Date

Oct 7, 1977

Description

In the weeks before the signing of Protocol I in Geneva, a Department of Defense working group led by Deputy Assistant Secretary of Defense Walter Slocombe prepared a comprehensive analysis of the Protocol and its negotiating history, the position on each section taken by the U.S., other Western countries, and “Third World” nations, beginning with the preamble and proceeding article by article. The report found much that was beneficial and positive in Protocol I but, like the NATO analysts, the working group was concerned about articles 35 and 55 because of their implications for nuclear weapons use. Such concerns supported the conclusion on the need for an “express understanding that the Rules of the Protocol do not affect the use of nuclear weapons.”

Like the NATO analysts, the working group saw Articles 51 (paragraph 5B) and 57 as affirming the rule of proportionality. Thus, incidental civilian casualties were not prohibited, as long as it was evident that they would not be “excessive in relation to the concrete and direct military advantage anticipated.” Also prohibited was the “indiscriminate” use of weapons that could cause casualties that were “excessive in relation to the concrete and direct military advantage anticipated.” Besides codifying the rule of proportionality, the Article “gives to military commanders uniformly recognized guidance on this responsibility to civilians and the civilian population in carrying out attacks against military objectives.”

While Defense officials saw the articles as “a major step in the reaffirmation and development of humanitarian law applicable in armed conflict,” they also recognized the implications for nuclear weapons use. Also worrisome was language about weapons causing “long term major health problems.” The Defense group did not believe that nuclear weapons would necessarily cause “excessive casualties,” but they concluded that “in a situation of general nuclear warfare it would be impracticable to apply the rules of the Protocol relating to protections of civilians.” That further supported the view that the Protocol did not apply to nuclear weapons.

As before, the prohibitions against reprisals concerned Pentagon officials, and the report discussed the possibility of lodging a formal reservation on this point when the U.S. signed Protocol I. While the report found it “unlikely that the U.S. would have to resort to reprisals against civilian populations, as such, except in situations involving nuclear weapons,” it expressed interest in a reservation if it could be made without weakening the U.S. understanding that excluded the Protocol's application to nuclear weapons. None of this, however, would be the Pentagon’s last word on reprisals and other issues raised by Protocol I because the Joint Chiefs of Staff had not yet given it a full review, which would have great bearing on any Defense Department recommendations on ratification.

Source

Anonymous contribution

Document published in following posting(s):

Nuclear Weapons and the Law of War

Jun 6, 2023