2.5

1+1.5?

11.5?

§ 11.5

(c) Statute of limitations. Violations of the laws of war listed herein are not subject to any statute of limitations.

§ 11.5 Definitions.

(a) Combatant immunity. Under the law of armed conflict, only a lawful combatant enjoys ‘‘combatant immu- nity’’ or ‘‘belligerent privilege’’ for the lawful conduct of hostilities during armed conflict.

(b) Enemy. ‘‘Enemy’’ includes any en- tity with which the United States or allied forces may be engaged in armed conflict, or which is preparing to at- tack the United States. It is not lim- ited to foreign nations, or foreign mili- tary organizations or members thereof. ‘‘Enemy’’ specifically includes any or- ganization of terrorists with inter- national reach.

(c) In the context of and was associated with armed conflict. Elements con- taining this language require a nexus between the conduct and armed hos- tilities. Such nexus could involve, but is not limited to, time, location, or purpose of the conduct in relation to the armed hostilities. The existence of such factors, however, may not satisfy the necessary nexus (e.g., murder com- mitted between members of the same armed force for reasons of personal gain unrelated to the conflict, even if temporally and geographically associ- ated with armed conflict, is not ‘‘in the context of’’ the armed conflict). The focus of this element is not the nature or characterization of the conflict, but the nexus to it. This element does not require a declaration of war, ongoing mutual hostilities, or confrontation in- volving a regular national armed force. A single hostile act or attempted act may provide sufficient basis for the nexus so long as its magnitude or se- verity rises to the level of an ‘‘armed attack’’ or an ‘‘act of war,’’ or the number, power, stated intent or organi- zation of the force with which the actor is associated is such that the act or attempted act is tantamount to an attack by an armed force. Similarly, conduct undertaken or organized with knowledge or intent that it initiate or contribute to such hostile act or hos- tilities would satisfy the nexus require- ment.

(d) Military Objective. ‘‘Military objec- tives’’ are those potential targets dur- ing an armed conflict which, by their nature, location, purpose, or use, effec- tively contribute to the opposing force’s war-fighting or war-sustaining capability and whose total or partial destruction, capture, or neutralization would constitute a military advantage to the attacker under the cir- cumstances at the time of the attack.

(e) Object of the attack. ‘‘Object of the attack’’ refers to the person, place, or thing intentionally targeted. In this re- gard, the term includes neither collat- eral damage nor incidental injury or death.

(f) Protected property. ‘‘Protected property’’ refers to property specifi- cally protected by the law of armed conflict such as buildings dedicated to religion, education, art, science or charitable purposes, historic monu- ments, hospitals, or places where the sick and wounded are collected, pro- vided they are not being used for mili- tary purposes or are not otherwise military objectives. Such property would include objects properly identi- fied by one of the distinctive emblems of the Geneva Conventions but does not include all civilian property.

(g) Protected under the law of war. The person or object in question is ex- pressly ‘‘protected’’ under one or more of the Geneva Conventions of 1949 or, to the extent applicable, customary international law. The term does not refer to all who enjoy some form of protection as a consequence of compli- ance with international law, but those who are expressly designated as such by the applicable law of armed conflict. For example, persons who either are hors de combat or medical or religious personnel taking no active part in hos- tilities are expressly protected, but other civilians may not be.

(h) Should have known. The facts and circumstances were such that a reason- able person in the Accused’s position would have had the relevant knowledge or awareness.

§ 11.6 Crimes and elements.

(a) Substantive offenses—war crimes. The following enumerated offenses, if applicable, should be charged in sepa- rate counts. Elements are drafted to…

https://www.govinfo.gov/content/pkg/CFR-2014-title32-vol1/pdf/CFR-2014-title32-vol1-sec11-6.pdf