10.2 The Code of Conduct, the Law of War, and Rules of Engagement
Key Takeaways
- The Code of Conduct has six articles and applies to every member of the armed forces at all times, in peace and in war, and especially when captured.
- Article V of the Code of Conduct limits a captured Soldier to giving name, rank, service number, and date of birth, and requires them to evade answering further questions to the utmost of their ability.
- The five principles of the law of armed conflict are military necessity, distinction, proportionality, humanity or the prohibition on unnecessary suffering, and honor.
- The Geneva Conventions require humane treatment of the wounded, the sick, prisoners of war, and civilians, and prohibit torture, reprisals, and attacks on protected persons and property.
- Every Soldier has a duty to report a suspected law-of-war violation through the chain of command and a duty to refuse a manifestly unlawful order.
The Code of Conduct, the Law of War, and Rules of Engagement
Core Principle: The Code of Conduct is a moral code, not a statute, but its guidance is backed by the UCMJ, and it applies to every member of the armed forces at all times. The law of armed conflict (LOAC) is binding international and domestic law. A board tests both because an NCO is the last leader between a stressed Soldier and a war crime.
1. The Code of Conduct — Six Articles
Article I
I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.
Establishes the Soldier's identity and the commitment that underlies everything that follows.
Article II
I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.
Individual surrender is never authorized. A leader may surrender a unit only when resistance is no longer possible and further fighting would serve no military purpose.
Article III
If I am captured I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.
Resistance continues after capture. Parole — a promise to the captor in exchange for release — and special favors are prohibited because they compromise the individual and the group.
Article IV
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.
The organizational article: the senior person present takes command, regardless of service.
Article V
When questioned, should I become a prisoner of war, I am required to give name, rank, service number, and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.
The "big four" — name, rank, service number, date of birth — is the only information required, and the Soldier evades further questions to the utmost of their ability.
Article VI
I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.
Accountability survives captivity: a Soldier remains responsible for their actions.
2. The Law of Armed Conflict
LOAC — also called the law of war — is binding on the United States by treaty and by customary international law. It rests on five principles:
| Principle | Meaning |
|---|---|
| Military necessity | Force may be used only to achieve the prompt submission of the enemy with the minimum expenditure of life and resources, and only against lawful objectives |
| Distinction | Combatants must be distinguished from civilians, and military objectives from civilian objects. Indiscriminate attacks are prohibited |
| Proportionality | Expected incidental civilian harm must not be excessive in relation to the concrete and direct military advantage anticipated |
| Humanity (unnecessary suffering) | Weapons, projectiles, and methods calculated to cause superfluous injury are prohibited |
| Honor (chivalry) | Prohibits perfidy — feigning surrender, misusing the red cross or a flag of truce — while permitting lawful ruses such as camouflage and decoys |
Protected persons and property
- Wounded and sick, whether friend or enemy
- Prisoners of war
- Civilians and civilian objects
- Medical personnel, chaplains, and medical facilities and transports displaying the distinctive emblem
- Cultural property, places of worship, and works containing dangerous forces
Absolute prohibitions
- Torture and cruel, inhuman, or degrading treatment — always, without exception, regardless of the detainee's status or what the enemy has done
- Attacking persons who are hors de combat — surrendered, wounded, or otherwise out of the fight
- Denying quarter — announcing that no survivors will be taken
- Reprisals against protected persons or property
- Using civilians as human shields
- Pillage and the taking of hostages
3. Handling Detainees: The Five S's and T
| Step | Action |
|---|---|
| Search | Search the detainee for weapons, documents, and equipment of intelligence value |
| Silence | Prevent detainees from communicating with one another |
| Segregate | Separate by rank, sex, and category to prevent organization |
| Safeguard | Protect from harm, including harm from your own forces, and provide food, water, and medical care |
| Speed | Evacuate to the collection point as rapidly as possible |
| Tag | Tag the detainee and their property with the capture data — date, time, place, capturing unit, and circumstances |
Detainees are treated humanely from the moment of capture, and captured medical supplies, personal protective equipment, and identity documents stay with the detainee.
4. Rules of Engagement
Rules of engagement (ROE) are commanders' directives that define when, where, against whom, and how force may be used. They are not the law of war; they sit inside it and are frequently more restrictive.
- Self-defense is never denied by ROE. Every Soldier retains the inherent right of self-defense and the right to defend others.
- Hostile act — an attack or other use of force against U.S. forces or designated persons and property.
- Hostile intent — the threat of imminent use of force.
- Positive identification (PID) — reasonable certainty that the proposed target is a legitimate military target — is required before engaging.
- Escalation of force measures — shout, show, shove, shoot; warning signage; and warning shots where authorized — are used when time and circumstances permit.
ROE cards are issued and rehearsed. A leader who cannot brief the ROE cannot enforce it.
5. Reporting Violations and Unlawful Orders
Every Soldier has a duty to report a suspected law-of-war violation. Report through the chain of command; where that is not possible or the chain is implicated, report to the judge advocate, inspector general, chaplain, or military police.
A Soldier has a duty to disobey a manifestly unlawful order. "I was following orders" is not a defense to a war crime. The test is whether a person of ordinary sense and understanding would know the order to be unlawful. Orders are presumed lawful, so the standard is high — but an order to kill a surrendered prisoner, to abuse a detainee, or to target civilians is unlawful on its face.
6. What the Board Is Really Asking
A LOAC question at a promotion board is a moral courage question. The graded answer is not the citation; it is whether you would stop it, report it, and take care of your Soldier afterward.
"First Sergeant, if I saw a Soldier in my squad mistreating a detainee, I would stop it immediately and physically separate them. I would safeguard the detainee and get medical attention if needed, report it to my platoon sergeant and commander right away, and preserve what I saw for the investigation. I would not question the Soldier as a suspect myself, and I would make sure the rest of the squad understood that humane treatment is not optional, First Sergeant."
Under Article V of the Code of Conduct, what information is a captured Soldier required to give?
Which law-of-armed-conflict principle prohibits attacks in which the expected incidental civilian harm would be excessive relative to the concrete and direct military advantage anticipated?
What does the 'Safeguard' step in detainee handling require?
A Soldier receives an order to shoot an enemy combatant who has clearly surrendered and is unarmed. What is the Soldier's obligation?