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Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.
--- Supreme Court Justice Oliver Wendell Holmes

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  • See also the Laws of War section below

  • See also the Military Commissions - Tribunals section above

  • See also Iraqi War Crimes on Conflict 21 website

  • Charging War Crimes: A Primer for the Practitioner (local copy), by White, in The Army Lawyer, Feb 2006
    • This primer provides the practitioner with a framework for determining the proper method for charging an American servicemember accused of committing war crimes. Compared to charging traditional offenses, charging war crimes offers more options and potential pitfalls to the trial counsel drafting the charge sheet.

  • Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations (local copy), by Smidt, in Military Law Review, Vol 164 - "the article looks at U.S. policy in terms of charging U.S. soldiers with war crimes"

  • Office of War Crimes Issues, State Department

  • International Criminal Tribunal for the former Yugoslavia (ICTY), U.N.

  • From the UN factsheet on the International Criminal Court

      Genocide is defined as a list of prohibited acts, such as killing or causing serious harm, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

      As set out in the Statute, crimes against humanity include crimes such as the extermination of civilians, enslavement, torture, rape, forced pregnancy, persecution on political, racial, national, ethnic, cultural, religious or gender grounds, and enforced disappearances - but only when they are part of a widespread or systematic attack directed against a civilian population.

      The "widespread or systematic" qualification for crimes against humanity is very important, as it provides a higher threshold, requiring a particular magnitude and/or scope before a crime qualifies for the Court's jurisdiction. This differentiates random acts of violence - such as rape, murder, or even torture - that could be carried out, perhaps even by soldiers in uniform, but which may not actually qualify as crimes against humanity.

      War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs that can be applied in international armed conflict, and in armed conflict "not of an international character", as listed in the Statute, when they are committed as part of a plan or policy or on a large scale.

  • Convention on the Prevention and Punishment of the Crime of Genocide, 1948

  • Human Shields
  • Article 51 of the 1977 amendment to the 1949 Geneva Conventions
    • The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
InvestigationBack to Top DoD ResourcesBack to Top Uniform Code of Military Justice (UCMJ)Back to Top Manual for Courts-Martial (MCM)Back to Top Innocent Until Proven GuiltyBack to Top
  • The Uniformed Code of Military Justice states
      (c) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them -
        (1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
        (2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;
        (3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
        (4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States.

  • The Armor: Recent Developments in Self-Incrimination Law (local copy), by Sitler, in The Army Lawyer, May 2000

War Powers ResolutionBack to Top Use of ForceBack to Top
  • see also Congressional Research Service (CRS) reports on Use of Force

  • see also Schmitt Analysis at Cyberspace and Information Operations Study Center - regarding one method of determining if an action qualifies as a "use of force" - including info-ops activity

  • United Nations Charter, Chapter 1, Article 2, Principles 4 and 5
    1. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
    2. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
  • United Nations, Article 51
    • Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

  • Counter-Terrorism and the Use of Force in International Law (local copy), by Schmitt, George C. Marshall European Center for Security Studies

  • Law of War Workshop Deskbook 2005 (local copy), posted Sep 2004, International and Operational Law Department, Judge Advocate General's School, US Army, Charlottesville, VA
    • particularly good discussion of the history of laws of war, jus ad bellum, jus in bello, and legal basis for use of force
    • be sure to check from other sources for updates since this handbook was published - for instance, in the area of prisoners of war and detainees

Laws of War and Laws in WarBack to Top Protecting Cultural PropertyBack to Top Rules of Engagement (RoE)Back to Top Preventive and PreemptiveBack to Top
  • DoD Dictionary of Military Terms

    • preemptive attack - (DOD) An attack initiated on the basis of incontrovertible evidence that an enemy attack is imminent

    • preventive war - (DOD) A war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk

    • preventive deployment - (DOD) The deployment of military forces to deter violence at the interface or zone of potential conflict where tension is rising among parties. Forces may be employed in such a way that they are indistinguishable from a peacekeeping force in terms of equipment, force posture, and activities. See also peace enforcement; peacekeeping; peace operations.
Assassination - ProhibitionBack to Top Laws of War - PeacekeepingBack to Top Posse Comitatus & Aiding CiviliansBack to Top EvidenceBack to Top Air Force Law PubsBack to Top Army Law PubsBack to Top Web Virtual Law LibraryBack to Top
  • Law on the Internet, WWW Virtual Library, maintained by Indiana University Law School
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  • Property Law, WWW Virtual Library, choose from topic list
  • Taxation, WWW Virtual Library, choose from topic list
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Establishing Rule of LawBack to Top

Civil-LawBack to Top
  • A Primer on the Civil-Law System (local copy), by Apple and Deyling, for Federal Judicial Center (FJC)

      Civil law is the dominant legal tradition today in most of Europe, all of Central and South America, parts of Asia and Africa, and even some discrete areas of the common-law world (e.g., Louisiana, Quebec, and Puerto Rico). Public international law and the law of the European Community are in large part the product of persons trained in the civil-law tradition. Civil law is older, more widely distributed, and in many ways more influential than the common law.

      Despite the prominence of the civil-law tradition, judges and lawyers trained in the common-law tradition tend to know little about either the history or present-day operation of the civil law. Beyond the most basic generalities—e.g., the common law follows an "adversarial" model while civil law is more "inquisitorial," civil law is "code-based," civil-law judges do not interpret the law but instead follow predetermined legal rules—judges and lawyers from the United States seldom have any deeper sense of the civil-law tradition.

      This overview is designed for judges and lawyers who seek to expand their knowledge of the civil-law tradition and who might wish to consider the civil law system as a source of legal reforms

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