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The New U. S. Army Field Manual on the Law of Land Warfare

Published online by Cambridge University Press:  28 March 2017

Josef L. Kunz
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Type
Editorial Comment
Information
American Journal of International Law , Volume 51 , Issue 2 , April 1957 , pp. 388 - 396
Copyright
Copyright © American Society of International Law 1957

References

1 U. S. Department of the Navy, Law of Naval Warfare (September, 1955).

2 U. S. Department of the Army, Army Field Manual: The Law of Land Warfare (July 18, 1956, 236 pp.). It supersedes the Field Manual of Oct. 1, 1940, including G 1, Nov. 15, 1944. The new Manual consists of 552 paragraphs, arranged in nine chapters (further cited as Manual).

3 Law of Naval Warfare, see. 240.

4 Manual, par. 1. In the same sense, Law of Naval Warfare, see. 110.

5 Manual, par. 3.

6 In exactly the same sense, Kunz, Josef L., Kriegsrecht und Neutralitátsrecht 26–28 (Vienna, 1935)CrossRefGoogle Scholar.

7 The texts of the Hague Conventions and Regulations referred to are reprinted in 2 A.J.I.L. Supp. 85, 90, 146, 153 (1908).

8 French texts, Les Conventions de Genève du 12 août 1949 (2nd ed., Geneva, 1950); English texts in T.I.A.S. Nos. 3362, 3363, 3364, 3365; Department of State Publication 3938 (General Foreign Policy Series 34, August, 1950). On pp. 233–255 of the last-named publication are printed the reservations; the United States has made only one reservation, namely, with respect to Art. 68 of Convention IV (ibid. 239). The Geneva Conventions were ratified by the United States on July 6, 1955, and came into force for this country on February 2, 1956. The texts of the Convention on Prisoners of War and the Convention on Protection of Civilians are reprinted in 47 A.J.I.L. Supp. 119 (1953) and 50 ibid. 724 (1956), respectively.

The following Commentaries have, up to now, been published by the International Committee of the Bed Cross: Pictet, Jean S., Commentaire à la première Convention de Genève de 1949 (Geneva, 1952)Google Scholar; de Preux, Jean, Etude sur la troisième Convention de Genève de 1949 (Geneva, 1954)Google Scholar; La Convention de Genève relative à la protection des personnes civiles en temps de guerre (Geneva, 1956, 729 pp.). See also Verges, J., La 4e Convention de Genève de 1949, Exposé documentaire (Lyon, 1952)Google Scholar; Frotin, , La 4e Convention de Genève, Protection Civile (Paris, 1953)Google Scholar; Ginnane, and Tingling, , “The Geneva Conventions of 1949,” 46 A.J.I.L. 383 (1952)Google Scholar; and Pictet, , “The New Geneva Conventions for the Protection of War Victims,” 45 ibid. 462 (1951)Google Scholar.

9 The Manual (par. 57) also incorporates the so-called “Roerich Pact” of April 15, 1935 (49 Stat. 3267, Treaty Series, No. 899; 30 A.J.I.L. Supp. 195 (1936)), although only the United States and a number of the American Republics are parties to this treaty. See the corresponding UNESCO treaty signed at Paris on Sept. 30, 1953.

10 Manual, par. 7.

11 Manual, par. 8a. This corresponds perfectly with the practice of states in the Korean conflict and shows the untenability of the proposals for “discriminatory” laws of war; see this writer’s “The Laws of War,” 50 A.J.I.L. 313–337 (1956)Google Scholar. The same idea is thus expressed in Law of Naval Warfare, sec. 200: “Distinction must be made between the resort to war and the conduct of war. Whether the resort to war is lawful or unlawful, the conduct of war is regulated by the laws of war.”

12 See Kunz, Josef L., “The Geneva Conventions of August 12, 1949,” Law and Polities in the World Community 279–316, 368–373 (Berkeley, University of California Press, 1953)Google Scholar.

13 Par. 513.

14 Law of Naval Warfare, sec. 232, states equally that there may not only be qualified neutrality, but classic neutrality: “The obligations of the member States, incompatible with neutrality, come into existence only if the Security Council fulfills the functions delegated to it by the Charter. If the Security Council is unable to fulfill its assigned functions, the members may, in case of a war, remain neutral and observe an attitude of strict impartiality.”

15 Pars. 512–552.

16 Pars. 15–19.

17 Ch. IV, pars. 208–245, embodying Geneva Convention II. This chapter deals also with the Red Cross Emblem.

18 Ch. V, pars. 246–350, incorporating Geneva Convention IV, apart from the rules dealing with civilian persons in belligerent-occupied territory.

19 Ch. III, pars. 60–207, incorporating Geneva Convention III.

20 This paragraph is taken textually from Oppenheim-Lauterpacht, International Law, Vol. II, p. 259 (7th ed., 1952).

21 Par. 84b.

22 See Kunz, Josef L., “Die Koreanische Kriegsgefangenenfrage,” 4 Archiv des Völkerrechts 408–423 (1954)Google Scholar.

23 Par. 75.

24 Stone, Julius, Legal Controls of International Conflict 563 (New York, 1954)Google Scholar.

25 Thus, Oppenheim-Lauterpacht, op. cit. note 20 above, p. 422.

26 Op. cit. note 6 above, pp. 67–69.

27 Castrén, Erik, The Present Law of War and Neutrality 154 (Helsinki, 1954)Google Scholar.

28 Ch. VIII, pars. 495–511.

29 Par. 501.

30 Par. 509.

31 This paragraph is taken from Oppenheim-Lauterpacht, op. cit. at 569. Law of Naval Warfare, sec. 330 b(1) adds: “If an act, though known to the person to be unlawful at the time of commission, is performed under duress, this circumstance may be taken into consideration either by way of defense or in mitigation of punishment.”

32 Ch. VII, pars. 449–494.

33 Op. cit. 543, 545.

34 In this sense “unconditional surrender” was only applied to Germany. All the other enemy states were also required to surrender unconditionally, but the same term had a different legal meaning. Thus Japan’s unconditional surrender was preceded by negotiations in which the Allies accepted Japan’s condition of the continuance of Japan’s Emperor. In the case of Italy, notwithstanding her unconditional surrender, an ordinary armistice agreement was concluded.

35 Ch. VI. pars. 351–448.

36 This definition is taken from Oppenheim-Lauterpacht, op. cit., Vol. II, p. 434.

37 Par. 358.

38 “Under modern conditions, the distinction between public and private property is not always easy to draw. … It is often necessary to look beyond strict legal title and to ascertain the character of the property on the basis of the beneficial ownership thereof.” (Par. 394.)

39 The occupying Power is also “authorized to introduce its own currency or to issue special currency for use only in the occupied area, should the introduction or issuance of such currency become necessary. The occupant may also institute exchange controls, including clearing arrangements.” But such measures must not be utilized to enrich the occupant or to circumvent restrictions; debasement of currency by fictitious valuations or exchange rates, as well as failure to take reasonable steps to prevent inflation, are violative of international law. (Par. 430.)

40 Op. cit. 693–732.

41 Ibid. 732.

42 Ch. II, pars. 20–59.

43 See Kunz, “The Laws of War,” loc. cit. (note 11 above) 321–325.

44 Par. 49.

45 Par. 51.

46 Par. 54. Because Art. 23f of the Hague Regulations forbids only their “improper use.”

47 Manual, par. 56. Kunz, op. cit. (note 6 above) 84–85.

48 Par. 30. Thus also Spaight, Air Power and War Eights (3rd ed., 1947); Oppenheim-Lauterpacht, op. cit. 521; and the proposed Hague Air Warfare Rules, 1923; doubtful: Erik Castren, op. cit. 400.

49 Par. 36.

50 Par. 38 is restricted to this negative statement. Law of Naval Warfare, sec. 612, states that the U. S. is not a party to any treaty forbidding or restricting these methods of warfare and that it, therefore, “remains doubtful that, in the absence of a specific restriction established by treaty, a State legally is prohibited at present from resorting to their use.” Footnote 8 adds that poisonous gases and bacteriological weapons may be used only if and when authorized by the President.

51 In the same sense Law of Naval Warfare, sec. 613. Footnote 9 adds that nuclear weapons may be used by U. S. forces only if and when directed by the President.