[Code of Federal Regulations]
[Title 32, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR11.5]

[Page 33]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
 
PART 11--CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION--Table of 
Contents
 
Sec. 11.5  Definitions.

    (a) Combatant immunity. Under the law of armed conflict, only a 
lawful combatant enjoys ``combatant immunity'' or ``belligerent 
privilege'' for the lawful conduct of hostilities during armed conflict.
    (b) Enemy. ``Enemy'' includes any entity with which the United 
States or allied forces may be engaged in armed conflict, or which is 
preparing to attack the United States. It is not limited to foreign 
nations, or foreign military organizations or members thereof. ``Enemy'' 
specifically includes any organization of terrorists with international 
reach.
    (c) In the context of and was associated with armed conflict. 
Elements containing this language require a nexus between the conduct 
and armed hostilities. 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 committed between members of the same 
armed force for reasons of personal gain unrelated to the conflict, even 
if temporally and geographically associated 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 involving 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 severity rises to the level of an 
``armed attack'' or an ``act of war,'' or the number, power, stated 
intent or organization 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 
hostilities would satisfy the nexus requirement.
    (d) Military Objective. ``Military objectives'' are those potential 
targets during an armed conflict which, by their nature, location, 
purpose, or use, effectively 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 circumstances 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 regard, the term 
includes neither collateral damage nor incidental injury or death.
    (f) Protected property. ``Protected property'' refers to property 
specifically protected by the law of armed conflict such as buildings 
dedicated to religion, education, art, science or charitable purposes, 
historic monuments, hospitals, or places where the sick and wounded are 
collected, provided they are not being used for military purposes or are 
not otherwise military objectives. Such property would include objects 
properly identified 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 expressly ``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 compliance 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 hostilities are expressly 
protected, but other civilians may not be.
    (h) Should have known. The facts and circumstances were such that a 
reasonable person in the Accused's position would have had the relevant 
knowledge or awareness.