The Code of Conduct in Relation to International Law

• Author: By Major Elizabeth R. Smith, Jr.
• Pages: 03

This a,ticlr wnalyres the conduct required by American prisoners of I C ~ T by the Cn;ted States domestic law

(Code of Conduct. Depnrtmrnfs o i Deirnse and the Arm zmplementi,ifl regvlntions, and the l'n;forin Code of Military Jsstiee) and the Gene'

1. ISTRODUCTION

   In the almost ten years since President Eisenhower issued h1s Executive Order ' prescribing the Code of Conduct for all mem-bers of the Armed Forces, there has been little reason to consider the effect of the Code in practice, and its compatibility wth the Geneva Convention of August 12, 1949 Relative ta the Treatment of Prisoners of War.: However. in hght of the extensive role the United Statea mihtary farces are now playing in Southeast Asia and the potential there far expansion of the conflict into a war In which the Knited States might be a participant, it seems timely to examine the Code of Conduct in relation to the GPW.

   The Code was drafted by a Defense Advisory Committee on Prisoners of War following the Korean War. Its provisions re- * This article war adapted from a thesis presented to The Judge Adsacate General's School, U S. Army, Charlarreiv~lle. T~rginia, while the author vas a member of the Thirteenth Career Course. The opinions and eonelu~ions presented herem are those of the author and do not necessarily represent the viers of The Judge Adioeare General's School or any other governmental

   fleet the experiences of American prisoners of war (PW's) in that conflict.A Examination of the Report of the Commlttee makes it evident that the Committee was thinking of "prisoners of war" in the international law context.' For that meaning one must look to articles 2 and 1. The GPR applies to a11 eases of declared war oi. of any other armed conflict which may arise between two or mare of the parties to the GPR, even if the state of war is not recognized by one of them. Xembers of the United States Armed Farces who fall into the paaer of the enemy in the course of a war are PW's and entitled to the protection accorded by the GPW. \Yhile none of the major parties of the Korean War (United States, Communist China, North and South Korea) had ratified the GPR at the outbreak of that War, a11 announced an intention to adhere to It.' The Code is actually a product of the failure of the Chinese Communists to live up to the letter and spirit of the GPW. Their exploitation of the PIV's for propaganda purposes provided the United State8 with a blueprint of what to expect in future conflict with them and the sort of training American soldiers should recave to counter such efforts.

   Since the Korean War, ail the major participants therm have ratified the GPX and thus are parties to it, as are Xorth and South Vletnam, Cambodia. Thailand, Laos, and Soviet Ru8sia.O

   'During the period from -4px11 l86: until the eersatm of hast>lmer, the Chinese Cornmumti were in control of the PW'r The Chlneie sought to obtain propaganda rnafeliak far pryeholagml warfare efforts to extract valuable military I!ifarrnauan from the Pw'r. to convert the P h to Cam.

   mumem as a way of life. and to vndermlne the lmenean PW'e faith and trust

   books x'hieh discuss PW conduct ~n Korea and provide contrasting rleiv~ of the nature of thnt eandocr are: KIII(E~, Is EVERY WAR

   BUT Ohm (19591.and BIDERMAW,

   X~RCX

   TO CALLMZY (1963) Far a dlscurrm of the Code of Conduct and the GPW I" connecfm wth the conduct of .4menean PW's in Koiea, see Prugh, The Code of Cond2ict for tile Anred Forces, 66 CmIw L.

   REV. 678 (19361

   'See 26 DEP'T ST.ATE BLLL 139-90 (19511, U N. Doc Xo, S2232 (1951).S REP. NO 2832, at 2.

   As of Janvary 1, 1965. 109 nation8 were partied to the GPU' For B list of SI1 partlea, See U S DEP'T Oi. SrrrE, TREATIES Ix FORCE. 1865-A LlST OFTREATIES

   AND OTHER IXTER\-ITIO+AL AGREEMENTS

   OF TBE rxmm S n m s IXFORCEox JAII'AR> 1. 1963, 278 (19661

   86 AGO 6L26B

   CODE OF CONDUCT

   In his Executive Order prescribing the Code of Conduct, the President directed the Secretary of Defense to take such action as he deemed necessary to implement the Order and to disseminate and make the Code known to all members of the Armed Forces of the United States. The Secretary's latest implementation of the Code is Department of Defense Directive Number 1300.7, Training and Education Measures Necessary to Support the Code of Conduct (8 July 1964): In his Directive the Secretary set forth the policies which should govern all Code of Conduct instruction and instructional material. He directed the Secretaries of the Military Departments to develop training programs and instructional materials in support of this Directive and ordered copies of their implementing instructions to be forwarded to him within ninety days. In compliance, the Secretary of the Army issued Army Regulations Number 350-30, Education and Training-Code of Conduct (12 Xavember 1964).* Throughout this article the Directive and Regulation will be referred to collectively as the "departmental regulations." Consideration will not be given to regulations issued by the Departments of the Air Force and Navy.

   This article shall analyze the conduct required of American PW's by the United States domestic law (Code of Conduct, departmental regulations, and the Uniform Code of Military Jus-tice s, and the GPW, with the purpo~e of considering whether the Code is compatible with the GPW. Bnef consideration shall be given to the application of the Code of Conduct in a conflict which is less than a declared or recognized war, wherein the GPW in full might not be applied.

   Article I1 of the Code af Conduct does not concern conduct of prisoners of war, but relates to surrender. This article will not be discussed herein.

   11. A S AMERICAN FIGHTING MAN, RESPONSIBLE FOR HIS ACTIONS

   Article I, Code of Conduct: I am an American fightlng man I serve m the forces which gvard my country and our way of hie. 1 am prepared to give my ihfe in their defense.

   Article VI, Code of Conduct; I will never forget that I am an Amen-can fighting man, responshle for my actions, and dedicated to the

   .Hereinafter cited ae DOD Directive 1300.7. 8 Hereinafter cited 8s AR 360.80. para.-. BHeremafter cited a8 UCHJ art.-.

   100 msie

   unfrp iree I ~ 1 1 8 trust .- nj God and x

   Articles I and VI of the Code of Conduct emphasize that the Ammian soldm IS a fighting man, responsible for his actions, and dedmted to guardmg his country and to the principles and

   WAY of life for nhlch hls country stands. These aiticles are of primary importance because of two implications: first. the militar) personnel to whom the Code appl~es, and. second. accaunt-ability for failure to adhere to the Code. Examination ~ 1 1 1 he

   made of these two miilications as affected by United States domestic IRK and the GPW and of the compatibility of the two bodies of law This pattern wll be followed in each chapter de-voteil to consideration of the Code articles.

   4. rYITED STATES DOMESTIC LAW

   Included in the phrase "United States Domestic La=\" ale the President's Executive Order. 1atmns Im-plementmg the Code and the L

   The Executive Order nnd departmental regulations implement-mg the Code aie "law" for all military personnel." One uaually coiicei\-es of 'Ian " as a rule or rules issued by a legislatire bodjor a rovereign who can 8160 pmwle the sanction for iiolation of the la^" However, the President has no authority on his own initintire to piesuibe sanctions for violation of his orders. This fact has not deterred courts and writer3 from labelling Presiden-tia! older3 and regulations aa "law"

   B Jv8twc.

   CODE OF CONDUCT

   For sanctions to punish violations of the Code and departmental regulations one must look to the UCMJ." To the extent that no sanctions exist in the LCW, then there may be unenforceable provisions in the Executive Order and the departmental regula-tions. Such provisions then may exert only a moral force.'l

   1. To Whom the Code Applies.

   Although the Code of Conduct begins with the words "I am an American fighting man," the President made clear in his Execu-tive Order that it applies to every member of the Armed Forces. The Secretaries of Defense and the Army have also declared that the Code is applicable to all members of the Armed Forces at all times.I3

   No doubt the drafters chose the phrase "I am an American fighting man" to emphasize that the reason for the existance of soldiers is ta fight the country's enemies rather than to limit the application of the Code to combat men, eliminating members af the adminiatrative s e r ~ m ~ who may not reach a combat zone. The

   use of the phrase IS clearly a dramatic device. since the Executive Order 1s directed to "Members of the Armed Farces of the United States." The departmental regulations also clearly indicate the application of the Code to all military personnel.

   2. Aecountnbilitu fo? Failvre to Adhere to thp Coda. Departmental regulations implementing the Code and prescribing training guidance assert that the UCMJ applies to military personnel at all times." That it 1s applicable to American military personnel even while held by an enemy as PW's was affirmed by an Army Board of Review in its decision upholding the eonvictian of a repatriated American PW for misconduct while a PW during the Korean \Tar.>' This 1s not a new principle. One may look to Wmthrop's MilitarU Lnia and Precedents x and to United States ex. pel. Hirshberg T. .l.lalamphl/:- far earlier affirmation of the principle that a repatriated PW may be held liable for offenses he commits during captivity against his country and his fellow PWS.

   B. GPn'

   1. Aimzed Forces P~rsonnel to Whom Applied.

   Articie 4.4(1), GPW provides that members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces are PW's. Thus the GPW applies to all members of the United States Armed Forces caiitured by the enemy in a declared or recognized war or any other armed conflict between the United States and one or more of the parties to the GPB, even if the...