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“Executive Summary of a Classified Report of the U.S. Delegation to the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,” Confidential, with Unclassified report attached, June 10, 1974, Excerpt

i IL'- 1 - J a J L t l Anihority Q J JI By L _- _ - AfU Dmc' l' l r 7 CLASSIFIED ru roRT of the UNITED STATES OELEGJ TION to the Oiplornatic Conference on the Reaffirmation and evelopment of Inte national auman i t arian Law Applicable in Armed Conflicts Geneva Switzerland February 20-March 29 1974 Subltlitted to the SECilETllY OF STATE George • Aldrich Chairman of the Delegation June 10 1974 L _J L DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 _J - --- --- - --- · - - 7 nuns li • ii r- I l 1 I j I I SWlTZl RLANO AND THE CONFERENCE ARM NGr 2N1'S The Swiss Gover11111ent which convened the Diplomatic Conference seemed ill prepared for the politicization of the Conference which manifested itself from the very outset The tone of the Conference was sot by the opening address of Mr Ould Oada the President of Mauritania who had sought an invitation to speak which the Swis Government reluctantly extended in view of his presence in Geneva for other reasons ne reproached th a Zit niats who wanted to throw the Arabs into the Sea praised the Palestine tibe ration Organiaation and those fighting a9aim t the colonialist regimes in the Portuguese colonies and in 1 hodesia and South Africa and reproached the United States and the nepublio of Vietna for their activities in Cambodia and in Vietnam f 'the Swiss GoverMent had apparently not been aware that the division of the spoils of Conference offices would be dictated by the united N alions pattern and its preliminary soundings and proposed list came to naught It is improbable that the swiu could have done anyth ing to keep a storm from brewing over the question of representation of national Ube ration movements Guinea-Jlissau and the Provisional Revolutionary aovernit ont in Vietnam but the President of the Conference M Graber sh owed a certain maladroitness in promoting and carrying through compromise arrangements through eon$ultations in re9ional groups inter-regional contacts and negotiations outslee the conference hall The rules of proeedure that had bean drafted bi• the Swiss Government had to be lahoriout ly gone over and modified nd the President of the Conference and his nureau ware not as energetic or adr•it as they might have been in moving the Conference into ts sUl istantive work All cf these problems reflect the unfamiliarity of the Swiss Government with the rough and tumble of United ttations polities The politicization of the Conference and the hardfought battles over representation ha ve undoµbtedly caused the Swiss Government and the International Committee of the ed Cross -- whioh for all of their juridical independence are often associated in people's minds -- t o think further about their humanitarian role particularly in less developed countries Fears were expressed for example that the role of the tCRC in Vietn would be handicapped by the withdrawal of Hanoi from the Conference and the loss of the vote to admit the PRG The Swiss JifP L w _J ···- ••' •' ·- DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 L _J 7 - 2 - Government and the rcac seem anxious to pres rve what ties they have with the Third World and were concerned lest so111e of the smoke of the political battlinc rub off on them II TRE RSP 1 ESENTATION SSUS The issue of representation partic larly that of the PRG was hard fc u9ht The el ouse of wide partioip11ction in a conference on international humanitarian law was used as a cover for a campai n to enhanoo the international etandin9 of the t l G a nd to provide it with a forwa at the Conference The u s Oeleg ation worked hard to prevent an invitation to the PRG A political officflll Mr Willia H Marsh was brought from th Embassy in Paris deMrches were ade by the Oepartll' nt in a number of ca itals and the Pelegation made every effort to assure the p resenoe of as many delegations as possible that might be expeoted to vote with the United States on the FRG issue It did not go unnoticed that the depart1 1re of Hanoi from the Confe rence and the vote of San Marino were sufficlent to tilt the balance against an invitation to the PRG M r Marsh was a highly effective lobbyist and deserves pa rtic ula r praise for his activity among the Conference delegations A key element in the tactics of the United States Delegation was to separate the PRG issue from GuineaBissau and the national liberatio11 movement$ and to conciliate the African and Arab delegations by acceptin9 the invitation of liberation 1 1¢Vemants without a vote l Qrely istating our reservatio ns for the record 'l'his tactic succeeded as most of these dele9ations abstained on or wex-e a b sent fo r the vote on the PRG Unexpected setba cks in our efforts to 1 -a ep the PRG out were the decision by Indonesian Foreign Minister Malik to instruoe his dele9ation to vote in favor of an invitation to the l'RG and a last-minute decision by the Italian representative Ambassador di Bernardo to absta in despite instructions from Rome to vote against the PttG He apparently did not want to be on the losing side and he thought the RG would be invited lII WARS OF t ATIONAL Ll BSAA'l'ION AND tlATION L LIBBM'l'ION MOVEM EW'l'S The first session of the Conference was dominated by the issue of the representative of the national liberation movements and the applica tion of the Protocol on Internationa l _J DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 L _J Jl l l t- o 1'1f 1 f J I j lwtlwrity PPJ2 3'7 ll _ By fTNARA Datc l Lf' tJS 7 ed Conflicts and the Geneva Conventions of 1949 to wa i s cf na tional liberation 'l'he developing countries with support from the Soviet bloc voted as a solid block according to the pattern that has bawN increasingly col UI On at conferences They 00JM1and$d over twothirds of the votes which is the requisite majority for tile ado t ion of proposals in the pl naey of the Conference They appaared to ha ve the votes for example to force through the text of Article l applying Protoool I to wars of national liberation Our success on the PRG issue and our active lobbying in capitals NY have sufficiently weakened their confidence however to allow avoidance of the vote While Egypt was a co-sponsor and a strong supporter of the proposal concerning wars of national liheration the Egyptian Delegation showed itself to he conciliatory and conscious of the danger of pushing the 111atter too far and too fast The United States Delegation had excellent relations with the Egyptian Delegation and tl' e latter on more than one occasion was helpful in getting other stat is in the same camp off the ir more ext reme positions rn the face of the voting block of the developing countries and the soviet bloc the Western European Group and others did not show the unity that it should have The Delegations Ot the United Kingdom the 'ederal Republic of Germany Belgium the Netherlands and France with which the United States Delegation had excellent relation were helpful and held firm Canada proved to be less firm and more inclined to pursue a conciliatory role than it had in the previous Conferences of Government Experts Norway was predictably the closest fr lend of the national liberation movements and had cultivated this field intensively before the Conference Nordic unity did not show itself strongly he intensity of No ay•s concern with national liberation movements was not shared by Sweden and Finland two countries that often did work together although Finland voted with Norway while SWeden abstained or by Denmark which norm ally cooperated with its NATO allies Australia gave outright support of the application of Protocol I to wars of national liboration The instructions for this change of tosition came from Canberra _J L DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 L _J Authority • lllJ7 13I_ - By ffNARA Date f f d £ 7 r On wara of national liberation the Soviet Union and other members of the Soviet bloc were with the less developed countries On other issues they ere relatively open in their views willing to propose or to aocept compromises and even o-sponsors sOl'IIS propos•ls with the United Stat• lii It is quite clear that many issues that will arise in th$ second session of the conference will as in the case of the first session be seen in the light of their bearing on war• of national liberation This will be true of the definition of prisoners of war the obligations of a Detaining Power means and methods of oomhat and weapons fa particular weapon or technique has been used by militarily advanced powers against a •national liberation movement • it will be oharged that the weapQn causes unnecessary suffering or is indisorindnate in its effects IV OTHER ISSUES here is widespread ignorance among the participants in the Conterence of both wax- and huanita ianism as an •art of the possible • Delegations would not infrequently call for sweeping prohibitions of activity such as propaganda or anything that in fact causes terror in the civilian population on the ground that it is inhumane They were insen$litive to tJie eo111prom l ses that the law must make and to the eompleKities of a body of international humanitarian law which is the product of more than a century of growth Many of the less developed countries seemed unable to cope with the distinction between unavoidable suffering• nd •unnecessary suffering in warfare The SWedish initiative on weap ns did not seem to build up as much momentum as might have been expected Ignorance and the lack of any position were proba ly the causes of the silence of others Sweden came very well prepared with detailed statements about the eh•u aoteristies of various weapons that it would like to see banned but often after the statement of the Swedish Delegation and words of support from Mexico there was only desultory discussion or none at all There will have to be a long pariod of study and discussion about these issues Naturally states will assess these issues in terms of how prohibition or restriction of a particular weapon would affect their security interests The search for consensus will be long and difficult • lillb _j DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 L _j 7 - 5 - V 'l'RE LONGER TERM t ROSP C'r ANO WRA r NEEDS TO 118 OQNE The first session of the Diplomatic Conference raised the question of how many states are really serio s about drawing up ne hWl anitarian law and in becoming parties to the resulting treaties There is reason to suppose that a number perhaps even a majority of · the states present at the Conference and pa rticipatin9 in its work see the Conference primarily in terms of the opportun ty it provides to advance certain politioal causes - such as the end to colonial regimes in sub-Saharan Africa Onoe the Con erenoe is over and the points have been made it may well be that they will show a diminished enthusiaS111 about becoming parties to the instruments One cannot be sure whether the flexibility shown for example by the Soviet bloc is genuine or indicates disinterest in any new Protocols on the law of war mar It will be necessary for the United States to consider What advantages and disadvantages may lie in participation in the second session of the Conference and Whether it would wish to become a party to the trotoc-0ls which according to present indications are likely to emerge from the Confe renae In particular the following issues ust be addressed l Will it be possible for the tin i ted State to live with the formula on wars of national liberation adopted fo r A rticle 1 of Protoool I The sponsors have indicated that the wo rding adopted in Corumit tee l'llay be subject to SOIM adjustment Consideration must be given to whether there is S ll le way of separating out the issue of wars of national liberation so that individual countries may beooma parties to Protocol I without necessarily accepting that obligation It will also be necessary to think what impact the concept of wars of national liberation may have on other artiel s of Protocol land of the Geneva Conventions of 1949 in general and to avoid any formulation which permits unequal application of the Protocols and the convention to different parties to a conflict 2 There is a tendency in the Conference to adopt rather generalized prohil itions on certain methods and means of combat and to extend these t 'arfare at sea and to attaoks against aircraft These may prove to be unacceptable to the United States and more rational alternatives must be sought L DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 L _J _J ' I i Authority l _ Ml 37 Jll By f'_ 'NARA DateiJii s 7 - 6 - 3 Coupled with the fore9oin9 problem is the matter o·f individual criminal responsil' ility for violations of the Protocols If various prohibitions are to be absolute and without reference to intent or fault and if criminal responsibility is to ba retained for violation of the law of war then there is the possibi lity of using the law as a means of denyil 9 ht1111ane treatment to prisoners as happened to American prisoners of war in Vietnam Many delegations objeoted to any reference to intent or to the predictability of oon111equences in tha use of a weapon If prohibitions are to be made absol lte then steps must be taken to assure that a foundation is not laid for the oppression of prisoners We must give parti cular attenti on to these questio11s of individual responsibility before the second session 11 4 In preparation for the Conference of Government experts on Weapons and the second session of the Conference the united States Government will be conductin9 a survey of possible legal restraints on the use or possesion of weapons pursuant to NSSM 194 That study will provide a solid basis for determining the positions that the United States will take on weapons issues at the second session o the Conference There will be a need for further consultations within the western European Group and others befo re the second session of the Conference but it is not to be expected that these will produce unity of position on all or a strong m jority of issues P roba hly Ore u -gont are bilateral consultations with a number of Lntin Amarie n and other developing countries as part of a process of educating them The message must also be brought home to our allies and to those with whom we disagree that it would be a tragedy if the divi iV'l nei s shown at the conference should endanger the frag1le fabric of the eldsting humanitarian law and that the pushing of extreme positions not generally acceptable would not advance the hun11 mitaJ ian prote tion of war victims These points ar¢ not easily made However if conuuunication fails the United States must be ready to say that its accession to the Protocols that nay be drawn up at Geneva should not be taken for granted _J L L DECLASSIFIED A ISS IPS Department of State E O 12958 as amended December 18 2008 ____ _____ ----· _J ---- _ -- 7 · ' • · ' ' 1 · -- 4-_' - · · L L DECLASSIFIED Authority J r-JV' 1 234 _J _J -- '- • • - _ 7 · ' t I I 1' 8LE OP CONTENTS I BACXGROUNO Cl ' TKE CONFERENCE II ORGANIZATION OF THE CONPBRENCE ••••••••••••••••••• II I v COHNITT EE II VI COHMITTBE III VII AD HOC COMMITTEE ON WEAPONS X APPRAISAL OF TIUi CONPERENCE FU1'URE WORX 5 COHMI'l l'EE I IX 1 2 Tit WORJ 01' THE CONFERENCE •••••••••••••••••••• •• IV VIII 6 11 17 23 2S 26 APPENDICES Annex A - Liat of Particip nta •••••••••••• • •••• s AnMx B - U Annex C - Organization of the contere nce 35 Annex D - Principal Stat nta by tbe U S 38 Annex E Belgian Canadian u x and u s Propoaala on Medical Tranaporta •••• 48 - Delegation·••·• •·• •••·••··•· •· 28 L ll u ---· _J _ ' L _j DECLASSIFIED Authority - r rD 2 1 2 5 j - -· 7 l i i l t 't l I 1 I BACKGROUND OF THE CONFERENCE The initiative for the Diplomatic Conference on tho Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts dates back to Resolution XXVIII of the XXth International Conference of the Red croas held in Vienna in 1965 wh ich urged the Inte rnational Committee of the Red Cross to pursue the development of international humanitarian law • This international hwnanitarian law consists for the most part of the four Geneva Conventions of 1949 for the Protection of War Victims the Wounded and Sick1 the Wounded Sick and Shipwrecked at Sea1 Prisoners of War1 and Civilians to which the United States is a party For purposes of this development effort the Hague Conventions of 1907 and the customary laws of war are also relevant In September of 1969 th• XXIat International conference of the Red Cross held in Istanbul urged the I C R C to pursue its efforts to draft new rule• to supplement the existing international humanitarian conventions lL ld to invite government experts to meet for c naultations Simultaneous to these developments attention began to focus on this topic in the United Nations In 1968 the United Nations Conference on Human Rights held in Teheran recommended that the General Assembly invite the SecretaryGeneral of the United Nations to study the steps whioh s hould be taken to secure better applicat ion of the exiating international humanitarian conventions and the need for additional humani tarian treaties Res 2444 XXIII Dec 19 1968 The General Assembly received two reports from tl e Secretary-General U N Docs A 7720 1969 and A 8052 1970 by the time that a decision w G taken by the International Co111Jt1ittee of the Red Cross to convene a Conference of Govunment Experts on this subject in 1971 The first Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed conflicts was convened by the I C R C in Geneva for a period of three weeks in May and June of 1971 Experts from 39 countries including the United States attended and considered various proposals that had been put to the Conference by the I C R C Because of the neoesaity of further consultations and of complaints that there h d not been a sufficiently representative group of states including developing countries present at the First Conference of Government Experts a second such conference was convened in Geneva from May 3 to June 2 1972 Invitations were extended to all parties to the Geneva Coventions of 1949 and u•· · _ · er I' •_ u - •w _J L t 0 L ' _J DECLASSIFIED Authority - tvV 2 I 2 4 r 7 2 over 400 experts designated by 77 governments appeared for the Conference in Geneva The subject matter for conside ration by the Second Conference was two protocols drafted by the staff of the I C R C -- one on International Armed Conflicts and the other on Non-International Arined Conflicts The two Protocols were reviewed in considerable detail by the Second Conference of Government Experts On the basis of the observations made at the two Conferences of Government Experts the I C R C prepared revisions of the two Protocols and a commentary thereon To consider these proposed texts the Swiss Government convened a Diplomatic Conference on the Reaffirmation and Development of International lllllllAnitarian Law Applicable in Arlned Conflicts which met in Geneva from February 20 to March 29 1974 Invitations were extended to the states parties to the Geneva Conventions of 1949 and to members of the United Nations One hundred and twenty-five States responded to the invitation by appearing at the Conference see Annex A for a list of participating states The United States Delegation was headed by Hr George H Aldrich Deputy Legal Adviser Department of State a nd consisted of twenty-six persons see Annex B for a list of the Delegation II ORGANIZATION OF THE CONFERENCE The Swiss Government blld proposed and th• Conference agreed that there would be three main Collllllittees of the Conference to which would be added an Ad Hoc Convnittee on W apons Committee I was to deal with the general provisions of Protocol I International Armed Conflicts and Protocol II NonInternation l Armed conflicta 1 Committee II with Wounded Sick and Shipwrecked Persons Civil Defense and Relief and Col1lltlittee Ill with the Civilian Population Methods IUld Mearu of Com bat and a New Category of Prisoners of War At the first plenary aession of the Conference Mr Pierre Graber Vice President of the Swiss Federal Council and Head of the Political Department wu elected President of the Conference u _J L L _J DECLASSIFIE Authority r- 1 3 1 -- • 7 t i - 1 l 3 On the basis of preliminary consultations that the Swiss Government had conducted with a number of the states that were to participate in the Conference a list of proposals for f i lling the various offices in the Conf e rence was put forward However it quic kly became apparent that these proposals were not generally acceptable end that it was expected that offices would be allocated among reg ional gr oups according to United Nations prective It thereupon became necessary t o carry out prolonged consultations clJ'llong and within regional groups in order to work out a suitable allocation of offices wh ch was finally adopted by consensus on March 1 In the allocation of o ffices Mr Aldrich was elected to the Credentials Co nlllittee and Mr Baxter of the United States Rapporteur of Committee III a post which carried with it membership on the crafting Corm1i ttee Mr Aldrich also served as Chairman of the Woat uropean and Others Regional Group A further question which held up the substantive work of the conference was that of the issuance of invitations and of representation generally Guinea-Bissau which had acceded to the Geneva Conventions of 1949 with extensive reservations shortly before the opening of the Conference but had not been invited by the Swiss GoverNDent was invited to participate by the Conference The decision was taken without a vote The Uni ted States sutmitted for the record a stat81'11ent accepting the decision without a vote but indicating that the United States does not reoognize the Government of Guinea-Bissau The facts that Guinea-Bissau had been recognized by more than sixty governments and had been invited to participate in the Law of the Sea conference t o be held in Caracas during the SWIUl er of 1974 made the decision of the conf$rence on International H niu iM Lc w a foregone conclusion A more troublesome question was that of the repres entation of African and Arab national liberation move111ents a list of which is appended in Annex C This issue had en foreshadowed by resolutions at the 1973 International Red Cross Conference held in Tehran and tho United Nations General Assembly at its TWenty-eighth Session Res 3102 XXVIII Dec 12 1973 which called for I rticipation of these national liberation movements in the Oiplo111Atic Conference LJ L '• · _J · ' ' L _J • - - - ----- -· ·---- 7 l r · 4 At the Diplomatic Conference the United States and a number of other countries of the Western European group actively opposed invitatiors • o the national liberation movements Compromise formulae whereby the national liberation movements would participate as observers or as part of the delegations from regional organizations such as the Organization of African Unity proved to be unacceptable to the movements and to the many developing countries that supported their participation in the Conference S0111e of their supporters were even demanding full participation including the right to vote It was not until March l that a resolution of invitation was adopted CDDH 22 the two significant paragraphs of which stipulated that the Conference l Decides to invite the National Liberation Movements which are recognized by the regional intergovernmental organization concerned to participate fully in the deliberations of the Conference Uld ita Main Col'IIIUi ttees 2 Decides further that notwithstanding anything contained In the rules of procedure the statements made or the proposals and amendments submitted by delegations of such National Liberation Mcve ients shall be circulated by the Conference Secretariat as Conference documents to all the participants in the Conference it being understood that onl • delegations representing States or governments will be entitled to vote • As in the case of Guinea-Bissau this resolution was adopted without a vote The Chairman of the u s Delegation made it clear that participation by these groups was not to regarded as a precedent for other conferences It should be noted that votes were avoided in these two cases because there was a consensus to do so even though there was no consensus on the issuance of the invitations The remaining problem of representation was that of the Provisional Revolutionary Goverrunent of the Republic of South Vietnam which had submitted an instrument of accession to the Geneva conventions of 1949 only a month or so before the opening of the Conference It readily becAllle apparent that the Democratic Republic of Vietnam the PRG and their supporters were detennined to use the question of an invitation to the third Vietnam to adva_nce the international status of the PRG and to permit it to carry on a campaign against the United States and the Republic of Vietnam _J L L _J 7 s in the Conference itself All this was done under the guise of securing the widest possible attendance at a conference devoted to the cause of hwnanitarianisn The Delegation from Hanoi made the mistake of walking out of the conference as soon as it inade its speech on the question two days before the vote on the representation of the PRG It did this to express its disapproval of the failure of Switzerland to invite the PRC In the most dramatic vote of the Conference the proposal to invite the PRC to participate was defeated by a vote of 37 to 38 with 33 abstentions and with a number of delegations out having cups of coffee The United States Delegation did all that it could to secure the presence and adverse votes of as many delegations as possible Provisions relating to the rights of the national liberation movements and various other matters were proposed for insertion in the draft rules of procedure that had been submitted to the Conference by the Swiss Gov rnment but the adoption of which had been delayed pending resolution of participation issues The draft rules and proposed amendments were r eferred to the Drafting C ittee for its recommendations and the problem of the rights of participation of national liberation movements had to be fought out all over again in that Committee Only on Karch 7 and 8 half way through the Conference were the Rules of Procedure finally discussed in plenary and adopt d The remaining organizational tter was that of credentials The Credentials Comai ttee suhaitted its report near the end of the Conference Reservations were stated to the credentials of the Republic of Vietnam a state which some delegations said should be represented in whole or in pArt by the PRC s outh Africa in obJection to Apartheid Portugal on the g ro llld that it had no right to speak for its overs eas territories the Khmer Republic which should it was as s erted be represented by the Sihanouk regime and Israel on the ground that it was an aggressor Allot these reservations were noted but the report was adopted without a vote and no delegation was denied its right to partici t• in the conference III _ TRI loo'ORJC OF THE CONF R NCE ' he record of acc0G1plistunent of the Conference was not one of which the participants could be proud Only two LJ _J L L _J DECLAS I Authority l -J1 - a - - ••··-· 7 5 in the Conference itself All this was done under the guise of securing the widest possible attendance at a conference devoted to the cause of hwnanitarianis n The Delegation from Hanoi made the mistake of walking out of the Conference as soon as it made its speech on the question two days before the vote on the representation of the PRG It did this to express its disapproval of the failure of Switzerland to invite the PRG In the most dramatic vote of the Conference the proposal to invite the PRG to participate was defeated by a vote of 37 to 38 with 33 abstentions and with a number of delegations out having cups of coffee The United States Delegation did all that it could to secure the presence and adverse votes of as many delegations as possible Provisions relating t o the rights of the national liberation movements and various other matters were proposed for insertion in the draft rules of procedure that had been submitted to the Conference by the Swiss GoverNnent but the adoption of which had been delayed pending resolution of participation issues The draft rules and proposed amendments were referred to the Drafting Committee for its recoromendations and the problem of the rights of participation of national liberation movements had to be fought out all over again in that Committee Only on March 7 and 8 half way through the Conference were the Rules of Procedure finally discussed in plenary and adopted The remaining organizational matter was that of credentials The Credentials Committee sul aitted its report near the end of the Conference Reservations were stated to the credentials of the Republic of VietnaJ11 a state which some delegations said should be represented in whole or in part by the PRG south Africa in objection to Apartheid Portugal on the ground that it had no right to speak for its overseas tcrritoria8 the Khmer Republic which should it was asserted be represented by the Sihanouk regime and Israel on the ground that it was an aggressor All of these reservations were noted but th• report was adopted without a vote and no delegation w•s denied its right to participate in the conference III THE WORX OF THE CONFERENCE The record of accomplishment of the Conference was not one of which the participants could be proud Only two · ·· • LJ _J L L _J DECLASSIFIED Authority f - -rp - 2 3 c r --- - ---- • • · ·- a 7 6 weeks of the nearly six-week Conference were available for work in the Committees No articles were adopted by the Conference itself One article was adopted in connittee I but that article dealing among other things with national liberation movements presents fundamental problems to a number of governments including the United States Four articles and several paragraphs of a fifth were adopted in Committee III The technical annex on the identification of medical and civil defense personnel transports and installations was drawn up by the sub-committee but not adopted by Col '11 ittee II When one considers that the drafts submitted to the Conference number more than 150 articles it is readily apparent that the Conference made very little headway toward the adoption of the two proposed Protocols It should be noted that during the initial weeks of the Conference prior to the cormuencement of the work of the Main Comnittees the Western European and Others Regional Group established a series of working groups which reviewed the substantive positions of the members of the group The United States had begun the process of Western Group consultation at the Conference by inviting the members of the Group to two days of consultations at the head of delegation level on February 18 and 19 IV COMMITTEE I One issue dominated the discussions in Committee I -the question of the application of Protocol I and th• entirety of the Geneva Conventions of 1949 to wars of national liberation This proved to be the single most ilnportAnt substantive question taken up at the Conferonco and one which holds the potential for D10re ontroversy at the second session of the Conference Committee I was to deal with provisions relating to application Articles 1-7 of Protocol I and Articles l-5 of Protocol II treatment of pcraons in the pow r of partiea to the conflict Articles 6-10 of Protocol II executory provisions Articles 70-79 of Protocol I and Articles 36-39 of Protocol II final proviaions Articles 80-90 of Protocol I and Articles 40-47 of Protocol II and the preU bles LJ _J L L --· _ lr _J DECLASSIFIED Authority -J ' 1 25'1 ---- - --• # r I 7 6 weeks of tho nearly six-week Conference were available for work in the Co1m1ittees No articles ware adopted by the Conference itself One article was adopted in Coll'Cllittee I but that article dealing among other things with national liberation movements presents fundamental problems to a number of governments including the United States Fo articles and several paragraphs of a fifth were adopted in Committee TII The technical annex on the identification of medical and civil defense personnel transports and installations was drawn up by the sub-committee but not adopted by Con111ittee II When one considers that the drafts submitted to the Conference number more than 150 articles it is readily apparent that the Conference made very little headway toward the adoption of the two proposed Protocols It should be noted that during the initial weeks of the Conference prior to the cormuencement of the work of the Main Comnittees the Western European and Others Regional Group established a series of working groups which reviewed the substantive positions of the members of the group The United States had begun the process of Western Group consultation at the Conference by inviting the members of the Group to two days of consultations at the head of delegation level on February 18 and 19 IV COMMITTEE I One issue dominated the discussions in Committee I -the question of the application of Protocol I and the entirety of the Geneva Conventions of 1949 to wars of national liberation This proved to be the single most important substantive question taken up at the Conference and one which holds the potential for 1110re ontroversy at the second session of the Conference Committee I was to deal with provisions relating to application Articl es l-7 of Protocol I and Articles 1-5 of Protocol II treatment of persons in th• power of parties to the conflict Articles 6-10 of Protocol II executory provisions Articles 70-79 of Protocol I and Articles 36-39 of Protocol II final provisions Articles 80-90 of Protocol I and Articles 40-47 of Protocol II and the pre lllbles ' J' - LJ _J L L _J --· l - ' ----- - - 7 i 7 ' ' - i l • Three proposals were initially submitted with respec t to wars of national liberation -- a Soviet bloc proposal CDDH I 5 a proposal by Algeria and fourteen other states including Australia and Norway Coog I 11 and a proposal by Romania CDDH I 13 Each of these would have the effect of making the law governing international conflicts appli cable to wars fought f or self-determination against alien occupation or against c o lonialist or racist regimes These three proposals were subsequently withdrawn in favor of a somewhat amplified proposal with a sponsorship of 51 statea CDDH I 41 which with the incorporation of another unrelated amendment to Article 1 became Document CODH 1 71 proposed initially by Arge ntina Honduras Mexico Panama and Peru This amendment of Article 1 received widespread support from the states of the Soviet bloc and the less developed countries The argument which was made on behalf of the pro posal was that under the terms of the United Nations Charter and numerous resolutions of the General Ass8lllbly interpreting and implementing the Charter proples under colonial rule or otherwise denied their right to self-dete n11ination a re entitlQd to independence that it is proper for them to assert this right through the use of force and that the ensuing contliot is an international one which would be governed by the Geneva Conventions of 19 49 and by Protocol I The response i ch was forcefully put by the United States and a number of its European allies was that the adoption of such cri teria turning on the justice of the cause for which a war i s fought would introduce a dangerously subjective element into what had hitherto been a neutral and evenhanded body of law and that it would reawaken the notion of tho juat war • which had both dimi nished respect for the law and had enhanced the barbarism of wars fought in th• past The j ust w • concept is likely to lead to unequal treatment of victims on the several sides of a conflict depending upon whether the cause they fought for was reco9ni3ed •• ju•t • ·· • _ · - -· w ' t • -'7 J L - ' L _J DECLASSIFIED Authority rJ 3' 23j 7 • ·' 8 Other arguments were raised against the proposal -- that national liberation movements lacked the material moan of giving effect to the law of war that wars of national liberation are a temporally and geographica lly limited phenomenon and that the entire atructure of the law should not be distorted in order to acconnodate thom1 that the adoption of this conception would call for a complete revision of the law of war that to recognize the right to use force to secure self-determination would call for a revision of the 0 N Charter that the definition of •peoples was unclear and might require a state to treat an ethnic minority in revolt as an international entity protected by the international law of war But it was quite clear that the sponsors of the proposal were not to be put off by such arguments and that a very powerful head of steam had built up behind the proposal concerning wars of national liberation A working group was set up in C011111ittee I to attempt to work out a single amendment to Article 1 but there was never any chance of reaching a consen us in view of the diametrically opposing views that had bean expressed When the matter came back to the Committee it was cleA r that there were enough votes to permit adoption of the proposal A Canadian and New Zealand proposal that a workuig group be set up with the mission of attempting to bring about an accolMIOdation of views between the two sessions of the conference was looked upon by the sponsors of the proposal as a temporizing gesture Debate was closed and the vote was taken By 70 votc 1 to 21 with 13 abstentions Document CDDH I 71 was adopted The text of Article 1 as adopted by the Committee thus reads e ' r ' · t t _J L -· - ' I- -i'·Y•• _ I • l' •i ' ·q ' • e h' • '' I I - I ' - _ L _J -- - --- · 7 9 1 The prosent Protocol which supplements the Genova Conventions of August 12 1949 for the Protection of War Victims shall apply in the situations referred to in Article 2 common to these conventions 2 The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial and alien occupation and racist regimes in the exercise of their right of self-determination as enshrined in the Charter of the United Nations and the Declaration on Prin· ciples of International Law concerning Friendly Relations and co-operation ll llong States in accordance with the Charter of the United Nations J The High contracting Parties undertake to respect and to ensure respect for the present Protocol in all circumstances 4 In cases not included in the presaat Protocol or in other instruments of treaty law civili na and combatants remain under the protection and authority of the principles of international law derived from established custom from the principles of humanity and from the dictates of public conscience It appeared that with this degree of suppor t the Article as adopted by the Co1t111ittee might be subm itted to the final plenary sessions of the Conference and finally adopted by the requisite two-thirds vote However the matter was not pushed that far and at the final plenary se sion the following draft resolution submitted by India was adopted without vote The Conference Ado ting the report of COllllllittee I containing its recoll ll en ation in paragraph 37 that the text of Article 1 approved by the COlllll ittee be adopted by the conference Welco1Ms the adoption of article 1 of draft Protocol I by Committee I Article l has therefore not been finally adopted and one of the tasks that lies ahead is to determine what it is practicable and desirable to do about the article at the second session of the Conference -- - t§ ' jfj t t 1 · Is- rl - 1 ' - - 't L I ' - _ -t_Y ' t L _J L _J · wi r ' t ¢ ' - ·5 - • - g ·__4 ' r ' $ ' 0 -- - 7 • J 10 The issue of wars of national liberation overshadowed all other issues in Committee I and many delegations showed an unwillingness to snove on t o any other articles until the question of the scope of Protocol I had been decided There was somewhat desultory discussion of 1 rticles 2 through 5 of Protocol I with a number of iesues being postponed for consideration in the context of other articles This happened for example with respect to the proposals made by the United States ana other states for amendment of the definitions of Protecting Power and substitute• in Article 2 The United States had also proposed the deleg ation of the definition of protected persons• and Protected objects• Further consideration of Article 3 dealing with the beginning and end of application was also deferred until more of s ubstance had been accomplished on the Protocol There was thus no r eal consideration of a carefully worked out United States amendment of this article Some delegations supporting national liberation movements and wars of national liberation were concerned by the part of draft Article 4 which specified that the application of the conventions and of the Protocol would not affect the legal status of the Parties to the conflict or that of the territories over which they exercise authority • There was some discussion of what the United States considered to be one of the moat important provisions of the Protocol -- Article 5 dealing with the selection of a Protecting Power and the assumption of the function• of the Protecting Power by the I C R C in the event of the failure of the parties to a conflict to agree on a Protecting Power 7he discussion centered about the saltle i aues aa had been dealt with at the two Conferences of Government EXperts -whether it was feasible to have a procedure for the automatic appointment of a Protecting Power or a substitute what types of organizations were suitable to serve as substitutes and so forth But there was no voting on these articles and they were not referred to any working group or drafting committee The Plenary Session received and referred to Committee I United Nations General Assembly resolution 3058 XXVIII dealing with protection for journalists but because of lack of available time the C0111mittee did not discuss • _J L - · ' • ···- -- -· - e - ' J L _J -· - - 7 ll this subject It was returned to the Plenary for reference to the 1975 Session of the Conference l i • Although it had been agreed to discuss c orresponding articles of Protocol II when discussion of related articles in Protocol I was completed the majority of the Conwittee chose to defer action on Protocol II at least until action on Articles l through 7 of Protocol I was completed several delegations expressed little enthusiasm for Protocol II in light of the Committee's adoption of COOH I 71 The Chinese delegati on particularly urged the view that Protocol II waa unnecessary and could now be considered an improper intrusion into internal matters V COMMITTEE II The program of work proposed for C0111111 ittee II called for it t o consider the draft articles on the general protection of wounded sick and shipwrecked persons Articles 8-20 of Protocol I and Articles ll-49 of Protocol II medical transports Articles 21-32 of Protocol I •nd Chapters I-III and v of the Annex to Protocol I civil defense Articles 54-59 of Protocol I and Chapter IV of the Annex to Protocol I and Articles 30 a nd 31 of Protocol II a nd relief Articles 60-62 of Protocol I and Articles 33-35 of Protocol II At the outset the Coneittee decided to begin considerations of Articles 8-20 of Protocol I General Protection After concluding consideration of these Articles it would decide whether to take up the corresponding provision of Protocol II or to complete all of Protocol I before undertaking any portion of Protocol II It was also decided to organize a drafting coD111ittee with representation of 3 member• from each regional 9roup and qualific ition in each wor ing language The or9anization of the Drafting Cormittee was delayed for more than one week by the failure of the Asian group to select its representatives Whan organized Mr Solf of the u s delegation was elected a a Vice President of the Co111111ittee The articles to be dealt with in this Co11S11ittee were the least political the most technical and ripest for adoption of the I C R C proposal• dealt with by the Conference and yet the Co111111ittee niad• little progress except _ -- - t L _ N n --i- u _J - ' ' - 0 - - L _J DECLASSIFIED Authority l NV3- 23C 12 with respect to the Annex on Regulations concerning the Identification and Marking of Medical Personnel Units and Means of Transport and Civil Defence PersoMel £quip• ment and Means of Transport Only Articles 8 through 11 of Protocol I dealing with definitions and general provisior s were discussed in the Co1t1111ittee Articles 8-10 were referred to a Drafting Col1V'llittce which reported back to the Committee on Article 8 and Article 9 paragraph l The Conmittee merely noted the report of the Drafting Committee because the drafts were only provisional and the French text submitted to the Committee was unacceptably inaccurate The work that was done on Article 8 Definitions was largel y by way of refinement of the draft submitted by the I C R c The U S delegation had suggested that consid ration of Article 8 be deferred until the C0111JT1ittee discussed the relevant substantive provisions It expressed the fear that there would be premature debate on substantive issues while particular definitions were considered The Comuttee neverthelL1s decided to formulate definitions provisionally The debate on provisional definitions which did indeed involve many substantive issues took up 1110st of the working ti ce available t o the Conmittee Paragraph l was revised to satisfy medical deleqates who objected to classifying as wounded and sick any person who was not affected by trawna or disease COC Pro usa worked out by the U S delegation was adopted by the Drafting Co111111ittee It provides that the ter wounded nd sick shall also be construed to cover other persons in need of medical assistance and care who refrain frog acts of hostility incl uding the infirm pregnant WOlll U and JMternity cases as w ll as new born babies The work on the definition of shipwrecked was slowed down by an I C R C suggestion that would have assimi l ated persons in distress in the air or on land to shipwrecked porsons which was withdrawn ofter two working sessions of the Committee after taany delegations indicated their agreement with the United States that the rules peculiar to rescues at sea eould not be applied in the land combat zone i r I • Article 9 dealing with the field of application of the part on wounded sick and shipwrecked persons gave rise to some controversy bout the formulation of the principle of non-discri Jaination contained in th article As originally ' 1 r _J L L _j -- 7 13 drafted paragr aph 1 fo r bade dis tinc t i on on ground of nationali ty• whi c h caus ed some concern that by a negative inference distinction on other gorunds would be lawful The basic probl em with the I C R C text recognized by most delegations waa that it purported to limit ita terri tori al appl i cation to the territory of the Parties to the conflict whereas the articles in Part II include some which apply on the high seas and to neutral countriea Moreover contradicti ons appeared in the scope as to pe rsonne l application The U S delegation and a number of co-aponsora proposed to delete the first paragraph as unneceaaary c ontending that each substanti ve article defined its own field of application Most delegations however expreaaed the view that a general but accurate provision should b6 formulated which would define the field of application without creating contradictions within Part II Thia ta•k was entrusted to the Drafting Co1rmittee which propoaod the following The present Part s hall apply without any discrimination to all combatants and non-combatant military personnel of the Parties to a conflict and to the whole of the civi lian population of the Parties to a conflict particularly to the wounded sick and shipwrecked as well as to medical units and medical transport under the control of any such Parties • A question concerning non-discrimination arose in connection with Article 10 dealing with the general care and protection of the wounded and sick Ari amendment of which the United States was a co-sponsor would have required that medical care be provided without any adverse distinction or discrimination founded on race colour caste nationality religion or faith political opinion sex social status or any other similar criteria Other delegations were of the view that there should simply be a prohibition on discrimination extending to any and all forms that it might take A proposal was introduced by certain Arab countries that would oblige doctors to obtain the written conaent of a patient before performing an operation on him A - - - -·t- •' _j L ' L _j DECLASSIFIED Authority Y ivl ' 2 1 2 -------- ·- · 7 • 14 number of delegations including that of the Unlted States pointed out that this requirement would be impracticable having regard to the state of the patient language problems and other difficulties of communication and the lack of any standard fonn for the expression of such consent The Committee accepted a proposal by Denmark to consider the amendment in connection with Article 11 instead of Article 10 whic h would be non-reservable under Article 85 of the I C R C draft A proposal by the I C R C that the Parties to the conflict should collect and care for the wounded and sick and the dead that they should if possible conclude agreements to facilitate such measures and that persons who are in peril on land by reason of the breakdown of their transport should be deemed to be shipwrecked received ixed reactions Several delegations thought that 1110st of the proposal was already covered by the Geneva Conventions of 1949 Objections were raised by the United States and others to the idea of people's being shipwrecked on land e y because their vehicle had brolten down As to Article 11 dealing with the protection of persons the United States was co-sponsor with Australia Canada Sweden Poland the Soviet Union and a number of other states of a largely redrafted article which uld wi th res pect to persona in the hands of an adverse rty or otherwise deprived of liberty as a result of hostilities s pecifically 1 preclude the 0111ployru1nt of an ' a edical procedurvs not indicated by the mental or dental n d• of the i ndividual or inconsistent with accepted medical sun rds applied to national of tl1• state furnishing the aedi l care and 2 provide that the prot ction of the article could not be waived except by way of the voluntary donat on of blood The C0111111ittee d1d not complete ita co aider tioo of this article During hia stay with the Unitod States Oole at1on u Congressional adviser COngreaaun Wilson introduced a proposed new Article 18 lli on t he mi • sing and dead al d on graves which was co-s ponsored by the Federal Republic of Germany and the United Kingdoa The article would call for the making and care of graves the return of ren ains and personai effects on the termination of hostilities and tho collection and transmittal by belligerent• of information a bout russing persons who are not its nationals ---· _J L L _J DECLASSIFIED Authority '- r-JV 7 23'1 - 7 15 It would also permit visits to graves by official graves registration services and by families of deceased In order to penuit discussion of the draft article which would not have been reached at the firet sasaion in the normal course of events an informal working group wae sllbsequently convened Attendance at thi• meeting was relatively light and there was little representation fr0111 less developed countries The suggestion was made to and accepted by the United State• Delegation that it would be useful to circulate a background paper on this proposal before the next session of the Conference Tbe CoJ1111ittee established a Technical Sub-Committee to study problems relating to the identification and marking of medical personnel units and meanu of transport and of civil defense personnel equipment and meana of tranaport cormnander D Steffarud O s Navy was elected ViceChair111An of the Technical Sub-COlllll ittee The Technical Sub-Coll lllittee was the only body of the Conference to c0111plete the task assigned to it It adopted fifteen articles of the technical annex leaving the sixteenth article dealing with procedures for the amendlllent of the technical annex for discuseion by COllllllittee II It was thought that this final article was in the legal domain and not in the highly technical subsuntive uea with which the Sub-Counittee was concerned The text adopted by the Technical Sub- COllllllittee wae generally along the lines of the United States position on the annex It was considered that in addition to dealing with identification and marking of medical transports the Annex should also deal with coununioation ith aedical transport such as aircraft The articles on L is subject in Chapter IV are pemissive and not mandatory and were acceptable to tho United States on that basis Th• radio identification signal M DICAL was given international standing like that accorded to such signals as •sos• and MAYDAY A flashing blue light wa preempted for the identification of medical aircraft Extension of the light signal to land and sea transport is to be considered at the second session What had originally been proposed by the I C R C • • mandatory frequancies for radio identification signals becAftle permission for the use of national frequencies And finally a distinctive sign wau agreed upon for civil defon•• services - ---· _J L t I ' ' ' 0 - - L _J DECLASSIFIED Authority rv1 0 23' 1_ - 7 16 These articles have been adopted in the Sub-Connittee and have yet to receive the approval of Co01111ittee II The observer from the International Civil Aviation Organi ation ICAO expressed some reservations as to the limitation of the blue light signal for the excluaive use of medical aircraft He proposed that the limitation be broadened to encompass any activitiea concerned with the safeguarding of life This proposal will be considered at the Second Session The observer of the International Teleco-unicatio Union ITU requested Governments to note hi• state111ent indicating the necessity for Government action through the ITU World Administrative Radio Conferences to 1-plement the provisions for a radio medical call and for the international designation of frequencies if such frequencies are to be established •As the discussion on the draft report of the Technical Sub-Committee is brought to a close it is my duty to recall references previously mAde elating to the adoption of a 'MEDICAL call' and the possible designation of a frequency for international use in this connexion The use of the radio spectrum is governed by an existing international treaty entitled 'International Teleco11111unication convention' and the 'Radio Regulations' annexed thereto which fona pa rt of the international treaty The appropriate •eans for adopting provisions such as those foreseen in the annex to draft Protocol I concerning a 'MEDICAL call' and interautional designation of frequencies is by decision of an ITU World Adlninistrativo Radio Conference competent to deal with the radio services concerned L _j _J DECLASSIFIED Authority '- rv' 7 2 5 4 - -· 7 i 16 These articles have been adopted in the Sub-Connittee and have yet to receive the approval of Committee II The observer from the International Civil Aviation Organization ICAO expressed some reservations as to the limitation of the blue light signal for the excluoive use of medical aircraft He proposed that the limitation be broadened to encompass any activities conoerned with the safeguarding of life This proposal will be considered at the Second Session The observer of the International Teleco11111unication Union ITU requested Governments to note his sutenent indicating the necessity for Government action through the ITU World Administrative Radio conferences to implement the provisions for a radio medical call and for the international designation of frequencies if such frequencies are to be established As the discussion on the draft report of the Technical Sub-Committee is brought to a close it is my duty to recall references previously made elating to the adoption of a 'MEDICAL call' and the possible designation of a frequency for international use in this connexion The use of the radio spectnw is governed by an existing international treaty entitled 'International Teleco11111unication convention' and the 'Radio Regulations' annexed thereto lllhich oui part of the international treaty The appropriate means for adopting provisions such as those foreseen in the annex to draft Protocol I concerning a 'MEDICAL call' and international designation of froquencies is by decision of an ITU World Administrative Radio Conference C0111Petent to deal with the radio services concerned r I _J L ·· L _J DECLASSIFIEI Authority rv 1 r 7 · - - 17 To this end government should consider initiating coordination at the national level and as the ca•• may be lllllke proposal• to an appropriate ITO confarence for th• reviaion of the Radio Regulation• • During the Conference the u s Delegation coordinated its viewa with other delegation• and along with 8elgiwn Canada and the United Kingd0111 tabled oc aprehenaive propo•ala concerning medical tran • port CDDH 11 79 80 and 82 attached•• Annax E to this report VI Cc»ttl'l'TEE III COlllllittee III was charged with reaponaibility for consideration of the artioles relating to the general protection of the civilian population against the effect of hoatilitie• Articles 43- 9 ot Protocol I and Articl•• 24-29 of Protocol II 111ethod• and mean• of cc abat Articl 33-U of ProtocOl I and Article• 20 to 23 of Protocol II a new category of prisoners of war Article 42 of Protocol I and treatment of per• on• in the power of a party to the conflict Articles 63-69 of Protocol I and Artic1e 32 of Protocol II • Tha propoaaJ of the Chairman that topics be taken up chapter by chapter in Protocol I and that each article of Protocol II be taken up in connection with the corresponding ' _J L L _J DECLASSIFIED Authority - rJ--P 7 Z __ __ - · - ·- · 7 I 18 article of Protocol I was accepted by the Committee Several delegations among which India was the most prominent expressed the view that there could not be infomed consideration of Protocol II unless its scope had first been detemined or that there should be no work done on Protocol II until the text of Protocol I had been dravn up The delegation of China said that there was no need at all for Protocol II However there seemed to be general sentiment in favor of nioving forward with Protocol II but with less enthusiasm than was manifested for the Protocol relating to international conflicts The Committee was able t o devote eight meetings to consideration of Articles 43 44 45 and 46 of Protocol I and of Articles 24 paragraph 1 and 25 and 26 of Protocol II together with the M endJnents that had been submitted by delegations Upon completion of general discussion of each article Professor Sultan the Chairman followed the practice of referring the article and proposed amendments to a working group chaired by the Rapporteur Mr Baxter and composed of the delegations sponsoring the amendments and such other delegations as might wish to participate Th• work iDg group submitted proposed texts or alternative texts for Articles 43 44 and 45 of Protocol I and Article 24 paragraph 1 and Article 25 of Protocol II It was still wrestling with Article 46 of Protocol I and Article 26 of Protocol II when the Conference ended The Committee approved the Levised Article 431 Article 44 paragraphs 2 and 3 and Article 45 of Protocol I and Articlo 24 paragraph l and Article 25 of Protocol II Various reservations ware expressed by several delegat i ons as to the articles of Protocol II on the ground that the scope of the Protocol had not yet been determin d The Chairman made it olaar that certain modifications in the articles adopted might be called for at th• second session in order to adjust them to or han110ni2e th l'II with other articles of the two Protooola subsequently adopted The few articles that were adopted by COffllllittea III were for all of their being a larger work-product than what emerged from other Committees a slim result to show for a conference ot five and a half weeks _J L L _J DECLASSIFIED -- Authority I rv3 1 9 -- ' r 7 19 The alterations made in the drafts of Article 43 of Protocol I and Article 24 paragraph 1 of Protocol II were largely of drafting character Aa approved by the Conmittee the texts of the two provisions are as follows In order to ensure respect and protection for the civilian population and civilian objects the Parties to the conflict shall at all times distinguish between the civilian population and combatants and accordingly shall direct their operations only agair st military objectives • Article 44 of Protocol I defining the scope of application of the Protocol caused more and more difficulty as consideration of it proceeded The principal question involved which was not resolved by the Cor mittee was whether the article should specify that the section of the Protocol dealing with the protection of the civilian population should apply to attacks on civilian objects in the air -- that is to say civilian aircraft -- and to attaclts on civilian objects at sea including merchant ships which might cause harm either to civilians at sea such as crew and passengers or civilians on land The onited States position which was shared by the United Kingdom and by other NATO countries with navies of soine cons uence 1o •as that it would be dangerous to tamper with the existin treaty and customary law of naval warfare including in particular the law relating to blocltade visit and rch unneutral service attacks on enemy merchant ships nd submarine warfue The same countries also took the view that although the law of aerial warfare is•• -s• • as it was frequently charactori od in th• Corclittae ooe ventures on vary difficult areas if attac • on civil aircraft are proacrib6d 110w for ex4aE le c n a civil aircraft be identified•• being ueed exclusively f r civilian purposes and not for recon aiaaanc e or the transport of troops A nlllllber ot Arab stat•• 1e8111ed to be preoccupied with the incident in which a Libyan paa1enger plane w s hot down by an Israeli tighter Th••• questions wra left opan and it would obviouely be de1ir ble if 110re thought were given to these question• by delegation• before the second session of the Conference A second major iaaua was resolvod by a vote taken on one paragraph of Article••· This was the question whether the section should protect ene y civili 11s agalnat acts of violence in the form of attacks or should also protect a belligerent's o civilian population The vote was in L L --· _J _J DECLASSIFIED Authority - rJ1 3 23'j -- ' •• • 4 - 7 20 favor of the narro- cr coverage but it is conceivable that the same question lllilY come up again in connection with the operative articles of this section Article 44 aa adopted but with the places where •on land might be inse rted or oll itted indicated by blanks is as follows The provisions contained in the present Section apply to any land air or sea military operations against the adversary_ _ _ __which may affect the civilian population individual civilians or civilian objects_ _ _ _ _ __ Article 45 dealing with the definition of civilians and the civilian population was the subject of a few drafting changes in the original I C R C draft The one point of substance that emerged was how an individual waa to be treated if there was doubt about his civilian status Fears were expressed by several delegations including the United states that there might be a conflict between a presumption of civilian character and the presumption called for in Article 5 of the Third Convention that an i ndividual who has been detained after having com aitted a belligerent act is to be treated as a prisoner of war until his status is determined by a competent trl bunal The language of presW lption was removed from the text and it was concluded that in connection with attacks U e person of coubtful status is to be considared a civilian while after he has fallen into the hands of the enellly the presU111ption is to be one of prisoner of war status Articla 45 as adopted p rovides l A civilian is nyono who do•• not long to one of th• caregoriee of persons referrad to in article 4 A ll 2 ' and 6 of the Third Convention and in rt1cl• 42 t the pre ent Protocol 2 Th• civilian population c0111 risas all persona who are civilianc J The preaenc within the civilian population of individuals who do not tall within the definition of civilians does not deprive the population of its civilian character r 1-J _J L --· t '-- ' Q L _J DECLASSIFIED Authority NV t 23j - - 7 21 4 In case of doubt as to whether a person is a civilian such person shall bo considered to be a civilian The language of such parson was inserted in the last paragraph in placo of he or she on the initiative of the representative of Kuwait who stated that it was sometimes difficult to tell whothar a person was one or the other The corresponding J rticle 25 of Protocol II has the same text with the exception that paragraph l reads as follows A civilian is anyone who is not a member of the armed forces or an organized armed qroup Article 46 of Protocol I dealing with the protection of the civilian population against attacks particularly but not exclusively frorn the air was discussed in Committee and referred to the working group but the working group was able to do no more than start work on this very difficult article A nU111ber of themes wore touched upon in the debate 1 Reference has been mada in various resolutions of international bodies in recent years to the necessity of prohibiti g • terror attacks If attacks directed against the civilian population are to be prohibitee it is not clear what is added to the law by a further prohibition on terror attacks or a ttacks intended to c suso •terror• among the civilian population The I C R C text on this point was apparently not intended to create any obligation over and above the duty not to attack th civilian population as such However a nwnber of delegations prin ipally African and from othor loss dovel ped countries desired to see a prohibition on all fonns of operations spreading terror In the view of on delegation this could even include propaganda 2 An issuo whl ch arose in connect ion with •terror• attacks and tho oth r proviaiona oC thls article is whether the proscription should be put in terms of attac s which in fact have a certain effect or attocks which are intended to have a particular effect Should the prohibiton for example be one a9ainst methods intended to sp ead terror or those methods that do spread terror The United States positl on was that in a provision thot sets the standard for criMinal responsibility the element of intent must be included The objoctl on of other delegations was that it L _J L _ t '· _J - - -· DECLASSIFIED Authority '- rv l 2°54 - --- ---· 7 i 22 ' - is impossible to determine the mental states of personnel of the adversary and that for this reason the obligation should be absolute 3 The united States and its NATO allies put considerable emphasis on the concept of proportionality -- that incidental losses among the civilian population must not be out of proportion to the military advantage anticipated East European delegations ana those from less developed countries attacked the concept of proportionality on the ground that all incidental losses among the civilian population should be prohibited 4 As for the prohibition in paragraph 3 a of target area bombardment there were again mixed views the United States seeking greater precision and other countries desiring to have the more general restrictions of the paragraph maintained or even increased s The United States raised no objections to the prohibition on reprisals against the civilian population A proposal that the prohibition oe extended to civiliat1 objects received soma support Other delegations feared that under the stress of war a prohibition on reprisals would not be honored The view was also expressed that the circUMstances and conditions under which reprisals could be employed should be spellcc out The above questions are all onos of substance and will have to be confronted directly at the ne t session of the confercncc1 thore can be little hope that th•re 1o •ill be a convergence of views on agreed text The correspondin9 article of Protocol 11 Article 25 was not discussed in any dopth Tho maJor 1ndep nd nt proposals made with respect to this rticle r• for the deletion of certain proviuons which while apphcable to international onnod conflicts l IC Uld not be tppropriat in internal irmed conflicts ptrticularl • of a low level of intensity wl j I _J L --· I O L - ' _J DECLASSIFIED Authority '- tvV' 7 23'1 -- • --- - I 7 I 23 VII AD HOC COMMITTEE ON EA PO S On the basis of a resolution adopted at the XXIInd International Conference of the Red cross urging that the diplomatic conference begin consideration at its 1974 session of the question of the prohibition or restriction of use of conventional weapons which may cause unnecessary suffering or have indiscriminate effects see u N Doc A 9123 Add 2 p 4 1973 the Conference set up an Ad Koc Colllll ittee on Weapons see CDDH 23 The work on weapons came as the result of the initiative of Sweden supported by a group of other states which had empha•ized the importance of the Conference's moving into the area of the control of conventional weapons both for the protection of the civilian population and of military personnel The I C R C had agreed to convene a conference of Government Experts on Weapons in 1974 after the first session of the Diplomatic Confer61 ce The uestion of the control of weapons had not been taken up at the two conferences of Government Experts held in 1971 and 1972 and it was thought that a subject as technical nd complex as this ought to follow the sa e route that had been employed with respect to the contents of Protocols I and II One of the major functions c t he Ad Hoc Committee on Weapons was therefore to assist in identifying questions and possibilities which need to be explored in depth by the Conference of Governcent Experts on eapons • The Ad Hoc Co111J11ittee on Weapons which in 1975 will probably become a main co1NDittec of the Conference had a general debate at the beginning of its sittings This was directed toward weapons which may be or should be prohibited or the use of which should be restricted on the ground that they cause unnec ssary suffering• are ttindiscriminate• in their effects particularly a• regards the civilian population or are •treacherous • The United States po•ition was that consideration of w apons o this character must of necessity be a long and delicate process calling fore thorough exll llination of the entire range of conventional weapons Th• United States Delegation expressed the view that there see ed to be a prejudgment of the issues by certain delegations which appear d to have made up their minds in advance of the Conference about what weapons should be declared unlawful The U s Delegation emphasized that th••• questions should be approached with an open mind -- not only the question of the weapons to be dealt ith but also the question of whether restrictions should take the form of al lllS control proposals or o prohibitions or restrictions of the use of certain weapon ' • - c•' · - L _J L _J --- - 7 24 The general debate showed a certain range of views about the entire issue Developing countries frequently alluded to the inequality in the weapons and means of warfare available to highly technologically developed states and to militarily weak states among the less developed countries It was even suggested that some restrictions should be put on the modes of warfare employed by developed countries in conflicts with less developed countries in order to go some distance toward equalization of their power to make war Certain of thes states were in favor of a regional approach to the regula ion of weapons The idea of a regional approach was also upported by the Soviet bloc countries The Soviet bloc countries otherwise showed considerable reluctance to consider weapons questions outside of established arms control forums The general debate was followed by a debate on specific weapons viz Incendiary weapons with particulu regard to napallll Small calibre projectiles Blast and fragmentation weapon Delayed action and perfidious weapons Potential weapons developments There were very few contributions to this part of the d bate The SWedish Delegation spoke to each issue and its intervention was foll lfed by several others but the debate often had to be adjourned because of lack of spe kors on particular weapons The final question to be taken up in the Ad Hoc Comuttee on Weapons was the question o the organization of the Conference of Government Experts to be held for tour weeks in Lucerne which has been scheduled fnr September 24 to October 18 1974 Tho lnternational Coauuttee of tho Red Crose submitted proposed terms of reference for this meeting ich envisaged an initial discussion of the proposed legal criteria for the prohibition or restriction of use of categories of weapons followed by a discu aion of the type of weapons listed above -- their military value accuracy medical effects the practicability of prohibitiona and the like The International Committee of the Rod Cross specified that the holding of the Conference would depend on wh ther sufficient funds J' w --· - _J L O ' ' 0 O L - _J DECLASSIFIED Authority I rv 1 23 j 7 · 1 25 i i t were pledged by participating states to defray the expenses of the Conference There were as this account indicates no articles or resolutions adopted in the A d Hoc COIMlittee on Weapons As the se••ions of this Coll'll'llittee had been looked upon as prepa r atory to the work to be done at the Conference of Government Exports and at the second session of the Dipl0111atic Conference no such decisions had been contell plated VIII APPRAISAL OF THE CONFERENCE The first session of the Diplomatic conference was do inated by the question of national liberation movements and wars of national liberation nloc voting by African and Arab tates and other less developed countries supported by the Soviet bloc could produce a strong majority in support of proposals favored by those states The Conference became politically charged and did not really devote itself to those issues of international humanitarian law that the United States had come to the Conference prepared to discuss What happened at the Conference gives rise to the question whe ther a number of the participating states are interested in the substance of this body of law or whether the Conference is seen as a vehicle for advancing certain politic l causes and for tho generation of propaganda It is impossible to say at the n Oment what proportion of the participating states have a serious interest in becoming parties to the two now Protocols A relatively low level of sophistication and of understanding of the legal and military problems involved wa• shown in many of the debates There was very little cention of hw ian suffering except as an abstrac tion and a widespread unwillingness to build upon the foundation laid by the Geneva Conventions of 19 9 and the conventions that had gone before them However there was strong sentiment expressed by many participants that modern• international law speci fically UN General Assembly resolutions should be recognized ar d accepted in tho conference s everal proposals e g CCDH I 41 and 71 made specific reference to the UN Charter and the UN Friendly elations Declaration The interests of the united sta es in the work of the Conference are primarily in four areas -- the i prove ment of implementation of the existing onventions including improved procedures or the designation of a Protecting Power and for _ • L -- _J L _J DECLASSIFIED Authority r J 2 1 2 5 f -· •• • o c - 7 26 the performance of the Protecting Power's tasks by the I C R C better procedures for dealing with the missing and dead and their effects at the end of war better procedures for quick battlefield evacuations of wounded particularly by aircraft and respect for basic human rights in internal armed conflicts Beyond these the United states has a general interest in improvement in the law of war but important issues are at stake in connection with the protection of the civilian population the regulation of methods of warfare and the prohibition of weapons and it is necessary to use great caution in developing the law in these areas At the first session of the Diplomatic Conference on International Humanitarian Law the only area of United States primary interest in which progress was made was the i dentification of medical personnel and transports which i s a necessary foundation for the articles on medical evacuation IX FUTURE WORK The second session of the Diplomatic Conference will be held in Geneva for a period of ten weeks beginning February 4 1975 over 951 of the work of the Conference remains to be done In addition in the fall of 1974 thare will be a Conference of Government Experts on Weapons convened by the International Collll11ittee of the Red Cross The purpose of this 1110eting will be to consider proposed legal criteria for the prohibition or restriction ot use of categories of weapons and various types of weapons which may be thought to bo indiscrilunate or to cause unnecessary suffering Tho I C R C will t hen send governments a report on the work carri•d out Further meetings of experts •Y be held if th•y are naeded Two major issues which will thu be befor• th• aecond seasion of the Contorence and which will call for particularly close attention by the united Stats Covern111ent are l the legal position of wars of national liberation and the impact of this theory upon the la of war nd 2 the question of restrictions or prohibitions on the use or possession of certain weapons The issue of wars of national liberation will in particular call for careful r•view of our existing position on many articles of the two draft Protocols which have not yet been taken up by the Conference _J L L _J DECLASSIFIED Authority '- rvv • 23c i ' I i j - l 'i 27 It is to be hoped that in the interim between the two sessions there may be opportunities for the participants in the Conference to reflect upon the desirability of ultimately producing two Protocols that will command very wid spread if not universal acceptance The fragile c0 N11unity of roughly 135 states that are now parties to the Geneva Conventions of 1949 could be shattered by the interjection of political considerations that could lead a nwnber of states including some of the world's major military powers not to becOJl e parties to the two Protocols • I I f 1 I I I I I l et r r -#6 L --·- _J 0 - L DECLASSIFIED Authority i'I 23 J 28 ANNEX A LIST OF PARTICIPANTS Afghanistan Albania Algeria Argentina Australia Austria J f l Gabon Gambia Germany Democratic Republic of Germany Federal Republic of Ghana Greece Guatemala Guinea-Bissau Bangladesh Belgium Bolivia Botswana Brazil Bulgaria Burma Burundi Byeloruosian Soviet Socialist Republic llaiti Holy See Honduras Hungary India Indonesia Iran Iraq Iceland Ireland Israel Italy Ivory Coast i I I I I Cameroon Canada Central African Republic Chad Chile China Colombia Congo Costa Rica Cuba Cyprus Czechoslovakia Japan Jordan Kenya Khin r Republic Korea DeftlOcratic Republic of Korea Republic of K lwait Dahor iey Denmark Dominican Republic Lebanon Li beria Libyan Ara b Republic Liechtenstein LUXem bou rg Ecuador Egyptian Arab Republic El Salvador Finland France L L _J _J DECLASSIFIED Authority V'2 t 2 S ' - cc -- 7 29 M11dagascar Taniania Thailand Togo Trinidad and Tobago Tunisia Turlcey Malaysia Mali tlalta Mauritania Mauritius Mexico Monaco Mongolia Morocco Uganda Ukranian Soviet Socialist Republic United Arab Emirates United Kingdom United States Upper Volta Uruguay Netherlands New Zealand Nicaragua Niger Nigeria Norway Veneiuela Vietnam Democratic Republic of Vietnam Republic of Oman Yemen Arab Republic Yemen Democratic Republic of Yugoslavia Pakistan Panama Paraguay l'oru Philippines Poland Portugal Zaire Zambia Qatar National Liberation Kov•-nu African National Congress Anqola National Liberation Front Mozambique Lib ration Front Palestine Liber tion Org Panafricanist Congreaa People' Movamant tor tM Liberation of 1 ngola Seychelles Peo le'a United Party South Weat African People'• Org lil'Ab 1 African National Union liababwe African People's Union Ro1nania I I l I I i San Mllrino Saudi Arabia Senegal South Africa Soviet Union Spain Sri Lanka Sudan SWeden Switzerland Syrian Arab R•public observer Council of Euro Inter-Governmental Mariti- eonsultati Organization International Civil Aviation Org International civil Defense Org International Comittee of Military Medicine and Phum acy r ' J u L _J ---· - e - O L _J DECLAS IFIED Authority i rv l 2 3 '1 ---- 7 Observera cont ··1' ' i 30 International Committee of the Red Cro10 International La bor Organization International Teleco111nunieation1 Union League of Arab States Loague of Red Crou Societies Office of the United Nations High Col 11 issioner for Refugees Organization ot African Unity Organization ot Alllerican Statos Sovereign Order of Malta United Nations United Nation• Children's Fund United Nation Educational Scientific and Cultural Org United Nations P nvirollllont Progra111no Working Group for lfumani tarhn L lw World lle alth Organization w t ___ L ---· _J O' • ' ' 0 L _J DECLASSIFIED Authon·ty ' r-Jv't 7 2 5'j r ANNEX B 7 31 LIST OP THE UNITED STATES DELEGATION Representative Mr George H hldrich Deputy Legal Adviser Department of State Washington D c Leader of the Delegation Alternate Representatives Mr Richard R Baxter Office of the Legal hdviser Department of state Washington D c • I Deputy Assistant Legal Adviser Department of State Washington O c I Mr Wuren E Hewitt Office of llnited Nations Poli ti cal Afff irs Bureau of International Organization Affair• Department of State Washington D c l ' Mr Ronald J Bettauer - ¼t i ' '· Mr Georges Prugh Major General United States Ar y The Judge Advocate General Department of the Army Washington D c I Mr Walter o Reed Brigadier General United States Air Foree The Assistant Judge Advocate General Department cf the Air Force Washington D c Mr William M Schoning I l Major General United State• Air Foroe Acting Deputy Assistant Secretary of Defense Washington o c Mr Waldemar A Solf Chief International Affairs Division Office of the Judge Advocate General Department of the Army Washington O c L L _J _J DECLASSIFIED Authority l N 1 3 1_ ·-- 7 I 33 Mr Charle• K Manning General counsel Oftioe of the Director Oafen•e civil Preparedno•• Agency Department ot Defense wa hington D C Mr Willi• Harri•on Mar•h Ellb•• •Y of the united States P rit J Mr•· Margot iu1eau A1si1tant General counsel 't United state• Artlll Control and Di1annamant Agency wa1hington o c Mr J ama• o Mazza Colonel United State• Air Force Office ot the Judge Advocate General oepartlll8nt of the Air Poree Washington o c · ' · I · C • Kr oan J McBride Lieutenant colonel United State• ArrAY Office of the s urgeon General Department of the Ar y Washington D C • Mr Robert L McElroy colonel united states Karine corp• Office of the Joint chiefs of Staff Department of Defense Washington D c · r • The Honorable George M O'Brien United States House of Representatives Washington o c Hr Franlt A Sieverts special As•iatant to the Deputy Secretary Department of State Washington D c Mr oavid R stefferud Coft11114nder United states Navy Office of the Chief of Naval 0peration1 oepart JDent of the Navy Washington o c tT ' J' - ' -- ft L - J e ' -0 L _J DECLASSIFIED Authority J r-JV't 7 23 j - - · 7 The Honorable Charles Wilson United States House of Representatives Washington o C i • The congressional Advisers indicated by• uterisk did not join the Delegation L L _J DECLASSIFIED - - ·------ Authority NV' 1 2 S