US Army Africa (USARAF) Pamphlet 200-04 - Cultural-Historic-Natural Resource Protection During...

HEADQUARTERS USARAF Pamphlet 200-4UNITED STATES ARMY AFRICA (USARAF)APO AE 09630 18 September 2012

Environmental Quality

Cultural, Historical, and Natural Resource Protection during African Operations

*This is Revision 1 of USARAF Pamphlet 200-4

For the Commanding General (CG):

PEDRO G. ALMEIDAColonel, GSChief of Staff

Official:

EUNICE J. SOHNCommand Directives Officer

Summary.

a. This pamphlet is applicable to United States (US) forces conducting operations in Africa operating under the control of US Army Africa (USARAF) or applicable joint task forces (JTF). The intent of this pamphlet is to provide guidance on the protection and management of recognized cultural, historic, and natural resources that may be placed at risk due to the conduct of the full spectrum of US ground operations and associated close air/naval support operations.

b. Guidance for the conduct of Civil Affairs (CA) activities related to working with Host Nations (HN), inter-governmental organizations (IGO), and/or non-government organizations (NGO) on efforts to promote the protection and management of recognized resources is provided in Annex K of the governing operations order and applicable USARAF guidance documents developed by the USARAF G-39.

USARAF Pam 200-4 “Cultural, Historical, and Natural Resource Protection during African Operations”

Applicability.

a. The guidance in this pamphlet is applicable to US forces in the African Theater of Operations under the control of USARAF or applicable JTF.

b. Nothing in this pamphlet shall be construed to create, modify, alter, or amend any existing:

(1) International/multilateral international agreement.

(2) Bilateral agreement between the United States of America (USA) and any African Host Nation.

(3) Obligation or requirement on the part of the USA.

(4) US government regulation as it may pertain to the US military.

c. Nothing in this pamphlet shall create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the US, its agencies, its officers, or any person.

Supplementation. Supplementation of this pamphlet and establishment of command and local forms are prohibited unless prior approval is obtained from the CG, USARAF and/or applicable JTF commander.

Forms.

Records Management. Records created as a result of processes prescribed by this pamphlet must be identified, maintained, and disposed of according to AR 25-400-2. Record titles and descriptions are available on the Army Records Information System website at https://www.arims.army.mil.

Suggested Improvements. The proponent of this pamphlet is the command engineer, USARAF. Users may suggest improvements to this pamphlet by sending a DA Form 2028 (Recommended Changes to Publications and Blank Forms) to the command engineer, USARAF.

Distribution. Electronic Media Only.

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https://www.arims.army.mil/


Table of Contents

1.0. USARAF Guidance

1.1. USARAF Goals1.2. Roles and Responsibilities

1.2.1. Commanders1.2.2. Operational Planners1.2.3. Engineer (Environmental)1.2.4. Civil Affairs (CA)1.2.5. Legal1.2.6. Public Affairs (PAO)

1.3. Regulatory Requirements1.2.1. US Requirements 1.2.2. Non-US Requirements

1.4. Military Necessity1.5. Resource Classification

1.5.1. Protected Property1.5.1.1. Geneva IV protections1.5.1.2. No-Strike List protections

1.5.2. Recognized Resources1.5.2.1. Cultural/Historic Resources1.5.2.2. Natural Resources1.5.2.3. Mixed Recognized Resources 1.5.2.4. Other Recognized Resources

1.5.3. Host Nation/IGO/NGO Support Personnel and Resources

2.0. Pre-Operational Planning Guidance

2.1. Environmental Resources/Sites Database 2.2. Course of Action (COA) Assessments2.3. Immunity Status Violations 2.4. Unit Training Activities.

3.0. Guidance during Operations

3.1. Conduct of Operations3.2. Previously Unidentified Resources3.3. Resources under US Control3.4. Host Nation/IGA/NGO Coordination 3.5. Relinquishing Control of Resources 3.6. Preventing Illegal Trade of Resources3.7. Private Possession of Artifacts

REFERENCES

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United States Army, 06/15/12,

Protocol I HAGUE 54, Article 1, “Each High Contracting Party undertakes to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on 14 May, 1954.”Protocol I HAGUE 54, Article 4, “The High Contracting Party whose obligation it was to prevent the exportation of cultural property from the territory occupied by it, shall pay an indemnity to the holders in good faith of any cultural property which has to be returned in accordance with the preceding paragraph.”Protocol II, HAGUE 54, Article 9, “1. Without prejudice to the provisions of Articles 4 and 5 of the Convention, a Party in occupation of the whole or part of the territory of another Party shall prohibit and prevent in relation to the occupied territory: a. any illicit export, other removal or transfer of ownership of cultural property; b. any archaeological excavation, save where this is strictly required to safeguard, record or preserve cultural property; c. any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence. 2. Any archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close co-operation with the competent national authorities of the occupied territory.”


Appendix 1 - International Union for the Conservation of Nature (IUCN) Categories of Wildland Management

Appendix 2 - International Agreements with African scope

Appendix 3 – Excerpts from Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3160.01, “No-Strike and the Collateral Damage Estimation Methodology”

Appendix 4 – Military Necessity and Underlying Principles

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1.0. USARAF Guidance.

a. Protection of the cultural and natural heritage of African peoples is an inherent task for every operation US forces may conduct in Africa. When conducting operations, US personnel will take every reasonable precaution, consistent with the demands of mission requirements and the rules of engagement to minimize damage to the physical artifacts and natural heritage that comprise the cultural patrimony of African peoples.

b. Though the physical artifacts of the cultural and natural heritage of Africa may be irreplaceable, no artifact is worth a human life. At no time will the protection of these artifacts take precedence over the inherent and essential right of collective or individual self-defense, or the requirement to keep people from avoidable risk.

c. US forces will conduct activities to protect and manage cultural and natural resources in compliance with applicable and appropriate US requirements, respecting the sovereignty of host nations, and in compliance with the provisions of applicable international and/or bilateral treaties /conventions ratified by the United States.

d. The unauthorized acquisition, possession, sale, or shipment of recognized resources (see section 1.5 and associated subsections for clarification of resource classifications) by US military and civilian personnel, or personnel accompanying US forces is strictly prohibited.

1.1. USARAF Goals:

a. US forces will:

(1) Avoid conducting activities that may result in adverse impacts to recognized resources except where such activities are justified by military necessity,

(2) Conduct operations in accordance with the requirements of applicable US, Host Nation, and international agreements, and

(3) Take such actions as may be reasonable and prudent to safeguard those resources under US control from harm.

b. In order to achieve these goals US Army Africa will:

(1) Provide US forces with the knowledge necessary to incorporate appropriate measures in operations plans to minimize the potential of unauthorized or inadvertent harm occurring to recognized cultural, historic, and/or natural resources.

(2) Ensure Commanders have visibility on recognized resources within their area of operations and the ability to make informed decisions on courses of action that minimize the potential for adverse impacts to those resources.

5

1280785942, 09/10/12,

Recommend a separate numbered paragraph here. – Accepted & done

1280785942, 09/10/12,

Recommend adding the following to the end of this sentence: “ratified by the United States.” This recommendation is to avoid this section being used in a Customary International Law (CIL) argument against the U.S. that provisions in treaties covering this subject matter, but not ratified by the U.S., have been adopted here as CIL. CIL can arise from a consistent practice by states that is done following a sense of legal obligation. – Accepted & done

1280785942, 09/10/12,

Change to “conduct” in Africa. – Accepted & done


(3) Ensure recognized resources coming under the control of US forces are adequately secured and managed.

(4) Rapidly transfer control of recognized resources to applicable responsible parties.

(5) Ensure compliance with applicable United States, African Host Nation, and International requirements.

1.2. Roles and Responsibilities

1.2.1. Commanders – Commanders are responsible for ensuring operations conducted by forces under their command are performed in accordance with all applicable US, host nation, and international laws, conventions, regulations, policy, and guidance. Commanders determine when actions that may result in the damage or destruction of recognized resources are justified by military necessity, and ensure those actions are conducted in a manner that minimizes the risks and damage to protected resources. Commanders ensure recognized resources under the control of their forces are secured from harm, and that host nation, intergovernmental organizations, and/or non-governmental organizations accorded recognized status are not hindered in the conduct of their authorized duties.

2.1.2. Operational Planners – Staff sections responsible for the planning of ground and associated close air/naval support operations are responsible for ensuring known recognized resources within the anticipated area of operations have been identified, that courses of action (COA) have been evaluated to ensure risks to protected resources are unavoidable, and that risk mitigation procedures are incorporated into operational plans and orders.

1.2.3. Engineer (Environmental) - Engineering functions are divided into two main areas, combat engineering and general engineering. General engineering consists of those engineer capabilities and activities, other than combat engineering that modify, maintain, or protect the physical environment; this includes the protection of natural and cultural resources. In coordination with other applicable staff sections the environmental branch of the Engineer staff will provide guidance and direction to units on actions to protect and manage cultural, historic, and natural resources. This guidance is found in Annex L of the applicable operations order, USARAF Regulation 200-2, and this pamphlet.

a. Planning Activities – These will include the identification of recognized cultural, historic, and natural resources in the area of operations, and the generation of products to support the development of operational plans and/or the planning and conduct of events to prepare US personnel to conduct operations. Planning activities will be conducted jointly with applicable USARAF staff sections (i.e., Staff Judge Advocate, G-9 Civil Affairs) and external organizations. These activities may include but may not be limited to:

(1) Coordination with DOD and non-DOD agencies of the US Government (USG), Host Nations (HN), Inter-Governmental Organizations (IGO), and Non-Governmental Organizations

6

1280785942, 09/10/12,

Recommend changing to “conducted jointly” here. – Accepted & done


JP 3-34 Chap I §6.a(2) (pa. I-2)

1280785942, 09/10/12,

Recommend replacement with a comma. – Accepted & done

1280785942, 09/10/12,

Host Nation. – Accepted & done


(NGO); purpose of this coordination is to collect/verify information on resources.

(2) Creation of country/regional papers/presentations containing information on those geographic areas and the cultural/historic/natural resources found within them.

(3) Creation of an Africa-wide database containing information on resources; if possible this database will be compatible with existing graphic information systems (GIS) used by the US military.

(4) Generation of hardcopy and electrical versions of maps and operational overlays illustrating resource locations.

(5) Development of instructional materials and the conduct of training on the protection and management of cultural, historic, and natural resources.

b. Operational Activities - During the conduct of operations the environmental staff will:

(1) Provide assistance and advice to units to minimize the potential for protected/ recognized cultural, historic, and natural resources to be damaged or destroyed.

(2) Coordinate with other applicable staff sections for support and technical expertise.

(3) Facilitate the safe and speedy transfer of resources under the control of US forces to appropriate non-DOD USG agencies, African HNs, IGOs, and if applicable NGOs.

1.2.4. Civil Affairs (CA) - CA units have subject matter experts (SME) capable of providing technical guidance and assistance with locating, identifying, preserving, and protecting cultural property. When available these SMEs will provide support during both the planning and conduct of operations and may be assigned the technical lead on certain activities. These activities may include but may not be limited to:

a. Planning Activities – CA SMEs will provide expert technical assistance during the conduct of planning activities. These activities may include:

(1) Supporting the conduct of coordination with DOD and non-DOD agencies of the US Government (USG), African Host Nations (HN), Inter-Governmental Organizations (IGO), and Non-Governmental Organizations (NGO); purpose of this coordination is to collect/verify information on resources.

(2) Supporting the creation of country/regional papers/presentations containing information on those geographic areas and the cultural/historic/natural resources found within them.

(3) Supporting the development of instructional materials and the conduct of training on

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james.j.hourican, 06/27/12,

CJCSI 3160.01, Enclosure C, § 3.b. “No-Strike entities require the same accuracy in location and geospatial definition as that of lawful military targets. Accurate positioning and geospatial development of No-Strike entities and identification of collateral damage/effects concerns is part of both the deliberate and dynamic targeting processes and is a continuous process that does not end when military operations commence (see reference e for detailed discussion on the deliberate and dynamic targeting processes). The continuous identification and development of No-Strike entities, well in advance of and throughout military operations, is critical to campaign success.”CJCSI 3160.01, Enclosure C, Appendix B, § 2.d. “Once generated and saved, the NSL can be displayed as an overlay in battle management systems such as the Global Command and Control System (GCCS) and JADOCS. Combining NSL entities in an overlay with geospatial intelligence, tasking and/or fires orders, and other operational data provides target planners enhanced situational awareness in collateral damage avoidance, particularly for dynamic targeting.”CJCSI 3160.01, Enclosure C, Appendix B § 4.d.“Combatant commands are encouraged to automate the process of associating No-Strike entities to the NSL based on country and DIA-approved CATCODEs. This automated process ensures that the NSLs are continuously updated and reflect the latest intelligence available. In this situation, the concept of the NSL approval can now be accomplished through having the automated NSL generation approved. In other words, if appropriate authority within the combatant command approves of the CATCODES used for the NSL and the automated process by which an NSL is generated, then the NSL itself is approved.”

1280785942, 09/10/12,

Recommend changing to “Africa-wide” here. – Accepted & done


the protection and management of cultural, historic, and natural resources.

b. Operational Activities:

(1) Provide technical expertise and advice on measures to minimize the potential of recognized cultural, historic, and natural resources being damaged or destroyed.

(2) Provide technical expertise and advice to identify, determine ownership, and safeguard previously unknown cultural/historic resources located during the course of operations.

(3) Provide technical expertise and advice on protecting, preserving, and restoring recognized resources.

(4) Assist in verifying the capabilities/willingness of African HNs, IGOs, and if applicable NGOs to take control of and adequately protect and manage resources under the control of US forces.

(5) Facilitate coordination for the safe and speedy transfer of resources under the control

of US forces to appropriate non-DOD USG agencies, African HNs, IGOs, and if applicable NGOs.

(6) Function as the primary point of contact for support between US forces and African HNs, IGOs, and/or NGOs responsible for the protection/management of recognized resources located with the area of operations.

(7) Representatives of Civil Affair Units may be included in Joint Environmental Management Board (JEMB) activities related to recognized resources.

c. Beyond actions to support maneuver units, Civil Affairs Units may advise and assist in establishing the technical requirements for government, community, and private systems and agencies to protect, preserve, and restore cultural/historic property. These activities will be governed by Annex K of the applicable operations order and applicable CA guidance.

1.2.5 Legal Advisors – The Staff Judge Advocate (SJA) staff provides legal advice on issues related to the protection and management of recognized resources. The SJA staff will provide legal opinions on:

a. The compliance of operations with the requirements of applicable US law, Host Nation law, and International Agreements.

b. The legal sufficiency of military necessity determinations.

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c. The ownership of movable protected resources and disposition of those resources under the control of US forces.

1.2.6 Public Affairs Office (PAO) – PAO will serve as the point of contact for all information inquiries related to actions taken by US forces to comply with applicable US law, Host Nation law, and International Agreements. PAO will prepare information releases on actions taken by US forces to minimize adverse impacts to recognized resources, to secure those resources from harm, and to assist Host Nation, Inter-governmental, and/or Non-governmental organizations with the protection & management of those resources. PAO will review information published by non-DOD entities for accuracy, and attempt to correct any inaccuracies that may be published when appropriate.

1.3. Regulatory Requirements.

1.3.1. US Requirements.

a. With one exception, United States (US) laws and associated implementing instructions concerned with the protection of cultural, historic, and natural resources do not have explicit extra-territorial application (the US Congress did not intend for these laws to regulate conduct beyond the borders of the US). The exception is the National Historic Preservation Act Amendments of 1980, Section 402 states,

“Prior to the approval of any Federal undertaking outside the US which may directly and adversely affect a property which is on the World Heritage List or on the applicable country's equivalent of the National Register, the head of a Federal agency having direct or indirect jurisdiction over such undertaking shall take into account the effect of the undertaking on such property for purposes of avoiding or mitigating any adverse effects.”1

The scope of resources covered by an “applicable country's equivalent of the National Register” has the potential to be much wider than those resources normally included in the US National Register. Resources included in these registers may include endangered species, creative artists, and/or cultural practices.

b. The US is a party to a number of international agreements concerned with the protection of cultural, historical and/or natural resources. As a party to these agreements, the US is required to comply with the provisions of those agreements. Violations of the provisions of the Conventions regarding the illegal or unauthorized acquisition and/or willful or wrongful damaging or destruction of property is punishable under the Uniform Code of Military Justice (UCMJ)2.

1 National Historic Preservation Act Amendments of 1980, Section 4022 United States Code (USC), Title 10, Chapter 47, “Uniformed Code of Military Justice”, Subchapter X, “Punitive Articles” §§ 877-934)

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(1) 1949 Geneva IV Convention (GENEVA IV).3 This agreement and its first Protocol restrict attacks to military objects4, and prohibit the destruction of all civilian property unless justified by military necessity5. Additional clarification specifying the protection of cultural objects and the natural environment is provided in the 1977 Protocols6.

(2) 1954 Hague Convention (HAGUE 54).7 The purpose of the Convention is to establish procedures to ensure the continued preservation of specific resources considered to be, “…of great importance to the cultural heritage of every people”8, rather than all civilian property. As a result, protections under this convention are much more restrictive than those in Geneva IV convention. With some minor additions the resources listed in this document as protected resources are essentially the same as those identified in HAGUE 54

(a) The Convention requires Parties to take steps to protect resources in times of peace, to not take actions that would make those resources military objectives, to avoid intentionally damaging those resources during conflicts unless justified by military necessity, and to deter the theft or vandalism of those resources.

(b) The convention provides protected status to applicable resources9, and provides for the granting of special protection to identified resources10. The Convention states that the requirement to respect protected cultural resources may only be waived, “…in cases where military necessity imperatively requires such a waiver,”.11 In the case of resources accorded special protection status, “…immunity shall be withdrawn from cultural property under special protection only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues.”12

(3) 1970 UNESCO Cultural Property Convention.13 This agreement focused on stopping the illicit trade of cultural property. Parties to this agreement are required to prohibit the import, export, or transfer of ownership of illegally acquired artifacts.

(4) 1971 Ramsar Convention.14 This agreement provides for the protection of wetlands

3 “Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War ”, (GENEVA IV), 12 August 1949, Geneva, Switzerland4 Protocol I, GENEVA IV, Article 525 GENEVA IV, Article 53 6 Protocol I, GENEVA IV, Articles 53 + 557 “Convention for the Protection of Cultural Property in the Event of Armed Conflict”, (HAGUE 54) 14 May 54, The Hague, Netherlands8 HAGUE 54, Article 1.(a)9 HAGUE 54, Article 4.10 HAGUE 54, Article 8.11 HAGUE 54, Article 4.212 HAGUE 54, Article 1113 “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property”, 14 November 197014 “Convention on Wetlands of International Importance Especially Waterfowl Habitat” and 1982 Protocol, 2 February 1971

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HAGUE 54, Article 4.2, “The obligations mentioned in paragraph [4.]1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.”


HAGUE 54, Article 8, “There may be placed under special protection a limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres containing monuments and other immovable cultural property of very great importance, provided that they: (a) are situated at an adequate distance from any large industrial centre or from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broad-casting station, establishment engaged upon work of national defense, a port or railway station of relative importance or a main line of communication; (b) are not used for military purposes.”HAGUE 54, Article 9, “The High Contracting Parties undertake to ensure the immunity of cultural property under special protection by refraining, from the time of entry in the International Register, from any act of hostility directed against such property and, except for the cases provided for in paragraph 5 of Article 8, from any use of such property or its surroundings for military purposes."


HAGUE 54, Article 4, “…respect cultural property situated within their own territory as well as within the territory of other … Parties by refraining from any use of the property and its immediate surroundings … for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.”


HAGUE 54, Article 4.3 “The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.”


Protocol II, HAGUE 54, Article 6, “With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention: a. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to direct an act of hostility against cultural property when and for as long as: i. that cultural property has, by its function, been made into a military objective; and ii. there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective; b. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage; c. the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise; d. in case of an attack based on a decision taken in accordance with sub-paragraph (a), an effective advance warning shall be given whenever circumstances permit."


HAGUE 54, Article 4.1, “The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property.”


Protocol III HAGUE 54, Article 5, “Preparatory measures taken in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict pursuant to Article 3 of the Convention shall include, as appropriate, the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property."


HAGUE 54, Article 3, “The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.”Protocol II, HAGUE 54, Article 5, "Preparatory measures taken in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict pursuant to Article 3 of the Convention shall include, as appropriate, the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property."


HAGUE 54, Article 1, “For the purposes of the present Convention, the term `cultural property' shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a); (c) centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as `centers containing monuments'."


GENEVA IV, Protocol I (1977), Article 53, “Without prejudice to the provisions of the Hague Convention …, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.”


GENEVA IV, Article 53, “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”


GENEVA IV, Protocol I (1977), Article 52.2, "Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."


of international importance. Terrain protected by this agreement may include fresh or saltwater marshes, fens, peat lands; permanent or temporary, static or flowing, natural or artificial bodies of water; and coastal marine environments with a depth of less than six meters (<6 m). Suitable wetlands within their territories are designated by host nations for inclusion on the list of sites.

(5) 1972 UNESCO World Heritage Convention.15 This agreement focuses on protected sites, which may include historic/cultural sites and/or natural resource sites. Sites are nominated by member nations for inclusion in the World Heritage listing. Cultural/historic sites must be judged to be of outstanding universal value from the point of view of history, art or science, while natural resource sites must be of outstanding universal value from the point of view of science, conservation, or natural beauty.

(a) In addition to sites on the listing, there is a tentative listing of sites that have been nominated by States but not yet adopted for inclusion by UNESCO.

(b) In addition to the World Heritage sites, since the 1970s UNESCO has managed Biosphere Reserves under its inter-governmental Man and the Biosphere (MAB) scientific program. The goals of the program are to study ways to reconcile the conservation of biological and cultural diversity with the demands for economic and social development. Consistent with other agreements, sovereign States nominate areas for designation as reserves. Operations conducted near or in these reserves must minimize the potential for interference with reserve operations.

(6) 1973 Treaty on Trade in Endangered Species.16 This agreement places strict limitations on the international trade of living examples of endangered species and products made from those animals. The agreement identifies what species are to be accorded protection, and establishes procedures to govern the conduct of international trade in specimens of specified species and by-products from those species.

In addition to species listed in the treaty, the US Government (US Fish & Wildlife Service) and the non-governmental International Union for the Conservation of Nature (IUCN) have identified additional species deemed to be at risk. The listing of at-risk species specified in the red list published annually by IUCN is much more extensive than that provided in the Treaty. The IUCN has also developed a classification system for nature conservation areas based upon a uniform set of criteria (see appendix 1).

(7) 1992 Convention on Biological Diversity.17 This agreement focuses on protecting the variety of life across the globe, concurrent with the fair and equitable use of renewable natural resources in a sustainable manner. Under this agreement States are to establish

15 “Convention Concerning the Protection of the World Cultural and Natural Heritage”, 23 November 197216 “Convention on International Trade in Endangered Species of Wild Fauna and Flora”, (CITES) 3 March 197317 “Convention on Biological Diversity”, (CBD) 5 June 1992

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Ramsar Convention Article 1, "1. For the purpose of this Convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres."


protected areas to conserve and promote biodiversity. Operations in areas identified as having a high level of biodiversity need to ensure activities do not adversely impact that biodiversity. The Cartagena Protocol18 to this agreement places controls on trans-boundary shipments of “living modified organisms”.

(8) 1994 Convention to Combat Desertification in Countries Experiencing Serious Drought and or Desertification, Particularly in Africa.19 This agreement is focused on territories such as the Sahel in northern Africa where precipitation is limited, vegetation is marginal, and drought threatens to transform the region into desert. Operations in these threatened environments need to be conducted in a manner that does not increase the risks of desertification.

(9) 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds.20 An outgrowth of the 1979 Convention on the Conservation of Migratory Species of Wild Animals21, the 1995 agreement focuses on efforts to protect waterbirds that transit between Africa and the Eurasian landmass. Under this agreement Parties agree to identify, protect, and or restore waterbird habitats within their territories, with special attention paid to endangered species of waterbirds.

1.3.2. Non-US Requirements.

a. US forces are required to respect the sovereignty of foreign States, to include laws focused on the protection of cultural, historic, and natural resources. Though African states have lagged behind Europe and the US in the enactment of legislation on this topic, they are quickly closing the gap. As part of the planning process an assessment of the legal and regulatory requirements for applicable African States will be conducted, and the findings of that assessment incorporated into operational plans.

b. Many African States have become parties to global and regional agreements focused on the protection of cultural, historic, and natural resources (see appendix 2 for listing of African agreements). Though the US may not be a Party to all of these agreements, the requirements of those agreements may impact operations since African States that are Party to those agreements have enacted, or can be expected to enact, legislation enforcing the provisions of those agreements.

c. The International Institute for the Unification of Provate Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects22 addresses the illicit international trade of cultural properties. The UNIDROIT convention focuses only on the recovery or restitution of stolen or

18 “Cartagena Protocol on Biosafety to the Convention on Biological Diversity”, 29 January 2000 19 “United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa” 17 June 199420 “Agreement on the Conservation of African-Eurasian Migratory Waterbirds” 16 June 199521 “Convention on the Conservation of Migratory Species of Wild Animals” (CMS), 1 November 197922 “International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects”, Rome, Italy, 24 June 1995

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illicitly exported artifacts, while the 1970 UNESCO Cultural Property Convention focused on both prevention and recovery of illegally trafficked artifacts. The United States is a member of UNIDROIT, but is not a Party to the 1995 convention. Only about 30 States are Party to this convention.

d. Established by the Rome Statute 23, the International Criminal Court (ICC) is a permanent tribunal established to prosecute individuals for the crimes of genocide, crimes against humanity, war crimes, and aggression. Under the provisons of the Rome Statute ,

“Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;”

are defined as war crimes during both international24 and non-international armed conflicts.25

(1) Over one hundred twenty (>120) foreign States, including twenty four (24) African States, are Party to the treaty, and to date most situations and cases brought before the ICC have been related to activities in Africa26.

(2) Though the US initially signed the treaty in 1998, in 2003 the US announced it did not intend to become a Party to the treaty, and was not legally bound by the requirements of the Statute. According to a 2006 Congressional Study Report,

“The primary objection given by the United States in opposition to the treaty is the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with “war crimes” resulting from legitimate uses of force, or its assertion of jurisdiction over other American officials charged for conduct related to foreign policy initiatives…”27

The US does support & provide assistance in response to specific requests from the ICC.

(3) The United States has been negotiating bilateral immunity agreements (Article 98 agreements) with potential Host Nation governments that stipulate those governments will not transfer US national to the jurisdiction ot the ICC. Over 100 such 98 agreements have been concluded, including agreements with thirty eight (38) African States28.

23 United Nations Treaty Series, Volume. 2187, No. 38544, (Document A/CONF.183/9), “Rome Statute of the International Criminal Court ” (ICC), Rome, Italy, 17 July 199824 ICC Article 8(2)(b)(ix)25 ICC Article 8(2)(e)(iv)26 http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/ 27 CRS Report RL31495, “US Policy Regarding the ICC”, “U.S. Objections to the Rome Statute”, pa. CRS-5, 29 August 200628 Coalition for the International Criminal Court, “Status of US Bilateral Immunity Agreements (BIAs) as of 11 December 2006 http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf

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CRS Report RL31495, US Policy Regarding the ICC, 29 August 2006Summary ¶1"One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed the American Servicemembers’ Protection Act (ASPA), which limits U.S. government support and assistance to the ICC; curtails certain military assistance to many countries that have ratified the Rome Statute establishing the ICC; regulates U.S. participation in United Nations (U.N.) peacekeeping missions commenced after July 1, 2003; and, most controversially among European allies, authorizes the President to use “all means necessary and appropriate to bring about the release” of certain U.S. and allied persons who may be detained or tried by the ICC. The provision withholding military assistance under the programs for Foreign Military Financing (FMF) and International Military Education and Training (IMET) from certain States Parties to the Rome Statute came into effect on July 1, 2003. The 109th Congress reauthorized the Nethercutt Amendment as part of the FY2006 Consolidated Appropriations Act (H.R. 3057/P.L. 109-102). Unless waived by the President, it bars Economic Support Funds (ESF) assistance to countries that have not agreed to protect U.S. citizens from being turned over to the ICC for prosecution. H.R. 5522, as passed by the House of Representatives, would continue the ESF restriction for FY2007. The Senate passed a measure as part of the 2007 National Defense Authorization Act (H.R. 5122, S. 2766) that would modify ASPA to end the ban on IMET assistance."


CRS Report RL31495, US Policy Regarding the ICC, 29 August 2006U.S. Objections to the Rome Statute (pa. CRS-5)The primary objection given by the United States in opposition to the treaty is the ICC’s possible assertion of jurisdiction over U.S. soldiers charged with “war crimes” resulting from legitimate uses of force, or its assertion of jurisdiction over other American officials charged for conduct related to foreign policy initiatives. The threat of prosecution by the ICC, it is argued, could impede the United States in carrying out military operations and foreign policy programs, impinging on the sovereignty of the United States.


The US adopted the Statute on 17 July 1998; the Senate did not ratify the treaty. On 6 May 2002 in a letter to Secretary General Kofi Annan the US Secretary of State for Arms Control and International Security, John Bolton, stated: “This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.”


UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects – Article 1 - This Convention applies to claims of an international character for:(a) the restitution of stolen cultural objects;(b) the return of cultural objects removed from the territory of a Contracting State contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (hereinafter "illegally exported cultural objects").Article 2 - For the purposes of this Convention, cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention.

http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf

http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/

http://en.wikipedia.org/wiki/War_crime

http://en.wikipedia.org/wiki/Crime_against_humanity

http://en.wikipedia.org/wiki/Crime_against_humanity

http://en.wikipedia.org/wiki/Genocide

http://en.wikipedia.org/wiki/Tribunal


1.4. Military Necessity.

a. Both the GENEVA IV and HAGUE 54 conventions invoke the concept of military necessity when discussing requirements for taking actions against protected resources. Military necessity is derived from the concepts that certain legal norms justify the conduct of warfare between States (jus ad bellum), and that corresponding proportional constraints are placed on the means of conducting those conflicts (jus in bello).29 One of the first times the term was codified by the United States Government was in the Lieber Code of 1863,

“Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war.30

Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any war, nor of the wanton devastation of a district. It admits of deception but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.”31

b. Though the wording may have changed in the past century and a half, the US military continues to adhere to the principle of military necessity as currently defined in FM 27-1032, and the underlying principles of “Humanity (Unnecessary Suffering)”, “Distinction”, and “Proportionality” as desinfed in JP 1-433 (also see appendix 4 to this pamphlet)..

c. Though pre-World War II (WWII) agreements and their codes34 were unsuccessful in their

29 Forrest, Craig, California Western International Law Journal, “The Doctrine of Military Necessity and the Protection of Cultural Property During Armed Conflicts”, Volume 37, Number 2, Spring 2007 30 General Orders No. 100, Instructions of Armies of the US in the Field, 24 Apr 1863 (a.k.a. “The Lieber Code”) Article 1431 Lieber Code, Article 1632 Field Manual 27-10, “Law of Land Warfare”, Section 3.a., 197633 Joint Publication 1-4, “Legal Support to Military Operations” Chapter 2, §2, “Laws of War Principles” 17 August 2011

34 a. “Project of an International Declaration concerning the Laws and Customs of War”, 27 August 1874, Brussels, Belgiumb. “Oxford Manual of the Laws and Customs of War on Land ”, 9 September 1880, Oxford, Englandc. “Hague Convention II - with Respect to the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land” (Hague II), 29 July 1899, the Hague, Netherlandsd. “Hague Convention IV - Laws and Customs of War on Land”, (Hague IV), 18 October 1907, The Hague, Netherlands

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FM 27-10, Section 3.a. “…that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity.”


US manual for Military Commissions 2010 edition, Part IV “Crimes & Elements” §1Definitions(a)(2) Protected person. The term ‘protected person’ means any person entitled to protection under one or more of the Geneva Conventions, including—(A) civilians not taking an active part in hostilities;(B) military personnel placed out of combat by sickness, wounds, or detention; and(C) military medical or religious personnel.(a)(3) Protected property. The term ‘protected property’ means any property specifically protected by the law of war (including buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.

http://www1.umn.edu/humanrts/instree/1907c.htm


application, the principles enschrined in them where successful in raising awareness, generally adhered to by the Western Allies during WWII, and reinforced by General Eisenhower,

“We are bound to respect monuments as far as war allows. If we have to choose between destroying a famous building and sacrificing our men, then our men’s lives count infinitely more and the buildings must go. But the choice is not always so clear cut at that. In many cases the monuments can be spared without detriment to operational needs. Nothing can stand against the argument of military necessity but the phrase is sometimes used where it would be more truthful to speak of military- or even personal convenience.”

General Eisenhower, 29 December 1943

c. Actions when planning operations - In order to invoke military necessity, to waive the immunity of a recognized resource and justify a course of action likely to expose recognized resources to destruction or damage, the following actions must occur prior to the conduct of operations:

(1) The recognized resource must have been made a military objective. Military objectives are,

(A) combatants; and(B) those objects during hostilities—

(i) which, by their nature, location, purpose, or use, effectively contribute to the opposing force’s war-fighting or war-sustaining capability; and

(ii) the total or partial destruction, capture, or neutralization of which would constitute a definite military advantage to the attacker under the circumstances at the time of the attack.35

(2) No feasible alternative courses of action exist.

(3) Feasible risk mitigation actions have been incorporated into the course of action to minimize adverse impacts to the recognized resource. Tactical instructions which specify offensive actions against recognized resources will be limited to what is required to neutralize the military value of those resources, and will be halted as soon as the resources no longer qualify as military objectives.

e. “Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments”, (a.k.a. Roerich Pact), 15 April 1935, Washington DC, United States of America

35 US Manual for Military Commissions (2010 edition), Part IV Crimes & Elements, § 1.(a)(1)

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) US manual for Military Commissions 2010 edition, part IV Crimes & Elements1.(a)(1) Military objective. The term ‘military objective’ means—(A) combatants; and(B) those objects during hostilities—(i) which, by their nature, location, purpose, or use, effectively contribute to the opposing force’s war-fighting or war-sustaining capability; and(ii) the total or partial destruction, capture, or neutralization of which would constitute a definite military advantage to the attacker under the circumstances at the time of the attack.


Protocol III HAGUE 54, Article 6, “With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention: a. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to direct an act of hostility against cultural property when and for as long as: i. that cultural property has, by its function, been made into a military objective; and ii. there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective; b. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage; c. the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise; d. in case of an attack based on a decision taken in accordance with sub-paragraph (a), an effective advance warning shall be given whenever circumstances permit.

1280785942, 09/10/12,

Recommend replacing with “waive” here. – Accepted & done


(4) The proposed course of action has been approved by a flag grade officer.

(5) When practical advance warning will be given to belligerent forces occupying recognized resources, requesting they take actions to eliminate conditions making those resources military objectives.

d. Actions during the conduct of field operations - If due to changes in the tactical situation the need arises to invoke military necessity to justify actions against recognized resources, Commanders will comply with the procedures above to the degree practical and ensure compliance with the rules of engagement. See section 3.1.b. for additional guidance.

1.5. Resource Classification

The guidance in this pamphlet is primarily focused on the protection and management of resources recognized as being of significant global and/or regional value. If lost these resources may be irreplaceable and/or the impacts from the loss may have irreversible impacts.

1.5.1. Protected Property.

1.5.1.1. Geneva IV protections - Under the provisions of the Geneva IV Convention all property not qualifying as a military objective is accorded protection,

“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

GENEVA IV Article 53

a. Not all property meets the demands of being classified as a recognized resource. This is not to diminish the value of this property to their owners and others relying upon that property for physical and/or cultural/spiritual support.

b. Actions to ensure the protection of property as required by the provisions of the Geneva IV Convention are embedded in the rules of engagement (ROE). Even when justified by military necessity the damaging or destruction of property essential to the health and welfare of host nation personnel (i.e. orchards, irrigation systems, livestock), or to their cultural beliefs (i.e. sites of ancestor worship, cemeteries, communal meeting places) has the potential to adversely impact the attitude of those people towards the presence and mission of US forces, and is therefore to be avoided whenever possible.

1.5.1.2. No-Strike List protections – To ensure the protection of private and public property, and compliance with the provisions of the Geneva IV convention, US guidance36 stipulates:

36 Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3160.01, “No-Strike and the Collateral

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CJCSI 3160.01, Enclosure C, § 2.a. “The LOW [law of warfare] requires all military personnel to take reasonable precautions to ensure that only military objectives are targeted and to ensure that civilian or noncombatant objects are not made the object of attack...”CJCSI 3160.01, Enclosure D, §1“a. The LOW requires reasonable precautions to ensure only legitimate military objects are targeted. The LOW requires combatants to refrain from intentionally targeting civilian or noncombatant populations or facilities. The LOW also stipulates that anticipated civilian or noncombatant injury or loss of life and damage to civilian or noncombatant property incidental to attacks must not be excessive in relation to the expected military advantage to be gained.b. Failure to observe these obligations could result in disproportionate negative effects on civilians and noncombatants and be considered a LOW violation. Furthermore, U.S. leadership and military could be subject to global criticism, which could adversely impact military objectives, alliances, partnerships, or national goals…”

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Change to “Geneva” here. – Accepted & done


“The LOW [law of warfare] requires all military personnel to take reasonable precautions to ensure that only military objectives are targeted and to ensure that civilian or noncombatant objects are not made the object of attack...”37

(1) To ensure compliance with the Law of Warfare, protected properties are included as no-strike entities on the No-Strike List (NSL). According to established DOD guidance,

“No-Strike entities can be both traditional and nontraditional in nature, and consist of objects which are functionally characterized as civilian and/or noncombatant and therefore are prohibited from attack. No-Strike entities may include, but are not limited to medical, educational, diplomatic, cultural, religious, and historical sites, or other objects that do not, by their nature, location, purpose, or use, effectively contribute to the enemy’s war-fighting or war-sustaining capability. These entities are generally not lawful targets under normal circumstances;…”38

“No-Strike entities are those designated by the appropriate authority upon which kinetic or non-kinetic operations are prohibited to avoid violating international law, conventions, or agreements, or damaging relations with coalition partners and indigenous populations…”39

(2) Protected properties are identified as either category I protected or collateral objects, category II protected or collateral objects, or as a dual-use targets Category I objects are the most sensitive objects, and category II objects are all objects not defined as category I objects or dual-use targets.

(3) Dual-use targets are objects determined to have both a military and civilian purpose/function; these targets may include protected properties occupied by belligerents. If belligerents use those objects “for the purpose of advancing military objectives”, those objects lose their protected status “provided the adversary has been put on notice.”.40

(4) For more information on the No-Strike List see appendix 3.

Damage Estimation Methodology”, Enclosure C, “No-Strike Policy and Guidance”, 13 February 2009 37 CJCSI 3160.01, Enclosure C, § 2.a38 CJCSI 3160.01, Enclosure C, § 2.b39 CJCSI 3160.01, Enclosure C, § 1.a / § 2.b40 CJCSI 3160.01, Enclosure C, § 2.b

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CJCSI 3160.01, Enclosure C, § 2.b “…however, if used for the furtherance of military or hostile force objectives, No-Strike entities lose their protected status and may be subject to attack, provided the adversary has been put on notice. For example, if a hospital structure is used to store weapons or is used for some other military purpose, a warning must be given and if unheeded, the facility forfeits its protected status under the LOW and becomes a lawful military target. When such a change in status occurs, the CCDR or authorized designee may approve the entity for attack

1280785942, 09/10/12,

Insert “.” here. – Accepted & done


CJCSI 3160.01, Enclosure C, § 1.a. “…”No-Strike entities are those designated by the appropriate authority upon which kinetic or non-kinetic operations are prohibited to avoid violating international law, conventions, or agreements, or damaging relations with coalition partners and indigenous populations. The infliction of unnecessary suffering or damage to civilian persons or property that is excessive in relation to the concrete and direct military advantage anticipated is inconsistent with international law and is contrary to DOD policy…"


CJCSI 3160.01, Enclosure C, § 2.b. No-Strike Entities. “No-Strike entities can be both traditional and nontraditional in nature, and consist of objects which are functionally characterized as civilian and/or noncombatant and therefore are prohibited from attack. No-Strike entities may include, but are not limited to medical, educational, diplomatic, cultural, religious, and historical sites, or other objects that do not, by their nature, location, purpose, or use, effectively contribute to the enemy’s war-fighting or war-sustaining capability. These entities are generally not lawful targets under normal circumstances;...”


CJCI 5810.01D, “Implementation of the DOD Law of War Program” § 5., “Definitions” a. “Law of War” 30 April 2010“That part of international law that regulates the conduct of armed hostilities. It is often called the “law of armed conflict.”1 The law of war encompasses all international law for the conduct of hostilities, which is binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.”


1.5.2. Recognized Resources - Recognized resources are a sub-set of protected resources. They are categorized as either cultural/historic or natural, resources; some resources may be recognized because of both their cultural/historic and natural value. They gain this status by being recognized by international agreements, sovereign States, or if deemed appropriate USARAF. Additionally, sanctioned HN/IGA/NGO resources responsible for the management/ protection of recognized resources may be accorded the same level of consideration as the resources under their care.

1.5.2.1. Cultural/Historic Resources.

a. Cultural/historic resources may be tangible and intangible, movable or immovable; religious or secular resources, recognized by the owning sovereign State, that include but may not be limited to:

(1) Monuments of architecture, art or history, buildings or groups of buildings which are of historical or artistic interest;

(2) Paintings, sculptures, or other works of art; (3) Manuscripts, books, and other objects of artistic, historical, and/or archaeological or

ethnological interest; (4) Scientific books or visual/audio recordings; (5) Archaeological, ethnological, or prehistoric sites and artifacts; (6) Buildings such as museums, large libraries, and depositories of archives whose

main and effective purpose is to preserve or exhibit movable cultural property; and (7) Intangible cultural heritage resources related to how people live, communicate, and

pass their individual and collective experiences between generations.

b. Cultural/historic resources of specific interest include those resources protected by international agreements/organizations, including but not limited to the following:

(1) Resources identified for protection under the provisions of 1954 Hague Convention (HAGUE 54).

(2) Resources identified for protection under the provisions of 1972 UNESCO World Heritage Convention (including resources on the tentative listing).

(3) Resources identified for protection under the provisions of 1970 Cultural Property Convention.

(5) Resources identified on host nations listings that are the equivalent of the US National Historical Register.

(6) Inventoried objects/artifacts registered with the International Council of Museums, International Council of African Museums, or similar internationally recognized groups.

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Resources protected by the intangible cultural heritage and cultural diversity conventions are, as the word “intangible” would indicate, not as clear cut as other cultural resources. These resources include how people live, communicate, and pass their individual and collective experiences between generations. They are the factors that provide a sense of belonging and individuality; the practices, beliefs, and artifacts that bind and distinguish groups and individuals to and from each other.


UN Recommendation for the Protection of Movable Cultural Property - 28 November 1978, Part I. DEFINITIONS "1. For the purposes of this Recommendation: (a) “movable cultural property” shall be taken to mean all movable objects which are the expression and testimony of human creation or of the evolution of nature and which are of archaeological, historical, artistic, scientific or technical value and interest, including items in the following categories: (i) products of archaeological exploration and excavations conducted on land and under water; (ii) antiquities such as tools, pottery, inscriptions, coins, seals, jewellery, weapons and funerary remains, including mummies; (iii)items resulting from the dismemberment of historical monuments; (iv) material of anthropological and ethnological interest; (v) items relating to history, including the history of science and technology and military and social history, to the life of peoples and national leaders, thinkers, scientists and artists and to events of national importance; (vi) items of artistic interest, such as: paintings and drawings, produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); original prints, and posters and photographs, as the media for original creativity; original artistic assemblages and montages in any material; works of statuary art and sculpture in any material; works of applied art in such materials as glass, ceramics, metal, wood, etc.; (vii) manuscripts and incunabula, codices, books, documents or publications of special interest; (viii) items of numismatic (medals and coins) and philatelic interest; (ix) archives, including textual records, maps and other cartographic materials, photographs, cinematographic films, sound recordings and machine-readable records; (x) items of furniture, tapestries, carpets, dress and musical instruments; (xi) zoological, botanical and geological specimens;"


HAGUE 54 Chapter I, Article 1 – For the purposes of the present Convention, the term "cultural property" shall cover, irrespective of origin or ownership:(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole,are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);(c) centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as "centres containing monuments".


Types of Recognized Resources

1.5.2.2. Natural Resources.

(a) Natural resources may be movable or immovable, animate and/or inanimate resources, recognized by international agreement or the owning sovereign State, that include but are not limited to:

(1) Species and/or habitats of endangered, vulnerable, and/or threatened fauna and flora identified by the US Government, International Union for the Conservation of Nature (IUCN), or similar internationally recognized group.

(2) Protected geographical areas and the flora/fauna within those areas; protected areas include, but are not limited to trans-national/national/regional parks, wildlife/forest/marine reserves, and sanctuaries.

(3) Geological/physiographical formations. (4) Challenged environments.

(b) Natural resources of specific interest include those resources recognized by international agreements/organizations, including but not limited to the following:

(1) Resources identified for protection under the provisions of and the 1971 Ramsar Convention

(2) Specimens and products of species the trade of which is prohibited under the provisions of 1973 Treaty on Trade in Endangered Species.

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(3) Resources identified for protection under the provisions of the 1992 Convention on Biological Diversity.

(4) Resources identified for protection under the provisions of the 1994 Convention to Combat Desertification in Countries Experiencing Serious Drought and or Desertification, Particularly in Africa.

(5) Resources identified for protection under the provisions of the 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds.

(6) Resources identified for protection under the provisions of applicable Regional African Agreements (see appendix 2).

1.5.2.3. Mixed Recognized Resources – Some recognized resources are granted that status because they contain both cultural/historic and natural value.

1.5.2.4. Other Recognized Resources – Cultural/history and/or natural resources not specifically recognized by the owning sovereign State or one of the above international agreements may be included in the listing of recognized resources on a case-by-case basis when such inclusion is deemed appropriate by USARAF Commander.

1.5.3. Host Nation/IGO/NGO Support Personnel and Resources.

a. Consistent with the provisions of HAGUE 54 and operational/force protection consider-ations, whenever practical recognized resources are to remain under the control of host nation, inter-governmental organizations (IGO), and/or non-governmental organizations (NGO) responsible for their care prior to the start of operations.

b. A list of organizations directly associated with securing, protecting, preserving, conserving and/or maintaining recognized resources in areas of operations will be developed. If deemed to not be a security risk, applicable organizations may be contacted to determine their stance with regard to continuing in their current capacity.

c. If willing, applicable organizations may be accorded recognized status. If determined to be acceptable, these organizations will be requested to identify their personnel, equipment, materials, and facilities, and will be provided appropriate identification documentation. It will be made clear to these organizations that recognized status may be revoked at any time if they are perceived to be a security risk, or if they are unable or unwilling to perform their duties in a manner consistent with the best interests of the recognized resources under their care.

d. Cooperation between these organizations and US forces is completely voluntary. US forces will not interfere with the conduct of their activities unless required by operational/force protection considerations or at the requested by of the organizations.

e. Though US forces may render material assistance to these organizations, the creation of a quid-pro-quo arrangement is strictly prohibited.

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Examples – if an organization is determined to be illegally trafficking in protected resources, or if the resources of the organization are insufficient to ensure the safety and care of the protected resources under their care. If appropriate the organization will be informed of concerns, and unless the risk of the protected resources is deemed to be immiment, the organization will be provided the opportunity to address the concern.


Hague 54, Article 15, “As far as is consistent with the interests of security, personnel engaged in the protection of cultural property shall, in the interests of such property, be re-spected and, if they fall into the hands of the opposing Party, shall be allowed to continue to carry out their duties whenever the cultural property for which they are responsible has also fallen into the hands of the opposing Party.”HAGUE 54, Article 8.4, “ The guarding of cultural property mentioned in paragraph [8.]I above by armed custodians specially empowered to do so, or the presence, in the vicinity of such cultural property, of police forces normally responsible for the maintenance of public order shall not be deemed to be used for military purposes.”


f. At no time are US forces to take actions which could compromise or jeopardize the non-combatant status of applicable organizations.

2.0. Pre-Operational Planning Guidance. US forces will take every reasonable precaution to minimize the potential for adverse impacts to historic, cultural, and natural resources when conducting deliberate planning for operations in Africa.

2.1. Environmental Resources/Sites Database.

a. Database. To support training and operations requirements the USARAF Engineer will develop and maintain a database containing information on all environmentally significant resources/sites in Africa. The database will be unclassified, though access may be restricted. The USARAF engineer may collaborate with other organizations to develop and maintain the database.

(1) The database will at a minimum include all recognized cultural, historic, and natural resource sites specified in section 1.5.2 of this document. Additional information on sites of environmental concern (i.e., infrastructure, industrial sites of concern) will be included in the database. Examples of recognized resources to be included in the database will include, but are not limited to:

Internationally Recognized Resources/Sites Hague 1954 resources UNESCO World Heritage Sites UNESCO World Heritage Sites (tentative) UNESCO Biosphere Reserves RAMSAR Wetlands Desertification Treaty-related ecosystems CITES-related resources Geneva IV resources (only USARAF-recognized cultural/historic/natural resources not already recognized by international agreement)

Regionally Recognized Resources/Sites Trans-National Natural Resources Regional Treaty Recognized Resources

Nationally Recognized Resources/Sites IUCN class I resources (e.g., Scientific or Strict Nature Reserves)IUCN class II resources (e.g., National Parks)IUCN class III resources (e.g., Natural Monuments)IUCN class IV resources (e.g., Managed Nature Reserves or Wildlife Sanctuaries)IUCN class V resources (e.g., Tribal Peoples Reserves)IUCN class VI resources (e.g., Protected Landscapes)IUCN class VII resources (e.g., Resource Reserves)IUCN class VIII resources (e.g., Multiple Use Management Areas)Zoological/Botanical Research Facilities and/or Public ExhibitionsArchaeological, ethnological, or prehistoric sites and artifacts Museums, large Libraries, and Archives

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already – Accepted & done


Monuments of architecture, art or history, buildings or groups of buildings

Other Resources/SitesImportant Bird Areas [IBAs]Hunting ConcessionsPrivate Nature PreservesInfrastructure Systems (i.e. Drinking Water, Wastewater, Solid Waste, Medical Waste, Electrical)Industrial Facilities (i.e. Oil/Natural Gas Operations, Mining/Smelting Operations, Sites with Hazardous Substances)

(2) Data to be collected on sites of interest will include pictures/illustrations of sites, and written data. The written data will include but may not be limited to the following items:

Site description Location data Size/boundary of site Source(s) of protected status Controlling organization data

(3) Data will conform to applicable DOD formatting standards to ensure its compatibility with DOD graphic information system (GIS) mapping applications.

b. Graphic Information Systems (GIS).

(1) The database discussed above will be uploaded to one or more unclassified GIS applications capable of illustrating on topographic maps/overlays the locations of the protected resources. The GIS applications will be used to generate products to support unclassified training and coordination requirements.

(2) The database will be migrated to classified GIS applications to support the planning and conduct of operations in Africa.

2.2. Course of Action (COA) Assessments –

a. During the conduct of pre-operational planning activities potential courses of action (COA) are to be initially analyzed to determine:

(1) The presence of recognized resources within the anticipated area of operations. Identified recognized resources are to be listed, available information on those resources assembled, and an operational overlay illustrating the locations of those resources developed (the overlay should be developed from the GIS-capable database of environmental sites of concern). The listing of recognized resources is to be incorporated into the no-strike target listing.

(2) Whether any of the identified recognized resources can be classified military objectives and the potential to successfully encourage belligerent forces to eliminate conditions making

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those resources military objects.

(3) The potential for identified recognized resources to be adversely impacted by the conduct of operations specified in the COA.

(4) Whether actions that have the potential for adversely impacting recognized resources are justified by military necessity, and as required developing documentation to support that determination. Refer to section 1.4.c. for additional guidance on this process. Documentation will be reviewed by the Staff Judge Advocate staff for adequacy and legal compliance.

(5) What, if any, risk mitigation actions can be incorporated into the COA to decrease the potential for adverse impacts on to recognized resources.

(6) What recognized resources are anticipated to come under the control of US forces, and the level of support required on the part of US forces to ensure those resources are secured from harm.

(7) Whether there are any host nation, inter-governmental organizations (IGO), and/or non-governmental organizations (NGO) that can be granted recognized status, what recognized resources may be placed under the control of those organizations, and what if any support they may request of US forces.

b. After the initial analysis of potential courses of action (COA), feasible COAs will be analyzed to determine:

(1) Whether one or more COAs does not expose the recognized resources to adverse impacts. If one is identified, then it should be the preferable COA from a recognized resources viewpoint.

(2) If all COAs expose the recognized resources to the potential of adverse impacts, which COA represents the most acceptable level of risk. The COA with the lowest level of risk should be the preferable COA from this group. Military necessity documentation will be approved by a flag grade officer.

2.3. Immunity Status Violations. If it is determined that a recognized resource is being used by belligerents in a manner determined to violate its immunity status, thereby making the resource a military objective, consistent with security considerations the belligerents will be informed of the violation and provided an opportunity to comply with international convention requirements. Nothing in this paragraph is to be construed as limiting the United States’ rights of individual and collective self defense.

2.4. Unit Training Activities.

a. Commanders will ensure that, prior to deploying to the theater of operations all personnel under their command have received training on cultural, historic, and natural resources. This training will be tailored based upon duty requirements. This training will at a minimum include

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instruction on:

(1) Relative value of human life/health versus protected resources.

(2) Rationale and requirements supporting our actions to minimize harm to recognized resources.

(3) Requirements for invoking military necessity.

(4) Recognized cultural, historical, and/or natural resources known to be in the anticipated area of operations.

(5) Actions to be taken to mitigate risks to recognized resources.

(6) Actions to be taken to secure and manage recognized resources under the control of US forces.

(7) Do’s and don’ts associated with interacting with Host Nation/Inter-governmental, and/or Non-governmental organizations granted recognized status.

(8) Actions to be taken when relinquishing control of recognized resources.

(9) Prohibitions on the personal possession of recognized resources.

3.0. Guidance during Operations.

3.1. Conduct of Operations.

a. Risk Mitigation. Courses of Action (COAs) in operations orders are to be developed taking into consideration measures to minimize risks to recognized known cultural, historic, and natural resources. When conducting operations, Commanders are to comply with the requirements of those risk mitigation measures. When authorized to take actions that will damage recognized resources, commanders will closely control the conduct of those actions. Damage to recognized resources will be restricted to only that necessary to accomplish mission requirements.

b. Changed Conditions. Situations will arise during the conduct of operations that require commanders to deviate from pre-defined COAs. Those situations may include actions taken by opposing forces, or the involvement of additional protected resources.

(1) Actions of Opposing Forces. If belligerents take actions that result in a recognized resource becoming a military objective, Commanders will take the following actions:

(a) In compliance with the rules of engagement (ROE), Commanders will take such offensive actions as may be required to protect US forces under active attack or under immediate threat of an attack from belligerents occupying or using recognized resources as shields. These are characterized as,

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CJCSI 3121.01A, “Standing Rules of Engagement for US Forces” (SROE), § 6.b. “Commanders at every echelon are responsible for establishing ROE for mission accomplishment that comply with ROE of senior commanders and these SROE. The SROE differentiate between the use of force for self-defense and for mission accomplishment. Commanders have the inherent authority and obligation to use all necessary means available and to take all appropriate actions in the self-defense of their unit and other US forces in the vicinity. ROE supplemental measures apply only to the use of force for mission accomplishment and do not limit a commander's use of force in self-defense.c. The two types of supplemental measures are -- those that authorize a certain action and those that place limits on the use of force for mission accomplishment. Some actions or weapons must be authorized either by the NCA or by a CINC. In all other cases, commanders may use any lawful weapon or tactic available for mission unless specifically restricted by an approved supplemental measure…”


Protocol II, HAGUE 54, Article 7, “Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall: a. do everything feasible to verify that the objectives to be attacked are not cultural property protected under Article 4 of the Convention; b. take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental damage to cultural property protected under Article 4 of the Convention; c. refrain from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated; and d. cancel or suspend an attack if it becomes apparent: i. that the objective is cultural property protected under Article 4 of the Convention; ii. that the attack may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated.”

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personal– Accepted & done


This document 1.0 d, “US forces will conduct operations in compliance with applicable and appropriate US requirements, will respect the sovereignty of host nations, and will comply with the provisions of applicable international and/or bilateral treaties/conventions.”


USARAF Environmental Vision Statement, Attachment 1 §5, “Protection of Cultural/ Historic/ Natural Resources. Stretching back to the dawn of mankind, the cultural and natural heritage of Africa is unique and irreplaceable. These resources represent an immense and immeasurable value to the collective cultural heritage of the world, and provide African peoples with a sense of stability essential to the continued growth of African States. The loss of this legacy would have severe repercussions to the future of Africa. a. The protection of the cultural and natural heritage of African peoples is an inherent concern of any operation we may conduct in Africa... We will take every reasonable precaution, consistent with mission requirements and military necessity, to protect this heritage from harm.”


USARAF Environmental Vision Statement, Attachment 1 §5.b. “Though the physical artifacts of the cultural and natural heritage of Africa are priceless, no artifact is worth a human life.”This document 1.0 d. “Though the physical artifacts of the cultural and natural heritage of Africa are priceless, we are not to lose fact that no artifact is worth a human life. At no time will the protection of these artifacts take precedence over ensuring human health and safety.”

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“…instances where (1) intelligence confirms the use of the No-Strike entity for hostile purposes and the need to strike is time sensitive …, and/or (2) troops are in contact and taking hostile fire from traditional No-Strike entities. …; operational imperatives, established ROE, including the inherent right and obligation of self-defense, provide the combatant command the appropriate authority to engage in these instances unless this authority is expressly limited in SecDef provided supplemental ROE.”41

If appropriate, Commanders may undertake actions to protect non-combatants and civilian property from the threat posed by the belligerents. Actions will attempt to minimize damage to recognized resources and will not exceed that necessary to neutralize the immediate threat.

(b) If not under immediate threat, Commanders will adhere to the following steps:

(1) Keep the chain of command informed of the situation, and if practical request guidance and/or technical support.

(2) Identify a feasible course of action that minimizes risks to the recognized resource, without unreasonably increasing risks to US forces or host nation personnel.

(3) When practical receive concurrence on the course of action from a flag grade officer in the chain of command.

(4) Provide instructions to US forces on risk mitigation actions to be followed during the course of actions against the belligerents.

(5) Instruct belligerents to evacuate the recognized resource.

(6) Conduct actions against the belligerents occupying the recognized resource following in a manner consistent with the risk mitigation actions incorporated into the course of action.

(7) Halt actions in the vicinity of the recognized resource as soon as the threat poses by the belligerents is neutralized.

(8) Take actions to secure the recognized resource against additional harm.

(9) Document actions supporting the decision to invoke military necessity, risk mitigation measures employed during the action to minimize harm to the resources, and steps taken to secure the resources from additional harm.

(2) Additional Resources. If additional recognized resources, or if previously unidentified resources believed to be entitled to recognized status are identified during the course of operations an impact assessment is to be conducted. Revised instructions based upon the selected COA will be provided to Commanders in FRAGOs.

41 CJCSI 3160.01, Enclosure C, Appendix B § 6 d.

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CJCSI 3160.01, Enclosure C, Appendix B § 6.a. “No-Strike entities that lose their protected status should be removed from the NSL. No-Strike entities lose their protected status if they are used for a military purpose. In such cases, they become lawful military targets…” c. “Before strikes can be approved and executed, the combatant command must remove the No-Strike CATCODE… Unless designated by higher authority, the CCDR or his/her designated representative is the only level of command authorized to change the status of an entity on the NSL.”


CJCSI 3160.01, Enclosure C, Appendix B § 6.d. “Exceptions to guidance … are those instances where (1) intelligence confirms the use of the No-Strike entity for hostile purposes and the need to strike is time sensitive (whereupon it is nominated as a time sensitive target (TST)), and/or (2) troops are in contact and taking hostile fire from traditional No-Strike entities. These entities do not have to be reflected on the JTL before they can be engaged; operational imperatives, established ROE, including the inherent right and obligation of self-defense, provide the combatant command the appropriate authority to engage in these instances unless this authority is expressly limited in SecDef provided supplemental ROE.”


“Time Sensitive Target: A joint force commander designated target requiring immediate response because it is a highly lucrative, fleeting target of opportunity or it poses (or will soon pose) a danger to friendly forces.


3.2. Previously Unidentified Resources.

a. During the course of operations the possibility exists for US forces to encounter items of potential cultural, historic, or natural interest not identified during pre-operational planning. Once identified, items of potential interest will be treated as if the item is a recognized resource.

b. When an encounter occurs, US forces may take such actions as the commander deems necessary to ensure an immediate threat to US forces does not exist. If an immediate threat does exist, the commander may take such actions necessary to neutralize the threat. The guidance provided in section 3.1.b. this pamphlet will be applicable to this situation.

c. In the case of larger immovable items (e.g., structures), US forces are not to occupy the items unless the tactical situation requires such occupation.

d. When smaller items are identified, they will not be moved by US forces. A perimeter will be established around the item (e.g., a five meter [5 m] around the item), and US personnel will remain outside the marked off area.

e. The commander will gather available information on the location and physical character-istics of the item, and communicate findings to the JTF/USARAF engineer.

f. The JTF/USARAF engineer will communicate the finding to United States Africa Command (AFRICOM) and appropriate Host Nation authorities. If appropriate the information may be provided to applicable technical experts for verification of the identity of the item.

g. After a determination has been made on the status of the item, guidance on what actions are to be taken will be provided to the responsible Commander.

3.3. Resources under US Control.

a. Upon order, US forces will secure all identified recognized resources not under effective control of the owning Host Nation, or, if applicable, IGO/NGOs.

b. All recognized resources coming under the control of US forces will be identified in status reports. Status reports will detail the identification of those resources and actions taken to protect those resources. Status reports will be submitted through command channels.

c. Unless necessary to preclude harm, US forces are not to move recognized resources from where they were originally found. If it is determined advisable in order to secure movable recognized resources against theft or pilferage, those resources may be moved to a secure collection area. Whenever practical the support of a subject matter expert is to be requested for the packing and movement of these resources. Accountability for these resources will be maintained at all times.

d. The destruction, damage, or theft of recognized resources under the control of US forces will be detailed in serious incident reports (SIR). SIRs are to be submitted through command

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HAGUE 54, Article 5,2, “Should it prove necessary to take measures to preserve cultural property situated in occupied territory and damaged by military operations, and should the competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation.”


CJCSI 3160.01, Enclosure C, Appendix B § 3.c.“At the discretion of the combatant command, unverified entities may be added to the NSL to ensure their protection. Efforts must be made to positively identify and locate the entity as soon as possible. However, if the nominated entity is at risk, then early addition to the NSL is a prudent action.”


UN Recommendation on International Principles Applicable to Archaeological Excavations - 5 December 1956 Part VI. Excavations in occupied territory §32. “In the event of armed conflict, any Member State occupying the territory of another State should refrain from carrying out archaeological excavations in the occupied territory. In the event of chance finds being made, particularly during military works, the occupying Power should take all possible measures to protect these finds, ...”


channels. SIRs will detail the cause of the damage, the extent of the damage, and what, if any, actions have been taken to preclude additional harm to the affected resource.

3.4. Host Nation/IGA/NGO Coordination. Consistent with the guidance provided in Section 1.4.3., US forces will encourage Host Nation/IGA/NGOs identified as responsible for the management of recognized resources to continue to perform their duties during the course of operations.

3.5. Relinquishing Control of Resources. As soon as feasible US forces will relinquish control of recognized resources under their control to officials of the sovereign State with rights to that resource. Control of recognized resources may be relinquished to officials of appropriate IGOs or NGOs if the owning sovereign State is unable or unwilling to accept control. Final disposition of the resources will be in accordance with the provisions of applicable international agreements.

3.6. Preventing Illegal Trade of Resources. If Host Nation authorities are unable or unwilling to take action, US forces will take actions to prohibit the removal or trans-boundary shipment of recognized resources. This is not to preclude shipments which are conducted in compliance with applicable international treaties or conventions.

3.7. Private Possession of Artifacts.

a. If recognized artifacts are officially presented by owning Host Nation officials to US personnel, such presentations will be reported to the Staff Judge Advocate to ensure compliance with applicable command guidance, DOD Regulations, and US Public Law 97-446.42

b. Prior to all private purchases of cultural artifacts by US military personnel or personnel accompanying US forces, those purchases shall be reviewed by the Staff Judge Advocate to ensure compliance with applicable legal and procedural requirements. Individuals procuring artifacts are required to obtain appropriate ownership and export/import documentation.

c. Any unauthorized acquisition, possession, sale, or shipment of cultural artifacts by US military personnel or personnel accompanying US forces is strictly prohibited. The illegal or unauthorized acquisition (i.e. robbery, looting, plundering) of property is punishable under articles 99(6), 103(b)(2,3), 121(a), 122, and/or 134 of the Uniform Code of Military Justice (UCMJ); the willful or wrongful damaging or destruction of property is punishable under articles 109 and/or 134 of the UCMJ43.

42 US PL 97-446, “Convention on Cultural Property Implementation Act”, 12 Jan 1983

43 United States Code (USC), Title 10, Chapter 47, “Uniformed Code of Military Justice”, Subchapter X, “Punitive Articles” (§§ 877-934)

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UN Recommendation on International Principles Applicable to Archaeological Excavations - 5 December 1956 Part V. Repression of clandestine excavations and of the illicit export of archaeological finds - Protection of archaeological sites against clandestine excavations and damage § 29. “Each Member State should take all necessary measures to prevent clandestine excavations and damage to monuments defined in paragraphs 2 and 3 above, and also to prevent the export of objects thus obtained.”


Protocol I HAGUE 54, Article 1, “Each High Contracting Party undertakes to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on 14 May, 1954.”Protocol I HAGUE 54, Article 4, “The High Contracting Party whose obligation it was to prevent the exportation of cultural property from the territory occupied by it, shall pay an indemnity to the holders in good faith of any cultural property which has to be returned in accordance with the preceding paragraph.”Protocol II, HAGUE 54, Article 9, “1. Without prejudice to the provisions of Articles 4 and 5 of the Convention, a Party in occupation of the whole or part of the territory of another Party shall prohibit and prevent in relation to the occupied territory: a. any illicit export, other removal or transfer of ownership of cultural property; b. any archaeological excavation, save where this is strictly required to safeguard, record or preserve cultural property; c. any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence. 2. Any archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close co-operation with the competent national authorities of the occupied territory.”


Protocol I HAGUE 54, Article 3. “Each High Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the principle laid down in the first paragraph. Such property shall never be retained as war reparations.”Protocol I HAGUE 54, Article 4, “Cultural property coming from the territory of a High Contracting Party and deposited by it in the territory of another High Contracting Party for the purpose of protecting such property against the dangers of an armed conflict, shall be returned by the latter, at the end of hostilities, to the competent authorities of the territory from which it came.”


UN Recommendation on International Principles Applicable to Archaeological Excavations - 5 December 1956 Part VI. Excavations in occupied territory §32. “In the event of armed conflict, any Member State occupying the territory of another State should refrain from carrying out archaeological excavations in the occupied territory. In the event of chance finds being made, particularly during military works, the occupying Power should take all possible measures to protect these finds, which should be handed over, on the termination of hostilities, to the competent authorities of the territory previously occupied, together with all documentation relating thereto.”


REFERENCES

1. US Regulatory Requirements.

a. US Public Law (PL) 96-515, “National Historic Preservation Act Amendments of 1980”, § 402 (16 U.S.C. § 470a-2).

b. US PL 97-446, “Convention on Cultural Property Implementation Act”, 12 Jan 1983; as amended by PL 100-204, (19 U.S.C. § 2602)

c. United States Code (USC), Title 10, Chapter 47, “Uniformed Code of Military Justice”,

2. DOD/Joint/DA/USARAF Guidance.

a. General Orders No. 100, Instructions of Armies of the US in the Field, 24 Apr 1863 (a.k.a. “The Lieber Code”)

b. Department of Defense Instruction 4715.5, “Management of Environmental Compliance at Overseas Installations” 22 April 1996

c. Combined Joint Chief of Staff Instruction (CJCSI) 3121.01A, “Standing Rules of Engagement for US Forces” 15 January 2000

d. Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3160.01, “No-Strike and the Collateral Damage Estimation Methodology”

e. Joint Publication 1-04, “Legal Support to Military Operations”, 17 August 2011

f. Joint Publication 3-34, “Joint Engineer Operations” 30 June 2011

g. Joint Publication 3-57, Civil-Military Operations, 08 July 2008

h. US Department of the Army Field Manual 3-34, “Engineer Operations” 4 August 2011

i. US department of the Army Field Manual 27-10, “Law of Land Warfare”, (18 July 1956) (Change 1, 15 July 1976)

k. Memorandum, US Army Africa, “USARAF Environmental Vision Statement”, 3 February 2012

l. USARAF Regulation 200-2, “Environmental Management during African Operations”, 1 January 2012

m. US Manual for Military Commissions (2010 edition)

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Recommend changing to the following:U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE (18 July 1956) (Change 1, 15 July 1976) – Accepted & done

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Change to 1-04– Accepted & done


3. International Agreements.

a. Project of an International Declaration concerning the Laws and Customs of War, 27 August 1874, Brussels, Belgium

b. Oxford Manual of the Laws and Customs of War on Land, 9 September 1880, Oxford, England

c. Hague Convention II - with Respect to the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land (Hague II), 29 July 1899, the Hague, Netherlands

d. Hague Convention IV - Laws and Customs of War on Land, (Hague IV), 18 October 1907, The Hague, Netherlands

e. Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, (a.k.a. Roerich Pact), 15 April 1935, Washington DC, United States of America

f. Constitution of the UN Educational, Scientific, and Cultural Organization (UNESCO), 16 November 1945, London, England

g. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Geneva, Switzerland

h. Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 54, The Hague, Netherlands

i. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, Paris, France

j. Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 November 1972, Paris, France

k. Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), 23 June 1979, Bonn Germany

l. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005

m. Convention for the Safeguarding of the Intangible Cultural Heritage, 3 November 2006, Paris, France

n. Convention on Wetlands of International Importance Especially Waterfowl Habitat and 1982 Protocol, 2 February 1971, Ramsar, Iran

o. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 3 March 1973, Washington, DC

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http://www1.umn.edu/humanrts/instree/1907c.htm


p. African-Eurasian Waterbird Agreement (AEWA), 16 June 1995, the Hague, Netherlands

q. Convention on Biological Diversity (CBD), 5 June 1992, Rio de Janerio, Brazil

r. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, Cartagena, Venezuela

s. International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects, Rome, Italy, 24 June 1995

t. Rome Statute of the International Criminal Court (ICC), United Nations Treaty Series, Volume. 2187, No. 38544, (Document A/CONF.183/9), Rome, Italy, 17 July 1998

4. Other References.

CRS Report RL31495, “US Policy Regarding the ICC”, 29 August 2006

CRS Report RL33662, “War Crimes Act - Current Issues”, 22 January 2009

UNESCO, Records of the General Conference, 32nd Session (29 September – 17 October 2003), Volume 1, Resolutions, §33, “Declaration Concerning the Intentional Destruction of Cultural Heritage”, 17 October 2003

International Committee of the Blue Shield (ICBS), “Seoul Declation on the Protection of Cultural Heritage in Emergency Situations” 9 December 2011

Forrest, Craig, California Western International Law Journal, “The Doctrine of Military Necessity and the Protection of Cultural Property During Armed Conflicts”, Volume 37, Number 2, Spring 2007

Garrett, James F, US Army War College, “Necessity and Proportionality in the Operation Enduring Freedom VII Campaign ” 15 March 2008

Milligan, Ashlyn, Journal of Public and International Affairs, “Targeting Cultural Property: The Role of International Law” 2008

Dutli, Maria, International Committee of the Red Cross Report, “Protection of Cultural Property in the Event of Armed Conflict”, 6 October 2000

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Appendix 1 - International Union for the Conservation of Nature (IUCN) Categories of Wildland Management

I. Scientific or Strict Nature Reserves represent the most restrictive WMA category, intended to maintain representative samples of natural ecosystems in an undisturbed state for scientific research, environmental monitoring, education, and preservation of biological diversity. Tourism, recreation, and most other human uses are usually not permitted.

II. National Parks are usually relatively large areas where native plant and animal species (and often outstanding geological or other scenic features) are of special interest. Controlled tourism and scientific research are permitted; more intensive human uses usually are not.

III. Natural Monuments are often smaller WMAs intended to protect highly localized species, ecosystems, or geological formations. Tourism and scientific research are permitted to the extent that they are compatible with preservation of the unique natural features.

IV. Managed Nature Reserves or Wildlife Sanctuaries protect rare plant or animal species, or large concentrations of resident or migratory wildlife. Manipulation of vegetation and other intensive management may be done to improve the habitat for species of special concern. Tourism, research, and occasionally limited livestock grazing or fuel wood collection are permitted, when these activities are compatible with wildlife management objectives.

V. Tribal Peoples Reserves are relatively unmodified natural areas in which indigenous tribal peoples or vulnerable ethnic minorities (see OMS 2.34) continue to practice traditional, low-intensity forms of land use such as hunting and gathering or nomadic pastoralism. Settlement or potentially disruptive resource utilization by outsiders is not permitted.

VI. Protected Landscapes are areas which have often been significantly modified by people, but which still contain important wild land resources. Traditional land uses, including fishing, grazing, and some agriculture, are often permitted to accommodate the needs and interests of local populations. Land use control is often at the local government level.

VII. Resource Reserves are "interim" WMAs. They are typically fairly extensive areas which are not yet heavily settled, but which may be under relatively recent pressure for colonization, timber or mineral extraction, or other intensive uses. This WMA category is designed to restrict such uses until a land use plan or other management guide is issued to channel further development in an environmentally suitable manner.

VIII. Multiple Use Management Areas are intended to allow sustainable production of such economic goods as water for downstream uses; timber (obtained through low intensity logging); fuel wood; wild fruits, herbs, gums, or other plant products; wildlife; fish; grazing; and outdoor recreation. Included in this category are most "forest reserves" and "protection forests," including those established largely for watershed catchment protection. Within these WMAs, management is primarily oriented to the sustaining of these economic activities, although special zones may also be designated within these areas to achieve

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more specific conservation objectives, such as preservation of biological diversity. These WMAs are generally large and capable of sustaining these types of economic activities without degradation or elimination of the wild land resource. Generally, these wild land areas do not possess nationally unique or exceptional natural features.

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Appendix 2 - International Agreements with African scope

a. African Convention on the Conservation of Nature and Natural Resources, 15 Sep 68, Algeria, Algeria

b. Protocol Concerning Specially Protected Areas + Biological Diversity in the Mediterranean, 16 February 1976, Barcelona, Spain

c. Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (Abidjan Convention), 23 March 1981, Abidjan, Ivory Coast

d. Regional Convention for the Conservation of Red Sea + Gulf of Aden Environment, 14 February 1982, Jeddah, Saudi Arabia

e. Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi Convention), 21 June 1985, Nairobi, Kenya

f. Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region, 21 June 1985, Nairobi, Kenya

g. Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, 28 May 1987, Harare Zimbabwe

h. Convention for the Establishment of the Lake Victoria Fisheries Organization 30 June 1994, Kisumu, Kenya

i. Lusaka Agreement on Co-Operative Enforcement Operations Directed at Illegal Trade in Wild Fauna + Flora, 8 September 1994, Lusaka, Zambia

j. Southern African Development Community Protocol on Wildlife Conservation + Law Enforcement, 18 August 1999, Maputo, Mozambique

k. Convention on the Sustainable Management of Lake Tanganyika, 12 June 2003, Dar es Salaam, Tanzania

l. Protocol for Sustainable Development of Lake Victoria Basin, 29 November 2003, Arusha, Tanzania

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Appendix 3 – Excerpts from Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3160.01, “No-Strike and the Collateral Damage Estimation Methodology”

Enclosure C, “No-Strike Policy Guidance” 13 February 2009

§ 1. Introduction

a. No-Strike entities44 are those designated by the appropriate authority upon which kinetic or non-kinetic operations are prohibited to avoid violating international law, conventions, or agreements, or damaging relations with coalition partners and indigenous populations. The infliction of unnecessary suffering or damage to civilian persons or property that is excessive in relation to the concrete and direct military advantage anticipated is inconsistent with international law and is contrary to DOD policy outlined in this document and in references a and b.

b. The source and method for defining a person, place, or thing as a No-Strike entity is derived primarily from the body of international law collectively known as LOW. The LOW incorporates international treaties and agreements adhered to by the U.S. government, as well as customary international law, into a comprehensive set of guidance and requirements governing the conduct of modern warfare.

§ 2. “General Guidance”:

a. The LOW requires all military personnel to take reasonable precautions to ensure that only military objectives are targeted and to ensure that civilian or noncombatant objects are not made the object of attack. NSLs identify and functionally characterize LOW protected No-Strike entities, forming the strategic and operational basis for target de-confliction during operational planning, CDE within the target development process, and the de-confliction of Joint Fires during operational and tactical execution. See Enclosure D for additional guidance on CDE.

b. No-Strike Entities. No-Strike entities can be both traditional and nontraditional in nature,45 and consist of objects which are functionally characterized as civilian and/or noncombatant and therefore are prohibited from attack. No-Strike entities may include, but are not limited to medical, educational, diplomatic, cultural, religious, and historical sites, or other objects that do not, by their nature, location, purpose, or use, effectively contribute to the enemy’s war-fighting or war-sustaining capability. These entities are generally not lawful targets under normal circumstances; however, if used for the furtherance of military or hostile force objectives, No-Strike entities lose their protected status and may be subject to attack, provided the adversary

44 Also sometimes referred to as collateral objects for the purposes of CDE. See Enclosures B and D.

45 For the purposes of this instruction, the term “traditional” refers to physical entities such as facilities, units, and other entities geospatially located within the geographic area of operation. The term “nontraditional” refers to entities that are more abstract in nature and are usually associated with transnational information technology and global economic structures. These “non-traditional” entities may include objects such as computer networks, Web sites, IP addresses, bank accounts, etc.

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has been put on notice. For example, if a hospital structure is used to store weapons or is used for some other military purpose, a warning must be given and if unheeded, the facility forfeits its protected status under the LOW and becomes a lawful military target. When such a change in status occurs, the CCDR or authorized designee may approve the entity for attack

c. No-Strike Entities Located on Military Installations. When located on installations determined to be lawful military targets, No-Strike entities should be evaluated for collateral damage concerns and mitigated IAW Enclosure D. It must be assumed these entities host protected functions unless confirmed otherwise.46 No-Strike entities must be geospatially defined, developed as separate facilities, and assigned a functional category code and O-suffix, as appropriate. Proximity of lawful military targets to No-Strike entities does not preclude engagement of the lawful military target. However, in these circumstances the commander must weigh the anticipated loss of life, damage to property, or other negative effects incidental to the attack versus the military advantage expected to be gained by the attack. In making the decision, commanders must consider the military necessity for attacking the target, proportionality of the means planned for target engagement, and reasonableness within the framework of operational objectives.

d. No-Strike Entities Versus Restricted Targets. Restricted targets are different from No-Strike entities. Restricted targets are those valid military targets which support the attainment of operational objectives, but which have been restricted from specified means of effects or engagement for operational, political, intelligence gain/loss, environmental, collateral damage, and/or ROE considerations.47 CCDRs are required to identify, develop, maintain, and distribute a list of restricted targets (known as the restricted target list (RTL)) for tasked plans and/or operational orders (OPORDs) within their assigned AOR. The RTL provides the target identification, effects restrictions, nominating command/agency, rationale, and approval authority for target engagement and effects. The RTL must be separate and distinct from the NSL.

§ 3. The No-Strike Process

a. General. Participation and cooperation among stakeholders is critical to the success of the No-Strike process. Non-DOD stakeholders in particular play a key role in protecting life and property by identifying the location and functionality of non-military entities. Specific instructions on database and NSL development are provided in the appendices to this enclosure.

46 If the function of these entities is confirmed as supporting a military objective, it is not necessary to treat them as collateral damage concerns. These entities are deemed lawful targets IAW reference a, and any incidental damage sustained as a result of combat operations should be considered additional damage as defined in reference h.

47 Valid targets are those that have been vetted as, “A part of target development that ensures all vetted targets meet the objectives and criteria outlined in the commander’s guidance and ensures compliance with the law of armed conflict and rules of engagement.” JP 3-60, Joint Targeting, reference e.DRONES /

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b. Identification, Characterization, and Nomination(1) Identification, characterization, and nomination of No-Strike entities are the first steps in the No-Strike process. All stakeholders have the responsibility to identify and characterize the functionality of No-Strike entities as accurately as possible, and report this information to the responsible combatant command, JTF, or responsible U.S. government department or agency in a timely manner. Every effort shall be made to validate No-Strike entity nominations; however, timeliness of the reporting is critical during the conduct of military operations.(2) To increase the accuracy and currency of reporting on facilities, combatant commands should encourage organizations to periodically provide a Global Positioning System (GPS) quality center-point and corner points defining the facility boundary for each potential No-Strike entity of interest along with an expected duration of occupancy. Street addresses and/or general descriptions of facility locations are of little use for geospatially defining No-Strike facilities. This information is essential to the collateral damage process and also allows more efficiency via automated tools.

c. Development. No-Strike entities require the same accuracy in location and geospatial definition as that of lawful military targets. Accurate positioning and geospatial development of No-Strike entities and identification of collateral damage/effects concerns is part of both the deliberate and dynamic targeting processes and is a continuous process that does not end when military operations commence (see reference e for detailed discussion on the deliberate and dynamic targeting processes). The continuous identification and development of No-Strike entities, well in advance of and throughout military operations, is critical to campaign success.

d. List Generation and Maintenance. NSL generation and maintenance must be an assigned task with frequent and routine reviews by the combatant command No-Strike Coordinator. Participation by stakeholders and validation by the appropriate agencies will yield additions, changes, and/or deletions to the NSL on a regular basis. Active maintenance will ensure the most up to date information is available to planners and battle management systems supporting target planning and CDE. NSL approval is a CCDR responsibility and the procedures governing NSL approval are a command function.

e. Dissemination. After approval, the geographic CCDR will ensure routine and timely dissemination of NSLs to all subordinate and supporting commands and supported functional commands with a periodicity appropriate for the tempo of operations. Subordinate and supporting commanders must then ensure the NSL is disseminated down to every level of their commands. See Appendix B to this Enclosure for additional guidance on NSL dissemination.

f. Execution. Deliberate and dynamic targets must be validated against the latest NSL prior to attack. CDE and mitigation will be accomplished IAW Enclosure D and the governing ROE for the particular operation. Targets that cannot be mitigated for collateral damage will be forwarded for review and approval IAW reference d.

g. Follow-on Operations. Traditional No-Strike entities typically consist of facilities and locations that are important to planners in follow-on, stability operations, such as hospitals, food

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distribution points, and refugee camps. These and similar locations could be inappropriately exploited by insurgent or terrorist groups, in which case they may lose their protected status.Consequently, the No-Strike process remains a U.S. government priority even after the cessation of major combat operations. By limiting unnecessary suffering and disproportionate damage, the No-Strike process will accelerate recovery in post-conflict operations and minimize operational limitations routinely imposed as a result of international sensitivities over the humanitarian impacts of military operations.

Enclosure B, “Collateral Objects, Dual-Use, and Human Shields”

1. Introduction. Objects defined by the Law of War (LOW) as functionally civilian or non-combatant in nature are considered protected or collateral objects…. Knowledge of collateral objects is essential to target development, the No-Strike process, and the CDM. Protected or collateral objects will be treated in accordance with policy and guidance prescribed in this instruction and operational ROE.

2. Protected or Collateral Object Categories. Collateral objects are divided into two categories based on their sensitivity. Objects are represented by MIDB classification category codes (CATCODES) for the purposes of intelligence production, target development, and as a standardized description of each category. Table B-1 and B-2 below show the collateral objects by category type and tie specific CATCODEs to their description (number in parenthesis).

a. Category I Protected or Collateral Objects. This category includes the most sensitive subset of objects defined by the LOW. These objects typically comprise the core of the NSL (see Enclosure C, Appendix A). An operation’s ROE may dictate other categories for the supporting NSL.

(1) Diplomatic offices, foreign missions, and sovereign nonmilitary property of other nations within the AORs.(2) Religious, cultural, historical institutions, and structures.(3) Intergovernmental organizations (e.g., United Nations, North Atlantic Treaty Organization) and Nongovernmental organizations (e.g., International Committee of the Red Cross, Amnesty International) property, equipment, and personnel.(4) Medical facilities (both civilian and military).(5) Public education facilities including nonmilitary schools, colleges, universities, and institutes.(6) Civilian refugee camps and concentrations.(7) Prisoner of war camps and concentrations and government detention facilities/prisons.(8) Facilities whose engagement may result in pollution that cannot be contained to include contamination of standing water, streams, and rivers.(9) Dams or dikes whose engagement may result in the flooding of civilian areas.

Category I MIDB Codes with potential for including environmental sites/resources of interest:

B-1, 2.a.(2) - Religious, cultural, historical institutions, and structures.

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77600 Religious, Cultural and Historical Institutions, General 77610 Religious Institutions 77620 Cultural and Historical Institutions 77630 Cemeteries 77700 Libraries

B-1, 2.a.(8) - Facilities whose engagement may result in pollution that cannot be contained to include contamination of standing water, streams, and rivers.

43110 Water Supply Facilities, Treatment Plants 43210 Sewage Waste Facilities

B-1, 2.a.(9) - Dams or dikes whose engagement may result in the flooding of civilian areas.

43121 Water Supply Facilities, Storage Facilities, Reservoirs Dikes and Other Water Control Features, General

43810 Dikes and Other Water Control Features, Critical Dike Sections 43820 Dikes and Other Water Control Features, Water Control Features, Other Than

Dikes and Dams 43900 Dams, General 43910 Dams, Concrete Dams 43920 Dams, Earthen or Rock-Filled Dams 43930 Dams, Masonry Dams 43940 Dams, Composite Dams, General Dam Entry 43941 Dams, Composite Dams, Concrete Component of Composite Dam 43942 Dams, Composite Dams, Earthen or Rock-Filled Components of Composite

Dams 43943 Dams, Composite Dams, Masonry Component of Composite Dam

b. Category II Protected or Collateral Objects. This category includes the remainder of objects defined by the LOW and may be on the NSL.

(1) Nonmilitary billeting and accommodations including private civilian housing and family housing on military or government property.(2) Civilian meeting places including athletic fields, stadiums, racetracks, parks, civic and convention centers, theaters, amusement parks, markets, and recreational facilities.(3) Public utilities and facilities including those that generate, distribute, or transport electricity, petroleum or water intended for civilian consumption; commercial fuel service stations, civilian mass transit facilities, water supply facilities, waste facilities, urban gas supply, fire stations, postal facilities, police stations, civil defense facilities, and financial institutions.(4) Agricultural processing and storage facilities that market or distribute foodstuffs for civilian consumption.

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(5) Facilities and/or structures for which the functionality/purpose is unknown are classified as Category II Protected or Collateral Objects.

Category II MIDB Codes with potential for including environmental sites/resources of interest:

B-1, 2.b.(2) - Civilian meeting places including athletic fields, stadiums, racetracks, parks, civic and convention centers, theaters, amusement parks, markets, and recreational facilities.

43100 Water Supply Facilities, General 43120 Water Supply Facilities, Storage Facilities, General 43122 Water Supply Facilities, Storage Facilities, Tanks 43123 Water Supply Facilities, Storage Facilities, Towers and Standpipes 43130 Water Supply Facilities, Pumping Stations 43140 Water Supply Facilities, Sources, General 43141 Water Supply Facilities, Sources, Wells 43142 Water Supply Facilities, Sources, Springs 43143 Water Supply Facilities, Sources, Rivers or Streams, Intake Points 43144 Water Supply Facilities, Sources, Lakes, Intake Points 43145 Water Supply Facilities, Sources, Salt Water Bodies, Intake Points 43150 Water Supply Facilities, Irrigation Pump Stations 43160 Water Supply Facilities, Water Pipeline Segments 43190 Water Supply Facilities, Water Drilling Towers 43200 Waste Facilities, General 43220 Waste Facilities, Solid Waste Processing, General 43221 Waste Facilities, Solid Waste Processing, Transfer Stations 43222 Waste Facilities, Solid Waste Processing, Landfills

B-1, 2.b.(3) - Public utilities and facilities including those that generate, distribute, or transport electricity, petroleum or water intended for civilian consumption; commercial fuel service stations, civilian mass transit facilities, water supply facilities, waste facilities, urban gas supply, fire stations, postal facilities, police stations, civil defense facilities, and financial institutions.

46250 Parks

c. Protected or collateral object categories may be modified by the Secretary of Defense (SecDef) or President as the military or political situation dictates. Changes to these categories will be reflected in operation specific ROE.

3. Dual-Use Targets

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a. Targets characterized as having both a military and civilian purpose/function are characterized as dual-use. In most cases, dual-use targets consist of facilities/structures associated with senior governmental level command and control, national communications infrastructure, media centers, national power and petroleum, oil, and lubricants infrastructure, industrial facilities, and public utilities providing support to the civilian population and the military effort.

b. Dual-use targets may also consist of LOW protected facilities/structures occupied by combatants. LOW protected structures occupied by enemy combatants for the purpose of advancing military objectives lose their LOW protection and are not classified as dual-use (provided the adversary has been put on notice). Similarly, if the function of a collateral object is determined to be supporting military operations and/or objectives exclusively, it is not classified as dual-use. Such entities are not considered collateral damage or No-Strike concerns and may be deemed lawful targets IAW reference a (also see Enclosure C, subparagraph 2.c. and supporting footnote).

c. Commanders are responsible to determine the predominant function of LOW protected structures, based on current intelligence, and decide if the target is dual-use or not. The ROE for a specific operation provides the authorizations and/or prohibitions for targeting dual-use objects. Regardless of the ROE in effect, civilian personnel working within the boundary of dualuse targets must be considered as noncombatant casualties for the purpose of casualty estimation under guidance provided in Enclosure D.

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Appendix 4 – Military Necessity and Underlying Principles

Joint Publication 1-4, “Legal Support to Military Operations” Chapter 2, §2, “Laws of War Principles” 17 August 2011

a. Military Necessity. The principle of military necessity justifies those measures not forbidden by international law that are indispensable for securing the complete submission of the enemy as soon as possible. However, this principle is not applied in a vacuum. It must be applied in conjunction with other law of war principles. Military necessity generally prohibits the intentional targeting of protected persons (civilians, hostile personnel who have surrendered or are otherwise “out of combat,” etc.) and places (objects or places that are used for purely civilian purposes, such as hospitals, schools, and cultural property that have not been converted to or for military/hostile use) because they do not constitute legitimate military objectives in furtherance of the accomplishment of the mission.

b. Unnecessary Suffering. The principle of unnecessary suffering forbids the employment of means and methods of warfare calculated to cause unnecessary suffering. This principle acknowledges that combatants’ necessary suffering, which may include severe injury and loss of life, is lawful. This principle largely applies to the legality of weapons and ammunition. Generally, weapons and ammunition that have been issued by DOD have been reviewed to ensure compliance with the law of war and this principle. However, approved weapons and ammunition also may not be used in a way that will cause unnecessary suffering or injury. A weapon or munition would be deemed to cause unnecessary suffering if, in its normal use, the injury caused by it is disproportionate to the military necessity for it, that is, the military advantage to be gained from its use.

c. Distinction. This principle requires parties to a conflict to distinguish between combatants and noncombatants and to distinguish between military objectives and protected property and places. Parties to a conflict must direct their operations only against military objectives. Military objectives are combatants and those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definitive military advantage.

d. Proportionality. The principle of proportionality prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage expected to be gained. As such, this principle is only applicable when an attack may possibly affect civilians or civilian objects, and thereby, may cause collateral damage. Proportionality is a way in which a military commander must assess his or her obligations as to the principle of distinction, while avoiding actions that are indiscriminate.

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