Misc Pub 27-8 Legal Handbook Commander’s 2019

b. Customary International Law

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CommandersLegalHandbook
ArmyDemLogProgramBriefing-Jan17

• Basic LOAC Principles
• Fundamental Guarantees
Return to Table of Contents 298 4. Implementation a. By US. Forces

b. Customary International Law
Even absent a treaty, the United States always follows certain principles. Beyond policy or doctrine, these customs are established by state practice and followed out of a sense of legal obligation in all operations or types of conflict. LOAC includes two main types of customary international law principles:
• Basic LOAC Principles: These include Military Necessity, Distinction/Discrimination, Proportionality, and Unnecessary Suffering/Humanity. These principles provide the starting framework for analyzing the legality of military operations. Section D below defines these principles in greater detail.
• Fundamental Guarantees: Certain acts are always prohibited by international law. While there is no definitive US. list, the following acts are prohibited genocide, slavery, murder or enforced disappearance, torture or other cruel, inhuman, or degrading treatment or punishment, prolonged arbitrary detention, systematic racial discrimination, rape, or a consistent pattern of gross violations of internationally recognized human rights. These are behaviors beyond the boundaries of honorable combat, and generally accepted as illegal.
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298
4. Implementation
a. By US. Forces
A variety of statutes, regulations, doctrine, and directives implement LOAC for US. forces. Notable examples include the Uniform Code of Military Justice (UCMJ), 10 US. Code Section 2441 (the war crimes statute, FM 27-10 (LOAC generally, CJCSI B (standing rules of engagement/rules for use of force, JP 3-60 and ATP 3-60 (targeting, AR 190-8 detainee operations, and numerous other references.
Mission-specific rules of engagement (ROE, tactical directives, and standard operating procedures also implement and must comply with LOAC. These vital documents authorize military action tailored to the overall mission. While ROE change with the mission, LOAC obligations apply in all operations. ROE serve as a Commander’s tool to honor those obligations. Chapter 48 discusses ROE in more detail.

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