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TitleTC 31-20 (ID) new (Dec09)
TagsInsurgency Resistance Movements Special Forces (United States Army) Leadership & Mentoring Leadership
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Page 1

TC 31-20

Special Forces
Unconventional Warfare

December 2009






DISTRIBUTION RESTRICTION: Distribution authorized to U.S. Government agencies and their contractors
only to protect technical or operational information from automatic dissemination under the International
Exchange Program or by other means. This determination was made on 1 December 2009. Other requests for
this document must be referred to Commander, United States Army John F. Kennedy Special Warfare Center
and School, ATTN: AOJK-DTD-SF, Fort Bragg, NC 28310-9610.

DESTRUCTION NOTICE: Destroy by any method that will prevent disclosure of contents or reconstruction
of the document.

FOREIGN DISCLOSURE RESTRICTION (FD 6): This publication has been reviewed by the product
developers in coordination with the United States Army John F. Kennedy Special Warfare Center and School
foreign disclosure authority. This product is releasable to students from foreign countries on a case-by-case
basis only.

Headquarters, Department of the Army

The material in this draft is under development. It is NOT
DA-approved and CANNOT be used for reference or citation.

I N I T I A L D R A F T

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Concept of Employment

1 December 2009 (Initial Draft) TC 31-20 3-17

GENEVA CONVENTIONS COMMON ARTICLE 3
3-96. Common Article 3 exists in each of the four Geneva Conventions of 1949. It provides the primary
source of rights and duties of persons participating in noninternational armed conflicts. The touchstone of
Common Article 3 is the humane treatment of all detainees.

3-97. Common Article 3 has two parts. The first part provides that persons taking no active part in the
hostilities, including members of armed forces who have laid down their arms and those out of combat
because of sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely.
Humane treatment specifically excludes—

Violence to life and person; in particular, murder, mutilation, torture, or any cruel treatment.
Hostage taking.
Outrages upon personal dignity; in particular, humiliating and degrading treatment.
Passing of sentences and carrying out executions without previous judgment pronounced by a

regularly constituted court affording all the judicial guarantees that civilized peoples recognize
as vital.

3-98. The second part of Common Article 3 requires collecting and caring for the wounded and sick. It
does not grant POW status or combatant immunity to insurgents or irregular forces. It does require the
government to grant them a fair trial in a regularly constituted court before carrying out the court’s
sentence after a guilty verdict. Common Article 3 incorporates basic human rights. Human rights also
include other rights embodied in the phrase “life, liberty, and the pursuit of happiness,” such as the right of
free speech, freedom of worship, and freedom of the press. U.S. personnel who notice suspected violations
of basic human rights must report the facts to their chain of command.

3-99. Per U.S. law, all U.S. forces must comply with Common Article 3. The basic test for humane
treatment is a simple golden rule-like test: if the enemy were to give the same treatment to a U.S. Soldier,
would the individual consider it abuse? If so, that treatment is probably inhumane. Note that the specific
requirements for any particular detainee in U.S. custody may exceed the minimum standards of Common
Article 3. Commanders must coordinate closely with their legal advisor regarding any detainee in U.S.
custody.

3-100. Critical to building the legitimacy of any irregular forces under international law is engendering a
respect for and adherence to FM 27-10. Humane treatment and respect of the civilian population is also
nearly always an essential element in establishing the legitimacy of irregular forces in the view of the
subject population. Accordingly, SF should not only comply with FM 27-10 as U.S. law requires but
should also recognize the mission-enhancing potential of furthering irregular forces’ respect for humane
treatment and FM 27-10.

LEGAL STATUS OF UNITED STATES FORCES
3-101. U.S. forces performing a UW mission are not automatically immune from the jurisdiction of other
nations. Commanders must coordinate with their legal advisor to find out the legal status of their personnel
and try to obtain any necessary protection if there is no applicable international agreement.

3-102. Usually, anyone present in a foreign nation’s territory is subject to its jurisdiction. Jurisdiction is
the legal power a sovereign nation has to make and enforce its laws without foreign direction or control.
When a nation’s troops enter a friendly foreign country, international law subjects them to the territorial
jurisdiction of that nation and any jurisdiction that, because of their status, the sending state wishes to
exercise. U.S. military forces are always subject to the UCMJ. U.S. policy is to maximize U.S. jurisdiction
over the armed forces it may deploy to a foreign nation. International agreement, either by Status of Forces
Agreement (SOFA), diplomatic notes or agreements, or unique mission or emergency agreements define
the legal status of U.S. forces in a foreign nation. Normally, these agreements give the United States
exclusive jurisdiction over U.S. forces, and U.S. military personnel are not subject to HN laws and law
enforcement for anything done in the performance of official duty. However, each agreement is
individually negotiated, and the level of protection from a given nation’s jurisdiction (and prosecution) can
vary from complete protection to none. Accordingly, planners must analyze each operation under the

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Chapter 3

3-18 TC 31-20 1 December 2009 (Initial Draft)

specific agreements and authorities regarding the nation or nations in question. U.S. forces performing a
UW mission are not automatically immune from HN jurisdiction. Commanders must coordinate with their
legal advisor to find out the legal status of their personnel and try to obtain any necessary protection if
there is no applicable international agreement.

3-103. The Treaty of Rome, or Rome Statute, entered into force in 2002 and established the International
Criminal Court (ICC) as a court in which certain criminal violations of international law may be
prosecuted. The United States is not a party to the treaty; however, many nations around the world are
(110 as of the date of this manual). Accordingly, absent an agreement with the subject nation that U.S.
forces are not subject to ICC jurisdiction by that nation, U.S. Soldiers could face prosecution. The United
States has executed many agreements with nations around the world to prevent prosecution of
U.S. Soldiers in the ICC. However, commanders and planners should work closely with their legal advisors
concerning any implications the Treaty of Rome or ICC may have on any specific operation or mission.

3-104. In situations where there are no agreements in place that establish the status of U.S. Soldiers in a
given nation, many of the protections of the Geneva Conventions should still apply under customary
international law principles. In an international armed conflict involving the United States, the Geneva
Conventions typically entitle U.S. Soldiers typically to POW status. However, certain conduct may cause
U.S. Soldiers to lose that protected status, primarily through concealing their status as U.S. Soldiers using
nonstandard uniforms or civilian clothing, or committing acts of treachery or disloyalty. In a
noninternational armed conflict, under customary international law, Common Article 3 should entitle
U.S. Soldiers with its minimum protections. However, SF planning and engaging in UW operations should
understand the possibility that, depending on their particular circumstances, a given nation may subject
them to ordinary criminal jurisdiction.

LEGAL STATUS OF IRREGULAR FORCES
3-105. Legal status of irregular forces is a fluid and fact-specific determination that can change during the
course of UW operations. Commanders should work closely with their legal advisors regarding the
determination of legal status for any irregular forces SF interact with.

3-106. In general, the full protections under the Geneva Conventions do not apply to irregular forces.
Whether any protections and, if so, what protections apply, depends on the type of conflict and the type of
person at issue. Members of irregular forces are not automatically given the protections of the Geneva
Conventions.

3-107. Under the Geneva Conventions, several factors influence the determination of protected status for
irregular forces. Typically, when protections apply to irregular forces under the Geneva Conventions, the
protections are those of Common Article 3. However, in certain instances, higher protections than
Common Article 3 may apply. The factors for determining whether and what protections apply under the
Geneva Conventions are nonbinding, and no specific checklist applies. Any determination of protections
for irregular forces under the Geneva Conventions should be based on a totality of the circumstances,
focusing on the listed factors and other relevant information. The traditional factors under Article 4,
Geneva Convention III (Treatment of Prisoners of War) to determine entitlement of POW status include
the following:

Have a superior responsible for subordinates (some form of adequate C2).
Wear a fixed, distinctive sign recognizable at a distance (no requirement for a full uniform, but

some method to distinguish members of the force from the civilian population).
Carry arms openly.
Conduct operations IAW FM 27-10.

3-108. Related factors to determine relevant protections under the Geneva Conventions include:
The control of territory.
The consistency of acts and conflict.
The response or lack of response from the government in question, using regular forces or

civilian law enforcement. Response from regular armed forces could indicate a

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1 December 2009 (Initial Draft) TC 31-20 References-1

References

REQUIRED REFERENCES
These documents must be available to intended users of this publication.

None

RELATED PUBLICATIONS
These documents contain relevant supplemental information.

Army Publications
DA Form 2028, Recommended Changes to Publication and Blank Forms
FM 2-22.3, Human Intelligence Collector Operations, 6 September 2006
FM 3-05.40, Civil Affairs Operations, 29 September 2006
FM 3-24, Counterinsurgency, 15 December 2006
FM 27-10, The Law of Land Warfare, 18 July 1956
GTA 31-01-003, Detachment Mission Planning Guide, 1 March 2006

Joint Publications
JP 3-24, Counterinsurgency, 5 October 2009

Other Publications
United States codes are available at http://www.gpoaccess.gov/uscode/index.html.

Department of Defense Directive (DODD) 3000.07, Irregular Warfare, 1 December 2008
Geneva Conventions
Hague Conventions of 1907
Public Law 108-375, Section 1208
UCMJ
USC, Title 10, Section 167(j)
USC, Title 18, Section 3261
USC, Title 50

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