicopters operating locally, or fixed wing aircraft in transit at

higher altitudes. Medical aircraft must not be used in order to gain any military

advantage and while carrying out flights in accordance with the two preceding

paragraphs, shall not, without prior agreement, be used to search for the

wounded, sick and shipwrecked.

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9.87 According to the LOAC medical aircraft are entitled to fly over neutral

territory, land on it if necessary, or use it as a port of call. They are required

to give notice of their passage and must land if ordered to do so. When flying

on routes, at heights and times agreed between the parties to the conflict and

the neutral concerned, they are immune from attack, but the neutral may

place restrictions on flights over, or landing, on its territory. Unless otherwise

agreed by the neutral and the parties to the conflict, the wounded and sick or

shipwrecked who are disembarked shall be detained by the neutral and

prevented from taking any further part in hostilities. If a medical aircraft is

ordered by the enemy to land, it must obey such orders and permit inspection.

Wounded and sick on board may only be removed if this is essential to enable

the inspection to proceed, and only if such removal does not adversely affect

their welfare. If the inspection of an aircraft, discloses that the aircraft is in fact

a medical aircraft, has not violated any of the restrictions imposed upon the

activities of such aircraft and is not in breach of any prior agreement, the

aircraft and its occupants must be allowed to leave. If the aircraft does not

satisfy these requirements it may be seized, but if it had been assigned as a

permanent medical aircraft it may be used by the captor only for this purpose.

If the aircraft makes an involuntary landing in enemy or enemy-occupied

territory, the sick, wounded and shipwrecked as well as the crew become PW,

but the medical personnel must be treated in the same way as other medical

personnel falling into enemy hands.

Chaplains and religious personnel 9.88

9.88 Religious personnel are defined as those military or civilian personnel,

who are exclusively engaged in their ministry and who are permanently or

temporarily attached to one of the protagonists, their medical units or

transports, or to civil defence. Religious personnel are to wear and display the

same distinctive emblem as for medical personnel. Like medical personnel,

chaplains may not be attacked but must be protected and respected. As with

medical personnel, religious personnel do not become PW, but may be

retained as required to attend to the spiritual welfare of PW. They must be

repatriated as early as possible.

Wounded, sick and shipwrecked 9.89

9.89 Parties to the conflict may make special agreements relating to the

sick, wounded and shipwrecked, other than those relating to PW generally,

provided that such agreements do not adversely affect the position of such

persons or medical personnel or chaplains as provided by the LOAC. It is not

permissible for the persons protected by the LOAC to renounce any of their

rights.

9.90 Reprisals against the wounded, sick, shipwrecked and medical

personnel, buildings and equipment are forbidden.

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Collection of wounded, sick and shipwrecked 9.91

9.91 The parties to a conflict must take all possible measures to search for

and collect the wounded, sick and shipwrecked, to protect them from pillage

and ill-treatment, and to ensure their care. Parties must search for the dead

and take measures to protect the bodies from being despoiled. Commanders

may make agreements for the exchange, removal and transport of the

wounded left on the field, besieged or encircled areas and to allow the

passage of medical personnel and chaplains proceeding to any such area.

9.92 While there is no absolute obligation to accept civilian wounded and

sick, once civilian patients have been accepted, discrimination against them,

on any grounds other than medical, is not permissible.

9.93 Parties holding wounded, sick and shipwrecked personnel are obliged

to record and forward the same details of identity and capture as in the case

of any other PW and the rules with regard to burial at sea are adjusted to meet

the requirements of the situation.

9.94 All belligerent warships have the right to demand the handing over of

wounded, sick and shipwrecked, whether they are being carried on hospital

ships or any other vessels, except neutral warships, provided they are fit

enough to be handed over and the warship involved has sufficient facilities for

their proper care and treatment. If they have been taken on board a neutral

warship or military aircraft, care should be taken that they take no further part

in military operations. If they fall into enemy hands they become PW, but the

captor may convey them to a port of its nationality, to a neutral port, or even

to a port of the captive’s own forces. In the latter case, such personnel must

take no further part in the hostilities.

Treatment of wounded, sick and shipwrecked 9.95

9.95 Sick, wounded and shipwrecked combatants are to be protected and

respected, treated humanely, and cared for by any detaining power without

any adverse discrimination. Attempts upon their lives and violence against

them are prohibited. They shall not be:

• murdered or subjected to biological experiments,

• left without proper medical care and attention, or

• exposed to conditions which might result in contagion or infection.

9.96 G. P. I defines wounded, sick and shipwrecked, to include civilians, so

that the provisions of the Protocol apply to civilians, although those of the

Geneva Conventions do not.

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9.97 Priority in medical treatment can only be determined on the basis of

medical need, although women are to be treated with all consideration due to

their sex.

9.98 A party to an armed conflict if compelled to abandon wounded and sick

must, so far as military considerations permit, leave medical personnel and

equipment to care for those left behind. The presence of such medical

personnel does not, however, exempt the enemy from providing additional

assistance that may be necessary.

MISSING AND DEAD 9.99

Search for missing and dead 9.99

9.99 As soon as possible each party to an armed conflict must search for

those reported missing by the enemy. Any requests and all information which

may assist in tracing or identifying such persons shall be transmitted through

the Protecting Power or the Central Tracing Agency of the ICRC or the

national Red Cross societies.

Missing persons 9.100

9.100 General. The request for information relating to either the missing or

the dead must be humanitarian in nature and stem from the need for relatives

to be notified of their whereabouts and subsequent repatriation,

re-internment. Should there be any controversy resulting from the request

for information, the humanitarian needs and interests of the families

concerned must prevail. The term generally accepted as common usage for

missing combatants is ‘missing-in-action’.

9.101 The search. As soon as circumstances permit, but at the latest once

active hostilities have ceased, all protagonists to the conflict shall commence

to search to the fullest extent possible for persons reported missing by one of

the belligerents. The report of a missing person is to be notified by each

belligerent’s national bureau direct, or through a protecting power to the

Central Tracing Agency of the ICRC.

9.102 Particulars of missing persons. In order to facilitate the search for

missing combatants, protected persons, civilians and persons who would not

receive more favourable considerations under either the Geneva

Conventions or Additional Protocols, each of the protagonists shall:

• record the following information for each person detained, imprisoned

or otherwise held in captivity for a period of two weeks, or who has

died:

– surname, all first names and nationality;

ADDP 06.4 Chapter 9

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– place and date of birth;

– location of last residence and any distinguishing features;

– the first name of the father and the maiden name of the mother;

– the circumstances of captivity or detainment, including the date

and place of detainment;

– the address to which correspondence may be sent to the

captive or detainee; and

– the name and address of the person to be informed.

• provide regular reports on the state of health of seriously ill or

wounded persons held in captivity or detention who cannot be

immediately repatriated because of their medical state.

The dead 9.103

9.103 The remains of the dead, regardless of whether they are combatants,

non-combatants, protected persons or civilians are to be respected, in

particular their honour, family rights, religious convictions and practices and

manners and customs. At all times they shall be humanely treated and

protected against pillage and despoilment. The minimum respect for the

remains of the dead is a decent burial or cremation in accordance with their

religious practices.

9.104 The burial or cremation of the dead shall be carried out individually in

accordance with the religious rites and practices of the deceased. In the case

of burial the deceased shall be honourably interred, their graves respected

and grouped by nationality. They are to be correctly marked to allow future

exhumation. Bodies shall be buried with one half of a double identity disc

placed in the mouth of the deceased. The other half is to be kept for records

by Graves Registration. In the event of only one identity disc, that is to remain

with the body.

9.105 Bodies shall only be cremated for imperative reasons of hygiene and

health, or for the requirements of the deceased. The ashes of the deceased

shall be forwarded to Graves Registration and the ashes exchanged as soon

as practicable following the conclusion of hostilities.

9.106 As soon as is practical following the death of a combatant,

belligerent shall record the following information to aid identification.

Such information is to be passed to the national bureau direct, or through a

protecting power to the Central Tracing Agency of the ICRC as follows:

• nationality;

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• regimental or serial number and rank;

• surname and all first names;

• date of birth, religion and any other particulars shown on the body’s

identity card or identity discs; and

• the date, cause and place of death and if the body is given a field

burial, the exact location of the remains to enable future exhumation

of the body, or remains if necessary.

9.107 Prisoners of war. The notification of the death of a PW is to be

forwarded as soon as possible to the Central Tracing Agency along with the

same information required immediately above. A death certificate is to

accompany this notification along with a medical report establishing the cause

of death.

9.108 Internees. The requirements for disposal of an internee is no different

to the processes described above for combatants and PW. Notification of

death is to be forwarded to the national bureau direct, or through a protecting

power to the Central Tracing Agency of the ICRC.

9.109 Search teams. All of the protagonists to a conflict shall attempt to

agree to form special teams to undertake the search, identity and recovery of

their dead from a belligerent’s battlefield. This will include any arrangement

for such teams to be accompanied by members of the belligerent force upon

whose land they are searching. In the course of their duties search teams are

deemed to be protected persons.

Annexes:

A. Protective symbols

B. Identity card for medical/religious personnel

C. Identity card for civil defence personnel

Annex A to

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PROTECTIVE SYMBOLS A

1. International special sign for works and installations containing

dangerous forces. Special sign for dams, dykes and nuclear power stations

protected under Additional Protocol I (three bright orange circles of equal size

on the same axis).

2. International sign for civil defence. International distinctive sign for

civil defence provided for in Additional Protocol I (equilateral blue triangle on

an orange background).

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9A–2

3. Emblems for medical activities (Red Crescent, Red Cross or Red

Crystal

on a white background).

4. Emblem for cultural property under the 1954 Hague Convention

(royal blue square and triangle on white square).

1 In 2005 Additional Protocol III introduced the ‘Red Crystal’ as another protective symbol for

the purposes of the Geneva Convention.

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9A–3

5. Flag of the ‘Roerich Pact’ (1935). To be used on historic monuments,

museums, scientific, artistic, educational and cultural institutions, among

Western Hemisphere States (red circle with triple red spheres in the circle, on

white background).

6. Marking for hospital and safety zones for civilians and sick and

wounded (oblique red band on a white background).

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9A–4

7. Markings for prisoner of war camps (red letters on a white

background).

8. Markings for civilian internment camps (red letters on a white

background).

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9. The 1907 Hague sign. The Convention on Naval Bombardment

established this sign for sacred edifices; buildings used for artistic, scientific

or charitable purposes; historic monuments and hospitals (rectangular panel

divided diagonally into two triangular portions, the upper portion black, the

lower white).

Annex B to

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IDENTITY CARD FOR MEDICAL/RELIGIOUS

PERSONNEL B

FRONT

Space reserved for the name of the country and

authority issuing this

IDENTITY CARD

For PERMANENT/TEMPORARY civilian medical/

religious personnel

Name…………………………………………………………

………………………………………………………………..

Date of Birth (or age)……………………………………….

Identity No. (if any) …………………………………………

The holder of this card is protected by the Geneva

Conventions of 12 August 1949 and by the Protocol

Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) in his capacity

as …………………………………………………………….

………………………………………………………………..

Date of Issue……………………… No. of card ………….

Signature of issuing authority

Date of Expiry ……………………………………………..

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REVERSE SIDE

Height ………. Eyes………. Hair………..

Other distinguishing marks or information:

………………………………………………………………

PHOTO OF HOLDER

Stamp Signature of holder

thumbprint or both

Annex C to

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IDENTITY CARD FOR CIVIL DEFENCE

PERSONNEL C

FRONT

Space reserved for the name of the country and

authority issuing this

IDENTITY CARD

For civilian defence personnel

Name…………………………………………………………

………………………………………………………………..

Date of Birth (or age)……………………………………….

Identity No. (if any) …………………………………………

The holder of this card is protected by the Geneva

Conventions of 12 August 1949 and by the Protocol

Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) in his capacity

as …………………………………………………………….

………………………………………………………………..

Date of Issue……………………… No. of card ………….

Signature of issuing authority

Date of Expiry ……………………………………………..

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REVERSE SIDE

Height………. Eyes………. Hair………..

Other distinguishing marks or information:

………………………………………………………………

PHOTO OF HOLDER

Stamp Signature of holder

thumbprint or both

ADDP 06.4 Chapter 10

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CHAPTER 10

PRISONERS OF WAR AND DETAINED PERSONS10

INTRODUCTION 10.1

10.1 The fundamental principle underlying the treatment of PW is that they

are war victims, not criminals and are entitled to humane treatment

throughout their captivity. Once combatants are captured they must not be

attacked, but should be handed over without undue delay to PW processing

authorities.

10.2 The fundamental rules for the treatment of PW are:

• they must be treated humanely and honourably;

• any discrimination on the grounds of race, nationality, religious belief

or political opinions is unlawful; and

• reprisals against them are prohibited.

Action to be taken at the start of hostilities 10.3

10.3 As soon as hostilities start each party involved should, where

appropriate, take certain immediate steps for the benefit of PW. These

include:

• appointing a protecting power, a neutral state whose duty it is to

safeguard the interests of a belligerent and its nationals with regard to

the enemy;

• setting up an official Information Bureau for the PW it holds; and

• issuing identity cards to all persons liable to become PW.

Executive summary

• Prisoners of war (PW) are victims of war and are not criminals.

Accordingly they are entitled to proper treatment in accordance with

the law of armed conflict (LOAC).

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The following, although not mandatory, are desirable:

• notifying the enemy of the location and marking of PW camps and

transports,

• notifying the enemy of arrangements made to enable PW to exercise

their right of correspondence and to receive relief supplies and of any

changes to those arrangements.

Prisoner of war status 10.4

10.4 Not all persons falling into the hands of a belligerent become PW or

are entitled to PW status. Civilian nationals of an enemy, for example,

when

taken into custody do not fall into this category and if captured are

entitled to treatment in accordance with the provisions of the Fourth Geneva

Convention (G. IV), unless they have been taking part in hostilities when they

may be liable to trial as unlawful combatants.

10.5 In most cases, captured combatants are entitled to claim PW status.

If any doubt arises about a captured person’s status, PW status is to be

granted until such time as a proper tribunal established under the Third

Geneva Convention (G. III) can determine their status.

10.6 The five categories of persons who may be entitled to claim PW status

are:

• members of the armed forces of a party to the conflict (other than

medical personnel and chaplains);

• members of militias, volunteer corps or organised resistance groups,

belonging to a party to the conflict and operating in or outside their own

territory provided that:

– they are commanded by a person responsible for them as

subordinates;

– they have a fixed, distinctive sign recognisable at a distance;

– they carry their arms openly; and

– they conduct their operations in accordance with the LOAC;

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• those who accompany the armed forces without actually being

members thereof (for example, civilian members of military aircraft

crews, war correspondents, supply contractors, members of labour

units or of services responsible for the welfare of the armed forces

which they accompany): an identity card is required to be provided to

those persons to ensure PW status is given (a model identity card is

annex A);

• members of crews, including masters, pilots and apprentices, of the

merchant marine and the crew of civil aircraft of the parties to the

conflict, who do not benefit by more favourable treatment under any

other provisions of international law; and

• levee en masse, ie inhabitants of a non-occupied territory, who on the

approach of the enemy spontaneously take up arms to resist the

invading forces, without having had time to form themselves into

regular armed units, provided they carry arms openly and comply with

the LOAC.

10.7 Prisoner of war at sea. Persons on board vessels and aircraft that

have fallen into the power of a belligerent or neutral shall be respected and

protected while at sea and thereafter until their status is determined. Persons

so detained are entitled to PW status and may be made PW if they are:

• members of the enemy’s armed forces;

• persons accompanying the enemy’s armed forces, who have received

authorisation from the armed forces they accompany;

• crew members of auxiliary vessels or auxiliary aircraft;

• crew members of enemy merchant vessels or civil aircraft who do not

benefit from more favourable treatment under international law; or

• crew members of neutral merchant vessels or civil aircraft that have

taken a direct part in the hostilities on the side of the enemy or served

as an auxiliary for the enemy.

10.8 Status of captured medical and religious personnel. Medical

personnel and chaplains who fall into enemy hands do not become PW but,

until they are returned, are to be treated in accordance with the provisions of

the G. III. They must be treated as PW and be provided with all necessary

medical facilities to care for their own PW. PW who are medically qualified but

not attached to the medical branch of their own forces may be required by the

detaining power to exercise their medical functions on behalf of PW.

Although

prisoners, they are to be treated as other medical personnel and are

exempt from any other work.

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10.9 The wounded and sick. Wounded and sick combatants who are

captured are PW, but are evacuated initially through medical channels.

Until

fully recovered they have the additional protection of the First Geneva

Convention and Additional Protocol I (G. P. I).

10.10 Mercenaries. Mercenaries are not entitled to be PW, although their

captors may afford them the protection of such status. Even if not treated as

PW, captured mercenaries remain entitled to fundamental guarantees

provided by G. P. I.

10.11 Deserters and defectors. Deserters in the military law sense become

PW if they are captured. PW who defect during captivity retain their status and

cannot be deprived of it.

10.12 Civilians. Civilians authorised to accompany the armed forces

become PW on capture. Other civilians, including officials who are not

considered part of the armed forces, are not PW, but have the protection of

G. IV. If captured, they may for security reasons be interned or placed in an

assigned residence.

10.13 Diplomatic staff. Accredited diplomatic staff must be given the

opportunity to leave the receiving state on the outbreak of hostilities.

Where necessary, they must be assisted with their transport requirements.

10.14 Journalists. Apart from war correspondents accredited to the armed

forces, who have PW status on capture, journalists engaged in professional

missions in areas of armed conflict are entitled to the protection afforded to

civilians. A special identity card certifying status as a journalist may be issued

by the state of which the individual is a national, or in which they resides or

where his employer is located.

Determination of status 10.15

10.15 Presumption of prisoner of war status. There is a presumption in

favour of entitlement to PW status if:

• the person concerned claims, or appears to be entitled to, that status;

• the party to the conflict to which they belongs claims that status on

their behalf by notification to either the detaining power or the

protecting power.

In view of the difficulties of distinguishing combatants from non-combatants,

it may not be easy to decide whether to give PW status to a person who has

taken part in hostilities and has subsequently been captured, so the law

makes this presumption in favour of PW status.

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10.16 Cases of doubt. In cases of doubt as to entitlement, the person

concerned continues to have the protection of G. III and G. P. I until his status

has been determined by a competent tribunal.

10.17 Claiming prisoner of war status. Where a person in the power of an

adverse party is not held as a PW and is to be tried by that party for an offence

arising out of the hostilities, they have the right to claim PW status and to have

that question adjudicated by a judicial tribunal. Whenever procedurally

possible, this adjudication shall occur before the trial for the offence.

Representatives of the protecting power are entitled to attend the adjudication

proceedings unless, exceptionally, in the interests of state security, they are

to be held in camera in which event the protecting power is to be advised

accordingly by the detaining power.

10.18 Duration of prisoner of war status. The protected status of a PW

begins at the moment when they falls into the power of the adverse party and

continues until their final release and repatriation. PW are not permitted to

renounce ‘in part or in entirety’ their rights as PW.

The reason for this is that PW, like other victims of armed conflict, are in a

poor position to bargain with their captors who might otherwise be tempted,

for example, to persuade PW to ‘volunteer’ to enlist in the forces of the

capturing power.

PROTECTION OF PRISONERS OF WAR 10.19

10.19 PW must be treated humanely at all times. It must be remembered that

PW when captured are the responsibility of an enemy power and not the

individuals or military units that have captured them. The detaining power has

overall responsibility for treatment of PW.

HISTORICAL EXAMPLE—SURVEILLANCE OF PRISONER OF

WAR TREATMENT, SOUTH VIETNAM 1966–1972

By agreement with the host country, PW captured by Australian

forces were passed to the armed forces of South Vietnam for

custody. This transfer did not, however, under the Geneva

Convention, diminish Australia’s responsibility for their subsequent

welfare. As detaining authority, Australia was still obligated to

oversee that their ongoing treatment and welfare continued to be

satisfactory under the Convention.

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10.20 No PW may be subjected to physical mutilation or to medical or

scientific experiments of any kind. They must be protected at all times,

particularly against acts of violence or intimidation and against insults and

public curiosity.

10.21 All PW shall be treated without distinction based on race, nationality,

religious belief or political opinions or any other distinction subject to

privileged treatment which may be given to them by reason of their rank and

sex, state of health, age or professional qualifications.

10.22 Female prisoners must be treated with due regard to their sex and

must in no case be treated less favourably than male prisoners. Their sex

must also be taken into account in the allocation of labour and in the provision

of sleeping and sanitary facilities. They must also be specially protected

against rape and other sexual assaults.

HISTORICAL EXAMPLE—(cont)

In consequence, a staff officer from Headquarters Australian Force

Vietnam kept records of these PW and their location and,

accompanied by an interpreter, visited the various PW camps each

month to inspect their conditions, accept complaints and report on

their overall treatment. Any problems with the Australian-detained

prisoners were taken up with the Republic South Vietnam

Government, rectification sought and this was rechecked on

subsequent visits. Lurid stories by the media of bad treatment of

prisoners by Republic South Vietnam authorities were not borne out

by these inspections.

In this way, Australia met the wishes of the host country, saved itself

of the responsibility, diversion of effort, and local and domestic

problems, of holding prisoners in-theatre or at home, while still

discharging its responsibilities properly under the Geneva

Convention.

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Violations 10.23

10.23 Killing prisoners of war is prohibited. PW cannot be put to death for

any reason including:

• because the captors are unable to provide the necessary facilities or

personnel to restrict their movements;

• because they will have to be fed, thus reducing the supplies available

to the captors; or

• because they may gain their liberty as a result of an early success by

the forces to which they belong.

10.24 Any unlawful act or omission by the detaining power causing death or

seriously endangering the health of a PW in custody is prohibited.

PRISONER OF WAR CAMPS 10.25

10.25 Prisoners must be evacuated to camps away from any danger areas

as soon as possible. The only exception allowed is in respect of those who,

because of wounds or sickness, would run a greater risk by being moved.

may not be exposed to unnecessary dangers during evacuation.

10.26 PW camps must not be located near military objectives with the

intention of securing exemption from attack for those objectives and must be

provided with the same protective measures against aerial attack as the

civilian population. Prisoners must be allowed to seek shelter as soon as

possible after an alarm sounds. The location of PW camps shall be

communicated to the enemy through the protecting power and whenever

possible such camps should be clearly marked with the letters ‘PW’ or ‘PG’

visible from the air. These marks are protected and must not be used for any

other purpose.

10.27 Evacuations must be conducted in conditions similar to those for the

forces of the detaining power during changes of station. During the

evacuation, prisoners must be provided with adequate food, clothing and

medical attention, and lists must be maintained of those affected.

10.28 PW may only be interned on land and centres of internment must be

established in healthy areas, with prisoners having facilities guaranteeing

hygiene and health. They must not be detained in penitentiaries.

10.29 While officers should be housed separately, PW should be in camps

according to nationality, language and customs, but should not be separated

from other PW belonging to the forces with which they were serving at the

time of capture, other than with their own consent.

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RULES OF CAPTIVITY 10.30

10.30 Upon capture, any urgent or necessary medical treatment should be

provided. If medical personnel or facilities are scarce they should be applied

according to strict medical triage. The most gravely wounded or sick are to be

given priority, irrespective of whether they are PW or soldiers of the capturing

force. Immediate shelter, clothing and accommodation are to be provided and

evacuation to a PW camp should be undertaken as soon as possible.

Identity cards 10.31

10.31 Every PW and person required to be treated as a PW must be issued

with a capture card showing surname, first names, rank, Service, regimental

or personal number and date of birth. The identity card must be shown by the

PW on demand, but cannot be taken away from the PW at any time. A model

capture card is in

annex B.

10.32 Those captured who are entitled to PW status have that status from

the moment of capture until their repatriation. They cannot, even of their own

free will, surrender their rights of protection. Therefore, PW includes deserters

and defectors.

Interrogation 10.33

10.33 When questioned, PW are bound only to give their surname, first

names, rank, date of birth and Service number. Any information beyond those

areas must be given voluntarily.

10.34 No physical or mental torture, or any other form of coercion may be

inflicted on PW to obtain information of any kind.

Articles and equipment 10.35

10.35 After capture combatants may be disarmed and they and their

possessions may be searched for the purpose of collecting military

intelligence. PW must be allowed to retain:

• all their personal property, except vehicles, arms, and other military

equipment or documents;

• protective equipment, such as helmets or respirators;

• clothing or articles used for feeding, even though the property of the

government of the PW;

• badges of nationality or rank and decorations; and

• articles of sentimental value.

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10.36 Money and articles of value may be taken from a PW only on the order

of an officer. If this is necessary, then there must be a proper system of

security and accountability established for that action, eg a receipt must be

given. Any money or articles of value that are taken must be returned to the

PW at the end of captivity.

Quarters, food and clothing 10.37

10.37 Housing. PW must be housed under conditions as favourable as

those applicable to members of the detaining power housed in the same area.

10.38 Food. Food must be sufficient to keep prisoners in good health and

the customs and normal diet of PW must be taken into account, ie PW dietary

practices and customs must be accommodated if possible.

10.39 Clothing. Clothing, underwear and footwear must be sufficient and

take into account the climate of the region where the PW is detained.

Medical and hygiene 10.40

10.40 The detaining power is bound to take all sanitary measures to ensure

cleanliness of and health within the camps and to prevent epidemics.

Every PW camp must have an infirmary.

10.41 Medical personnel of the PW are to be made available to attend to PW.

Special facilities are to be made available for the care of the disabled, in

particular the blind, and for the rehabilitation of those PW, pending

repatriation. PW whose condition necessitates special treatment must be

admitted to any civilian or military unit where such treatment can be given. PW

cannot be prevented from seeking medical attention.

Religious, intellectual and physical activities 10.42

10.42 PW are completely free to exercise their religious duties and must be

provided with adequate premises where religious services can be held.

Chaplains retained by the enemy power are not PW and must be permitted to

minister to PW.

10.43 The detaining power must encourage intellectual, educational and

recreational pursuits, sports and games and provide adequate premises and

equipment for that purpose.

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Labour 10.44

10.44 Type of work. Officers and persons of equivalent status cannot be

compelled to work but must be found work if they request suitable work.

Non-commissioned officers may only be required to do supervisory work but,

as with officers, they may request to do suitable work, and if that request is

made, that work must be found if possible.

10.45 Permitted work. G. III (Article 50) lists the work that PW can be

compelled to do. No PW can be employed on labour which is of an unhealthy

or dangerous nature, which contributes to the war effort or which would be

looked upon as humiliating for a member of the detaining power’s own forces.

10.46 Conditions. The conditions of any work performed are not to be

inferior to those enjoyed by the nationals of the detaining power employed in

similar work. The duration of daily labour of PW cannot be excessive and

cannot exceed that permitted for civilian workers in the area who are nationals

of the detaining power and who are employed on the same work.

10.47 Wages. PW shall be paid a fair working rate of pay by the detaining

authorities.

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HISTORICAL EXAMPLE—ITALIAN PRISONER OF WAR

CAMP 1944

Figure 10–1: Italian prisoner of war camp, Australia 1944

Transfer of German, Italian and Japanese PW to camps in Australia

not only removed them from danger in operational areas, as is

required by the Geneva Convention, but also facilitated their custody

and maintenance.

Camp guards and administration were provided by Garrison

Battalions drawn from men unfit for operational service. Where

possible, prisoners were given paid employment in camp support

and trades, while the more tractable ones were allocated to farmers

for food production work. (source: Australian War Memorial

062914)

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Prisoner representatives 10.48

10.48 In general, in all places where there are PW, there will be prisoners’

representatives entrusted with representing PW before the military

authorities, the protecting powers, the International Committee of the Red

Cross and any other organisation which may assist them. In officer camps,

the senior officer shall be recognised as the representative. In all other

camps, election of representatives is to occur every six months.

DISCIPLINARY AND JUDICIAL SANCTIONS 10.49

10.49 PW are subject to the same laws, regulations and orders applicable to

members of forces of the detaining power, and judicial or disciplinary action

can be taken for any offence committed against those laws. Minor offences

will result in disciplinary action. More serious offences may result in judicial

(penal) action. Disciplinary action rather than judicial measures are to be

adopted wherever possible.

10.50 Acts by PW punishable by the laws of the detaining power, which are

not punishable if committed by a member of the forces of the detaining power,

can only result in disciplinary punishment.

10.51 PW undergoing disciplinary or judicial action cannot be subject to any

more severe punishment than that applicable to members of forces of the

detaining power.

Disciplinary punishment 10.52

10.52 The types of disciplinary punishments available are set out in G. III.

The duration of any punishment cannot exceed 30 days.

Judicial sanctions 10.53

10.53 PW must be tried by military courts unless the laws of the detaining

power permit trial by civil courts for members of forces of the detaining power

for similar offences.

10.54 A number of procedural rules apply in respect of trial. They are as

follows:

• investigations must be conducted as rapidly as possible;

• PW cannot be confined awaiting trial unless members of the detaining

power can be confined in similar circumstances;

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• notice of proceedings must be given to:

– the accused notifying the particulars of the charges in good

time before trial; and

– the protecting power at least three weeks prior to trial; and

• PW are entitled to be represented by a qualified lawyer of their choice

and assisted by another PW; where the PW does not elect to choose

a lawyer, the protecting power must appoint a defence lawyer within

one week of being notified of the proceedings.

10.55 Consequences of escape. PW who have made good their escape

and who are recaptured shall not be liable to any punishment in respect of

their escape. The escape of a PW shall be deemed to have succeeded when

the escapee:

• has joined friendly or allied armed forces,

• has entered neutral territory or otherwise left the territory under control

of the detaining power, or

• has joined a ship in the territorial waters of the detaining power which

is not under the control of the detaining power.

10.56 A PW who has been captured in an attempt to escape, even if a

repeated attempt, shall be liable to camp disciplinary sanction for offences

committed solely to facilitate the escape and which do not entail violence

against life and limb (eg the use of false papers, wearing of civilian clothing,

theft without intention of self-enrichment). Violent crimes, such as killing or

wounding a guard, committed during an escape attempt can result in trial and

punishment for the offence committed.

Repatriation 10.57

10.57 With the general exception of the categories mentioned below, PW are

to be repatriated immediately to their own country at the conclusion of

hostilities.

10.58 Seriously wounded and sick PW must be repatriated as soon as they

are fit to travel except that PW cannot be involuntarily repatriated during

hostilities. The incurably wounded or sick, those who will not recover within

one year, or those who are gravely and permanently disabled are to be

repatriated direct to their own country. PW who may recover within a year and

those whose mental or physical health may be seriously threatened by

captivity, may be accommodated in a neutral country.

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10.59 Agreements may also be concluded between the parties to the conflict

for the repatriation and internment in a neutral country of able-bodied PW who

have undergone a long period of captivity.

Effect of repatriation 10.60

10.60 PW who are repatriated for medical reasons or for reasons of

prolonged captivity are not permitted to rejoin the conflict. No such restrictions

apply where PW are repatriated for any other reason.

Annexes:

A. Identity card for a person who accompanies the armed forces

B. Capture card for prisoner of war

Annex A to

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IDENTITY CARD FOR A PERSON WHO

ACCOMPANIES THE ARMED FORCES A

FRONT

(Name of the country and military authority

issuing this card)

IDENTITY CARD

FOR A PERSON WHO ACCOMPANIES THE ARMED FORCES

Name…………………………………………………

First Names…………………………………………..

Date and Place of Birth……………………………..

Accompanies the Armed Forces as………………..

Date of issue Signature of bearer

…………………………… ………………………………

Photograph

of the

bearer

REVERSE SIDE

Height

…………..

Weight

……………

Eyes

…………….

Hair

…………….

Blood Type

…………….

Religion

Official seal

imprint

Any other mark of identification

Fingerprints (optional)

(Left forefinger) (Right forefinger)

Notice

This identity card is issued to

persons who accompany the Armed

Forces of …………. but are not part

of them. The card must be carried at

all times by the person to whom it is

issued. If the bearer is taken

prisoner, he shall at once hand the

card to the detaining authority.

Annex B to

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10B–1

CAPTURE CARD FOR PRISONER OF WAR B

FRONT

PRISONER OF WAR MAIL

Postage free

CAPTURE CARD FOR PRISONER OF WAR

CENTRAL PRISONERS OF WAR AGENCY

IMPORTANT

This card must be

completed by each prisoner

immediately after being

taken prisoner and each

time his address is changed

(by reason of transfer to a

hospital or to another camp).

This card is distinct from the

special card which each

prisoner is allowed to send

to his relatives.

INTERNATIONAL COMMITTEE OF THE

RED CROSS

GENEVA

SWITZERLAND

REVERSE SIDE

Write legibly and in

Block letters

1. Power on which the prisoner

depends ………………………….

2. Name 3. First names (in full) 4. First name of father

…………………………………………………………………………………………

5. Date of birth……………………………………...6. Place of birth ……………..

7. Rank………………………………………………………………………………..

8. Service number …………………………………………………………………..

9. Address of next of kin ……………………………………………………………

*10. Taken prisoner on: (or)

Coming from (Camp - No., hospital, etc) ………………………………………..

*11. (a) Good health - (b) Not wounded - (c) Recovered - (d) Convalescent -

(e) Sick - (f) Slightly wounded - (g) Seriously wounded.

12. My present address is: Prisoner No …………………………………………..

Name of camp ……………………………………………………………………….

13. Date ………………………………14. Signature ……………………………..

* Strike out what is not applicable - Do not add any remarks - See

explanations overleaf.

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CHAPTER 11

RIGHTS AND DUTIES OF NEUTRALS 11

INTRODUCTION 11.1

11.1 The law of neutrality defines the relationship under international law

between nations engaged in armed conflict (belligerents) and nations seeking

to avoid direct involvement in the conflict (neutrals). The law of neutrality

originally developed to localise armed conflict, to limit the conduct of war on

both land and sea and to lessen the impact of conflict on international

commerce.

11.2 At the time the law of neutrality was developed, transition to armed

conflict was relatively clear-cut and usually accompanied by a declaration of

war. Since that time, several legal developments have occurred to change the

environment in which the law of neutrality operates. First, nations no longer

customarily declare ‘war’ before engaging in hostilities and there is therefore

no formal delineation between war and peace. Secondly, the use of force by

member nations, other than in individual or collective self-defence or pursuant

to authorisation under Chapter VII of the United Nations (UN) Charter, is now

outlawed under the Charter. Thirdly, collective security arrangements, either

through the UN Charter or by way of regional security compacts mean that

very few nations will be able to remain ‘neutral’ in the true sense in the event

of armed conflict. Notwithstanding these uncertainties, the principles

developed under the law of neutrality continue to play an important role in

containing the spread of hostilities, in regulating the conduct of belligerents

with respect to nations not participating in the conflict and in reducing the

harmful effects of such hostilities on international commerce.

Neutral status 11.3

11.3 Under customary international law, all nations, in the absence of an

international commitment to the contrary, have the right to refrain from

participation in an armed conflict by adopting neutral status. There is no

requirement in international law for a ‘declaration of neutrality’. However,

all

nations which do not expressly declare the contrary, by word or action,

Executive summary

• A nation may avoid being involved in armed conflict by maintaining a

neutral status.

• A neutral nation is entitled to have its sovereignty and commercial

activities respected by other nations involved in armed conflicts.

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are neutral and the rights and duties of neutrality apply to them. Neutral status

remains in effect unless and until the neutral nation abandons its neutral

stance and enters into the conflict, or is itself the subject of an attack by a

belligerent.

Primary rights and duties of neutral states 11.4

11.4 The law of armed conflict (LOAC) reciprocally imposes duties and

confers rights upon neutral states and upon belligerents. The primary right of

a neutral is that of inviolability, that is, the right to have its territorial

sovereignty and its activities, such as international trade and commerce,

respected and unaffected by armed conflict occurring between other nations.

There is a corresponding right on the part of the neutral to preserve its

neutrality by excluding armed forces of the belligerents from its territory. As a

corollary, a neutral has a duty to abstain from taking part in the conflict and to

remain impartial by according rights of passage or providing goods and

services to belligerents on a non-discriminatory basis.

11.5 A belligerent has a right to insist that a neutral not violate its duties of

abstention and impartiality and has limited rights, mainly in respect to neutral

shipping and commerce, to pursue its war aims by acts that would not be

permitted in peacetime (further detail is covered in

chapter 7—‘Land

operations and the law of armed conflict’). Likewise, a belligerent has a duty

to respect the territorial sovereignty of a neutral state and the immunity of its

activities, such as international commerce.

Neutrality and the United Nations Charter 11.6

11.6 The UN Charter requires nations to settle their disputes peacefully and

to refrain from the threat or use of force in international relations. In the event

of a threat to or breach of international peace or security, the UN Security

Council is empowered to take enforcement action, on behalf of all member

nations, involving or not involving the use of force, to maintain or restore

international peace. When called upon by the UN Security Council to do so,

all member nations are required to provide assistance to the UN in any action

it takes. A nation which provides elements of its armed forces to a UN force

or lends other assistance in support of UN peace operations cannot assume

neutral status. Should the UN Security Council determine not to institute an

enforcement action or is unable to do so, due to the use of the veto by one of

its members, member nations remain free to assume neutral status.

Neutrality and its relationship to regional and collective security

arrangements

11.7

11.7 The obligation in the UN Charter for member nations to refrain from the

threat or use of force is qualified by the right of individual or collective

self-defence, which member nations may exercise until such time as the

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Security Council has taken the measures necessary to restore international

peace. This inherent right of self-defence may be exercised by individual

nations or through regional or collective security arrangements.

The

possibility of maintaining neutral status under such arrangements

depends upon the extent to which the parties to the arrangements are

obligated to provide assistance in a regional action, or in the case of collective

self-defence, to come to the aid of a victim of an armed attack.

NEUTRAL TERRITORY 11.8

11.8 As a general rule of international law, all acts of hostility in neutral

territory, including neutral land, neutral waters and neutral airspace are

prohibited. A neutral state has a duty to prevent the use of its territory as a

sanctuary or a base of operations by the belligerent forces of any side. If the

neutral state is unable or unwilling to enforce effectively its right of inviolability,

an aggrieved belligerent may resort to acts of hostility in neutral territory

against enemy forces, including warships and military aircraft, making

unlawful use of that territory. Belligerents are also authorised to act in

self-defence when attacked or threatened with attack while in neutral territory

or when attacked or threatened from neutral territory.

Neutral land territory 11.9

11.9 Belligerent forces. Belligerents are prohibited from moving troops or

war materials and supplies across neutral land territory. Belligerent troops

that enter neutral land territory or who are on neutral land territory

the outset of an armed conflict must be disarmed and interned until the end

of the armed conflict. Internees under these rules must be afforded treatment

least to the same standard as laid down in the Third Geneva Convention.

HISTORICAL EXAMPLE—INVASION VIA NEUTRAL THAILAND

1941

The operation order issued by Commander-in-Chief Far East Air

Chief Marshal Brooke-Popham’s headquarters in January 1941

correctly predicted the Japanese invasion points nearly a year later.

One area was at Singora and Patani, 150 kilometres (km) across the

border in neutral Thailand, which posed the question of how to deal

with this expected breach of neutral territory by the enemy, which

could not be reciprocated until the enemy landing was made.

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HISTORICAL EXAMPLE—(cont)

Figure 11–1: A map of the invasion through Thailand to Malaya

With two enemy divisions expected to be sea-landed, and a third one

to move overland, it was estimated that three brigade groups and six

squadrons of aircraft would be necessary to forestall the landing.

As it would take some 36 hours after the go-ahead to position the

ground force at Singora, Plan MATADOR would obviously fail to

achieve its objective—by then the invasion force would be firmly

lodged. However, the 11th Indian Division was readied for this

operation and stood by pointlessly on a half-hour notice from

06 December 1941 until after the Japanese landing on

08 December, when the orders were belatedly changed to taking up

defensive positions obstructing their advance into east Malaya.

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11.10 Sick, wounded and shipwrecked. A neutral state may accept sick

and wounded of a belligerent into its territory but must ensure that they are

guarded and do not again take part in military operations. Neutral states are

also required to cooperate with belligerents in the accommodation or

internment of sick and wounded in neutral territory. Neutral states are

required to apply, by analogy, the same standards to sick and wounded and

shipwrecked received or interned in their territory as is required of

belligerents.

11.11 Medical aircraft and transports. A neutral state may authorise

passage through its territory of wounded and sick belonging to the armed

forces of either side on condition that the vehicles transporting them carry

neither combatants nor materials of war. If passage of sick and wounded is

permitted, the neutral nation assumes responsibility for providing for their

safety and control. If any sick or wounded are left in neutral territory, they must

not be allowed to take any further part in the conflict. Medical aircraft are not

permitted to fly over neutral land territory without prior permission except in

cases of emergency. The neutral state may impose conditions on such flights

HISTORICAL EXAMPLE—(cont)

But these positions were now outflanked by the simultaneous

landing behind them at Kota Bahru.

The other plan to counter an expected enemy thrust into west

Malaya was Krocol—a battalion group based at Kroh, transported by

2/3 Australian Reserve Motor Transport Company to block a pass at

‘The Ledge’, 50 km beyond the frontier. This force was fired on by

Thai police on crossing the border late 08 December, and was

stopped for the night. When Thai opposition ceased on the afternoon

of the following day and the advance was resumed, the force ran into

Japanese tanks and infantry 8 km short of its objective, which

forestalled the mission, due to the delay caused by Thai resistance

focused on the British force, but not the Japanese one.

The Australian Transport Company eventually had to dismount and

fight its way in to extract the surrounded force.

Military forces willing to violate neutral territory may gain a military

advantage, though there is always a risk of bringing the neutral into

a conflict where their territory is violated. Planners need to recognise

the possibility of the misuse of neutral territory and develop a realistic

counter strategy. (source: Official History of Australia in the War

1939–1945 volume 1.4)

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on a non-discriminatory basis. Where an aircraft is ordered to land it must be

inspected to verify its status, with the minimum disruption to the sick and

wounded and to the aircraft’s flight.

11.12 Prisoners of war. Prisoners of war (PW) that have escaped their

captors and made their way to neutral territory may be either repatriated or

left at liberty in the neutral state, but must not be allowed to take part in

belligerent activities while there. The neutral state may assign them a place

of residence. Neutral states are obligated to seek agreement with detaining

powers with a view to interning PW on neutral territory. A neutral state which

has received PW on its territory must set up an Information Bureau with the

same rights and entitlements to receive information as those established in

belligerent territory.

11.13 Medical personnel and chaplains. Medical personnel and chaplains

of the armed forces of a belligerent who are received into neutral territory may

only be retained if necessary for the medical and spiritual care of interned

members of the armed forces. They must otherwise be repatriated.

They

must be accorded the same standard of treatment as applies to other

internees.

11.14 War criminals. Where an individual seeking asylum in a neutral state

is alleged to have committed grave breaches of the LOAC, and a prima facie

case can be established, the neutral state is obligated either to place the

individual on trial or hand them over to another party to the Geneva

Conventions for trial.

11.15 Recruitment and neutral territory. A neutral state must not permit a

belligerent to establish recruiting depots within its territory, nor may it permit

the organisation of groups intending to proceed to belligerent territory in order

to enlist there. The neutral state is not under an obligation, however,

prevent isolated individuals or disorganised groups from crossing its

frontiers in order to enlist in the forces of one of the belligerents; nor is it under

an obligation to prevent its own nationals from enlisting in the forces of

belligerents but any such restriction it does impose must be

non-discriminatory between belligerents. Active members of the armed forces

of a neutral state must not be permitted to enlist, or to continue serving on

exchange or otherwise in the armed forces of a belligerent nation.

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NEUTRAL WATERS 11.16

11.16 Neutral waters are the internal waters, territorial sea and archipelagic

waters of a neutral. The peacetime rights and duties of a neutral in relation to

neutral waters and other waters under its jurisdiction, such as the contiguous

zone and the exclusive economic zone, and the peacetime rights and duties

of belligerent vessels entering and transiting such waters continue to apply

during armed conflict subject to certain modifications necessary to observe

the laws of neutrality. Further detail is covered in

chapter 6—‘Maritime

operations and the law of armed conflict’.

11.17 As a general rule, belligerent warships and auxiliary vessels must

abstain from acts of hostility in neutral waters except those necessitated by

self-defence or undertaken as a self-help enforcement action against enemy

forces that are in violation of the neutral status of those neutral waters and

where the neutral cannot, or will not, enforce its neutrality. Belligerents are

prohibited from using neutral waters as a base of operations or as a sanctuary

from their enemies.

Neutral internal waters 11.18

11.18 Neutral states may, on a non-discriminatory basis, close their internal

waters, including their ports and roadsteads, to belligerents but they are not

obliged to do so. Belligerent vessels retain a right of entry in distress whether

caused by force majeure or damage resulting from enemy action. In the

absence of special provisions to the contrary in the national law and

regulations of the neutral, belligerent warships or auxiliary vessels are

forbidden to remain in a neutral port or roadstead in excess of 24 hours.

Belligerent warships may be permitted by a neutral to extend their stay in

neutral ports and roadsteads on account of stress of weather or damage

involving seaworthiness. It is the duty of the neutral to intern a belligerent

warship, together with its officers and crew that will not or cannot depart a

neutral port or roadstead where it is not entitled to remain.

11.19 Unless the neutral has adopted laws or regulations to the contrary,

no more than three warships of any one belligerent nation may be present in

the same neutral port or roadstead at the same time. When warships of

opposing belligerent nations are present in a neutral port or roadstead at the

same time, not less than 24 hours must elapse between the departure of the

respective enemy vessels. The order of departure is determined by the order

of arrival unless an extension of stay has been granted to a particular vessel.

11.20 Belligerent warships may carry out such repairs in neutral ports and

roadsteads as are absolutely necessary to render them seaworthy. They may

not add to or repair weapons systems or enhance any other aspect of their

war-fighting capability.

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11.21 A prize (a captured neutral or enemy merchant ship; see chapter 6)

may only be brought into a neutral port or roadstead because of

unseaworthiness, stress of weather, or want of fuel or provisions and must

leave as soon as such circumstances permit.

Neutral territorial waters 11.22

11.22 A neutral may, on a non-discriminatory basis, close its territorial

waters, except in international straits and archipelagic sea lanes,

belligerent vessels. When properly notified of its closure, belligerents are

obliged to refrain from entering a neutral territorial sea except to transit

through international straits or archipelagic sea lanes or as necessitated by

distress. A neutral may, however, allow the ‘mere passage’ of belligerent

vessels, including warships and prizes, through its territorial waters.

Such

passage must be innocent in nature and, in the absence of specific

national law or regulations of the neutral state to the contrary, must not

exceed 24 hours in duration unless a longer time is unavoidable on account

of damage or the stress of weather. This rule does not apply in neutral

international straits and neutral waters in which the right of archipelagic sea

lanes passage is exercised. Although the general practice has been to close

neutral territorial waters to belligerent submarines, a neutral may elect to

allow mere passage of submarines, either on the surface or submerged.

Neutral nations customarily authorise passage of vessels carrying the

wounded, sick and shipwrecked, whether or not those waters are otherwise

closed to belligerent vessels.

Neutral international straits 11.23

11.23 Belligerent and neutral surface ships, submarines and aircraft have a

right of transit passage through, under and over all straits used for

international navigation. Neutral nations cannot suspend, hamper or

otherwise impede this right of transit passage through international straits.

Belligerent forces transiting through international straits overlapped by neutral

waters must proceed without delay, must refrain from the threat or use of

force against the neutral nation and must otherwise refrain from acts of

hostility and activities not incident to their transit. Belligerent forces in transit

may take defensive measures consistent with their security, including the

launching and recovery of aircraft, screen formation steaming, and acoustic

and electronic surveillance. Belligerent forces may not use neutral

international straits as a place of sanctuary nor a base of operations,

and

belligerent warships may not exercise the right of visit and search or

capture vessels in those waters.

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HISTORICAL EXAMPLE—AE2 IN THE DARDANELLES 1915

Figure 11–2: A painting of Australian E class submarine AE2

interdicting enemy shipping, Sea of Marmora 1915

The Treaty of Paris ending the Crimean War prohibited warships

from the Dardanelles while Turkey was at peace and merchant ships

had the right to use the straits. From 15 August 1914, Turkey, under

German direction, began breaches of freedom of passage, finally

closing it on 27 September 1914 and so blocking the shipment of

munitions to Russia, and Russian grain and oil to France and the

United Kingdom. This led to an attempt to force the straits with

warships, and the subsequent landing attempt at Gallipoli.

Australian submarine AE2 managed to penetrate the Dardanelles

during the landings at Anzac and Helles, and harass Turkish

shipping until forced to scuttle after mechanical problems.

(source: Australian War Memorial ART 09016)

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Neutral archipelagic waters 11.24

11.24 Belligerent forces must refrain from acts of hostility in neutral

archipelagic waters and from using them as a sanctuary or base of

operations. All belligerent ships or aircraft, including submarines, retain the

right of unimpeded archipelagic sea lanes passage through, over and under

neutral archipelagic sea lanes. Belligerent forces exercising the right of

archipelagic sea lanes passage in neutral archipelagic waters may engage in

those activities that are incidental to their normal mode of continuous and

expeditious passage, and are consistent with their security. Belligerent

warships on archipelagic sea lanes passage are not permitted to conduct visit

and search or capture of vessels while in archipelagic waters.

11.25 A neutral may close its archipelagic waters (other than archipelagic

sea lanes whether designated or those routes normally used for international

navigation) to the mere passage of belligerent ships but it is not obliged to do

so. The neutral archipelagic nation has an affirmative duty to police its

archipelagic waters to ensure that the inviolability of its neutral waters is

respected. If a neutral is unable or unwilling to effectively detect or expel

belligerent forces unlawfully present in its archipelagic waters, the opposing

belligerent may undertake such self help enforcement actions as may be

necessary to terminate the violation of its neutrality. Such actions may include

surface, sub-surface and air penetration of archipelagic waters and airspace,

and the use of proportional force as necessary.

11.26 Neutral states have a duty to prevent violation of neutral airspace by

belligerent aircraft, to compel offending aircraft to land and to intern both

aircraft and crew. If a neutral state is unable or unwilling to prevent the

unlawful entry or use of its airspace by belligerent aircraft, belligerent forces

of the other side may undertake such self-help enforcement measures as the

circumstances may require.

NEUTRAL COMMERCE 11.27

11.27 A principal purpose of the law of neutrality is the regulation of

belligerent activities with respect to neutral commerce. Neutral commerce

comprises all commerce between one neutral nation and another not

involving materials of war or armaments destined for a belligerent nation and

all commerce between a neutral nation and a belligerent that does not involve

the carriage of contraband or otherwise sustain the belligerent’s war-fighting

capability. Neutral merchant vessels and non-public civil aircraft engaged in

legitimate neutral commerce are subject to visit and search, but may not be

captured or destroyed by belligerent forces. The conditions under which

neutral vessels and aircraft may be visited and searched and subsequently

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captured together with other measures of naval and air warfare which affect

neutral commerce are dealt with extensively in

chapter 6—‘Maritime

operations and the law of armed conflict’.

11.28 The law of neutrality does not prohibit neutral nations from engaging

in commerce with belligerent nations. However, a neutral state cannot supply

materials of war or armaments to a belligerent without violating its neutral

duties of abstention and impartiality and risking loss of its neutral status.

Although a neutral state may forbid its citizens from carrying on non-neutral

commerce with belligerent nations, it is not obliged to do so. In effect the law

establishes a balance of interests that protects neutral commerce from

unreasonable interference on the one hand and the right of belligerents to

interdict the flow of war materials to the enemy on the other.

NEUTRAL PERSONS AND PROPERTY 11.29

Neutral nationals and property in belligerent territory 11.29

11.29 Neutrals who remain in the territory of a belligerent are only entitled to

treatment as a protected person under the Fourth Geneva Convention if their

country of nationality does not maintain normal diplomatic relations with the

belligerent nation. The rules in relation to property outlined in the following

paragraph apply in respect of belligerent territory.

11.30 A neutral ship in the territorial or internal waters of a belligerent may

be requisitioned by a belligerent in the case of public need or necessity

justifying the seizure. The owner must be fully compensated for any damage

caused by use or destruction of the ship. Only a ship and not its cargo may

be seized in this manner.

Neutral nationals or property in a theatre of war 11.31

11.31 A belligerent is not responsible for accidental injury or damage to

neutral national property occurring in a theatre of war; however, if a belligerent

has requisitioned neutral property, the belligerent is liable to pay

compensation.

Neutral nationals in occupied territory 11.32

11.32 Neutral nationals in occupied territories may leave the territory unless

their departure is contrary to the interests of the occupying power.

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Loss of neutral status 11.33

11.33 Neutral nationals lose neutral status if they commit hostile acts against

a belligerent, or acts in favour of a belligerent, particularly by joining the armed

forces of the belligerent.

BREACH OF NEUTRALITY 11.34

11.34 Failure by a neutral national to observe or prevent violation of their

neutrality can take a number of forms, including:

• direct participation in the conflict,

• providing assistance to a belligerent by way of supply of munitions or

organised bodies of men, or

• failure to prevent a belligerent using neutral territory or neutral waters

for its war aims contrary to the law of neutrality.

11.35 Where there are severe breaches of the rules of neutrality, for instance

by the commission of an armed attack or by assistance in such an attack,

may justify a conclusion that the nation is no longer neutral. This may then

give rise to a legitimate exercise of the right to self-defence by the belligerent

which was the subject of such an attack.

11.36 In instances short of this situation, particularly where the neutral has

been unable to prevent its territory or waters being violated by a belligerent,

the nation would not lose its neutral status. The principal remedy in this case

would be for the belligerent nation to seek reparations as it would for any other

international wrong. To respond to such violations by a declaration of war or

by armed attack directed against the neutral is contrary to international law.

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CHAPTER 12

OCCUPATION 12

INTRODUCTION 12.1

12.1 Occupation is the military occupation of enemy territory in the course

of, or following, an armed conflict under the Geneva Laws. Further guidance

with respect to this subject is available from Australian Defence Force (ADF)

legal officers.

12.2 Military occupation may take many forms. This chapter deals with

‘belligerent occupation’. This refers to the occupation of enemy territory, that

is, when one belligerent in an armed conflict is in control of some of the

adversary’s territory and is directly responsible for administering that territory.

‘Belligerent occupation’ is governed by the provisions of the Regulations

Respecting the H. IV. R and G. IV.

12.3 This chapter does not cover situations where the military forces of one

state are in the territory of another allied state in pursuance of a treaty or

agreement between allies. In those cases, the matter is governed by the

treaty or agreement. Nor does this chapter apply to cases of international

administration of territory, for example by the United Nations or other

international organisations, which will usually be governed by a complex of

legal instruments establishing and regulating such administrations.

12.4 Where the ADF is sent in to a collapsed state to restore law and order,

it may not always be possible to conclude a civil affairs agreement with the

authorities of the country concerned in advance so that there will be de facto

military rule by the liberating power. The rules of international law applying to

occupied territory should, so far as possible, be applied by analogy until an

agreement is concluded.

Executive summary

• Military occupation may take many forms. ‘Belligerent occupation’

occurs when one belligerent in an armed conflict is in control of some

of the adversary’s territory and is directly responsible for

administering that territory.

• ‘Belligerent occupation’ is governed by the provisions of the

Regulations Respecting the Laws and Customs of War on Land

(H. IV. R) and the Fourth Geneva Convention (G. IV).

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COMMENCEMENT AND TERMINATION OF BELLIGERENT

OCCUPATION 12.5

Commencement 12.5

12.5 A territory is considered occupied when it is actually placed under the

authority of the enemy armed forces. The occupation extends only to the

territory where such authority has been established and can be exercised.

The territory is considered occupied even if the occupation meets with no

armed resistance.

12.6 Small armed groups, including special forces units, which move on or

withdraw after carrying out their mission, do not normally occupy territory

since they are not present in an area for sufficient time to establish an

administration. When hostilities continue in enemy territory, occupation only

arises in areas coming under the control of the adverse party, even if that

control is only temporary, provided that measures are taken to administer the

areas in question.

12.7 Occupation does not take effect merely because the main forces of the

country have been defeated but depends on whether authority has actually

been established and can be exercised over the civilian population. However,

for occupation of an area it is not necessary to keep troops permanently

stationed throughout that area. It is sufficient that the national forces have

withdrawn, that the inhabitants have been disarmed, that measures have

been taken to protect life and property and to secure order and that troops are

available, if necessary to enforce authority in the area. The existence within

an occupied area of a defended zone makes no difference so long as it is

surrounded and effectively cut-off.

12.8 Occupation does not cease where the forces of the occupying power

continue their advance, leaving only a few troops behind, so long as they have

disarmed the inhabitants and made arrangements for the administration of

MILITARY OCCUPATION OF JAPAN 1946–1951

Aims of the British Commonwealth Occupation Force in Japan:

To maintain and enhance the prestige of the British Commonwealth of

Nations by worthily representing it in the Occupation and,

To demonstrate to the Japanese the democratic way of life.

(source: Official History of Australia in the War of 1939–1945

volume 1.7)

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the occupied area and so continue to exercise control over such territory.

However, the authority of the occupying power should be represented by the

presence of a commissioner or civil officials.

Termination 12.9

12.9 Occupation may be terminated in at least three ways, shown below:

• The occupying power may withdraw.

• The occupying power may be ejected either by the population of the

territory or by the armed forces of the sovereign nation, or by the

armed forces of their allies or by a combination of the above.

• The sovereign government of the occupied territory may be defeated

and part or all of the occupied territory may be annexed by the

occupying power or by some other power. A legally valid annexation

cannot occur while allies of the defeated sovereign nation are still in

the field against the occupying power.

12.10 The general termination of hostilities does not automatically terminate

occupation. Occupation does not terminate until a nation exercises sovereign

authority over the area as part of its own territory.

GENERAL EFFECTS OF OCCUPATION 12.11

Limits on legislative power of occupying power 12.11

12.11 The powers of an occupying power are of a provisional nature and it

should only take measures which are necessary for the purposes of the war,

the maintenance of order and safety and the proper administration of

occupied territory. Generally speaking, the occupying power is not entitled to

alter the existing form of government, to disregard the constitution and

domestic laws of the occupied territory or to set aside the rights of the

inhabitants.

Constitutional position 12.12

12.12 Sovereignty of an occupied territory does not pass to the occupying

power. The occupying power may not change the constitution and domestic

laws of the occupied territory nor set aside the rights of the inhabitants except

to the extent permitted under the law of armed conflict (LOAC).

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12.13 The occupying power has a duty to maintain orderly government,

public order and security and to meet the humanitarian needs of the

population. While it is not open to the occupying power to reconstruct every

aspect of the economic and social life, the occupying power may assist the

population to work towards economic recovery.

12.14 The occupying power should not alter fundamentally the existing body

of law and the judicial structures and administration, and when considering

how to work within these limitations, account must be taken of the state of

existing laws, administration and judicial structures.

12.15 If an aspect of administration is degraded to the point where it cannot

function, then the occupying power may put in place an effective system.

aspects of existing laws are inconsistent with fundamental human rights,

or not sufficient for the maintenance of public order, those laws may be

altered.

12.16 The occupying powers may issue new laws that are essential to meet

their obligations to maintain orderly government, or to ensure security, and

may also create courts to deal with such provisions.

Annexation prohibited 12.17

12.17 It is unlawful for an occupying power to annex occupied territory while

hostilities continue. The right to annex territory once hostilities have ended is

beyond the scope of this publication. The inhabitants of occupied territory are

not subjects of the occupying power and the territory does not belong to the

occupying power. Neither annexation nor agreements between the occupying

power and authorities of the occupied territory have any effect on the rights of

protected persons under the LOAC.

Maintenance of public order 12.18

12.18 Inhabitants of occupied territory cannot be compelled to swear

allegiance to the hostile power. Notwithstanding this prohibition, the

occupying power has a right to demand and enforce such measures of

obedience from the population of the territory as are necessary for the

security of its forces, the maintenance of order, and the proper administration

of the country. The occupying power has an obligation to maintain public

order.

ADMINISTRATION OF OCCUPIED TERRITORY 12.19

12.19 All functions of the legitimate government in the occupied territory

cease when occupation commences. The occupying power may, however,

allow civil servants and other officials of the local government to continue to

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perform their routine duties. Where municipal officials are involved in

particular, this course of action is usually in the best interests of the occupying

power.

Officials, civil servants, police and judges 12.20

12.20 Officials of the occupied territory owe no duty of allegiance to the

occupying power and may refuse to serve that power. If they have fled,

the

occupying power will have to form its own administration. Local authority

officials who remain may be employed for this purpose.

12.21 Duties of officials. The occupying power may not alter the status of

officials, nor apply any sanctions or take measures of coercion or

discrimination against them if they decide to abstain on grounds of

conscience from fulfilling their functions. A belligerent cannot compel officials

to take part in military operations against their own country, even if they were

in the belligerent’s service before the commencement of the armed conflict.

Law applicable in occupied territory 12.22

12.22 The occupying power does not bring with it the ordinary laws and

jurisdiction of its own country. Generally speaking, laws of the occupied

country continue to be valid and the courts continue to sit. The courts usually

continue to try all criminal charges against the inhabitants which are not of a

military nature and do not affect the safety of the army of occupation.

The

courts should be suspended only if:

• judges abstain from fulfilling their functions,

• the courts are corrupt or unfairly constituted, or

• local judicial administration has collapsed.

12.23 If the exigencies of war, the maintenance of order, or the welfare of the

population so require, it is within the power of the occupying power to alter or

suspend or repeal any existing laws, or to promulgate new laws in areas such

as:

• legislation constituting a threat to its security, such as laws relating to

recruitment and the bearing of arms;

• legislation dealing with the political process, such as laws regarding

the rights of suffrage and of assembly; and

• legislation, the enforcement of which would be inconsistent with the

duties of the occupying power, such as laws establishing racial

discrimination.

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12.24 In occupied territory possessing an adequate legal system conforming

with generally recognised principles of law, significant changes should be

avoided. The occupying power may, however, issue regulations fixing prices

and securing the equitable distribution of foodstuffs and other commodities.

12.25 The occupying power may not declare that the rights of enemy

subjects are abolished, suspended, inadmissible or unenforceable in a court

of law in the occupied territory.

12.26 Jurisdiction. The courts of occupied territory retain jurisdiction to deal

with any of the inhabitants’ cases that are neither of a military nature, nor

affect the safety of the occupying forces. Jurisdiction in the latter two cases is

a matter for the authorities of the occupying power.

Occupying force exempt from local laws 12.27

12.27 Members of an occupying force are not subject to the jurisdiction of the

local courts but their offences will be dealt with under the military law of their

own armed forces. The occupying power will generally ensure that some

system of law is available to handle legal problems arising between

inhabitants of the occupied territory and members of the occupation forces.

Welfare measures 12.28

12.28 Foodstuffs and medical supplies in the occupied territory may only be

requisitioned for use by the occupation forces and administration personnel

so long as the requirements of the civilian population have been taken into

account. If the local food and medical resources are inadequate for the

purposes of the local population, the occupying power is, to the fullest means

and extent available to it, under a duty to bring in such supplies as are

necessary. Civilian hospitals may only be temporarily requisitioned, and only

in the event of urgent necessity for the care of military wounded and sick,

provided adequate arrangements are made for the care of the local

population. The occupying power must also ensure the provision of clothing,

bedding, means of shelter and other supplies essential to the survival of the

civilian population together with those objects which are required for religious

worship.

12.29 The occupying power must take necessary steps to ensure that

children under 15 years of age and who are separated from their families are

not left to their own resources, and that proper steps are taken to maintain

their education and religious welfare. They must also enable all persons in the

occupied territory to exchange news of a personal nature with members of

their families, whether the latter be in the occupied territory or elsewhere,

and

shall facilitate inquiries made by families which have been dispersed as

a result of the conflict and shall encourage relief organisations seeking to

assist in this task.

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Relief measures 12.30

12.30 The occupying power is under an obligation to allow free passage of

all consignments of medical and hospital stores and objects necessary for

religious worship intended for civilians in occupied territory, as well as of

essential foodstuffs, clothing and medical supplies intended for children under

15 years of age, expectant mothers and maternity cases, although it may

require that distribution of such supplies be under the supervision of the

protecting power.

HISTORICAL EXAMPLE—AUSTRALIAN OCCUPATION IN

JAPAN 1946

Figure 12–1: Japanese queue for food in the Australian

Occupation Zone, Kure 1946

Participation in the British Commonwealth Occupation

Force (BCOF) marked the first time that Australians were involved in

the military occupation of a sovereign nation, which it had defeated

in war. The task of exercising military government over Japan was

the responsibility of the United States forces. BCOF maintained

military control and supervised the demilitarisation and disposal of

Japan’s war making capability.

The end of a prolonged war is rarely completed without some level

of shortage or starvation facing civilians and demobilising

servicemen. This was a problem Australia, as an occupying force,

had to contend with. While the objective was to return the defeated

country to self-sufficiency, either or both of the provision of

emergency food relief, and relocation and controlled issue of existing

stocks of basic food and water supplies, were necessary until normal

production and distribution was restored. (source: Australian War

Memorial P01205.012)

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Population movements into occupied territory prohibited 12.31

12.31 The occupying power is forbidden to move parts of its own population

into the occupied territory with the intention of changing the nature of the

population or annexing or colonising the area.

The economy 12.32

12.32 Occupation costs. The economy of an occupied country may only be

required to bear the expense of the occupation and only to the extent that this

can be reasonably expected of it.

12.33 Taxation. The occupying power may tax the inhabitants. If the

occupying power collects taxes, duties and tolls which were payable in the

occupied state, it is bound to apply them towards the cost of administering

that territory to the extent that the legitimate government was so bound. As far

as possible, it must do so in accordance with the existing tax laws but any

additional taxes levied shall only be for the needs of the army or the

administration of the territory. However, local rates may only be used for the

purposes for which they were levied. If tax officials continue to work normally,

taxes will be collected by them in the usual way. Otherwise, the occupying

power may require each local authority to collect and pay a proportion of total

revenue.

12.34 Funds raised must not be used for the enrichment of the occupying

power or its personnel, nor be used as a collective punishment.

12.35 The occupying power may tax the inhabitants. Funds raised may only

be applied to the needs of the occupying forces or to the administration of the

territory and only in so far as those requirements are not met by existing

taxation. Funds raised must not be used for the enrichment of the occupying

power or its personnel, nor be used as a collective punishment.

EFFECTS OF OCCUPATION ON THE POPULATION 12.36

Rights of inhabitants of occupied territory 12.36

12.36 The inhabitants are entitled to respect for their person, their honour,

their family rights, their religious beliefs and practices, and their manners and

customs. They must be humanely treated at all times and be especially

safeguarded against all acts of violence or threats of violence and against

insults and public curiosity. Women must be protected against any attack on

their honour, in particular against rape, enforced prostitution or any other form

of indecent assault. All protected persons must be treated with the same

consideration, without any adverse distinction based, in particular, on race,

religion or political opinion.

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12.37 Any measure of such a character as to cause the physical suffering or

extermination of protected persons in their hands is prohibited.

That

prohibition applies not only to murder, torture, corporal punishment,

mutilation and medical or scientific experiments not necessitated by the

medical treatment of a protected person, but also to any other measures of

brutality whether applied by civilian or military agents.

Control of persons in occupied territory 12.38

12.38 Military authorities in occupied territories have the right to perform

police functions and to protect their own security.

12.39 Measures for the control of the population which are prohibited

include:

• violence;

• physical or moral coercion, particularly to obtain information;

• brutality;

• reprisals or collective penalties; and

• deportations.

Compulsory labour 12.40

12.40 The occupying power may only compel persons over the age of 18 to

work, and then only on the needs of the army of occupation, the public utility

services, or for the feeding, clothing, sheltering, transportation or health of the

population of the occupied territory. The population cannot be compelled to

participate in any work which would involve participation in military

operations, nor may they be compelled to employ forcible means to ensure

the security of the installations where they are performing compulsory labour.

No contract made with any worker by the occupying power can impair the

right of the worker, even though they are performing compulsory labour,

access to the protecting power.

12.41 The occupying power must not requisition labour to an extent that

leads to the mobilisation of workers in any organisation of a military or

semi-military nature. Nor may the occupying power use any measures to

stimulate unemployment or restrict the opportunities for work open to the

population of the occupied territory so as to induce them to work for the

occupying power.

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ENEMY PROPERTY IN OCCUPIED AREA 12.42

Destruction prohibited 12.42

12.42 Any destruction of enemy property, whether it belongs to private

individuals or the state, is prohibited unless the destruction is absolutely

necessitated by military operations. Extensive destruction and appropriation

not justified by military necessity and carried out unlawfully and want only is

a grave breach of G. IV.

12.43 Private property. Private property must be respected. Requisitions

must be proportionate to the resources of the occupied territory and limited to

the needs of the occupying power. Seizure is limited to public property.

12.44 Private property includes property, regardless of ownership, which is

dedicated to religion, charity, education or to the arts or sciences.

12.45 The requirement to respect private property is subject to conditions

necessitated by armed conflict. For example, military operations inevitably

cause damage to private property and occupying forces are entitled to

requisition property for necessary military purposes. Nevertheless, the

principle of respect is important. Plundering and looting is subversive of

military discipline. Theft and robbery remain punishable crimes in peace and

war. The soldier in an enemy country must observe the same respect for

civilian property as they would at home.

12.46 Public property. Military land and buildings belonging to the state,

such as supply depots, arsenals, dockyards and barracks, as well as airfields,

ports, railways, canals, bridges, piers, and their associated installations,

remain at the disposal of the occupying power until the end of the occupation.

The occupying power is liable for any waste or destruction resulting from such

use. Structures of this type may only be destroyed or damaged if military

operations render this absolutely necessary.

Pillage prohibited 12.47

12.47 Pillage is prohibited. Pillage is the seizure or destruction of enemy

private or public property or money by representatives of a belligerent, usually

armed forces, for private purposes. A soldier may, under certain

circumstances seize enemy property but once such property has been seized

it belongs to the state. A military person is not allowed to become a thief or a

bandit merely because of involvement in a war. The rule against pillage is

directed against all private acts of lawlessness committed against enemy

property.

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Confiscation 12.48

12.48 Confiscation is the taking of enemy public movable property without

the obligation to compensate the state to which it belongs. All enemy public

movable property which may be useable for the operations of war may be

confiscated. Private property may not be confiscated. Enemy public

immovable property may be administered and used but it may not be

confiscated.

Seizure 12.49

12.49 The seizure of private movable property is governed by H. IV. R

Article

53. By this rule all appliances adapted for the transmission of news or

for the transport of persons or goods by land, sea or air, except where naval

law governs, stores of arms and in general every kind of war material, even if

they belong to private individuals, may be seized, but they must be restored

and the indemnity fixed when peace is made.

12.50 These objects may be seized by, but they do not become the property

of, the occupying power. The seizure operates merely as a transfer of the

possession of the object to the occupying power while ownership remains

with the private owner. In so far as the objects seized are capable of physical

restoration, they must be restored at the conclusion of peace, and in so far as

they have been consumed or have been destroyed or have perished, a cash

indemnity must be paid when peace is made.

Requisition 12.51

12.51 Requisition may be made of all commodities necessary for

maintenance of the occupying army such as: food and fuel supplies,

liquor

and tobacco, cloth for uniforms, leather for boots, and the like.

The

taking of such articles is forbidden unless they are actually required for

the needs of the occupying forces. Goods or medical supplies available in the

occupied territory are subject to requisition because they are needed for the

forces of occupation and for administrative personnel. They may be

requisitioned only after the requirements of the civilian population have been

taken into account. In every case, the articles taken must be duly

requisitioned, and be in proportion to the resources of the country.

12.52 Articles requisitioned should be paid for in ready money, but if this is

not possible a receipt must be given for them and payment of the amount due

must be made as soon as possible. Articles properly requisitioned become

the property of the occupying power and pass out of the ownership of their

former owner.

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12.53 The prices to be paid for requisitioned supplies may be fixed by the

commander of the occupying force. The prices of commodities on sale may

also be regulated.

12.54 The right to billet troops on the inhabitants follows from the rights to

requisition.

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CHAPTER 13

COMPLIANCE 13

13.1 Australia has ratified many of the major international treaties

governing armed conflict, such as The Hague Conventions, Geneva

Conventions and the Additional Protocols. In addition, Australia is also bound

by customary international law which has not been incorporated into treaties.

For these reasons, Australia is responsible for ensuring that its military forces

comply with the LOAC.

13.2 All ADF members are responsible for ensuring that their conduct

complies with LOAC. They are to be trained in its basic principles and avoid

breaches of these laws.

Unilateral compliance 13.3

13.3 The ADF obligation to comply with LOAC is not conditional upon an

enemy’s compliance; unilateral compliance by the ADF is required.

The

limited specified exceptions, which are matters of national policy are

beyond the scope of this publication but include the concept of reprisals and

specific aspects of Additional Protocol I (G. P. I).

Orders and instructions 13.4

13.4 States are under a general obligation to issue orders and instructions

requiring compliance with the LOAC and to take steps to see that those orders

and instructions are observed. Whilst ignorance of the law is not generally

accepted as a defence, the first step to enforcement of the LOAC is to ensure

as wide a knowledge of its provisions as possible both within and outside the

armed forces.

Executive summary

• All Australian Defence Force (ADF) members are responsible for

complying with the law of armed conflict (LOAC) and are trained in its

principles.

• Commander’s have a responsibility for the actions of their personnel

even in cases where they have not ordered certain actions.

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Yamashita principles 13.5

13.5 After World War II, Japanese General Yamashita was put on trial and

subsequently executed for the widespread destruction, murder and rape,

which occurred in Manila just prior to its liberation. Out of this case, principles

were established for the standard of responsibility of commanders for LOAC

violations. In particular, the concept of indirect responsibility was established.

The principles of this doctrine are that the commander will be held responsible

if the commander:

• knows subordinates are going to commit war crimes and does not

prevent them,

• knows subordinates have committed war crimes and does not punish

them,

• should know subordinates are going to commit war crimes and does

not prevent them, or

• should know subordinates have committed war crimes and does not

punish them.

HISTORICAL EXAMPLE—WAR CRIMES TRIALS 1945–1951

At the conclusion of World War II, the United Nations (UN) Allies

conducted a series of trials of those accused—under new,

retrospective offences—of war crimes. As well as participating,

where it had a material interest, in the trials conducted by the United

Kingdom and United States of America, Australia determined to

conduct its own trials of enemy nationals in its possession who were

accused of atrocities against Australian servicemen, associated

allies and civilians. By bilateral agreement with its Allies,

responsibility for war crimes trials rested with the country which had

custody both of the accused and of the necessary evidence to

prosecute the alleged offences.

Under the specially-enacted Australian War Crimes Act 1945, a legal

basis for the specific charges was provided, and as well the trials

were authorised to be conducted by military courts in the area of the

alleged crimes. By bilateral agreement with each ally, where a crime

was alleged to have been committed against a national of one of

those allies, wherever practicable a representative from that country

was included in the court. The accused were provided with

Australian legal officers, and Australian interpreters were used to

avoid contamination of evidence or defence.

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Commander’s responsibilities 13.6

13.6 Military commanders of all Services and at all levels bear responsibility

for ensuring that forces under their control comply with LOAC. Specifically,

a commander will be held accountable for ordering a subordinate to commit

a war crime or for failing to intervene if the commander knows that a breach

is occurring. A commander is also accountable if the commander fails to

prevent a breach of the LOAC of which the commander should have known.

Individual responsibility 13.7

13.7 ADF members are open to prosecution for breaches of LOAC.

Individual responsibility for compliance cannot be avoided and ignorance is

not a justifiable excuse. ADF members will be held to account for any unlawful

action that leads to a serious breach of LOAC. If such acts are committed,

compliance with unlawful orders of a superior officer is not a justifiable

excuse. If an order is ambiguous, clarification should be sought. If clarification

is unavailable, any action taken must comply with LOAC.

Dissemination 13.8

13.8 In time of peace and war, states are required to disseminate the texts

of the Geneva Conventions 1949 and the two Additional Protocols 1977 as

widely as possible within their respective countries. This may facilitate the

principles of the Conventions and Protocols becoming known to the entire

population.

HISTORICAL EXAMPLE—(cont)

These trials were based on the 1943–1945 investigations of

Queensland Supreme Court Chief Justice Sir William Webb,

commissioned by the Federal Government to take statements under

oath from witnesses to atrocities in the Australian area of operations.

Consequently 296 trials were conducted in six series at Morotai,

Labuan, Wewak, Rabaul, Manus, Singapore, Hong Kong and

Darwin, with 924 indicted, some jointly for the same crime. The

outcome was conviction in 236 trials, no conviction in 60. Of the

individuals charged, 148 were sentenced to death, 496 sentenced to

imprisonment, and 280 found not guilty.

These and other post-war trials firmly established the principles of

individual and command responsibility for war crimes and greatly

contributed to the development of the LOAC. (source: Australian

War Memorial files)

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13.9 The manner of dissemination is left to the states themselves and may

be by means of orders, courses of instruction, commentaries or manuals.

There is a specific requirement to instruct medical personnel, chaplains and

those responsible for handling prisoners of war (PW) and the administration

of protected persons. There is a general requirement to disseminate to the

armed forces as a whole. Those civilians or military who have responsibility

for applying the conventions or protocols must be fully acquainted with the

texts.

Training 13.10

13.10 G. P. I also requires states to endeavour, with the assistance of their

national Red Cross or Red Crescent societies, to train qualified persons ‘to

facilitate the application of the Conventions and of this Protocol, and in

particular the activities of the Protecting Powers’. The parties are encouraged

to send lists of such qualified persons to the International Committee of the

Red Cross (ICRC).

Legal advisers 13.11

13.11 Legal advisers are required to be available, when necessary, to advise

military commanders at the appropriate level on the application of the LOAC

and also on the appropriate instruction to be given to members of the armed

forces in this subject.

FACT FINDING 13.12

Role of the United Nations 13.12

13.12 The UN, and in particular the Security Council, has taken a wide range

of measures regarding the enforcement of the LOAC. These measures have

included investigation of violations, urging parties to observe the law,

authorising military action to prevent or respond to violations and the

establishment of criminal tribunals.

13.13 During the Cold War, with frequent uses of the veto by the two

super-powers, the Security Council was not active in taking such measures,

its power was rarely utilised and the principal role of the UN was in acting

through the ‘good offices’ of the Secretary-General. Successive

Secretaries-General intervened and mediated with varying degrees of

success and whilst their primary role was conflict resolution, efforts were also

made in ‘humanitarian’ missions such as those to secure the release of

Western hostages in Lebanon during the Lebanese civil war. The Security

Council itself has raised the issue of violations of ‘International Humanitarian

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Law (IHL)’ in numerous conflicts, including the Iran-Iraq conflict 1980–1988,

the Gulf conflict 1990–1991, the conflicts in former Yugoslavia 1991–1999

and the events in Rwanda in 1994.

Fact finding 13.14

13.14 G. P. I also provides for the establishment of a permanent International

Fact Finding Commission. The International Humanitarian Fact Finding

Commission came into existence in 1991 after twenty States Parties to the

Protocol agreed to accept its competence. It is competent to enquire into an

allegation that a grave breach or other serious violation of the conventions or

protocol has occurred but only in regard to the conduct of a party that has

accepted its competence whether permanently or ad hoc. With the consent of

the parties concerned, the commission can also enquire into other violations

of the LOAC and, in all cases, can offer its good offices to assist in helping to

restore respect for the Conventions and Protocol.

INDEPENDENT SUPERVISION 13.15

The protecting power 13.15

13.15 The parties to a conflict are under a duty at the beginning of the conflict

or any occupation to appoint a protecting power. If no protecting power has

been nominated or accepted, the ICRC or some other similar organisation is

authorised to ‘offer its good offices’ to help the parties agree on the selection.

If no agreement is possible, the ICRC or other organisation concerned may

offer to act as a substitute. The parties to the conflict shall accept such an

offer. Once protecting powers have been appointed, the parties must permit

them to fulfil their role. This includes facilitating the activities of the

representatives of the protective power, only restricting those activities

exceptionally and temporarily for reasons of imperative military necessity.

13.16 The specific duties of protecting powers are laid down in various

articles of the Geneva Conventions and G. P. I. These are dealt with in detail

in the relevant chapters of this manual. However, their general responsibilities

may be summarised as follows:

• to safeguard the interests of the parties, applying the Conventions and

Protocol with the cooperation of the parties and under the scrutiny of

the other protecting powers;

• to lend their good offices with a view to settling disagreements

between the parties to the conflict as to the application or interpretation

of provisions of the Conventions and Protocols; and

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• to visit PW and civilian internees, including the conducting of

interviews personally or through an interpreter. It is for the protecting

power to select the places for these visits. These may be prohibited

only exceptionally and temporarily for reasons of imperative military

necessity. If mutually agreed and necessary, compatriots of those

interned may be permitted to participate in these visits.

REPRISALS 13.17

Nature of reprisals 13.17

13.17 Reprisals are acts which would normally be illegal, resorted to after the

adverse party has itself carried out illegal acts and refused to desist when

called upon to do so and issued with a warning that such action would be

taken if the prior illegal act is not terminated. They are not retaliatory acts or

simple acts of vengeance. Reprisals are, however, an extreme measure of

coercion. Nevertheless, in the circumstances of armed conflict, reprisals, or

the threat of reprisals, may sometimes provide the only practical means of

inducing the adverse party to desist from its unlawful conduct.

Conditions for reprisal action 13.18

13.18 In order to qualify as a legitimate reprisal, an act must comply with the

following conditions when employed:

• It must be in response to serious and manifestly unlawful acts,

committed by an adverse government, its military commanders or

combatants for whom the adversary is responsible.

• It must be for the purpose of compelling the adversary to observe the

LOAC. Reprisals serve as an ultimate legal sanction or law

enforcement mechanism. Thus, if one party to an armed conflict

breaches the law but then expresses regret, declares that it will not be

repeated and takes measures to punish those immediately

responsible, then any action taken by another party in response to the

original unlawful act cannot be justified as a reprisal.

• Reasonable notice must be given that reprisals will be taken.

What degree of notice is required will depend upon the particular

circumstances of the case.

• The victim of a violation must first exhaust other reasonable means of

securing compliance before reprisals can be justified.

• A reprisal must be directed only against the personnel or property of

an adversary.

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• A reprisal must be in proportion to the original violation. Whilst a

reprisal need not conform in kind to the act complained of, it may not

significantly exceed the adverse party’s violation either in degree or

effect. Effective but disproportionate acts cannot be justified as

reprisals on the basis that only an excessive response will forestall

further violations.

• It must be publicised. Since reprisals are undertaken to induce an

adversary’s compliance with the LOAC any action taken as a reprisal

must be announced as such and publicised so that the adversary is

aware of the reason for the otherwise unlawful act and of its own

obligation to abide by the law.

• As reprisals entail state responsibility, they must be authorised at the

highest level of government.

• Reprisal action may not be taken or continued after the enemy has

ceased to commit the conduct complained of.

Unlawful reprisals 13.19

13.19 Reprisals are never lawful if directed against any of the following:

• the wounded, sick and shipwrecked, medical personnel and

chaplains, medical units, establishments and transports;

•PW; or

• protected persons and their property.

13.20 G. P. I extends the categories of persons and objects against whom

reprisals are prohibited to:

• civilians and the civilian population;

• civilian objects;

• historic monuments, works of art or places of worship which constitute

the cultural or spiritual heritage of peoples;

• objects indispensable to the survival of the civilian population such as

foodstuffs, crops, livestock, drinking water installations and supplies

and irrigation works;

• the natural environment; and

• works or installations containing dangerous forces, namely dams,

dykes and nuclear electrical generating stations.

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WAR CRIMES 13.21

Introduction 13.21

13.21 The principle of individual responsibility for violations of the LOAC is

not a new concept. The Lieber Code during the American Civil War

specifically imposed individual responsibility, whereas the Hague

Conventions 1907 were silent on the point. This did not prevent the allied

powers, at the end of World War I, seeking the trial ‘before military tribunals

[of] persons accused of having committed acts in violation of the laws and

customs of war’ under the Treaty of Versailles. Indeed Kaiser Wilhelm II of

Germany was himself ‘arraigned’ under the same treaty.

13.22 Following World War II, the Allies established the Nuremberg Tribunal

to try war crimes, crimes against humanity and crimes against peace.

War

crimes were defined as:

• ‘ … violations of the laws or customs of war. Such violations shall

include, but not be limited to, murder, ill-treatment or deportation to

slave labour or for any other purpose of civilian population of or in

occupied territory, murder or ill-treatment of PW or persons on the

seas, killing of hostages, plunder of public or private property, wanton

destruction of cities, towns or villages, or devastation not justified by

military necessity’.

13.23 Although there is some overlap with war crimes, crimes against

humanity and crimes against peace are not covered in this manual.

Grave breaches and war crimes 13.24

13.24 The Geneva Conventions introduced a new concept, that of ‘grave

breaches’. These are war crimes of such seriousness as to invoke universal

jurisdiction. Universal jurisdiction entitles any nation to exercise jurisdiction

over any perpetrator, regardless of their nationality or the place where the

offence was committed. In the case of grave breaches, states are obliged to

introduce legislation to this effect. G. P. I extended the definition of grave

breaches. Other serious offences against ‘the laws and customs of war’

whether proscribed by treaty or by customary law remain war crimes and are

punishable as such.

Grave breaches 13.25

13.25 Grave breaches under the Geneva Conventions consist of any of the

following acts against persons or property protected under the provisions of

the relevant Convention:

• wilful killing;

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• torture or inhuman treatment, including biological experiments;

• wilfully causing great suffering or serious injury to body or health;

• extensive destruction and appropriation of property, not justified by

military necessity and carried out unlawfully and wantonly;

• compelling a PW or other protected person to serve in the forces of a

hostile power;

• wilfully depriving a PW or other protected person of the rights of fair

and regular trial;

• unlawful deportation or transfer or unlawful confinement; and

• taking hostages.

13.26 G. P. I extends the definition of grave breaches to include the

following:

• any wilful and unjustified act or omission which seriously endangers

the physical or mental health or integrity of any person who is in the

power of a party other than the one on which they depend;

• acts when committed wilfully, in violation of the relevant provisions of

the protocol, and causing death or serious injury to body or health:

– making the civilian population or individual civilians the object

of attack;

– launching an indiscriminate attack affecting the civilian

population or civilian objects in the knowledge that such attack

will cause excessive loss of life, injury to civilians or damage to

civilian objects;

– launching an attack against works or installations containing

dangerous forces in the knowledge that such attack will cause

excessive loss of life, injury to civilians or damage to civilian

objects;

– making non-defended localities and demilitarised zones the

object of attack;

– making a person the object of attack in the knowledge that they

are hors de combat;

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– the perfidious use of the distinctive emblem of the Red Cross,

Red Crescent, Red Crystal and other Red Cross societies, or

of other protective signs recognised by the Conventions or the

Protocol; and

• acts, when committed wilfully and in violation of the Conventions or the

Protocol:

– the transfer by the occupying power of part of its own civilian

population into the territory it occupies, or the deportation or

transfer of all or parts of the population of the occupied territory

within or outside this territory;

– unjustifiable delay in the repatriation of PW or civilians;

– practices of apartheid and other inhuman and degrading

practices involving outrages upon personal dignity, based on

racial discrimination;

– making the clearly recognised historic monuments, works of art

or places of worship which constitute the cultural or spiritual

heritage of peoples and to which special protection has been

given by special arrangement, the object of attack, causing as

a result extensive destruction thereof, where there is no

evidence that the adverse party is using such objects in support

of the military effort and when such historic monuments,

works

of art and places of worship are not located in the

immediate proximity of military objectives; or

– depriving a protected person of the rights of fair and regular

trial.

War crimes 13.27

13.27 Aside from grave breaches of the Conventions and Protocols,

other serious violations of the LOAC constitute war crimes and are

punishable as such. A distinction must be drawn between crimes established

by treaty or convention and crimes under customary international law.

Treaty

crimes only bind parties to the treaty in question, whereas customary

international law is binding generally on all states. Many treaty crimes are

merely codifications of customary law and to that extent binding on all states,

even those that are not parties.

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13.28 War crimes may be committed by nationals both of belligerent and of

neutral states. A state may elect to deal with its own nationals under the

appropriate municipal law for acts that amount to war crimes. Members of the

ADF can be dealt with under the relevant provisions of Australian legislation

for offences such as murder or manslaughter.

The Hague Regulations 13.29

13.29 Provisions of the Hague Regulations 1907 are now recognised as part

of customary law. Those regulations provide that the following acts are

‘especially forbidden’:

• to employ poison or poisoned weapons;

• to kill or wound treacherously individuals belonging to the hostile

nation or army;

• to kill or wound an enemy who, having laid down their arms, or having

no longer means of defence, has surrendered at discretion;

• to declare that no quarter will be given;

• to employ arms, projectiles or material calculated to cause

unnecessary suffering;

• to make improper use of a flag of truce, of the national flag or of the

military insignia and uniform of the enemy, as well as the distinctive

emblems of the Geneva Convention;

• to destroy or seize the enemy’s property, unless such destruction or

seizure is imperatively demanded by the necessities of war;

• to declare abolished, suspended or inadmissible in a court of law the

rights and actions of the nationals of the hostile party; and

• to compel the nationals of the hostile party to take part in the

operations of war directed against their own country, even if they were

in the belligerent’s service before the commencement of the war.

Customary law 13.30

13.30 Among other war crimes generally recognised as forming part of the

customary LOAC are:

• mutilation or other maltreatment of dead bodies;

•looting;

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• use of a privileged building for improper purposes;

• attacking a privileged or protected building;

• attacking a properly marked hospital ship or medical aircraft;

• firing on shipwrecked personnel; and

• using bacteriological methods of warfare.

13.31 The Rome Statute of the International Criminal Court (ICC) contains a

longer list of war crimes including offences committed in international and

non-international armed conflict. Though it is not necessarily an exclusive list,

it is indicative of current international thinking in this area.

International tribunals 13.32

13.32 Persons charged with the commission of war crimes may also be tried

by international tribunals.

13.33 The Nuremberg International Military Tribunal was established by

agreement between the Allies to try the major war criminals of World War II.

It followed the abortive attempts to bring war criminals to justice after World

War I. The International Military Tribunal supplemented the military tribunals

and national tribunals established by the authorities of the allied states. A

further international military tribunal was established in Tokyo.

13.34 The principles of international law recognised in the Nuremberg

Charter and judgements were unanimously affirmed by the UN General

Assembly in 1946. In 1948, the General Assembly requested the International

Law Commission to study the desirability and feasibility of an ICC. This work

led to a draft statute for such a court, but the project foundered at the time

owing to the absence of an internationally accepted definition of the crime of

‘aggression’ and the onset of the Cold War.

The International Criminal Court 13. 35

13.35 While there were ad hoc attempts to deal with serious violations of IHL,

including the creation of the tribunals for the former Yugoslavia and Rwanda,

fresh attempts were made to resurrect the idea of an ICC. The International

Law Commission produced a draft statute which was considered by a

diplomatic conference. This resulted in the Rome Statute, and provides for

the establishment of such a court.

13.36 The Statute came into force on 01 July 2002. Australia signed the

Statute and introduced offences covered by the Statute into domestic law

under the Commonwealth Criminal Code.

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13.37 The ICC has jurisdiction only where nations having jurisdiction

themselves are ‘unwilling or unable genuinely’ to exercise that jurisdiction.

addition, before any Australian national is surrendered to the ICC,

the Attorney-General must authorise the surrender of the person. The Court’s

jurisdiction is complementary to national jurisdictions and does not have

primacy over them as in the case of the Yugoslav and Rwanda tribunals.

Indeed, under the Statute, a state may exclude war crimes committed by its

nationals or on its territory for a period of seven years after the entry into force

of the statute for that state.

13.38 The court will have jurisdiction over genocide, war crimes and crimes

against humanity as defined in the statute. It will also have jurisdiction over

the crime of aggression, although this cannot be exercised until a definition

has been agreed and adopted by a formal review conference.

CRIMINAL RESPONSIBILITY 13.39

Individual criminal responsibility 13.39

13.39 Individuals are responsible for the war crimes that they commit

themselves or which they order or assist others to commit.

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HISTORICAL EXAMPLE—CRIMINAL RESPONSIBILITY

Figure 13–1: Breaker Morant—first Australian convicted as a

war criminal

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13.40 Article 7 of the Statute of the International Criminal Tribunal for the

former Yugoslavia provides that ‘a person who planned, instigated, ordered,

committed or otherwise aided and abetted in the planning, preparation or

execution of a crime ... shall be individually responsible for the crime’.

13.41 The Rome Statute of the ICC also confirms that an individual is

responsible for a war crime if they:

• commit the crime themselves, on their own or jointly with others;

• order, solicit or induce a crime which is committed or attempted;

• aid, abet or otherwise assist in the commission of the crime, including

providing the means for its commission; or

• contribute to the commission or attempted commission of the crime by

a group of persons acting with a common purpose.

Such ancillary offences are also provided in Australian domestic law under

the Commonwealth Criminal Code.

13.42 The fact that a subordinate was ordered to do an act, or make an

omission, which was illegal does not, of itself, absolve the subordinate from

criminal responsibility.

HISTORICAL EXAMPLE—(cont)

Three Australians were tried and convicted on charges of shooting

surrendered Boers in the South African war in 1901.

The accused claimed both provocation—the murder of their

commander—and that they were under verbal orders to shoot the

prisoners. Against a court martial recommendation for clemency,

Lieutenants H.H. Morant and P.J. Handcock were executed, with life

imprisonment for Lieutenant G.R. Witton. Morant’s final plea on

behalf of the others of his total responsibility, as he authorised the

shootings as senior officer present, was disregarded.

This early example of individual responsibility for war crimes was

clouded by the politics involved, but it established some important

principles. It also provoked a prohibition on Australian servicemen

being sentenced to death by non-Australian courts.

(source: Australia War Memorial A50311)

ADDP 06.4

GLOSSARY

aircraft

An aircraft is any machine that can derive support in the atmosphere

from the reactions of the air; and includes any aeroplane, balloon, kite,

airship, remotely piloted vehicles or glider, but not hovercrafts.

airspace

Airspace is the zone next to the earth consisting of atmosphere

capable of sustaining flight. While there is no general agreement,

the

boundary with outer space is somewhere between the outermost

reach of airborne aircraft and the lower limit of spacecraft in orbit.

archipelagic waters

Those waters enclosed by archipelagic baselines drawn in

accordance with Article 47 of the United Nations Convention on the

Law of the Sea (UNCLOS). The sovereignty of an archipelagic state

extends to the waters enclosed by the baselines, regardless of their

depth or distance from the coast, as well as the associated seabed,

subsoil and airspace.

armed conflict

Conflict between states in which at least one party has resorted to the

use of armed force to achieve its aims. It may also embrace conflict

between a state and organised, disciplined and uniformed groups

within the state such as organised resistance movements.

attacks

Acts of violence against the adversary, whether in offence or defence.

belligerent

A state or other entity engaging in armed conflict, also combatants in

some contexts.

civil aircraft

Civil aircraft are any aircraft not classified as state aircraft under the

Chicago Convention.

civil defence

Mobilisation, organisation and direction of the civilian population,

designed to minimise by passive measures the effects of enemy

action against all aspects of civil life.

ADDP 06.4

civil defence organisations

Those establishments and other units which are organised or

authorised by the competent authorities of a party to the conflict to

perform any of the following tasks: warning, evacuation, management

of shelters, management of blackout measures, rescue, medical

services including first aid and religious assistance, firefighting,

detection and marking of danger areas, decontamination and similar

protective measures, provision of emergency accommodation and

supplies, emergency assistance in the restoration and maintenance of

order in distressed areas, emergency repair of indispensable public

utilities, emergency disposal of the dead, assistance in the

preservation of objects essential for survival and complementary

activities necessary to carry out any of the tasks mentioned including,

but not limited to, planning and organisation, and which are assigned

and devoted exclusively for such tasks.

collateral damage

Incidental damage to persons, objects or locations arising out of

combat action against a legitimate military objective.

combatants

All organised armed forces, groups and units (except medical service

and religious personnel) who are under the command of a party to a

conflict and are subject to an internal disciplinary system.

contiguous zone

In a zone beyond and adjacent to the territorial sea, described as the

contiguous zone, the coastal state may exercise the control necessary

to prevent infringement of its customs, fiscal, immigration or sanitary

laws and regulations within its territory or territorial sea; and punish

infringement of the above laws and regulations committed within its

territory or territorial sea. The contiguous zone may not extend beyond

24 nautical miles from the baselines from which the breadth of the

territorial sea is measured.

cultural property

Movable and immovable objects of sufficient artistic or religious

importance to constitute the heritage of all people, including that which

has been renovated or restored. Cultural property includes historical

monuments, archaeological sites, books, manuscripts or scientific

papers and the buildings or other places in which such objects are

housed.

ADDP 06.4

exclusive economic zone (EEZ)

An area beyond and adjacent to the territorial sea, subject to the

specific legal regime established in Part V of UNCLOS, under which

the rights and jurisdiction of the coastal state and the rights and

freedoms of other states are governed by the relevant provisions.

The

EEZ shall not extend beyond 200 nautical miles from the

baselines from which the breadth of the territorial sea is measured.

explosive remnants of war (ERW)

Unexploded ordnance and abandoned explosive ordnance.

feasible precautions

Precautions which are practicable or practically possible taking into

account all circumstances ruling at the time including humanitarian

and military considerations.

innocent passage

Innocent passage entitles a warship to traverse another state’s

territorial seas ‘continuously and expeditiously’. Passage is innocent

as long as it is not prejudicial to the peace, good order or security of

the coastal or island state.

international straits

Straits which are used for international navigation between one part of

the high seas or an EEZ and another part of the high seas or EEZ.

these straits all ships and aircraft enjoy the right of transit passage,

which shall not be impeded; except that, if the strait is formed by an

island of a state bordering the strait and its mainland, transit passage

shall not apply if there exists seaward of the island a route through the

high seas or through an EEZ of similar convenience.

law of armed conflict (LOAC)

The international law regulating the conduct of states and combatants

engaged in armed hostilities. LOAC is often termed the ‘law of war’.

levee en masse

Where the inhabitants of a country or territory spontaneously take up

arms en masse to resist an invader, LOAC recognises them as

combatants provided they do so when there has not been time to form

themselves into organised units and they respect LOAC. Individuals

acting on their own are not entitled to combatant status nor benefits or

detriment flowing from that status.

ADDP 06.4

medical personnel

Medical personnel include persons on the permanent staff of medical

establishments and any person temporarily assigned to medical

duties, such as soldiers who are carrying wounded from the battlefield.

The underlying principle is that care of the wounded and sick (who are

now non-combatant) is paramount and nothing should interfere with

that care. All medical personnel, whether civilian or military, enemy or

friendly are included in the category of non-combatants so long as they

do not participate in hostilities.

medical transports

Any means of transportation, whether military or civilian, permanent or

temporary, assigned exclusively to medical transportation and under

the control of a competent authority of a party to the conflict.

medical units

Establishments and other units, whether military or civilian, organised

for medical purposes, namely the search for, collection, transportation,

diagnosis or treatment including first aid treatment of the wounded,

sick and shipwrecked or for the prevention of disease. The term

includes hospitals and other similar units, blood transfusion centres,

preventative medicine centres and institutes, medical depots and the

medical and pharmaceutical stores of such units. Medical units may

be fixed or mobile, permanent or temporary.

mercenary

A mercenary is any person who:

a. is specially recruited locally or abroad in order to fight in an

armed conflict;

b. takes part in hostilities;

c. is motivated to take part in hostilities essentially for the desire

for private gain and is promised, by or on behalf of a party to

the conflict, material compensation substantially in excess of

that promised or paid to combatants of similar ranks and

functions in the armed forces of that party;

d. is neither a national of a party to the conflict nor a resident of

the territory controlled by a party to the conflict;

e. is not a member of the armed forces of a party to the conflict;

and

f. has not been sent by a state which is not party to the conflict on

official duty as a member of its armed forces.

merchant ship

A vessel engaged in mercantile trade except river craft, estuarial craft

or craft which operate solely within harbour limits.

ADDP 06.4

military aircraft

Military aircraft are any aircraft belonging to the armed forces of a

nation. They must bear external marks distinguishing nationality,

be under command of an officer and be manned by a crew that is

subject to armed forces discipline. All military aircraft are state aircraft.

military objectives

Legitimate objects of attack comprise:

a. all combatants who are not hors de combat;

b. objects which, by their nature, location, purpose or use make

an effective contribution to military action and whose total or

partial destruction, capture or neutralisation, in the

circumstances ruling at the time, offers a definite military

advantage. The presence of non-combatants in or around a

military objective does not change its nature as a military

objective.

national airspace and waters

Areas subject to the territorial sovereignty of individual nations.

National waters comprise all those waters landwards of the outer limit

of a nation’s territorial sea. All airspace above national waters,

including internal waters, territorial sea and archipelagic waters and

territory is national airspace.

outer space

The zone beyond airspace.

protecting power

The Geneva Conventions provide that the treatment of prisoners of

war, interned civilians and inhabitants of occupied territory be

monitored by a neutral nation known as a protecting power. As nations

often disagree as to which nations are neutral or otherwise,

the

International Committee of the Red Cross has been authorised to

perform some of the functions of the protecting power.

reprisal

An act, otherwise unlawful under the international law regulating

armed conflict, utilised for the purpose of coercing an adversary to

stop violating the recognised rules of armed conflict.

roadstead

Roadsteads are normally used for the loading, unloading and

anchoring of ships, and which would otherwise be situated wholly or

partly beyond the limits of the territorial sea, are included within the

territorial sea. Roadsteads included within the territorial sea must be

clearly marked on charts by the coastal or island nation.

ADDP 06.4

rules of engagement (ROE)

ROE are directions endorsed by Government and issued by

commanders, which delineate the circumstances, and limitations

within which military force may be applied to achieve military

objectives. They do not inhibit or replace but are part of the command

function. ROE may be framed to limit certain actions; alternatively,

they may authorise actions to the full extent permissible under

domestic and international law.

shipwrecked

Persons, whether military or civilian, who are in peril at sea or in other

waters as a result of misfortune affecting them or the vessel or aircraft

carrying them and who refrain from any act of hostility. These persons,

provided they continue to refrain from any act of hostility, shall

continue to be considered shipwrecked during their rescue until they

acquire another status under the Geneva Conventions or Additional

Protocols.

state aircraft

Any aircraft used by a nation’s military, police and customs services.

The definition also includes any aircraft under the control of the

national government and used for public service. Examples of this

latter category are national very important person transports and

aircraft on special missions.

targeting

The process of identifying targets for possible engagement and

determining the attack system to capture, destroy, degrade or

neutralise them.

territorial sea

An area of waters adjacent to a state over which it exercises

sovereignty, subject to the right of innocent passage. Every state has

the right to establish the breadth of its territorial sea up to a limit not

exceeding 12 nautical miles, measured from the baselines.

transit passage

All vessels and aircraft have the right to unimpeded transit passage

through and over straits used for international navigation. Transit

passage must be continuous and expeditious and vessels and aircraft

must not threaten or use force against nations bordering the strait.

Transit passage is in the normal mode and includes activities such as

fuel replenishment, submerged transit for submarines, organic flying

operations and tactical manoeuvring.

ADDP 06.4

United Nations Convention on the Law of the Sea (UNCLOS)

Much of what is now internationally accepted as the law of the sea is

contained in the Official Text of UNCLOS (with annexes and index)

and the Final Act of the Third United Nations Conference on the Law

of the Sea.

wounded and sick

Persons, whether military or civilian, who, because of trauma, disease

or other physical or mental disorder or disability, are in need of medical

assistance or care and who refrain from any act of hostility.

These

terms also cover maternity cases, new born babies and other

persons who may be in need of immediate medical assistance or care,

such as the infirm or expectant mothers, and who refrain from any act

of hostility.

ADDP 06.4

ACRONYMS AND ABBREVIATIONS

AAP Australian Air Publication

ADF Australian Defence Force

ADIZ air defence identification zone

BCOF British Commonwealth Occupation Force

CJOPS Chief of Joint Operations

CROC Convention on the Rights of the Child

DFDA Defence Force Discipline Act

EEZ exclusive economic zone

EMA Emergency Management Australia

ENMOD Environmental Modification

ERW explosive remnant of war

EZ exclusion zone

FIR flight information region

IC Internment Camp

ICAO International Civil Aviation Organisation

ICC International Criminal Court

ICJ International Court of Justice

ICRC International Committee of the Red Cross

IHL International Humanitarian Law

km kilometres

LOAC law of armed conflict

MEZ maritime exclusion zone

NEI Netherlands East Indies

PG prisonnier de guerre

PW prisoner of war

RAN Royal Australian Navy

ROE rules of engagement

UN United Nations

UNCLOS United Nations Convention on the Law of the

Sea

ADDP 06.4

MAIN INTERNATIONAL TREATIES ON THE

LAW OF ARMED CONFLICT

Below are the internationally recognised abbreviations which are used for

these treaties (listed in chronological order).

St Petersburg Declaration Renouncing the Use, in Time of War,

of Explosive Projectiles Under 400 Grams Weight.

St Petersburg, 29 November–11 December 1868.

H. Decl Declaration (IV, 3) Concerning Expanding Bullets.

The Hague, 29 July 1899.

H. III Convention (III) Relative to the Opening of Hostilities.

The Hague, 18 October 1907.

H. IV Convention (IV) Respecting the Laws and Customs of War

on Land. The Hague, 18 October 1907.

H. IV. R Regulations Concerning the Laws and Customs of War on

Land. The Hague, 18 October 1907.

H. V Convention (V) Respecting the Rights and Duties of Neutral

Powers and Persons in Case of War on Land.

The Hague, 18 October 1907.

H. VI Convention (VI) Relating to the Status of Enemy Merchant

Ships at the Outbreak of Hostilities. The Hague,

18 October 1907.

H. VII Convention (VII) Relating to the Conversion of Merchant

Ships into Warships. The Hague, 18 October 1907.

H. VIII Convention (VIII) Relative to the Laying of Automatic

Submarine Contact Mines. The Hague, 18 October 1907.

H. IX Convention (IX) Concerning Bombardment by Naval Forces

in Time of War. The Hague, 18 October 1907.

H. X Convention (X) for the Adaptation to Maritime Warfare of the

Principles of the Geneva Convention. The Hague,

18 October 1907.

H. XI Convention (XI) Relative to Certain Restrictions with Regard

to the Exercise of the Right of Capture in Naval War.

The Hague, 18 October 1907.

H. XIII Convention (XIII) Concerning the Rights and Duties of

Neutral Powers in Naval War. The Hague, 18 October 1907.

H. XIV Declaration (XIV) Prohibiting the Discharge of Projectiles

and Explosives from Balloons. The Hague, 18 October 1907.

ADDP 06.4

London Decl Declaration Concerning the Laws of Naval War. London,

26 February 1909 (not ratified by any signatory).

Oxford The Laws of Naval War Governing the Relations Between

Belligerents. Manual adopted by the Institute of International

Law (Oxford Manual of the Laws of Naval War).

Oxford, 09 August 1913.

H. AW Rules of Air Warfare. Drafted by a Commission of Jurists at

The Hague, December 1922–February 1923 (this was not

adopted in a binding form).

G. BC Protocol for the Prohibition of the Use of Asphyxiating,

Poisonous or Other Gases, and of Bacteriological Methods

of Warfare. Geneva, 17 June 1925.

Havana Convention on Maritime Neutrality. Havana,

20 February 1928.

Washington Treaty on the Protection of Artistic and Scientific Institutions

and Historic Monuments (Roerich Pact). Washington,

15 April 1935.

London PV Proces-verbal relating to the Rules of Submarine Warfare set

forth in Part IV of the Treaty of London of 22 April 1930.

London, 06 November 1936.

Chicago

Convention

Convention on International Civil Aviation. Chicago, 1944.

G. I Convention (I) for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field.

Geneva, 12 August 1949 (First Geneva Convention).

G. II Convention (II) for the Amelioration of the Condition of

Wounded, Sick and Shipwrecked Members of Armed Forces

at Sea. Geneva, 12 August 1949 (Second Geneva

Convention).

G. III Convention (III) Relative to the Treatment of Prisoners of

War. Geneva, 12 August 1949 (Third Geneva Convention).

G. IV Convention (IV) Relative to the Protection of Civilian Persons

in Time of War. Geneva, 12 August 1949 (Fourth Geneva

Convention).

H. CP Convention for the Protection of Cultural Property in the

Event of Armed Conflict. The Hague, 14 May 1954, with:

H. CP. R Regulations for the Execution of the Convention for the

Protection of Cultural Property in the Event of Armed

Conflict. The Hague, 14 May 1954.

ADDP 06.4

H. CP. P Protocol for the Protection of Cultural Property in the Event

of Armed Conflict. The Hague, 14 May 1954.

ENMOD Treaty 1977—United Nations Convention on the Prohibition

of Military or Any Other Hostile Use of Environmental

Modification Techniques, New York, 18 May 1977.

G. P. I Protocol Additional to the Geneva Conventions of 12 August

1949, and Relating to the Protection of Victims of

International Armed Conflicts. Geneva, 08 June 1977

(Additional Protocol I).

G. P. II Protocol Additional to the Geneva Conventions of 12 August

1949, and Relating to the Protection of Victims of

Non-international Armed Conflicts. Geneva, 08 June 1977

(Additional Protocol II).

G. P. III Protocol Additional to the Geneva Conventions of 12 August

1949, and Relating to the Adoption of an Additional

distinctive Emblem (Additional Protocol III,

08 December 2005.

CCW Convention on Prohibitions or Restrictions on the Use of

Certain Conventional Weapons which may be Deemed to be

Excessively Injurious or to have Indiscriminate Effects.

Geneva, 10 October 1980.

CCW. P. I Protocol on Non-detectable Fragments (Protocol I). Geneva,

10 October 1980.

CCW. P. II Protocol on Prohibitions or Restrictions on the Use of Mines,

Booby Traps and Other Devices (Protocol II). Geneva,

10 October 1980.

CCW. P. III Protocol on Prohibitions or Restrictions on the Use of

Incendiary Weapons (Protocol III). Geneva,

10 October 1980.

CCW. P. IV Protocol on Blinding Laser Weapons (Protocol IV). Vienna,

13 October 1995.

CCW. P. V Protocol on Explosive Remnants of War (Protocol V).

Vienna, 28 November 2003.

UNCLOS 1982 United Nations Convention on the Law of the Sea.

SPNFZ South Pacific Nuclear Free Zone. Raratonga, 1985.

CROC Convention on the Rights of the Child. New York,

20 November 1989.

ADDP 06.4

CWC Convention on the Prohibition of the Development,

Production, Stockpiling and the Use of Chemical Weapons

and on their Destruction.

Ottawa

Convention

Convention on the Prohibition of the Use, Stockpiling,

Production and Transfer of Anti-Personnel Mines and on

their Destruction, 18 September 1997.

OP CROC Optional Protocol to the Convention on the Rights of the

Child on the Involvement of Children in Armed Conflict.

New York, 25 May 2000.

Rome Statute Rome Statute of the International Criminal Court. Rome,

17 July 1998. (Entry into force on 01 July 2002).